Chamberlain v. Woolsey

• Decision Date: 22 October 1902
• Citation: 92 N.W. 181,66 Neb. 141
• Parties: CHAMBERLAIN v. WOOLSEY ET AL.
• Court: Nebraska Supreme Court

66 Neb. 141

92 N.W. 181

CHAMBERLAIN

v.WOOLSEY ET AL.

Supreme Court of Nebraska.

Oct. 22, 1902.

Syllabus by the Court.

1. A failing debtor transferred his stock of merchandise in payment of two claims against him, of the aggregate amount of $1,821.54. The value of the property was estimated by witnesses at from $2,250 to $2,500, but immediately after the transfer it was seized by the sheriff, under process, and after advertisement, as upon execution, was sold for $1,368.43. Held, that the disparity, if any, between the value of the property and the consideration of the transfer, was not so great as to justify the inference that the transaction was intended to defraud other creditors of the vendor.

2. The seizure, upon a tax warrant of $541, of merchandise of the value of from $1,400 to $1,800 or $2,000, or more, is oppressively excessive and void.

3. The right of action for the enforcement of a lien for personal taxes is vested in the county treasurer, or, in counties under township organization, in the township tax collector alone.

4. A county in its corporate capacity has no duty to perform with respect to any of the matters mentioned in the preceding paragraph, except, through the county board, to authorize the bringing of an action by the treasurer or collector. It cannot itself begin or prosecute such an action.

5. When the statute provides a remedy for the collection of taxes under given circumstances, that remedy is exclusive of all others.

Commissioners' opinion. Department No. 3. Error to district court, Johnson county; Frost, Judge

Action by Charles M. Chamberlain against William H. Woolsey and others. From a judgment in favor of defendants, plaintiff brings error. Reversed.M. B. C. True and S. B. Pound, for plaintiff in error.

Hugh La Master and George A. Adams, for defendants in error.

DUFFIE, C.

On the 13th day of July, 1896, Mrs. S. J. Scott, wife of C. B. Scott, was the owner of a stock of merchandise, variously valued at from $1,368.43, for which it was afterwards sold at sheriff's sale, to between $2,400 and $2,500, at which it was appraised by some of the witnesses. That, as between herself and husband, it was her separate estate, there is no substantial dispute in the evidence. Whether it was so to be regarded as to third persons is, in the aspect of the case first to be treated of, immaterial. On that day she and her husband executed and delivered to the Tecumseh National Bank a mortgage to secure her indebtedness to that institution in the sum of $802.37. The bank immediately filed the instrument for record, and took possession thereunder. On the same day, but after the completion of the foregoing transaction, Mrs. Scott, being indebted to the Chamberlain Banking Company upon her note for $1,019.17, upon which her husband was also bound as maker, executed to Charles M. Chamberlain, cashier of the latter-named institution, a bill of sale of the goods, subject to the mortgage, in consideration of which he promised to pay, and did pay, the debt to his bank, and also promised to pay the note to the Tecumseh National Bank, upon which her husband was likewise bound as maker. There is no evidence that there was any trust reserved in favor of either of the Scotts, or that there was any intent to hinder or delay or defraud the creditors of either of them. Undoubtedly, the sole purpose of the parties was to provide for the payment of, and to pay these two debts, which aggregated in amount $1,821.54. Whether the goods were or were not worth slightly more than this amount may be the subject of some, though we think not very serious, debate. The sum for which they were shortly afterwards sold by the sheriff is to our minds the best evidence of their value, and that sum, as already noted, was $450 less than the above-mentioned aggregate. One question much debated in the briefs and arguments is whether the goods and debt were those of Mrs. Scott, and her husband was surety on the note, or whether both were his, and she was surety. But this inquiry does not appear to us to be material in this connection. In either case the indebtedness grew out of the business which one of the debtors was carrying on, and was contracted upon the faith and credit of the property in controversy. On the 14th day of July the defendant Woolsey, as sheriff of the county, levied upon the goods--First, a distress warrant issued for the collection of personal taxes assessed against the husband, C. B. Scott; and, second, and subject to the foregoing, a writ of attachment issued against both husband and wife. Pursuant to these levies the property was by the sheriff taken from the possession of Chamberlain. Afterwards writs of execution, some against one and some against both of the Scotts, came into the hands of the officer, and were constructively levied, subject to the levies above mentioned. No separate attempt was made to enforce the tax warrant, but on the 12th or 15th day of August, about one month after the seizure, the sheriff began an advertisement of sale under all the processes in his hands, and on the 15th of September made a sale pursuant to the advertisement for the sum of $1,368.43, as above stated. On the 20th day of July, Chamberlain began an action against the sheriff and the sureties on his official bond for a conversion of the goods, in which action the county of Johnson was permitted to intervene and file an answer, and in which was made the following order: “Now, on this 2d day of March, 1898, after the respective parties had adduced all their testimony and rested, and before the arguments, the county of Johnsonand other defendants filed separate motions moving the court to direct a verdict for the defendants, said motions being argued by the respective attorneys; and before the court passed upon the same, but after he indicated his intention in regard to the case, plaintiff asked that a juror might be withdrawn, and the plaintiff allowed to amend his petition, in bringing in new parties, recognizing the lien for taxes, and also the lien under the chattel mortgage of the Tecumseh National Bank, and that the case be continued, to all of which all the defendants, other than Johnson county, respectfully object and except. Whereupon the court directs that a juror be withdrawn, and plaintiff allowed to amend his petition as above indicated within 40 days, and the cause continued, to all of which the defendants, save Johnson county, except. It is further considered by the court that the costs, except what has heretofore been taxed since last term up to this time, be taxed against the plaintiff, to all of which the plaintiff excepts.”

Afterwards the plaintiff amended its petition, but without making the county a party thereto, and subsequently, with leave of court, dismissed the action without prejudice to a new action. In June, 1899, more than a year later, this action was begun by Chamberlain, also against the sheriff and his official sureties. The petition in this action, after reciting, in substance, the foregoing facts, except those concerning the former action, alleged that “in making such seizure said William H. Woolsey pretended to be acting under and by virtue of the authority conferred by reason of a distress warrant said to have been issued by the treasurer of Johnson county, state of...