Wright and Slingluff v. Wigton
| Decision Date | 07 May 1877 |
| Citation | 84 Pa. 163 |
| Parties | Wright and Slingluff <I>versus</I> Wigton <I>et al.</I> |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. SHARSWOOD, J., absent
Error to the Court of Common Pleas of Montgomery county: Of January Term 1877, No. 160 B. E. Chain, George N. Corson and J. Wright Apple, for plaintiffs in error.—The authority for the collection of county taxes in Montgomery county, which is under the provisions of the Act of 17th March 1868, Pamph. L. 342, and the supplement thereto of 10th May 1871, Pamph. L. 659, is similar to that conferred by the Act of 15th April 1834, Pamph. L. 518. See the 20th, 21st and 46th sections of the latter act. In addition to these provisions the Act of 16th March 1866, Pamph. L. 226, provides that the goods of any owner or occupier of any premises within the county of Montgomery shall be liable to be distrained for the taxes of the current year, although said taxes may have been assessed on said premises before such owner took possession thereof. And further, that the goods may be distrained, whether on the premises or not, wherever they may be found in the county.
The tax of 1874 was assessed prior to the assignment, and this Act of 1866 directly applies, for the tax was for the current year.
The defendants contended, however, that because the tax was not levied during the possession or occupancy of the assignees, therefore the property is not liable to levy, and cited Smeich v. County of York, 18 P. F. Smith 439, to support this contention; but the principle of that case will not apply here, for an assignee under a voluntary assignment is not a purchaser: Twelves v. Williams, 3 Whart. 485; Vandyke v. Christ, 7 W. & S. 373; Ludwig v. Highley, 5 Barr 132; Spackman v. Ott, 15 P. F. Smith 131; Ritter v. Brendlinger, 8 P. F. Smith 68. And the possession and occupancy of the assignee then by virtue of the assignment, is but the possession and occupancy of the assignor.
The fact that it was assessed to "Schall & Co.," will not relieve the property from the payment of taxes.
The whole spirit of the law shows that it is property which the tax laws are intended to reach.
These taxes were assessed and levied during the possession and occupancy of the persons whose property is now levied on to satisfy those taxes. Nor will the contention that because the property is held in "trust" for creditors it is relieved from the payment of taxes, avail the defendants.
The case of Parsons v. Allison, 5 Watts 72, ruling that "a collector's warrant is not a lien upon the personal property of one by whom taxes are due," will not apply to this case since the Act of 1866.
James Boyd, for defendants in error.—Montgomery county has special acts for the collection of certain taxes. The first is the Act of 1866. But this act was supplied, so far as state and county taxes are concerned, by the Act of March 17th 1868, Pamph. L. 342, entitled "An act relating to the collection of state and county taxes in the county of Montgomery," the 13th section of which declares "all laws altered or supplied by this act are hereby repealed, so far as they relate to the county of Montgomery."
If, however, the Act of 1866 is operative, does it apply to these assignees?
Assignees for the benefit of creditors are not purchasers of the real estate taxed, and are not owners or occupiers in the sense intended by the act. They are merely trustees or persons recognised by law to execute a trust in conformity with such law. Distress for taxes upon the goods assigned, can no more interfere with their execution of the trust, than can a fi. fa., or other execution process, issued after the execution and delivery of the assignment: School Directors of Lancaster v. Rathvon, 6 Casey 535; Jefferis's Appeal, 9 Casey 40.
The tax for 1875 must be collected in the manner pointed out by the third section of the Act of 1868.
It is not pretended that these assignees were named in the schedule accompanying the warrant, as among those who were charged with unpaid taxes; nor were the officers authorized and required to demand and receive from them as delinquents named in the schedule, the amount of any taxes charged therein, nor were they authorized to levy the same by distress and sale of the goods and chattels, and therefore are not within nor subject to the letter or spirit of said act.
If the collection is subject to the provisions of the Act of 1834 as claimed, then the question raised was decided in Smeich v. County of York, supra. The right of the collectors to levy on any property of Schall & Co. for these taxes is not denied; but they cannot levy on the assigned personalty, as they made no levy before the assignment, they had no lien on it and have no right to do so now. In Moore v. Marsh, 10 P. F. Smith 46, THOMPSON, C. J., says: "Since the case of Parsons v. Allison, 5 Watts 72, and Baskin et al. v. Kontz and Hummel, Id. 76, it has never been supposed that a collector's warrant is a lien on property for unpaid taxes before actual seizure These cases settle conclusively that it is not."
As a general rule all lands in this Commonwealth are subject to taxation. No Act of Assembly has exempted from such liability the real estate on which the taxes in question were assessed. It is claimed that the voluntary assignment of this land, made for the benefit of creditors, had that effect. That it not only prevented the collection of the taxes assessed prior to the assignment, but also prohibited the levying of subsequent taxes on the land while it remained in the hands of the assignee. This view gives an undue effect to the assignment. A belief in its correctness, probably did much towards leading the court to an erroneous conclusion.
It is well settled in this state, by numerous decisions, that a voluntary assignee is not a bona fide purchaser for value. He is the mere representative of the debtor, enjoying his rights only, and is bound where he would be bound: ...
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