Boyd v. Dillman

• Citation: 197 A. 830,39 Del. 231
• Court: Delaware Superior Court
• Decision Date: 04 February 1938
• Parties: GEORGE CARSON BOYD, D. B. A., v. JOHN A. DILLMAN, the Collector of Taxes for the Southern District for the City of Wilmington, P. B. R

197 A. 830

39 Del. 231

GEORGE CARSON BOYD, D. B. A., v. JOHN A. DILLMAN, the Collector of Taxes for the Southern District for the City of Wilmington, P. B. R

Superior Court of Delaware, New Castle County

February 4, 1938

Superior Court for New Castle County, Action of Debt for the collection of City Taxes, No. 183, May Term, 1936.

Appeal from the Court of Common Pleas.

By agreement of counsel, the case was heard by the Court without a jury.

Prior to the latter part of the year 1924, Charles H. Gant owned a lot on the west side of McLane Street, between Sycamore Street and Clark Ctreet, in the City of Wilmington. It was conceded that some time in the latter part of the summer, or early Fall of that year, Mr. Gant conveyed that lot to George Carson Boyd, in fee simple. The precise date of that conveyance did not appear, as Mr. Boyd never recorded his deed in the office of the Recorder of Deeds, for New Castle County. By reason of that fact, the city authorities had no notice of the transfer of title, and the records of the city tax office showed that the same lot was still assessed for city and school tax purposes to Charles H. Gant during the whole of the period from 1925 to 1934, inclusive, and that none of these taxes had been paid. The tax assessment for each of the years from 1925 to 1928 inclusive was $ 24.70 with $ 1.23 interest added, for the failure to pay that tax when due; the tax assessment for each of the years from 1929 to 1931 inclusive was $ 23.40, with $ 1.17 interest added for the failure to pay that tax when due; the tax assessment for the year 1932 was $ 21.84 with $ 1.09 interest added for the failure to pay that tax when due; the tax assessment for each of the years 1933 and 1934 was $ 21.45, with $ 1.07 interest added for each year for the failure to pay that tax when due. With penalties for non-payment, in the way of interest added the total amount of the city and school taxes unpaid, and claimed to be due from the defendant on this lot from 1925 to 1934 inclusive was $ 245.40. To this was added a record search fee, provided for by statute, of $ 20.00 making the total sum claimed to be due $ 265.00.

For some reason that did not appear the taxes for the years 1935 and 1936 were assessed to Mr Boyd, and were not involved in this action.

The plaintiff's declaration, among other things, alleged that Mr. Boyd was not the person to whom the city and school taxes on the lot in question were assessed, but that he was the owner of that lot for the whole of the period from 1925 to 1934, inclusive, and during the whole of that time was, therefore, the person whose duty it was to pay them, pursuant to the provisions of Chapter 119 of Volume 28, Laws of Delaware, as amended by Chapter 119 of Volume 33, Laws of Delaware; that under the provisions of Section 16 of Chapter 119 of Volume 28, Laws of Delaware, as amended by Section 2 of Chapter 119 of Volume 33, Laws of Delaware, and examination of the title to the real estate, hereinabove referred to, and described in the declaration, was made by a certain specified attorney-at-law, under the direction of the City Solicitor, and that pursuant to that section that attorney had been paid $ 20.00 for his services, which said sum John A. Dillman, Collector, the plaintiff above, respondent, had the right to collect from the said George Carson Boyd, the defendant below, appellant, and that there was, also, due and owing to John A. Dillman, the plaintiff below, respondent, from the said defendant below appellant lawful interest upon the several sums of money due as city taxes, as aforesaid, for each of the taxable years mentioned in the declaration, from the first day of May of each year following the date when each year's city taxes were by law due and payable.

It further alleged that George Carson Boyd, the defendant below appellant, had failed to pay the sums due and owing.

The defendant's pleas, in substance, were:

1. Actio non, because said taxes were not duly assessed and levied by the legally constituted authorities, according to law.

2. Actio non, because when suit was brought against him in May, 1936, the property had been assessed to him in his name only since February, 1936, and that prior to February, 1936, the property had been and remained assessed to another person, one Charles H. Gant, and that, therefore, the appellant was liable only for four years' taxes prior to 1936, and all taxes beyond said four years ceased to be liens and were, as against the appellant, merely debts.

3. Nil debit.

4. Statute of Limitations.

The City Tax Statute, Chapter 119, Volume 28, Laws of Delaware, as amended by Chapter 119, Volume 33, Laws of Delaware, on which the plaintiff's action is based, among other things, provided:

"Section 9. * * * all taxes not paid before the first day of September shall be increased by the addition of five per centum to the amount thereof."

"Section 10. All City and School taxes shall be due and payable on the first day of July of the year in which the assessment was made, but the same shall not become delinquent until after the first day of May of the next succeeding year."

"Section 16. The City Solicitor is authorized to enter suit for the collection of all delinquent taxes and shall cause an examination of the title to be made of the property against which there is unpaid taxes, before advertising for sale said property, in order to ascertain the owner thereof and all liens upon said property, and the owners of such liens, and there shall be paid to the person making such examination of title a fee not exceeding Twenty Dollars ($ 20.00), which shall be added and collected as costs in the cause." Amended by Section 2, Chapter 119, Volume 33, Laws of Delaware.

"Section 19. Upon the return of any writ of execution for the collection of a judgment for taxes, the Superior Court may inquire into the circumstances and regularity of the proceedings relative to such sale, and either approve the sale or set it aside. If the Court approves the sale, the Sheriff shall deliver to the purchaser a certificate reciting the judgment and writ, and setting forth the facts relative to the sale, and the purchaser shall have and be possessed of all rights, subject to the right of redemption as hereinbefore provided [Section 20], of the owner of said land, and the said Court shall have power to make all necessary orders and rules and to issue all processes which may be necessary to place the said purchaser in possession of said real estate. If the sale be set aside, another sale may be ordered until the judgment is collected. * * * No sale shall be approved if the owner of the property or any person having an interest therein shall be ready at Court to pay the said judgment and all costs."

Other provisions of this statute sufficiently appear in the opinion of the court.

The prayer of the petition of the Tax Collector to draw out the sum in controversy, granted.

Thomas Herlihy, Jr., Assistant City Solicitor, for plaintiff.

Robert G. Harman for defendant.

HARRINGTON J., sitting.

OPINION

HARRINGTON, J.

This is an action of debt for the collection of unpaid taxes on a lot on McLane Street in the City of Wilmington from 1925 to 1934 inclusive. The plaintiff's claim, also, includes interest on the taxes assessed and a record search fee of $ 20.00. All of these taxes were assessed to Charles H. Gant, the former owner of the lot in question, though he had conveyed it to Mr. Boyd, the defendant in the court below, in the later summer or early Fall of 1924, but he had never recorded his deed.

In defense of the action, Mr. Boyd claims:

1. That the tax assessments against the McLane Street lot were not made by the Assessment Board, but merely by one of its members, and are, therefore, void.

2. That, even if these assessments are valid, by reason of the general statute of limitations, applicable to an action of debt, only taxes for the last three years can be collected in this action.

3. That in any aspect of the case, as the taxes in controversy were not assessed to him, under the provisions of the statute no more than four years unpaid taxes can be collected in this action.

The defendant concedes, however, that, by reason of certain provisions of the tax statute, interest can be collected on such of these taxes as are collectible; and that the plaintiff, the city tax collector, can, also, collect a fee of $ 20.00 paid for searching the county records before this suit was brought.

Chapter 121 of Volume 28, Laws of Delaware, provides for the creation of a Board of Assessment for the City of Wilmington, composed of three members, whose duty it shall be to fix the value of the land and all buildings thereon, within its limits, for city and school tax purposes. Two of the members of the Assessment Board are appointed by the Mayor. Those members are required to "devote their entire time to the work of the Board, or such time as may be necessary and expedient to make good, fair, equal, faithful and complete assessments of property in the City of Wilmington," Section 2, and any vacancy in that Board must be filled by the Mayor.

The building inspector of the City of Wilmington is, also, an ex officio member of the Assessment Board; but his right to vote is limited to questions before the Board, arising on the appeal of a taxable from an assessment made by the other two members, or when those members do not agree on some question before it.

An assessment for tax purposes must be made according to the provisions of a statute providing for it. Cooley on Taxation, § 1046; Frieszleben v Shallcross, 14 Del. 1, 9 Houst. 1, 100, 19 A. 576, 8 L. R. A. 337; Murphy et al. v. Mayor of City of Wilmington, 11 Del. 108, 6 Houst. 108, 136, 22...