Hadley v. Musselman

• Decision Date: 30 October 1885
• Citation: 3 N.E. 122,104 Ind. 459
• Parties: Hadley and others v. Musselman.
• Court: Indiana Supreme Court

104 Ind. 459

3 N.E. 122

Hadley and others

v.Musselman.¹

Supreme Court of Indiana.

Filed October 30, 1885.

Appeal from Johnson circuit court.

W. H. Ripley, for appellants.

White & Buckingham, for appellee.

ELLIOTT, J.

The material allegations of the appellant's complaint are these: The appellants were partners in February, 1883, doing business in Marion county, and in that month bought a saw-mill of A. H. Dutton. This mill was situated in Brown county. Prior to the purchase Dutton had leased the mill to one Reese, who had subleased it to Musselman, the appellee. The original lease was executed on the second day of March, 1882, and the first year expired in March, 1883. In February, 1883, the appellants attempted to take possession of the mill, but they were resisted by the appellee, who claimed the right to hold it until March, 1884, and appellants were compelled to yield to his claim. They had no knowledge of the existence of the lease until after their purchase from Dutton. Before the expiration of the lease, December 25, 1884, the mill was, without the knowledge of the appellants, sold for taxes. The mill is alleged to be personal property, and to be of the value of $1,000. The appellee, then in possession of the mill, purchased it for $81, and claims to hold it as a purchaser. Within 30 days after the sale the appellants tendered him $98, which was the amount of his bid, with penalty and charges added. The tender was refused on the ground that the law did not permit a redemption of personal property sold for taxes.

We have followed the language of counsel in giving a summary of the complaint, although we think the terms “lease,” “sublease,” and the like are not properly used, since they, in strictness, refer only to the demise of real estate. If the mill is personal property, the party in possession is a bailee for hire and not a lessee.

The first question argued is thus stated by counsel: Is the act of March 13, 1875, entitled “An act to provide for the redemption of personal property sold for taxes,” still in force? Settled rules require us to decide this question against the appellants. The act of March 29, 1881, entitled “An act concerning taxation,” covers the entire subject of taxation, embracing sales for taxes and redemptions from such sales, and repeals all prior acts upon the subject. The act of 1881 contains full and explicit provisions respecting the sale of personal property, but makes no provision for redemption from such sales. The case is therefore within the rule that where a new statute covers the whole subject-matter of an old one, adds new provisions, and makes changes, former laws upon the subject are repealed. Indianapolis, etc., R. Co. v. Bradshaw, 6 Ind. 146;Longlois v. Longlois, 48 Ind. 60;Wagoner v. State, 90 Ind. 506, and authorities cited page 507. There is, however, more than a repeal by implication, for in the act of March 29, 1881, it is provided that “all laws and parts of laws within the purview of this act are hereby repealed, except ‘An act to levy an additional tax for the purpose of raising revenue,’ approved March 3, 1879.”

The second question presented by the record is thus stated by the appellants' counsel: (2) Can a tenant or bailee of personal property, residing and holding such property in a county in this state other than the county of which the owners are residents, acquire an absolute, valid title to such property, adverse to the owners, through a sale by the county treasurer of the property to satisfy the taxes assessed against such property; the taxes having been assessed and the sale had during the term of tenancy or bailment, the owners having no notice or knowledge of the sale? The authorities are against the appellants upon the question of the right of a lessee or bailee in possession to buy property at a sale for taxes. Where the person who buys is under a contract or duty to pay the taxes he cannot become a purchaser; but where there is no contract and no duty he may buy. Garwood v. Hastings, 38 Cal. 216;McMinn v. Whelan, 27 Cal. 300;Bowman v. Cockrill, 6...