Hagler v. Kelly
| Decision Date | 10 May 1905 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Nelson county; Fisk, J.
Action by William C. Hagler against Fannie E. Kelly and William A Marin. Judgment for plaintiff and defendants appeal.
Affirmed.
Tracy R. Bangs and W. J. Meyer, for appellant.
In this state, when order for the entry of a judgment is given, it is the duty of the clerk, under section 5095, to enter judgment in the judgment book and then place a copy of said judgment in the roll. In re Weber, 4 N.D. 119, 59 N.W. 523.
A judgment cannot be entered without an order of the court. In re Weber, supra; Gould v. Duluth & D. Elevator Co., 54 N.W. 316.
There is a difference between an order for a judgment and a judgment. McTavish v. Gt. N. R. R. Co., 8 N.D. 94 79 N.W. 443; Black on Judgments, section 115.
The vitality of a tax lien being dependent upon the law of 1890 its repeal without reservation, prior to any disposition of the tax by the state or its corporate agencies, destroyed the lien. A lien is a creature of statute, and its extent and operation is fixed by law. 17 Am. & Eng. Enc. Law, 770; Gull River Lumber Co. v. Brock and Lee, 6 N.D. 135 73 N.W. 430.
A county, through its board of county commissioners, can make no disposition of a tax judgment. It has only the powers expressly granted by words of the statute or the constitution, or are incident to such powers. 1 Am. & Eng. Enc. Law, 426; Shally v. Lash, 14 Minn. 498; James v. Wilde, 25 Minn. 305; Black on Tax Titles, section 153.
A county can enforce the collection of a judgment, but not barter away or compromise it, when against parties not shown to be insolvent. State v. Davis, 75 N.W. 897.
A county is but the agent of the state, as townships, cities and school districts. An agent authorized to collect a claim has no power to sell or compromise it. 1 Am. & Eng. Enc. Law, 1030; Smith v. Johnson, 71 Mo. 382; Bank v. Davis, 14 N.J.Eq. 286; Rodgers v. Bur., 46 Tex. 505; Mallory v. Martiner, 15 Wis. 172.
Unless taxes are expressly or impliedly authorized to be assigned, they are incapable of assignment, and no one can be subrogated to the rights and remedies of the state or municipality. 27 Am. & Eng. Enc. Law (2d Ed.) 380; McInery v. Reed, 23 Iowa 410.
The remedy provided by statute for the enforcement of taxes is exclusive. Brule County v. King, 77 N.W. 107; McHenry County et al. v. Kidder County, 79 N.W. 875, 8 N.D. 413.
Taxes are not debts and are not assignable. Brule County v. King, 77 N.W. 107.
Scott Rex, for respondent.
The judgment under which the sale was made was valid. In re Weber, 4 N.D. 119. The instrument under consideration was an order for dismissal, not signed or attested by the clerk, nor entered in the judgment book. McTavish v. Gt. N. R. R. Co., 8 N.D. 333.
The word "render" instead of "enter" was used, and the judgment failed to provide that plaintiff recover a specified amount. The law of 1890 provided for the entry of a "judgment." In State v. Red River Valley El. Co., 69 Minn. 131, the court says: "This proceeding is in the nature of a personal action." An appeal from a judgment entered in such a proceeding was entertained in State v. Rand. 30 Minn. 502; Collins v. Welch et al., 12 N.W. 121.
The tax ceased to exist upon the entry of the judgment in which it merged. A final determination by judgment or sentence is a vested right, and therefore unaffected by the subsequent repeal of the statute upon which it depends. 23 Am. & Eng. Enc. Law (1st Ed.) 573; Osborne v. Sutton, 108 Ind. 443.
It has been the policy of the state to vest county boards with ample powers. They can place taxes on the list of uncollectible taxes. Comp. Codes, 1616, section 1243; Rev. Codes 1895, section 61, ch. 126, Laws 1897. They can cancel taxes when uncollectible. Laws 1890, ch. 132, section 56. They can abate. Laws 1891, ch. 120. Can compromise. Laws of 1897, ch. 126, section 59.
Having put the tax into a judgment, the board did not lose its power and control over it except to require its payment in full. The county board has the same power as to cancellation, abatement, etc., over city, town, school and state taxes as county taxes.
The county has the power to sell debts, judgments and other evidences of debt. Brown County v. Jenkins et al., 77 N.W. 579; State v. Davis et al., 75 N.W. 897; Collins v. Welch et al., 43 Am. Rep. 111, 12 N.W. 121; Hall v. Baker, 42 N.W. 104; Washburn County v. Thompson et al., 99 Wis. 585, 75 N.W. 309; State et al. v. Martin (Neb.) 43 N.W. 244; Agnew et al. v. Brall, 124 Ill. 312, 16 N.E. 230; Prest v. Mappin, 14 Ill. 193; Supervisors v. Birdsall, 4 Wend. 454; Railway Co. v. Anthony, 73 Mo. 431; Board v. Bowen, 4 Lans. 31; Prout v. Inhabitants, 154 Mass. 450.
The personal property tax judgment was a right accrued within the meaning of section 2686, Rev. Codes 1895; 26 Am. & Eng. Enc. Law, 746; Wright Lumber Co. v. Hixon et al., 80 N.W. 1110; Smith v. Kelly, 33 P. 642; Louisville Water Co. v. Com., 34 S.W. 1064; People v. N.Y. R. Co., 156 N.Y. 570; Oakland v. Whipple et al., 44 Cal. 303; U. S. v. Iselin, 87 F. 194; U. S. v. Burr et al., 159 U.S. 78, 15 S.Ct. 1002; Bruce County v. Cook et al., 35 N.W. 992; Danforth v. McCook County et al., 76 N.W. 940; Commonwealth Appeal, 128 Pa.St. 603.
In case of the amendment or revision of the tax laws, the presumption is very strong that the legislature did not intend to cancel outstanding tax obligations. Cooley on Taxation, 499, 22; Alliance Trust Co. v. Multnomah County, 63 Pa. 496; Wells County v. McHenry County et al., 7 N.D. 246, 74 N.W. 241.
The tax in question was put in judgment and could be collected only under the former laws. Greensborough v. McAdoo, 112 N.C. 359; In re Munn, 165 N.Y. 149; Oakland v. Whipple, 44 Cal. 303; Louisville Water Co. v. Commonwealth, 34 S.W. 1064; State v. Bank, 68 Mo. 515.
Plaintiff, claiming to be the owner in fee of the quarter section of land in controversy, situated in Nelson county, brought this action to quiet title. The complaint is in the statutory form provided by chapter 5, p. 9, Laws 1901. The defendant Fanny E. Kelly answered, alleging title in fee by virtue of a deed from Charles W. Tanner. The defendant William A. Marin, in his answer, claims to have a lien upon the land as assignee of a judgment rendered and docketed against Tanner in favor of Walter A. Wood Mowing & Reaping Machine Company. There was a trial by the court without a jury, and judgment was ordered and entered adjudging that plaintiff was the owner in fee, and quieting his title against the defendants. The defendants appealed from the judgment, and demand a trial de novo of all the issues.
Charles W. Tanner owned the land in fee in 1890, and until Fanny E. Kelly succeeded to his rights under a deed from him executed in 1901, and she now owns the land in fee subject to the lien of the judgment owned by Marin, unless the plaintiff acquired title by the execution sale hereinafter discussed. Personal property taxes for the year 1890 were imposed upon Charles W. Tanner pursuant to the 1890 revenue law (chapter 132, p. 376, Laws 1890). Tanner having failed to pay them, proceedings were instituted against him under the provisions of section 57 of that act to obtain a judgment against him therefor. The citation was issued and personal service obtained, and on June 21, 1892, judgment by default was taken in the district court of Nelson county for the tax, interest, penalties and costs, aggregating $ 25.46. The judgment was duly docketed the same day. In April, 1897, the plaintiff purchased this tax judgment from the county, and a formal assignment thereof to him was executed in behalf of the county by the chairman of the board of county commissioners. The then state's attorney, at the request of Mr. Hagler, immediately caused an execution to be issued on said judgment. Pursuant to that writ the sheriff levied upon and sold the land in question to Mr. Hagler for $ 49.25, and delivered to him a certificate of sale in due form, dated May 25, 1897. The sale was reported to and approved by the district court. No redemption having been made from such sale, the plaintiff received a sheriff's deed of the land in due form, dated June 23, 1898. Upon this sheriff's deed the plaintiff bases his claim of title. The validity of that deed is attacked by the appellants upon three grounds. The appellants contend, first, that there never was any judgment rendered or entered in the district court for the personal property taxes; second, that, even if there was a judgment, such judgment ceased to be a lien on the land on January 1, 1896, when the Revised Codes of 1895 took effect, repealing the provisions of the 1890 revenue law, by force of which the judgment became a lien; third, that the purported sale and assignment of said judgment to the plaintiff by the board of county commissioners was an ultra vires act, and void. We shall dispose of these propositions in the order in which they are stated.
1. The point that there never was any judgment rendered and entered is based on the fact that the judgment upon which the plaintiff relies is a mere copy of the order for judgment recorded in the judgment book. The order for judgment was attached to the judgment roll, was properly entitled, and after the proper recitals continued as follows: ...
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