Cobo v. United States, 7326.

Decision Date12 January 1938
Docket NumberNo. 7326.,7326.
Citation94 F.2d 351
PartiesCOBO, City Treasurer, v. UNITED STATES et al.
CourtU.S. Court of Appeals — Sixth Circuit

Walter E. Vashak, of Detroit, Mich. (Raymond J. Kelly, of Detroit, Mich., on the brief), for appellant.

Daniel P. Cassidy, of Detroit, Mich., for appellee Klenk Land Co.

John C. Lehr and Fred R. Walker, both of Detroit, Mich., for the United States.

Before HICKS and SIMONS, Circuit Judges, and RAYMOND, District Judge.

HICKS, Circuit Judge.

This controversy grew out of a proceeding begun by the United States on April 22, 1931, to acquire certain lands of the Klenk Land Company lying along Fox creek and the Detroit river in the city of Detroit. The land company answered, and subsequently on November 13, 1931, the city was permitted to intervene and claim an easement in Fox creek for drainage and sewerage purposes and a right to use the creek as a public waterway. The city did not at that time make any claim for taxes.

On January 14, 1932, the United States filed a declaration of taking, pursuant to title 40 U.S.C., § 258a, 40 U.S.C.A. § 258a, and deposited $31,000 in the registry of the court for the use of the persons entitled thereto. On February 10, 1932, an order was entered, giving the United States immediate possession of the lands subject to the easement rights of the city in Fox creek, and directing the payment of the $31,000 to the land company as part compensation. As a result of the condemnation suit, a judgment and decree was entered in the June term of the court on August 9, 1934. The title to the land in fee simple absolute was thereby vested in the United States subject to the easement rights of the city. The land company was also allowed a recovery of $2,500 with interest, being the difference between the $31,000 already paid to it and the figure of $33,500 found by the jury to be just compensation. The amount of the recovery was deposited in the registry of the court on December 15, 1934.

On that date, and during the November term the city filed a motion to amend the verdict roll by adding its name as one of the parties to whom the award should be paid. The motion was accompanied by an affidavit of assistant corporation counsel, setting forth that the city taxes assessed against the land for the years 1930 and 1931 were due and unpaid. On January 14, 1935, this motion was denied without prejudice.

The next day Charles L. Williams, the city treasurer, moved for an order directing the payment of the city taxes for the years in question (then amounting to $1568.37 including interest and penalty) out of the funds in the registry. The treasurer's claim was that these taxes were a prior lien on the funds superior to any claim of the land company. This motion was denied without opinion; and appellant, Cobo, then city treasurer, was later substituted as the movant, in the place of Williams, who had died. We think the motion should have been granted.

The land company owed the taxes, and it is conceded that they constituted a prior and paramount lien upon the property. The lien attached until it was satisfied.

Congress no doubt realized that the Government...

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