Barnum v. Rallihan
| Decision Date | 18 May 1916 |
| Docket Number | 9,437 |
| Parties | BARNUM v. RALLIHAN ET AL |
| Court | Indiana Appellate Court |
Rehearing denied October 6, 1916. Transfer denied December 20, 1916.
From Noble Circuit Court; Emmet A. Bratton, Special Judge.
Action by Orlo P. Barnum against Timothy Rallihan and others. From a judgment for defendants, the plaintiff appeals.
Affirmed.
H. G Zimmerman and Robert W. McBride, for appellant.
Otto E Grant and George L. Foote, for appellees.
This is a suit brought by appellant against appellees to set aside a sale of real estate for taxes made by appellee Hines, as county treasurer, to quiet title, and for other relief. The complaint was in one paragraph. The several demurrers of appellees thereto for insufficiency of the facts alleged to state a cause of action against them were sustained, to which appellant duly excepted and appealed from the judgment rendered against him on such ruling.
The errors assigned and relied on for reversal of the judgment are: (1) Sustaining the demurrer of appellee Rallihan; (2) sustaining the demurrer of appellees Mary and Abel Barnum; (3) sustaining the demurrer of appellees Wilbert T. Hines, county treasurer, and Joseph C. Kimmel, county auditor. The other assignments are unauthorized and present no question.
The complaint is very long and its material averments are, in substance, as follows: On September 10, 1894, one Abel Barnum was the owner in fee simple of the northwest quarter of section 18, in township 34, north of range 10 east, in Noble county, Indiana, and on that date conveyed to appellant by warranty deed the undivided one-half of said real estate, reserving to himself a life estate therein. On March 1, 1910, said grantor was a resident taxpayer of said county and then owned an undivided one-half interest in said quarter section, and other real estate in said county, of the value of $ 1,000, together with a large amount of personal property of the aggregate value of $ 30,000. On March 5, 1910, he died testate the owner of said real estate and personal property, and also of other real estate in said county of the value of $ 5,000. On March 12, 1910, his will was duly probated, by which he devised all his personal property and his real estate in fee simple, to his widow, Mary Barnum, and his son, Abel. Appellee Mary Barnum was appointed executrix of his will, was duly qualified, and she entered upon her duties as such, March 16, 1910. On April 22, 1910, appellant purchased from the said devisees their undivided one-half interest in said northwest quarter, and their deed therefor was duly recorded on April 23, 1910, and appellant is now the owner in fee simple thereof. On March 1, 1911, the said executrix filed her final report showing the payment of costs and expenses of administration, without filing any inventory or showing the amount of money received or paid out by her or the amount or value of the estate, which report was approved by the court on March 22, 1911, and the estate was declared settled and the executrix discharged from her trust. The amount of the personal property in the hands of the testatrix at the date of her discharge as aforesaid was $ 30,000. The taxes for the year 1910 assessed against the undivided one-half of said northwest quarter section so owned by the testator as aforesaid on March 1, 1910, amounted to $ 46.41. The executrix failed, neglected and refused to pay said taxes, which became due and payable on the first Monday in May, 1911, although at all times she had sufficient money and assets in her hands belonging to said estate out of which she could have paid the same. The total amount of taxes assessed upon and charged against said northwest quarter for the year 1910 was $ 92.83. On April 29, 1911, appellant paid to the county treasurer one-half of the first installment, which was the amount due on his individual one-half interest owned by him on and prior to March 1, 1910, and thereafter paid the second installment. The county treasurer at each of said dates issued to appellant a receipt stating therein the fact that such payments were made on appellant's former individual interest in such real estate. The unpaid tax of $ 46.41 was carried over by appellee Kimmel, as county auditor, and entered upon the duplicate tax list for 1911, together with the penalty and charges, amounting in all to $ 53.83. At the following tax-paying time appellant paid all taxes assessed against said tract of land for the year 1911, but refused to pay the aforesaid delinquent tax, which was not paid and was again carried over and entered upon the tax duplicate for the current year 1912, together with costs and penalties, amounting to $ 54.03. Thereupon appellee Kimmel, as county auditor, added such delinquent tax to appellant's current tax for the year 1912, aggregating $ 154.62, charged against said real estate and entered upon the delinquent list of lands for sale in the name of appellant. Thereafter appellee Kimmel, as such auditor, advertised the same for sale for the nonpayment of said delinquent tax amounting to $ 53.83. On February 10, 1913, appellee Hines, as county treasurer, sold ten acres in the northwest corner of said tract to appellee Rallihan for the sum of $ 154.62, and said Kimmel executed to such purchaser a certificate of sale therefor.
It is also averred in the complaint that said tax sale was illegal and void, for numerous reasons, in substance as follows: That no demand was ever made by appellee Hines, as county treasurer, upon said devisees, or either of them, for personal property to satisfy and pay delinquent tax, and no effort was made by said treasurer to levy upon and sell any of said personal property. No delinquent list was ever made by said treasurer after the first Monday in May, 1912, of the delinquents for unpaid taxes in said county and certified to appellee Kimmel, as county auditor. The county treasurer did not call upon either of said devisees and demand payment of said taxes or make any return showing diligent search for personal property. No notice of the sale of appellant's lands on February 10, 1913, was given by the county auditor as required by law. The treasurer's sale of said land was made in the interior of the courthouse, and not at the door, as required by law. The quantity of land sold was excessive, being of the value of $ 1,000. At the time of said sale, and during the entire preceding year of 1912, appellant was the owner and in possession of personal property in said county of the value of $ 1,500, and he has fully paid all taxes on his original undivided one-half interest in said northwest quarter section and such one-half interest therein is not subject to sale for said delinquent taxes. On May 5, 1913, appellant tendered to appellee Hines, as such county treasurer, the sum of $ 172.83, the same being the amount named in the certificate of sale, $ 154.62, together with ten per centum additional and lawful interest from date of sale. One hundred and nineteen dollars thereof were tendered absolutely and unconditionally, and the residue of $ 53.83, subject to the condition that, if the same could not be collected from said Mary and Abel Barnum, Jr., on demand or made by distraint or by levy and sale of personal or other property, namely, the real estate derived by them as devisees under the will of said testator, Abel Barnum, or by the necessary and required statutory proceedings against said Mary Barnum, as such former executrix, to set aside her final settlement account, then to be retained for said purchaser, Rallihan; otherwise to be returned to appellant. The aforesaid treasurer has not since the date of said tender made any effort to collect said delinquent tax from said devisees or either of them. Appellee Hines, as such county treasurer, received from appellant on May 5, 1913, the sum so tendered as aforesaid, and has ever since retained, and still retains, the same, by reason of which fact appellant is unable to pay the same into court.
Appellant asks that the court declare said tax sale illegal and void; that it be vacated and set aside and his title quieted against each and all of said defendants; "that the said $ 53.83 be ordered returned to plaintiff, and said certificate of sale issued to defendant Timothy Rallihan be cancelled; that the defendant Mary Barnum be ordered and required to answer concerning the kind, quantity and value of personal property which came into her hands as executrix of the last will of the testator, Abel Barnum, also the kind, quantity and value of the personal estate distributed by her on final settlement of said estate and that said defendants Mary and Abel Barnum be ordered and required to answer what disposition has been made by them of said personal estate, the nature, quantity and value of the chattel property remaining in their hands and in said county or in the hands of others, and where situated, and to show cause why the same should not be applied to the payment of said delinquent tax, and the judgment for costs, and for all proper relief."
The court sustained the several demurrers, and the presumptions in favor of the rulings of the trial court require us to sustain the ruling if we find the complaint insufficient for any reason, whether contained in the memorandum or not notwithstanding the rule that limits this court to points made in the memorandum in cases where the demurring party complains of the overruling of his demurrer. § 344, cl. 6, Burns 1914, Acts 1911 p. 415. Bruns v. Cope (1914), 182 Ind. 289, 105 N.E. 471, 474; Boes v. Grand Rapids, etc., R. Co. (1915), 59 Ind.App. 271, 108 N.E. 174, 176. Section 10343 Burns 1914, Acts 1909 p. 158, provides that the lien of the state for taxes "shall attach on...
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