Gifford v. Callaway

• Decision Date: 12 October 1896
• Citation: 8 Colo.App. 359,46 P. 626
• Parties: GIFFORD v. CALLAWAY, County Treasurer.
• Court: Colorado Court of Appeals

46 P. 626

8 Colo.App. 359

GIFFORD v. CALLAWAY, County Treasurer.

Court of Appeals of Colorado

October 12, 1896

Error to district court, Montrose county.

Petition by James M. Gifford for a writ of mandamus to compel D.A Callaway, county treasurer of Montrose county, to receive a definite sum assessed as taxes on certain real estate, and issue a receipt as for all the taxes assessed. From a judgment in favor of defendant, plaintiff brings error. Reversed.

The several provisions of the statute relating to taxation are considered and held not to constitute taxes levied against personal property of a landowner, subsequent to the execution of an incumbrance on the land, a lien superior in right to such incumbrance.

The matters presented by this record are raised by the demurrer of Callaway, the county treasurer of Montrose county, to a complaint filed by Gifford to obtain a mandamus to compel the treasurer to receive the definite sum of $363.30, which was the amount of the taxes levied on certain real property, and to issue a receipt as for all the taxes assessed. The substantial allegations with which we are concerned are, generally, the plaintiff's ownership of certain property in Montrose county; that title was acquired by a foreclosure on the 9th of September, 1893, of a deed of trust theretofore executed by the then owner, David Wood, on the 1st of April, 1889. The assessment and levy of taxes for the year 1891 in the sum of $363.30 was stated, together with the plaintiff's tender of the sum requisite to liquidate them. The tender was refused, although it was said to be the full amount of the taxes assessed against the property, and the treasurer demanded the further sum of $299.30, which was the amount of taxes levied on the personal property of David Wood for the year 1891. The dispute between the owner and the treasurer led to the sale of the property, which was recorded in the treasurer's records of Montrose county, and constituted a cloud on the title. The plaintiff's willingness to pay the taxes levied against the realty was charged, and such other averments made as were essential to establish the plaintiff's cause of action, if any he had. The controversy is over the matter of the lien for personal taxes on realty. To bring the matter in issue out clearly the statutes which control it must be stated. As in most states, the legislature has attempted to provide for and regulate the collection of all taxes. The only enactments embracing this subject are the following Section 2818: "All taxes shall be levied for the fiscal year ending November thirty (30) (thirtieth) in each year and shall be a perpetual lien upon all real estate subject to taxation, until such taxes and any penalty, charges and interest which have accrued thereon, shall be paid; and any property, real or personal, which has by mistake or oversight been omitted from the tax list for any year or years, shall be subject to assessment for all back taxes properly chargeable thereon."

Section 2819: "All taxes levied or assessed upon personal property of any kind whatsoever, shall be and remain a perpetual lien upon the property so levied upon, until the whole amount of such tax is paid; and if such tax shall not be paid on or before the first day of January next succeeding each levy, it is hereby made the duty of the county treasurer to collect the same by distress and sale of any of the personal property so taxed, or of any other personal property of the person assessed; and if such property so taxed, or any part thereof, shall have been removed from the county wherein the same was taxed, or is so conditioned that the treasurer cannot find or obtain the same, then the county treasurer shall sue the person so taxed, in an action of debt before any court of his county having jurisdiction; and upon the trial of any such cause the tax roll or a certificate from the county treasurer of the amount of such tax, and that the same is not paid, shall be prima facie evidence that the amount claimed is due and unpaid, and may obtain a judgment for the amount of such tax, together with all costs, interest and charges thereon, and may have execution therefor against any of the property, real or personal, of such person: provided, however, that nothing in this section shall be so construed as to prevent the treasurer from distraint and sale of such property, as provided in section fifty-six of this act, nor to operate as a change or repeal of section ten of this act."

Section 2887: "No personal demand of taxes shall be necessary; but it is the duty of every person subject to taxation to attend at the office of the treasurer, between the first day of November and the thirtieth day of December of each year, and pay his taxes; and if any person shall neglect or fail to pay such tax, until after the thirtieth day of December following the levy of the same, the treasurer may make the same by distress and sale of any of his personal property."

Section 2890: "If the treasurer has reason to believe that any person charged with taxes upon personal property is about to remove such property from the county, or to sell, transfer, assign, convey or conceal, or otherwise dispose of the same, or to cause the same to be done, such treasurer may at any time after such taxes are due proceed to collect the same, with costs and charges, by distress and sale of any personal property of such person in the manner provided in this act."

Section 2912: "The county treasurer shall, before the twentieth day of April in each year, make out a list of all lands and town lots subject to sale, describing such lands and town lots as the same are described on the tax roll, with an accompanying notice stating that so much of each tract of land or town lot described in said list as may be necessary for that purpose, will, on a day specified thereafter, and the next succeeding days, be sold by him at public auction at the county treasurer's office, for the taxes and charges thereon, and taxes and charges assessed against the owner thereof for personal property." Then follows the form of the list with a general direction in regard to the giving of notice of the publication of the tax list.

All the general details to be observed by the treasurer in enforcing the collection and payment of delinquent taxes are provided for in the statute. These need not be noticed, for the case is not at all dependent on the proceedings taken by the treasurer, nor are his acts questioned because of any irregularities. The demurrer was sustained, and error is prosecuted.

Black & Catlin, for plaintiff in error.

John Gray, for defendants in error.

Talbot, Denison & Wadley and Edward D. Upham, amici curiae.

BISSELL, J. (after stating the facts).

The issue between the taxpayer and the authorities is very sharply defined. The treasurer insists the statutes make all personal taxes a lien on realty which is superior to any other incumbrance, and to all classes of securities, whether prior in time or subsequent. In the oral argument as well as in the briefs counsel have discussed not only the question which is necessarily involved, but also the general proposition respecting the existence or nonexistence of a lien on realty for personal taxes. It is quite possible under some circumstances we might feel compelled to discuss and decide it. Possibly the determination of this question would be quite as satisfactory as the settlement of the precise issue. But our conclusions respecting the particular matter presented will wholly adjudicate the case, and we do not feel quite at liberty to pursue the other line of inquiry, notwithstanding its very great public importance and the general interest manifested respecting it. Wherever courts depart from the lines which must be necessarily followed, somewhat of the binding force of the opinion is destroyed by the suggestion that the matter is in reality obiter to the decision, even though therein might be found a very substantial basis on which to rest it. We therefore leave this matter of the general lien for personalty taxes undetermined. Whatever appears to be a discussion of this question must be taken as limited to the one thing decided, and...