Adams v. Davis

• Decision Date: 22 October 1886
• Citation: 109 Ind. 10,9 N.E. 162
• Parties: Adams v. Davis.
• Court: Indiana Supreme Court

109 Ind. 10

9 N.E. 162

Adams

v.Davis.¹

Supreme Court of Indiana.

October 22, 1886.

Appeal from circuit court, Sullivan county.

Replevin to recover possession of property seized for taxes.

Chas. E. Barrett, for appellant. Hays & Hays, J. C. Briggs, and W. C. Hultz, for appellee.

Zollars, J.

This is an action of replevin instituted by appellant to recover the possession of a horse held by appellee as treasurer of Sullivan county. The treasurer claims the right to hold the possession of and to sell the horse under a levy made by him to make the amount of a tax assessed against appellant in 1866, and which, by reason of non-payment, has become delinquent. At the request of the parties the trial court made a special finding of facts. To the conclusion of law, upon those facts, appellant excepted, and also filed a motion for a new trial. We are met at the threshold with appellant's contention that the tax laws of 1872 and 1881, respectively, repealed all former tax laws, and that hence the taxes in question, for the satisfaction of which the horse was taken, having been assessed prior to 1872, had and have no legal existence.

In the case of Gorley v. Sewell, 77 Ind. 316, it was held that taxes assessed under laws prior to the act of 1872 were preserved by, and might be collected under, the provisions of that act. That case has been since cited and approved. McWhinney v. City of Indianapolis, 101 Ind. 150. Following those cases which we regard as having been correctly decided, it must be held that, if the taxes in question were properly assessed against appellant under the laws then in force, they were not swept away, but left and kept intact by the tax law of 1872, and could have been collected under the provisions of that law, unless there was some obstacle in the way other than the repeal of former laws by that act. All taxes existing at the time the act of 1881 was passed, were expressly preserved by that act, (Rev. St. 1881, § 6521;) and, according to the above cases, such taxes are to be collected in the manner by that act provided.

Counsel have discussed a multiplicity of questions involving a proper construction of our complicated revenue laws; the two most important of which, as affecting this case, are- First, was there a legal tax assessed against appellant? and, second, did the treasurer levy upon the horse by virtue of legal authority? These in their order.

Upon the question of the delinquent taxes charged against appellant the special finding of facts is as follows: “ Second. In 1868 there was upon the tax duplicate of Sullivan county delinquent taxes against appellant in the sum of $37.15. Third. In February, 1866, appellant moved from this state to the state of Illinois. Fourth. The delinquent taxes so upon the duplicate of 1868 were dropped from the current duplicate for succeeding years, and were placed upon a book which the county treasurer called ‘Insolvent Record,’ and so remained until 1884, when they were placed upon the current duplicate for that year.” “ Seventh. In 1872 appellant again became, and has since been, a resident of Sullivan county, and his name has been upon the duplicate as a tax-payer. * * *” The evidence shows that the proper assessor assessed appellant's personal property for the year 1866; that upon the duplicate of 1867 the taxes appeared as delinquent; that that deliquency was carried to and placed upon the delinquent list of Sullivan county for the year 1869, returned by the county treasurer after the third Monday of April, 1870; that the delinquency was also placed upon “a register of insolvent and doubtful taxes, discontinued on duplicate, Turman township, Sullivan county, for the year 1869;” and that the said taxes were placed upon the tax duplicate for the year 1884 as delinquent.

As found by the court, appellant left the state in February, 1866, but that did not affect the assessment of his property for that year. As the law then was, it required each person to be listed for all the personal estate owned by him on the first day of January of the year in which the enlistment was made. 1 G. & H. p. 71, § 13. It was further provided that the lien for taxes should attach on the first day of January, and be perpetual until payment. 1 G. & H. p. 99, § 112. Thus it will be seen that the taxes in question, upon the assessment properly made, appeared upon the several duplicates named, including that of 1884. It does not appear who placed the taxes upon the duplicate of 1884. As the county auditor had authority to do so, (Rev. St. 1881, § 6421,) it should be presumed that it was done by him. Hazzard v. Heacock, 39 Ind. 172;State v. Wenzel, 77 Ind. 428. That the taxes were dropped from the current duplicates for some years, and placed upon “a register of doubtful taxes,” can make no difference. By all of the tax laws in force at the time the taxes were assessed, and since, taxes ceased to be a lien only with payment. Some of the laws expressly provided that, when there was no probability of collection, they might be dropped from the current duplicates. So dropping them from such duplicates did not destroy them. The taxes were found upon the duplicates named, including the duplicate of 1884, and the statute provides that all taxes assessed upon any property in this state shall be presumed to be legally assessed until the contrary is affirmatively shown. Rev. St. 1881, § 6498.

It is contended by appellant that the taxes appearing upon the duplicate of 1884 were assessed by the county treasurer, and that he had no authority to make such an assessment. Without stopping to inquire as to the authority of the county treasurer in that regard, it is sufficient to say that the record, as a whole, aided by the presumptions above stated, makes it very clear that appellant's contention has no substantial ground upon which to rest, and that the taxes were assessed and placed upon the duplicates by proper authority. Our conclusion is that the record sufficiently shows that the taxes were legally assessed, and that they still exist as a legal and enforceable charge upon appellant's property.

In a case like this, where the duplicate in the hands of the treasurer is legal on its face, as here, it is not necessary for him to show a legal assessment of the taxes. Ewing v. Robeson, 15 Ind. 26;Noland v. Busby, 28 Ind. 154;Hazzard v. Heacock, 39 Ind. 172. As we shall see hereafter, some of the cases hold that it cannot be shown by the plaintiff, in an action of replevin like this, that the taxes were not legally assessed, and do not constitute an enforceable charge.

The second inquiry is, did the treasurer levy upon the horse by virtue of legal authority? Upon that question the finding of facts is as follows: “ Fifth. At the end of the duplicate of 1868 the county auditor attached his certificate, under his hand and seal, as to the correctness of the duplicate, and commanding the treasurer to collect the same. Sixth. Attached to the duplicate of 1884 there was a like certificate, and both duplicates were delivered to the treasurer at the proper time.” “ Ninth. On the nineteenth day of February, 1885, appellee, as county treasurer, issued a receipt in due form, for the above-mentioned delinquent taxes of 1866 against appellant, and, without signing his name thereto, gave it to a duly-appointed deputy, with instructions to collect said taxes. Appellant having refused to pay, the deputy levied upon the horse, and made the following return upon the receipt: ‘By virtue of this receipt, I this day levied on one dark-gray horse, taken as the property of Wm. Adams to satisfy this receipt. C. L. Davis, Treas. By Reed, Dept.”’

So far as applicable here, the statutes have all the time required the county auditor, in making the tax duplicates, to set down, in separate columns, the different taxes, and also the delinquent taxes for preceding years. 1 G. & H. p. 94, § 78; 1 Rev. St. 1876, p. 108, § 138; Rev. St. 1881, § 6418. The statutes, prior to the act of 1881, very explicitly required the county treasurer to receive from the auditor the duplicates thus made, and to proceed at once to collect the same. Following these requirements was the following section in the act of 1872, which was similar to the previous act, viz.: “In case any person shall refuse or neglect to pay the tax imposed on him, the county treasurer shall, after the third Monday in April, levy the same * * * by distress and sale of the goods and chattels of such person,” etc. 1 Rev. St. 1876, p. 111, §§ 152-155. See, also, 1 G. & H. p. 97, §§ 93-96. Both statutes gave the treasurer authority to collect delinquent taxes, by distress and sale of personal property, at any time, whether they were charged upon the current duplicate or not, and as well before as after his settlement for the current year's taxes. 1 Rev. St. 1876, pp. 111, 112, §§ 155, 156; 1 G. & H. p. 98, §§ 100, 101. It has been held that, under those statutes, the tax duplicate in the hands of the treasurer, if legal on its face, was sufficient authority to enable him to seize, hold, and sell personal property in satisfaction of delinquent taxes. Ewing v. Robeson, supra;Noland v. Busby, supra; Hazzard v. Heacock, supra.

The act of 1881 contains no section in the language of the section of the act of 1872 above set out, occupying a position in the act of 1881 corresponding to that of the section above set out. As to the other sections defining the duties and powers of the county treasurer in the collection of taxes, is the following: “After the third Monday of April the treasurer shall cause a list to be made of the delinquents, with the amount due from each, and with a separate column headed ‘Return,’ which list shall be certified to be correct by the county auditor. He shall then proceed with such list, which, when so certified, shall be a sufficient authority, and have the same force and effect as an execution, and call, either in person or by deputy, upon...