Guedert v. Emmet County

• Decision Date: 11 February 1902
• Citation: 89 N.W. 85,116 Iowa 40
• Parties: S. J. GUEDERT, Plaintiff, Appellee, v. EMMET COUNTY, Defendant, Appellant
• Court: Iowa Supreme Court

89 N.W. 85

116 Iowa 40

S. J. GUEDERT, Plaintiff, Appellee, v. EMMET COUNTY, Defendant, Appellant

Supreme Court of Iowa, Des Moines

February 11, 1902

Appeal from Emmet District Court.--HON. W. P. QUARTON, Judge.

ACTION to recover an amount of money paid by plaintiff upon purchase of a parcel of real estate sold by the county treasurer for non-payment of a "mulct tax," which sale has since been adjudged void. By agreement of the parties the cause was tried as one of equitable jurisdiction. There was a decree for plaintiff, and defendant appeals.

Reversed.

Crim & Penn for appellant.

George E. Clarke and B. E. Kelly for appellee.

OPINION

WEAVER, J.

In 1895 one W. T. Kane held the title to a lot in Estherville, upon which he established a saloon for the sale of intoxicating liquors, and maintained the same until September, 1897. At the outset of said business the assessor of the city listed the property for the payment of the mulct tax, and returned the list to the county auditor. The board of supervisors made no formal levy of the tax, but the auditor verbally reported the assessment to the county treasurer, who entered the same on the books of his office. It was thus continued from year to year upon the treasurer's books, but at no time did the board make a formal levy, and at no time did the auditor furnish the treasurer any written certificate of levy. Kane recognized the sufficiency of such levy or assessment, at least to the extent of appearing at the treasurer's office from time to time, and paying the tax at the legal rate of $ 600 per year, until the year 1897, when it became delinquent. About the time of opening his saloon he executed a bond to the county, as required by law with appellee as his surety, conditioned for his faithful observance of the provisions of the mulct statute. October 8 1897, one Smithberg, holding a mortgage upon the lot in question, instituted foreclosure proceedings, and later, during the same month, the county brought suit against Kane and the plaintiff upon the bond we have above referred to for recovery of the delinquent tax. While these two actions were still pending, the appellee applied to the county auditor and treasurer to learn why collection of the tax for which he had been sued was not enforced by sale of the property, and was told that difficulty had been experienced in finding bidders on such sales. He thereupon asked the treasurer to proceed and sell, saying he would himself bid, or words to that effect, and that he desired such sale to be made in order to protect himself as Kane's surety. Acting upon such request, the treasurer offered the property for sale, and it was struck off to the appellee, who paid therefor the full amount of the tax, and received the usual certificate of purchase. He then appeared to the Smithberg foreclosure proceeding, and in a cross bill set up his lien as the holder of the tax certificate, asking to have it established by the court's decree. The county was not made a party to the cross bill, and was served with no notice thereof, though knowledge thereof was brought to the attention of the county attorney. Smithberg took issue on the cross bill, alleging, among other things, the invalidity of the tax sale. The district court held with Smithberg, and adjudged the tax sale void, which judgment, on appeal to this court, was affirmed. See Smithberg v. Archer, 108 Iowa 215, 78 N.W. 847. Thereupon appellee brings this action to recover from the county the amount of money paid by him to the treasurer in making such purchase, and bases his right to such recovery upon Code, section 1446. The language of that section is as follows: "When by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county shall hold the purchaser harmless by paying him the amount of principal, interest and costs to which he would have been entitled if the land had been rightfully sold, and the treasurer and his bondsmen shall be liable to the county therefor or the purchaser may recover the same directly of him and his bondsmen."

I. The statute provides that "every person * * * carrying on the business of selling or keeping for sale intoxicating liquors * * * shall pay an annual tax of six hundred ($ 600.00) dollars, which tax shall be a lien upon the real property wherein or whereon the business is carried on," etc. Code, section 2432. It further provides that any such dealer who proposes to avail himself of the protection which the payment of the tax affords must, among other things, give a bond with sufficient sureties for "the faithful observance of all the provisions" of the socalled "mulct enactment." Code, section 2448, sub-division 3. As will be thus seen, the mulct tax is not primarily a charge upon property, but is assessed against the person on account of the business in which he is engaged, and is made a lien upon the property simply as an aid to its collection. Being thus a personal charge or obligation, resting upon the proprietor of the business, the bond which he gives for the "faithful observance of all the provisions" of the statute binds the surety for the payment of the tax. Marshall County v. Knoll, 102 Iowa 573, 69 N.W 1146. Coming, then, to the case at bar, Kane having permitted the tax to become delinquent, it was appellee's-duty under his bond to come forward and pay it. Instead of paying it directly, he caused Kane's property to be sold to satisfy the supposed lien of the tax, and became himself the purchaser,...