Delta & Pine Land Co. v. Adams

• Decision Date: 07 December 1908
• Docket Number: 13,512
• Citation: 48 So. 190,93 Miss. 340
• Parties: DELTA & PINE LAND COMPANY v. WIRT ADAMS, STATE REVENUE AGENT
• Court: Mississippi Supreme Court

48 So. 190

93 Miss. 340

DELTA & PINE LAND COMPANY v. WIRT ADAMS, STATE REVENUE AGENT

No. 13,512

Supreme Court of Mississippi

December 7, 1908

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYELL., chancellor

Adams state revenue agent, appellee, was complainant in the court below; the Delta & Pine Land Company, appellee, was defendant there. From a final decree in complainant's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed.

Frank Johnston and McWillie & Thompson, for appellant.

As will be seen the original bill, which alone relates to the injunction, admits that the defendant owned 15,000 or 20,000 acres of delta lands of a value largely more than the tax claim propounded and there is no allegation that the defendant is insolvent or that it owes any other money. The tax claim as shown by the decree rendered was not in fact for $ 45,000 as alleged, but $ 32,823.33 and common knowledge of the existing conditions in our section assures us that 20,000 acres of delta land are worth at least $ 400,000. Besides the land, the defendant had owned according to the claims of the bill solvent credits to an amount that yielded taxes in the large sum mentioned, and, if we take the rate of taxation during all the years to have been as high as three per cent it must have had some $ 250,000 or $ 300,000 of them. As it is not alleged to have parted with any of them or to hold at this time any less sum in that form of property we see that the financial responsibility of defendant was largely increased through this means. These solvent credits were promissory notes given by purchasers of the lands which could be advertised and sold under § 4341, Code of 1906.

The complainant could not have attached the lands in question without alleging that defendant had conveyed or was about to convey them with intent to hinder, delay and defraud its creditors, and he is seeking by way of injunction to accomplish the ends and purpose of an attachment without making the necessary averment. The reason for allowing an attachment against a debtor who is "about to convey" his property with fraudulent intent is because of the impending danger from which the creditor will suffer irreparable injury. The attachment law really defines what is impending danger, and limits it to those cases where a conveyance is "about" to be made. There must be impending danger to warrant an injunction. 10 Ency. Pl. & Pr 947.

The complainant did not venture on an attachment because he would have had to allege that a sale of the lands was "about" to be made, yet the state of case required to sustain an attachment is just what is necessary where irreparable injury is relied on. The sale in both eases must be imminent and impending, but attachment would not have interfered with the right of the defendant to exercise its jus desponendi subject to the attachment lien, and it is against the policy of the law to impose restrictions upon the alienation of real estate. As to what should be alleged and proved to enjoin a sale of real estate on the ground of irreparable injury, we beg to refer to a noted text writer. High on Injunctions, §§ 22, 324.

As we have shown, there was no ground whatever for injunction and, the original bill being without merit, an effort to tack on to it was like hitching a horse to empty air. But, we find apart from this, that the amended bill did not propose to help out the injunction to which alone the original bill related, but set up a new and wholly different case demanding a decree in personam against the defendant. We do not deem it necessary to argue the proposition that a proceeding designed merely to preserve the status quo of property subject to a tax claim so that it may be dealt with by the tax collector in the manner regulated by the statute (§ 4740) is a wholly different proceeding from one looking to the recovery of a personal decree against the delinquent for the amount of the taxes, a decree upon which he could be pursued to the ends of the earth even in cases where the property had been sold for taxes and failed to bring the amount demanded, payment of which could have been enforced out of all other and after acquired property. In the origianl bill it was alleged that the assessments were at the time of its filing the. subject of contest, and in the amended bill it is alleged that the contests had been disposed of by the judgments of the circuit and supreme courts approving the assessments. This is true; and no one knew better than the complainant that he could not maintain a proceeding for a personal decree while the assessments remained the subject of contest, if at all. It is well settled that a demurrer is well taken to an amended bill that introduces an entirely new case and asks different relief; and especially is this true where the ocurrence on which the amendment is based is one that took place after the original bill was filed. Wright v. Frank, 61 Miss. 32; Miazza v. Yerger, 53 Miss. 135, 140; Walker v. Brown, 45 Miss. 615.

The amended bill proposed to "change the frame and essential character of the bill." Clark v. Hull, 31 Miss. 520.

It should be remembered that the proceeding resulting in the assessment in question was one inaugurated by the complainant as state revenue agent under Laws 1894, now § 4740, Code of 1906. The proceeding authorized by this statute is a special one and has relation only to property that has escaped taxation "by reason of not being assessed," and in no wise relates to taxes on property which was duly assessed by the assessor and are subject to collection by the ordinary statutory methods having reference to such taxes. It provides for assessment by the tax collector on the direction of the revenue agent and for action by the board of supervisors or municipal authorities approving or disapproving his action, and in respect to the collection of the taxes so assessed provides as follows:

"If the assessment be approved and no appeal be taken and the taxes shall not be paid within thirty days thereafter, the property, if it be real estate, shall be ordered sold as provided by § 4367, and if it be personalty, the tax collector shall proceed to collect by distress or otherwise."

Taxes are not debts, and no statutory declaration can make them such. They are held not to be assets of the municipal corporation to which they are due; they arise out of no contractual obligation either express or implied; they cannot be made the subject of garnishment and a set-off cannot be made available against them. The levy and collection of them belong to a department of the government which our constitution makes entirely separate from the judicial department, and as said by the federal supreme court in a case in which the aid of equity for their collection was refused "the courts can have nothing to do with them, unless appealed to on behalf of the public to prevent their diversion (after collection) from the public use." Merriweather v. Garrett, 102 U.S. 513, 515; Mississippi Constitution 1890, §§ 1, 2.

As to the general proposition that taxes are not debts see the following: Cooley on Taxation, p. 13; Lane County v. Oregon, 7 Wall. (U. S.) 71.

Under Code 1892, § 4200, now Code 1906, § 4749, it is doubtful whether any suit against a delinquent tax payer is maintainable which does not include the assessor and tax collector as parties. The statute explicitly provides, and for a wise reason hereinafter referred to, that they shall be made parties.

Whatever may be said as to the power of the judiciary in general we insist that courts of equity cannot be made tax collecting agencies. This court has declared they have no jurisdiction in cases "involving simply the question of taxation." Coulson v. Harris, 43 Miss. 744. And they have no power to correct assessments. Brooks v. Shelton, 47 Miss. 243. And will not aid tax proceedings when invoked for the reformation of a tax deed, the element of contract being in such cases wholly lacking and the proceeding in invitum. Bowers v. Andrews, 52 Miss. 596; Cogburn v. Hunt, 56 Miss. 718; McQueen v. Bush, 76 Miss. 283, 24 So. 196.

Tax claims are akin to forfeitures which equity will not enforce. Mississippi R. Commission v. Gulf, etc., R. Co., 78 Miss. 750, 29 So. 789.

The complainant, appellee, here, relies on Code 1906, § 4256, but it will be observed that this section which declares all lawful taxes to be "debts" provides that they "may be recovered by action." This means that an action at law may be maintained for taxes of the kind referred to, an action of debt, which is the appropriate form of action for the recovery of a debt. The legislature it is thus seen has never given equity courts jurisdiction of such claims, but confined them to the courts of law. In view of the relation of equity courts to tax claims as fixed by judicial decisions, this must be the true meaning of the section. We say, therefore, that if the amount of the taxes could be adjudged against the property owner at all, it would only be done in the manner pointed out by the statute, that is to say, by action at law. The very law making taxes debts, provides that recovery shall be by action, which means action at law.

Code 1906, § 4256, has no relation to the back taxes on property that has escaped taxation by reason of not being assessed and in respect to which section 4740 conferred a special and extraordinary powers upon the state revenue agent and the tax collectors of the state. The former section does not appear in the Code chapter relating to the state revenue agent, but in that covering the general subject of revenue. The later section (4740) provides a special method of collecting back taxes on property...