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2001 WL
1349230 (Ga.)
MARK TURNER PROPERTIES, INC. v. EVANS
S01A1051.
Supreme Court of Georgia. Decided: November 5, 2001 CARLEY, Justice. Diana Smith Evans was
the successful bidder at a tax sale on January 3, 1995 and was the grantee in a recorded
tax deed. She attempted to foreclose the right of redemption in 1996. In that same year,
the record title holders executed quitclaim deeds in favor of Mark Turner Properties, Inc.
(Appellant). Appellant attempted to redeem the property and, also in 1996, brought an
action to cancel the tax deed, to enjoin Ms. Evans from preventing the redemption, and to
award damages for her interference with its property rights. The trial court found that
the quitclaim deeds did not convey to Appellant the right to redeem and that Appellant
failed to make a proper tender. However, the court also held that the right to redeem had
not been foreclosed. Appellant again brought suit on January 4, 1999, seeking remedies
identical to those sought in its 1996 complaint, and paid into the registry of the court a
sum which it contended was the amount payable for redemption. On cross-motions for summary
judgment, the undisputed evidence showed that Ms. Evans paid the taxes on the property for
the years 1994-1996 and 1998, and Appellant paid for the year 1997. In January 1998,
Appellant obtained a new quitclaim deed which specifically conveyed the right to redeem
the property. In September, Ms. Evans received a certified letter from Appellant asserting
its desire to redeem the property for the amount required by law and asking her to provide
the dollar amount necessary to redeem the property, but she did not respond. Appellant's
president left several telephone messages for Ms. Evans regarding redemption and attempted
to redeem the property in person at her residence. Ms. Evans would not personally speak
with him or respond in any way. The trial court found that the judgment in the 1996 action
does not bar Appellant from maintaining the current proceeding and that Ms. Evans waived
the requirements of tender by failing to respond to the September 1998 letter. However,
the trial court also held that the amount tendered by Appellant into the court's registry
was insufficient as a matter of law, that the title conveyed by the tax deed ripened by
prescription on January 3, 1999 and that Appellant's right of redemption expired on that
same date. Appellant appeals from this order. 1. The title acquired by a purchaser of a
tax deed " 'is not a perfect fee- simple title, but an inchoate or defeasible title,
subject to the right of the owner to redeem within the time prescribed by the statute.'
[Cit.]" Whitaker Acres v. Schrenk, 70 Ga.App. 238, 240(2) (316 S.E.2d 537) (1984).
Appellant's predecessors had an absolute right to redeem the property "[a]t any time
within 12 months from the date of the sale," OCGA 48-4-40(1), but it is
uncontroverted that they failed to exercise that right. Blizzard v. Moniz, 271 Ga. 50, 53
(518 S.E.2d 407) (1999); Moultrie v. Wright, 266 Ga. 30, 32(1) (464 S.E.2d 194) (1995).
After the expiration of 12 months, the right to redeem may, under current law, be
"barred by either the giving of notice under OCGA 48-4-45 or the ripening of title by
prescription under OCGA 48-4-48 (1989)." Blizzard v. Moniz, supra at 53. However, it
is undisputed that, since the prior judgment, Ms. Evans has not given the statutorily
required notice of foreclosure or otherwise communicated with Appellant. See Moultrie v.
Wright, supra at 32(1). Thus, the only remaining method by which the right to redeem could
have been barred is the ripening of prescriptive title. 2. The trial court correctly
stated that Ms. Evans "did not erect any structure on the property, visibly
evidencing possession of the property, but she did pay the taxes on the property from 1994
through 1998, with the exception of 1997, when [Appellant] voluntarily paid the
taxes." However, the trial court did not rely on any other conduct by or on behalf of
Ms. Evans. As stated in OCGA 44-5-160, title acquired by prescription requires continuance
of possession for a period of time fixed by law.... [T]he plain language of OCGA 48-4-48
(1989) requires such adverse possession by the tax deed grantee in order for title to
ripen under the statute. (Emphasis in original.) Blizzard v. Moniz, supra at 54. Thus,
contrary to Ms. Evans' assertion and the trial court's order, OCGA 48-4-48 is not a
statute of repose which operates to foreclose the right of redemption upon the mere
passage of time. Compare Moultrie v. Wright, supra at 31(1) (involving a predecessor
statute). Like the tax deed holder in Blizzard, Ms. Evans "never occupied any part of
the property or ever engaged in any act evidencing possession or claim of ownership except
for the payment of a portion of the imposed taxes...." Blizzard v. Moniz, supra at
53. Thus, as in Blizzard, "[i]t is uncontroverted that [the tax deed grantee] never
occupied the property, nor committed any acts or exhibited any conduct which would amount
to adverse possession of the property for the requisite period. See OCGA 44-5- 161."
Blizzard v. Moniz, supra at 54. Compare Machen v. Wolande Mgmt. Group, 271 Ga. 163, 164(1)
(517 S.E.2d 58) (1999). Payments of taxes "are insufficient to establish prescriptive
title, however long continued, even though accompanied by constant assertions of
title." 1 Hinkel, Pindar's Ga. Real Estate Law 12-36, p. 612 (5 th ed.1998). See also
Talmadge v. Adams, 240 Ga. 193, 195-196(1) (240 S.E.2d 9) (1977); Scott v. Cain, 90 Ga.
34(1) (15 SE 816) (1892) (payment of taxes not sufficient evidence of adverse possession
even when claimant visits property and warns off intruders). Moreover, the purchaser at a
tax sale does not have constructive possession of the premises. Whitaker Acres v. Schrenk,
supra at 240(2). Therefore, the trial court erred in granting summary judgment in favor of
Ms. Evans on the issue of prescriptive title and in denying Appellant's cross-motion for
partial summary judgment on the same issue. 3. Although neither ripening of title by
prescription nor foreclosure of the equity of redemption has barred Appellant's right to
redeem the property, it still was required to fulfil the requirements of tender before
filing this redemption action. "(T)ender of the amount due ... is a prerequisite to
the filing and prosecution of [Appellant's] suit. (Cits.).... [Ms. Evans] is entitled to
have an opportunity to accept the money and convey the property voluntarily, before
processes of the courts are invoked to compel [her] to do that which [she] is required to
do under the law, and perhaps would do if afforded an opportunity." [Cit.] Therefore,
in orderfor [Appellant] to have a viable redemption claim, it was incumbent upon [it]
either to pay or to tender the necessary sums, unless payment or tender was waived by [Ms.
Evans]. Machen v. Wolande Mgmt. Group, supra at 165. Although the trial court ultimately
granted summary judgment on the erroneous basis that prescriptive title had ripened, it
preliminarily found that Ms. Evans waived the requirement of tender. " '(T)ender of
an amount due is waived when the party entitled to payment, by declaration or by conduct,
proclaims that, if tender of the amount due is made, an acceptance of it will be refused.
(Cits.)' [Cit.]" (Emphasis supplied.) Machen v. Wolande Mgmt. Group, supra at 165(1).
Ms. Evans refused, in response to the September 1998 letter, to name the amount she
claimed to be due her, and she thereafter failed to respond in any way to repeated
contacts by Appellant's president. Crawley v. Selby, 208 Ga. 530, 537(3) (67 S.E.2d 775)
(1951). See also Coffey Enterprises Realty & Development Co. v. Holmes, 233 Ga. 937,
940(3) (213 S.E.2d 882) (1975). " 'It is unnecessary to make a tender, to prove that
a tender legal in every particular has been made, where the person to whom it is offered
will not accept it even though it were a perfect tender. (Cits.)' [Cit.]" (Emphasis
in original.) Machen v. Wolande Mgmt. Group, supra at 166(1). Where, as here, an offer is
made to pay whatever amount is due, and the person to whom tender is due refuses by her
conduct to accept any amount, the refusal dispenses with the formality of making a legal
tender. Crawley v. Selby, supra at 537(3). 4. However, Appellant is still obligated to pay
the correct redemption price in order to succeed in this redemption action. OCGA
48-4-40(2). The amount required to be paid for redemption of property from any sale for
taxes as provided in [OCGA 48-4-1 et seq.], or the redemption price, shall be the amount
paid for the property at the tax sale ..., plus any taxes paid on the property by the
purchaser after the sale for taxes, plus any special assessments on the property, plus a
premium of 20 percent of the amount for each year or fraction of a year which has elapsed
between the date of the sale and the date on which the redemption payment is made."
OCGA 48-4-42. Upon filing suit, Appellant paid $3,616.92 into the registry of the trial
court. It contends that this amount is more than sufficient for redemption and that the
trial court erred in calculating the redemption price as $4,674.12. It is undisputed that,
under the statute, the amount payable for redemption includes the $2,200 Ms. Evans paid at
the tax sale and $714 in taxes subsequently paid by her. With respect to the premium,
Appellant relies on a previous version of OCGA 48-4-42 which was in effect at the time of
the tax sale and, as a result, contends that the premium payable on the $2,200 is only
10%. However, the trial court's application of the 1996 amendment to OCGA 48-4-42, which
increased the amount of the annual premium from 10% to 20%, Ga. L.1996, p. 1022, is not
unconstitutionally retroactive, because neither Ms. Evans' nor Appellant's rights to the
property had fully vested prior to the effective date of that amendment. See Stith v.
Morris, 241 Ga. 247, 248(1) (244 S.E.2d 817) (1978) . Compare Moultrie v. Wright, supra at
32(1), fn. 3. Furthermore, although Appellant calculated the premium based upon an elapse
of three years, it was also required to pay, under the plain language of OCGA 48-4-42, a
premium attributable to the fourth year after the sale, which commenced on January 3,
1998, even if only a fraction of that year is considered to have elapsed due to Ms. Evans'
waiver of tender in September, 1998. Southerland v. Bradshaw, 255 Ga. 455(2) (339 S.E.2d
579) (1986); The B-X Corp. v. Jeter, 210 Ga. 250, 255(2) (78 S.E.2d 790) (1953).
Therefore, the trial court correctly included $1,760 in premiums in the redemption price,
rather than the $660 urged by Appellant, by applying the 20% annual premium in the present
statute, for each of four years, to the $2,200 paid at the tax sale. Accordingly,
Appellant's payment into the registry of the court was less than the amount payable for
redemption. However, the inadequacy of Appellant's payment into the court registry does
not prevent it from redeeming the property in this action. Since prescriptive title had
not ripened at the time suit was filed, it also has not ripened during the pendency
thereof. Even if the running of prescription has begun, it was suspended by the filing of
this action. Peyton v. Stephens, 130 Ga. 338, 343(2) (60 SE 563) (1908); 1 Hinkel, supra
at 12-62, p. 623. Because Ms. Evans waived tender prior to the ripening of prescriptive
title, the allegation in Appellant's complaint that it stands ready, willing, and able to
pay the redemption price was sufficient without payment into the trial court of the entire
sum eventually fixed by the judgment. See Ingram v. The Methodist Church Dist. Bd. of
Missions & Church Extension, 219 Ga. 100, 101(1) (131 S.E.2d 848) (1963); LaRoche v.
Kinchlo, 150 Ga. 296 (103 SE 713) (1920); OCGA 9-11-67 (contemplating a party's deposit
with the trial court of any part of a sum of money expected to be awarded as part of a
judgment). Accordingly, we reverse the judgment in part and affirm in part, and remand the
case to the trial court for further proceedings not inconsistent with this opinion.
Judgment affirmed in part and reversed in part, and case remanded with direction. All the
Justices concur.
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