Bibbins v. Clark

• Decision Date: 02 February 1894
• Citation: 90 Iowa 230,57 N.W. 884
• Parties: BIBBINS v. CLARK ET AL.
• Court: Iowa Supreme Court

90 Iowa 230

57 N.W. 884

BIBBINS

v.CLARK ET AL.

Supreme Court of Iowa.

Feb. 2, 1894.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Action in equity. Judgment and decree for defendants. Plaintiff appeals.W. H. Baily, for appellant.

Spurrier, Dowell & Parrish, for appellee Polk county.

Dudley & Coffin, for other appellees.

KINNE, J.

1. The facts in this case are that during the years 1886, 1887, and 1888 defendants W. W. Clark, Lavina W. Clark, and A. W. Ford were copartners doing business in the city of Des Moines under the firm name of W. W. Clark & Co.; that one-half of the taxes upon the personal property of W. W. Clark & Co. for 1887 were not paid by them, and the entire taxes upon their personal property for 1888 were not paid by them; that November 1, 1888, M. W. Bibbins sold and conveyed to W. W. Clark certain lots in Lee township, city of Des Moines, subject to a mortgage of $10,000 and interest, which grantee assumed and agreed to pay as a part of the purchase price of said property; that as a part of said transaction, and simultaneously with the execution of said deed, W. W. Clark, for a part of the purchase price of said lots, executed and delivered to Bibbins a purchase-money mortgage on said lots, (afterwards assigned to plaintiff,) in which he covenanted that said premises were free from incumbrance except said mortgage of $10,000, and that he would warrant and defend the title of said premises against all persons lawfully claiming the same; that December 7, 1889, W. W. Clark conveyed the lots to Lavina W. Clark; that January 7, 1890, plaintiff obtained, in Polk county district court, against W. W. Clark and Lavina W. Clark, a decree foreclosing said purchase-money mortgage, and under a special execution thereon the lots were sold to her at sheriff's sale, February 19, 1890, for the full amount of the mortgage debt; that December 7, 1890, the treasurer of Polk county sold said lots at tax sale to A. C. Miller for the said unpaid personal property taxes of W. W. Clark & Co., amounting to $399.23, and executed to him a tax-sale certificate; that February 20, 1891, plaintiff received a sheriff's deed for said property, and on March 23, 1891, brought this action; that in January, 1891, after the sheriff's sale to plaintiff, the Clarks having failed to pay interest on the $10,000 mortgage, the holder brought suit to foreclose said mortgage, and in June, 1891, after the present suit was brought, plaintiff, to prevent loss, and obtain an extension and renewal of said mortgage, was compelled to pay said personal property taxes and redeem from said tax sale to Miller; that at all of the times aforesaid W. W. Clark and Lavina W. Clark were the owners of certain real estate described, which was primarily liable for said personal property taxes. Plaintiff prays judgment against Polk county, W. W. Clark & Co., W. W. Clark, Lavina W. Clark, and A. W. Ford, and each of them, for the amount of said taxes, interest, and costs; that the tax sale be set aside, annulled, and ordered returned and refunded; that defendants' said property be decreed primarily liable for said taxes, and a special execution issue for the sale thereof; that plaintiff have such other and further relief as in equity she ought to receive. To the amended petition all of the defendants demur, alleging that the facts stated do not entitle plaintiff to the relief demanded, and defendant W. W. Clark further alleging that if, upon the facts stated, defendant is liable to plaintiff for said taxes, plaintiff has a complete and adequate remedy at law. The district court having sustained the demurrers, plaintiff elected to stand upon her petition as amended, and from the rulings on the demurrers and the judgment dismissing her petition and for costs, she brings this appeal.

2. Our statute provides that “taxes upon real property are hereby made a perpetual lien thereon against all persons except the United States and this state; and taxes due from any person upon personal property shall be a lien upon any real property owned by such person, or to which he may acquire a title, and the treasurer is authorized and directed to collect the delinquent taxes by the sale of any property upon which the taxes are levied, or any other personal or real property belonging to the person to whom the taxes are assessed.” Code, § 865. The taxes in controversy were assessed on personalty of the firm of W. W. Clark & Co. The real estate sought to be holden for said taxes, and which was sold therefor, had been deeded by one M. W. Bibbins to W. W. Clark, a member of said firm. It is claimed that, as the taxes were assessed against the firm on its property, and as the lots had been deeded to Clark individually, the case is not within the statute above quoted, which makes taxes “due from any person a lien upon any property owned by such person;” that in fact the owner of the property and the person from whom the taxes are due are not the same. The question thus presented is, may taxes assessed against a firm on its personal property become a lien on the individual real estate of a partner? While it is true that taxes assessed on firm property are a demand against the partnership as such, they are also a demand against each member of the copartnership. Each copartner is liable individually for the firm debts and obligations, and these include taxes. These taxes, being due from Clark as a copartner as well as from the firm, would become a lien upon his real estate. See Chapin v, Streeter, 124 U. S. 360, 8 Sup. Ct. 529.

3. It is conceded by counsel that the facts in this case present for our determination the same question as that involved in the case of Trust Co. v. Young, 81 Iowa, 732, 39 N. W. 116, and 46 N. W. 1103. It was there held that taxes on personal property which became a lien upon mortgaged real estate after foreclosure and sale of the mortgaged premises, and prior to the expiration of the period of redemption, were a lien superior to any right acquired by the holders of the mortgage by virtue of the foreclosure and sale of the property. On a rehearing, the majority of the court as then constituted adhered to the doctrine announced in the original opinion, Justices Granger and Robinson dissenting. The writer, who has since become a member of the court, while appreciating the importance of the question presented, and being fully impressed with the necessity of adhering to established precedents, is nevertheless unable to concur in the opinion of the majority of the court as then constituted in so far as it relates to the priority of liens. Taxes become liens by virtue of statute only, and, when created, the lien is not to be enlarged by judicial construction. Cooley, Tax'n, 444; Desty, Tax'n, p. 734; Jaffray v. Anderson, 66 Iowa, 719, 24 N. W. 527;Trust Co. v. Young, 81 Iowa, 738, 39 N. W. 116, and 46 N. W. 1103. Now, our statute does not provide, either expressly or by implication, that taxes due upon personal property shall be a lien upon real estate owned by such person, superior to any lien then existing thereon. It simply says, as to such taxes, they shall be a lien upon any real estate he owns, or which he may afterwards acquire. To hold that a mere statutory creation of a lien upon real estate, without more, is equivalent to, and to be construed as, creating a lien superior to existing liens thereon, is, as it seems to us, not only overriding all rules of construction, but it is inconsistent with our holding in the construction of other statutes where similar language is employed. The statute provides that judgments of the supreme and district courts of this state “are liens upon the real estate owned by the defendant at the time of such rendition, and also upon all he may subsequently acquire for the period of ten years from the date of the judgment.” Code, § 2882. It has never been claimed under that statute that a judgment was thereby made a lien prior to an existing lien upon the real estate of the party. Yet, applying the rule of the majority opinion in the Young Case, it could be said with as much reason as in the case at bar, that the lien thus created by statute was superior to all existing liens against the real estate of the judgment debtor. So it is provided in bastardy proceedings that upon filing the complaint “a lien shall be created upon the real property of the accused,” etc. Code, § 4717. Was the claim ever made that such a lien was superior to all others then existing against the land of the accused? In these and other cases which might be cited the language used to give the lien is general, as in the case at bar. In none of them is it said that the lien shall be prior to existing liens, but in each case the priority of the lien is left to be determined by the rules of law applicable to all liens in the absence of special provisions. An examination of our statutes...