Gietz v. Webster

• Decision Date: 14 October 1935
• Docket Number: Civil 3573
• Citation: Gietz v. Webster, 46 Ariz. 261, 50 P.2d 573 (Ariz. 1935)
• Parties: CHARLES M. GIETZ, County Treasurer and Ex-officio Tax Collector of Graham County, Arizona, Appellant, v. OLLA WEBSTER, Appellee
• Court: Arizona Supreme Court

50 P.2d 573

46 Ariz. 261

CHARLES M. GIETZ, County Treasurer and Ex-officio Tax Collector of Graham County, Arizona, Appellant, v. OLLA WEBSTER, Appellee

Civil No. 3573

Supreme Court of Arizona

October 14, 1935

APPEAL from a judgment of the Superior Court of the County of Graham. Levi S. Udall, Judge. Judgment reversed and cause remanded with instructions.

Mr Benjamin Blake, County Attorney, Graham County, for Appellant.

Mr. J Verne Pace, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an appeal by Chas. M. Gietz, as county treasurer of Graham county, hereinafter called defendant, from an order of the superior court of that county granting a peremptory writ of mandamus against him. The facts of the case are nowise in dispute, the question being as to the law applicable to these facts, and they may be stated as follows:

In the years 1923, 1924 and 1925, O. F. Webster and Olla Webster the latter being hereinafter called the plaintiff, were husband and wife and the owners of certain real and personal property in Graham county. All the property was presumably community in its nature, but was assessed in the name of O. F. Webster. The taxes on both the real and personal property became delinquent for the three years and in August, 1927, a judgment was obtained in the superior court against O. F. Webster for the delinquent taxes as aforesaid. The 1923 taxes included in the judgment were paid in 1928, leaving the 1924 and 1925 taxes still unpaid. The judgment was renewed in accordance with law in 1932, and still remains unsatisfied as far as the taxes on the property for the years 1924 and 1925 are concerned.

In 1933 O. F. Webster died intestate, the title to the real estate involved in this action, which is part of that against which the taxes aforesaid had been levied for 1924 and 1925, being still in him. After his death, each of his other heirs conveyed all their interest in that real estate to plaintiff. On the 9th day of January, 1934, she filed a written declaration of homestead under sections 1731, 1732, Revised Code 1928, covering the land, and on the 14th of March, 1934, on a petition of the administrator, the same property was set aside as a homestead under section 3974, Revised Code 1928. Thereafter plaintiff requested defendant to segregate the delinquent taxes on such real estate for the years 1924 and 1925, included in the judgment aforesaid, from those on the personal property for the same years, and tendered to the defendant the amount which represented the taxes against such real estate only, asking that he release it from the lien of the personal property taxes. The defendant refused to make any such segregation, or to accept the tender as aforesaid without payment of the total amount of taxes covered by the judgment, including the taxes assessed against the personal property. Thereafter this suit was brought and the superior court finally ordered that a writ of mandamus issue as follows:

"... Requiring the defendant to promptly segregate the amount of taxes due and payable against the property of the plaintiff covered by said homestead, from any and all other taxes and from the personal property tax of O. F. Webster, deceased, and requiring defendant, upon tender of payment by plaintiff of the real estate taxes, chargeable against said homestead, accept the same and issue to plaintiff a good and sufficient receipt, showing the taxes on said homestead to have been paid in full, and that there are no claims, liens and encumbrances on said premises on account of any taxes represented by the tax judgment against O. F. Webster, deceased, mentioned in plaintiff's Petition for Writ of Mandamus, against said homestead."

From such order, this appeal was taken.

There are four assignments of error which raise, in effect, three questions of law, two going to matters of practice and the third to the merits of the case. We think it can be decided on its merits rather than on the questions of practice involved, and, in view of its importance as a precedent, believe that it should be. We therefore consider only the question which involves the merits of the action. It may be briefly stated thus:

"Is land to which a lien for taxes on personal property has already attached freed from the lien of such taxes by virtue of a declaration of homestead made long after the attachment of the lien?"

So far as we have been advised, there are no cases, either in this state or in any other, in which the precise question at issue has been presented, presumably because there is no other state having statutes on the subject similar to ours, and the rights and liabilities of the parties must be governed solely by an interpretation of the statutes and Constitution of our own state. We are compelled, therefore, to consider and determine the question upon general principles governing taxation and the proper construction of our statutes.

The claim of plaintiff is, in substance, that the property involved is by statute exempt from any tax lien except that for the taxes levied against the particular property. Although the taxes involved were levied before the adoption of the Code of 1928, we consider the sections of that Code covering the subject, since its provisions and those of the Code of 1913, so far as the questions involved herein are concerned, are similar in legal effect, though differing slightly in language. (Re Estate of Sullivan, 38 Ariz. 387, 300 P. 193.) The particular sections, a construction of which is necessary for the purpose of this case, are sections 1731, 1733, 3101 and 3974, Revised Code 1928, which read in substance as follows:

"§ 1731. Who may hold; extent and value. Every person who is the head of a family, and whose family resides within this state, may hold as a homestead, exempt from attachment, execution and forced sale, real property to be selected by him, or her, which homestead shall be in one compact body, not exceeding four thousand dollars in value, and consisting of the dwelling house in which the claimant resides and the land on which the same is situated, or of land that the claimant shall designate, provided the same is in one compact body."

"§ 1733. Exempt from time of filing. The homestead shall, from the date of recording the claim, be exempt from attachment, execution and forced sale, and from sale under any judgment or lien existing prior to the recording of such claim, except a mortgage executed by the husband and wife, if the claimant be married, or by the claimant if unmarried, and except a lien for labor or material that has attached before such land was claimed as a homestead. No such sale made after the recording of the claim of homestead shall be valid or convey any interest in such homestead, whether made under a judgment existing before or after the recording of such claim."

"§ 3974. Setting apart homestead. After the return of the inventory, the court may on its own motion, or on petition therefor shall set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead, selected, designated, and recorded, if such homestead was selected from the community property, or from the separate property, of the persons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or, if the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court shall select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife, and the minor...