These cases were cases at law wherein judgments in ejectment were recovered by the original owners of lands, against parties who had gone into possession of said lands under void tax deeds. The writs of error are from the judgments entered by the Circuit Court in the ejectment cases refusing to stay the executions on the ejectment judgments, until the successful plaintiffs below had first paid to the unsuccessful tax-deed holders, the amounts of their recoveries determined at the trials under Section 1026 C. G. L., 795 R. G. S., which reads as follows:
"If in any suit at law or in equity involving the validity of any tax deed it shall be held by the court that said tax deed was invalid at the time of its issuance and that title to the lands therein described did not vest in the tax deed holder, then, if the taxes for which said land was sold and upon which said tax deed was issued had not been paid prior to issuance of such deed, the party in whose favor the judgment or decree in such suit shall be entered, shall pay to the party against whom such judgment or decree shall be entered the amount paid for such tax deed and all taxes paid upon said land, together with twenty-five per cent interest thereon for the first year and eight per cent interest thereon for the time after the first year and all legal expenses in obtaining said tax deed, including publication of notice and *Page 597 clerk's fees for issuing and recording such tax deed, also the fair cash value of all permanent improvements made upon said land by the holder during the life of said tax deed. The amount of such expenses and the fair cash value of improvements, as aforesaid, shall be ascertained and found upon the trial of the suit, and for which such tax deed holder shall have a prior lien upon said land for the payment of said sums of money in full. (Ch. 4322, Acts 1895, Sec. 64; Ch. 5596, Acts 1907, Sec. 61; Ch. 12409, Acts 1927, Sec. 3)."
On rehearings granted as to our former holdings in these cases (see foregoing opinions, — 139 Sou. Rep. 194-195), it is contended that the rule stated in San Sebastian Development Corp. v. Couch,
A reconsideration of these two cases, which we treat together in this one opinion on rehearing, because of their identical character in so far as this point is concerned, has convinced us that principle stated in San Sebastian Development Corp. v. Couch, supra, authorizing a separate suit in equity to enforce the lien given by Section 1026 C. G. L., supra, where no amount has been either sought or adjudicated in the ejectment or other suit, wherein the tax deed is adjudged void, should not be held to control a case like this, wherein the amounts of the enforceable liens have been already judicially determined in the law cases, the enforcement of the payment of same thereafter being sought by means of orders staying execution against successful *Page 598 ejectment plaintiffs' recovery of possession, until the adjudicated amounts have been paid by them, as the responsible parties liable for same.
We therefore hold on rehearing that the judgments appealed from in these two cases should be reversed, and the causes remanded to the circuit court, with directions to stay the executions as prayed, until payment of the plaintiffs in ejectment, of the adjudicated amounts allowed to defendants in ejectment against whom possession of the land has been recovered in the ejectment suits because of the insufficient tax deeds relied upon at the trial as a basis for defendants' right to possession as against the original owners.
Reversed on rehearing, with directions.
DAVIS, C. J., and WHITFIELD, TERRELL, BROWN and BUFORD, J. J., concur.
