Crowell v. Barham

• Decision Date: 21 January 1893
• Citation: Crowell v. Barham, 21 S.W. 33, 57 Ark. 195 (Ark. 1893)
• Parties: CROWELL v. BARHAM
• Court: Arkansas Supreme Court

21 S.W. 33

57 Ark. 195

CROWELL v. BARHAM

Supreme Court of Arkansas

January 21, 1893

Appeal from Lafayette Circuit Court, WILLIAM S. EAKIN, Special Judge.

Replevin by C. T. Crowell against C. H. Barham. Defendant claimed the property by virtue of a purchase at tax sale. It was in evidence that the property originally belonged to plaintiff that the sheriff of the county was acting as ex officio collector of taxes; and that a deputy sheriff, who had never been appointed deputy collector, undertook to act as such and returned the property as delinquent, advertised it, and conducted the tax sale, in the absence of the collector.

Judgment was for defendant, from which plaintiff has appealed.

Reversed and remanded.

Montgomery & Moore for appellant.

OPINION

COCKRILL, C. J.

1. When the collector of the revenue or his authorized deputy distrains personal property for payment of taxes, under an apparently valid warrant, the person chargeable with the payment of the taxes cannot sue out an order in replevin against him for the possession of the property. The law does not tolerate such interference with the collection of the revenue. That is the policy of our statute which demands, as a prerequisite of an order of delivery, an affidavit that the property "has not been taken for a tax or fine against the plaintiff." Mansf. Dig., sec. 5572; Cooley on Taxation, 818; 2 Desty on Taxation, pp. 804-5.

But the statute confers no right to deprive the owner of his property by an illegal seizure or sale. It does not purport to preclude him from asserting his title by attacking the legality of the tax proceeding in any other form of action the law affords at any time. The full policy of the law is accomplished and rank injustice averted by restricting it to cases in which the property is held for a tax against the plaintiff. Such is the construction given to similar statutes in other States. Power v. Kindschi, 58 Wis. 539, 17 N.W. 689; Heagle v. Wheeland, 64 Ill. 423; Cobbey on Replevin, secs. 333, 341.

The statute deprives the original owner of no remedy against a purchaser at the tax sale. Authorities sup. He can successfully maintain replevin for the possession of his property unless the purchaser can establish the validity of the sale. That is the rule as to property sold under attachment or execution, and property taken under an order of attachment or a writ of execution is placed by the statute quoted in the same category as property taken for a tax.

2. Several objections are urged against the validity of the sale. One is that the distress warrant, which was addressed to the collector, was executed by a deputy sheriff, who was not shown to be a deputy collector. The deputy sheriff seized the property in dispute, advertised it in the name of the collector, by himself as deputy sheriff, and sold it in the absence of the collector--the latter officer being some six miles away when the sale was made. It was not shown that he had been appointed deputy collector, nor that any act was done by the collector from which the appointment could be inferred--it was not even shown that a copy of the warrant attached to the tax books, which is the collector's authority to make the seizure and sale, was delivered to him for execution. He seems to have proceeded upon the theory that a deputy sheriff was ex-officio a deputy collector.

The statute makes it the duty of the collector to distrain personal property for taxes. Mansf. Dig. sec. 5746 et seq. He may act by deputy. Ib. sec. 5716. A sale for taxes by a person not authorized to make it is void and cannot divest the owner's title. Hogins v. Brashears, 13 Ark. 242; Black on Tax Title, sec. 105. The...