City Of Richmond v. Monument Ave. Dev. Corp.

• Decision Date: 06 June 1945
• Citation: 34 S.E.2d 223,184 Va. 152
• Parties: CITY OF RICHMOND . v. MONUMENT AVE. DEVELOPMENT CORPORATION.
• Court: Virginia Supreme Court

34 S.E.2d 223

184 Va. 152

CITY OF RICHMOND .

v.MONUMENT AVE. DEVELOPMENT CORPORATION.

Supreme Court of Appeals of Virginia.

June 6, 1945.

Error to Law and Equity Court of City of Richmond, Part II; Haskins Hobson, Judge.

Action by the City of Richmond against Monument Avenue Development Corpora-tion to recover a personal judgment for taxes assessed against realty in the name of the defendant corporation. To review a judgment for defendant on appeal from a judgment of a civil justice court of the city in favor of city, the city brings error. Reversed and final judgment.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Horace H. Edwards, of Richmond, for plaintiff in error.

Peyton, Beverley, Scott & Randolph, of Richmond, for defendant in error.

SPRATLEY, Justice.

This action was brought by the city of Richmond, Va., a municipal corporation, to recover of the Monument Avenue Development Corporation, hereinafter referred to as the corporation, a personal judgment for taxes on a certain lot of land assessed in the name of the corporation for the years 1934 to 1942, both inclusive. The first half of the tax for 1934 was paid when due but the last half of the 1934 tax and the taxes for the subsequent years remained unpaid. On September 9, 1935, in accordance with provisions of the charter of the city of Richmond, and pursuant to due advertisement, the land was offered for sale at public auction by the city collector of delinquent taxes for the delinquent half of the 1934 tax, with penalties and interest. At this sale the land was struck off to or purchased by the city. No certificate of the sale to the city has ever been recorded by the city comptroller in the office of the clerk of the Chancery Court for the city of Richmond. The land was continued on the land books in the name of the corporation as owner and assessed for taxation for the years 1935 to

1942, inclusive.

The action was instituted December 4,

1943, by a warrant returnable before the Civil Justice Court of said city. Upon judgment being entered in favor of the city, the corporation appealed to the Law and Equity Court of the City of Richmond, Part Two. Neither party demanding a jury, the cause was thereupon heard by the judge of said court, and judgment was entered for the defendant corporation. From that judgment the city obtained this writ of error.

The question for our determination is whether or not after the sale of the real es tate for delinquent taxes, on September 9, 1935, to the city, the corporation is personally liable for the taxes assessed against the property in the name of the corporation subsequent to that sale.

The corporation contends that the city became immediately vested with title to the land on the day of the sale, and that the corporation, being thereby divested of title, the city could not thereafter properly assess taxes on the land against it. The city contends that the recordation by the city comptroller of a certificate of sale is a condition precedent to the vesting of the title in it, and no such certificate having been issued or recorded, the corporation remained the owner of the land and liable to the annual assessment of taxes upon it, as if the auction sale for the delinquent 1934 taxes had never been held.

The city concedes in its brief that if the corporation is correct the city cannot recover the taxes. The corporation concedes in its brief that if it, the corporation, was still the owner of the property after the sale on September 9, 1935, the city can recover.

The Constitution of Virginia requires that all property, except as therein provided, shall be taxed, section 168; that all assessments of real estate shall be at its fair market value, to be ascertained as prescribed by law, section 169; and that real es'tate shall be subject to local taxation only, section 171. Property owned directly or indirectly by political subdivisions of the Commonwealth are exempted from taxation, section 183.

Section 241 of the Tax Code, Code 1942 Appendix, p. 2729, provides for the assessment of real estate for local taxation. Section 251 of the Tax Code requires the annual taxation of all real estate, except such as is exempted by law, and both this section and Code, section 2454, provide that there shall be a lien on the same for the payment of taxes and levies assessed thereon, prior to any other lien or encumbrance.

Under sections 298 (formerly Code 1919, section 3075) and 378 (formerly Code 1919, section 2439, as amended by Acts 1926, p. 1006 and Acts 1934, c. 240, p. 356) of the Tax Code, Code 1942, Appendix, p. 2744 et seq., such taxes may be collected by distress upon the goods and chattels of the land owner, and under Tax Code, section 403 (Acts 1918, c. 374 p. 561, as amended by Acts of 1938, c. 92, p. 157), collection may be enforced "by warrant, motion, action ofdebt or assumpsit, bill in chancery or by attachment." Pollard & Bagby, Inc., Tr. v. City of Richmond, 1943, 181 Va. 181, 24 S.E.2d 564.

It is unquestioned, that the foregoing constitutional and statutory provisions require that taxes shall be assessed against the owner of the land, and that a lawful assessment of taxes upon real property imposes a personal liability upon the owner against whom the taxes are assessed.

Sections 67, 68, and 69 of the charter of the city of Richmond, Acts 1926, chapter 318, p. 533, et seq., substantially similar to state statutes (Virginia Code § 2454 et seq.) relating to the same subject, give the city a lien on all real estate and on each and every interest therein for city taxes assessed thereon, and provide for the sale of such real estate for delinquent taxes by the city collector of delinquent taxes at public auction to the highest bidder, pursuant to due advertisement.

Section 70 of the city charter provides that: "If at any such sale no bid shall be made for any such parcel of land, or such bid shall not be equal to the tax or assessment, with interest and charges, then the same shall be struck off to the city. As soon as practicable after the completion of such sales, the collector of delinquent taxes shall make out a list of all sales made to the city, in which the property purchased shall be described, and the aggregate amount of tax or assessment with charges and expenses specified, and shall deposit the same with the comptroller of the city."

Section 71 of the Charter provides that: "The owner of any real estate so sold, * * * may redeem the same by payment to the purchaser, his heirs or assigns, within two years from the sale thereof, the amount for which the same was sold, and such additional taxes thereon as may have been paid by the purchaser, * * * or, if purchased by the city, with such additional sums as would have accrued for taxes thereon, if the same had not been purchased for the city, * * *."

Section 72 is a saving to persons under disabilities.

Section 73 relates to the obtaining of a deed by a purchaser, other than the city, and the recitals to be contained in such deed.

Section 74 provides that when the purchaser, other than the city, shall have ob tained a deed and within sixty days from the date of such deed shall have caused the same to be recorded, "a fee simple estate shall stand vested in the grantee in such deed at the commencement of the year for which the said taxes were assessed, subject to be defeated only by proof that the taxes for which said real estate was sold were not chargeable thereon, or that the taxes properly chargeable on such real estate have been paid; * * *."

Section 75 reads-as follows: "In case that any real estate, struck off to the city as hereinbefore provided, shall not be redeemed within the time specified, the comptroller shall, within sixty days after the expiration of two years from the sale, cause to be recorded in the clerk's office of the chancery court,-* * *, a certificate of sale with his oath that the same has not been redeemed, and thereupon the said corporation, or its assignee, shall acquire an absolute title in fee to such real estate, and every interest therein, * * *, subject to be defeated only by proof that the taxes for which said real estate was sold were not properly chargeable thereon, or that the taxes properly chargeable thereon had been paid at the time of the execution of such certificate. The said certificate shall be recorded in the said clerk's office in a record book known as 'deed book, recording conveyances to city of lands sold for delinquent taxes.' * * * The said certificate, or the record thereof, or a certified copy thereof, shall, in all courts and other places, be evidence of the facts therein stated; provided, however, that the failure to obtain or record such certificate shall not invalidate the lien of the city for all taxes assessed against such real estate, but the city may, at any time, elect to enforce its lien for taxes in a court of equity and release its right as a purchaser, or to become a purchaser of such real estate."

The steps required, in the event of a sale to the city, may be summarized as follows:

(1) The delinquent taxes must have been properly assessed and unpaid on day of sale:

(2) Notice and advertisement by the collector of delinquent taxes of the sale and a listing of the delinquent property by the collector:

(3) The failure of the sale to produce a bid equal to the taxes chargeable against the property, in which event the same shall be "struck off" to the city:

(4) Report by the collector of delinquent taxes to the city comptroller of the property sold and certain details relating thereto: and,

(5) ' Recordation in the clerk's office of the Chancery Court by the comptroller "within sixty days after the expiration of two years from the sale, " if the taxes and penalties in the meantime have not been paid, of "a certificate of sale"; and "thereupon the said corporation, or its assignee shall acquire an absolute title in fee to such real estate * * *."

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