Ewing v. Robeson

• Decision Date: 27 November 1860
• Citation: 15 Ind. 26
• Parties: Ewing v. Robeson, and Another
• Court: Indiana Supreme Court

15 Ind. 26

Ewing v. Robeson, and Another

Supreme Court of Indiana

November 27, 1860

APPEAL from the Franklin Circuit Court.

The judgment is affirmed, with costs.

Wilson Morrow, L. Barbour, and J. D. Howland. for appellants.

Geo Holland, C. C. Binkley, D. D. Jones, and Henry Berry, Jr. for appellees.

OPINION

Perkins, J.

Ewing sues Manley and Robeson to recover possession of certain articles of personal property of which he claims to be the owner through purchase from the president of the Laurel Bank.

The defendants answer: 1. General denial. 2. "That the Laurel Bank was organized under 'an act to authorize and regulate the business of general banking,' approved May 20, 1852; was located and doing business at Laurel, in Franklin County; that after its organization and location, the bank was legally assessed and taxed on the duplicate for the year 1855, in said county, for the amount of $ 557.20 for State and other taxes legally due for that year, and marked as No. 546 in Laurel township, in said county; that William N. Doughty, or the Laurel Bank, was also regularly and legally assessed and taxed on said duplicate for 1855, in the sum of $ 2.49, numbered 120 in said township; that these taxes are unpaid, and penalties of $ 55.73 against the bank, and of 25 cents against Doughty, have accrued, with interest from March 16, 1856; that at the time of the assessment and levy of said tax, the bank was the owner of the property named in the complaint, and that the plaintiff and Doughty were the stockholders of said bank, and the officers thereof, Doughty being president and Ewing cashier; that defendant, Robeson, throughout the year 1855 was, and still is, the treasurer of said county; that said duplicate, containing the said assessments, was delivered to him in due form of law, and that the property sued for was seized for said taxes by Robeson as such treasurer, and by Manley, as his deputy, and taken into their possession to pay said taxes." 3d paragraph: containing substantially the same averments as the second, with these additional: that the bank had failed to redeem its circulation, had no means or securities of any kind for that purpose, and was wholly insolvent; that the two safes sued for were in the possession of the bank, and taxed to it, and not to any other person. Demurrers were put in to the second and third paragraphs, and were overruled. Replies: 1. Denying generally the allegations contained in the second and third paragraphs of the answer. 2. That when said tax was levied, and ever since, there has been and still is a large amount of interest due and unpaid upon the bonds of said bank, in the hands of the Auditor of State, retained by him pursuant to the statute; and that the amount is sufficient to pay said taxes, if any are due. To this second paragraph of the reply there was a demurrer put in and sustained. Trial by jury; verdict for the plaintiff as to all the property except a certain new safe, valued at $ 200, as to which, verdict, that it was the property of the bank, and subject to seizure for said tax. Motion for new trial denied, and judgment upon the verdict.

The first two grounds relied upon for the reversal of the judgment are defects in pleading.

It is claimed that the answer, in setting up the tax upon the bank, should have set out the steps taken in its organization, that it might appear whether it was a legal corporation.

In this we do not concur. On the trial, it would not be necessary that proof of these steps should be made to establish the liability of the bank. It would only be necessary to show that the bank had assumed to organize under the general banking-law, which the court judicially knows to exist, and was acting under such organization. The bank would be estopped to deny the regularity of its organization.

In such a case as this it is not necessary to allege more than it is necessary to prove. See Shoppal v. Hubbard, 14 Ind., and cases cited. The case at bar is entirely different from Brown v. Killian, 11 Ind. 449.

Again: it is claimed that a legal assessment of the tax should be shown.

This we think a mistake.

A constable or sheriff is not bound, as a general proposition, to look beyond the face of the writ delivered to him to execute. If it is legal, on its face, he is bound to execute it; and he can plead it as a justification, though the proceedings before the magistrate, which led to the issue of the writ, were illegal. It is different where the suit is against the plaintiff who procures, or the justice who issues the writ. Stephens on Pl., 329. Patterson v. Kise, 2 Blackf. 127, as modified by Davis v. Bush, 4 Id. 330; see, also, Stewart v. The State, 4 Id. 171. We think the same rule applies to a tax-collector. The law requires the duplicate to be delivered to him, and requires him to collect the tax. The duplicate is his authority; and, if legal, on its face, must be his justification, and sufficient authority to enable him to hold property seized in the legal collection of taxes upon it. Whether the purchaser of the property would acquire a title at a legal sale upon an illegal tax, is another question. So, whether a sale might not be enjoined, upon the bank showing that the tax was illegal. See 2 R. S. p. 45, §§ 83, 89, 90. So, whether a reply in this case might have set up illegality in the tax.

Further: it is claimed that the tax-duplicate is a written instrument, a copy of which should have been filed with the answer. It will be observed that our statute (1 R. S. p. 129) does not require any precept to be delivered with the duplicate--simply the duplicate, which is, itself, but little more than a copy of the assessment.

There is some difficulty in determining what is a written instrument, within the meaning of the statute. An account though in writing, has not been considered such by this Court, though a written assignment thereof has been. 12 Ind. 241. So of a record of a suit or judgment. 14 Ind. 222. While, in the Superior Court of Cincinnati, Ohio, a learned and able tribunal, such record is held not to be a written instrument within the intention of the statute. They say it embraces only instruments "executed by, or...