Hall v. Hall

• Decision Date: 07 December 1907
• Docket Number: 15,228
• Citation: 76 Kan. 806,93 P. 177
• Parties: AMOS HALL et al. v. EDITH HALL, as Administratrix, etc
• Court: Kansas Supreme Court

93 P. 177

76 Kan. 806

AMOS HALL et al. v. EDITH HALL, as Administratrix, etc

No. 15,228

Supreme Court of Kansas

December 7, 1907

Decided July, 1907.

Error from Linn district court; WALTER L. SIMONS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Gift Inter Vivos. The unconditional delivery of personal property by the owner to another, with intent that such other shall immediately and permanently become the owner thereof, and the acceptance of the same by such other, constitute a gift inter vivos.

$2. TITLE AND OWNERSHIP--Delivery to a Third Person for Donee's Benefit. Where the donee is absent or unable to take the gift personally, delivery as above stated to a third person for the benefit of such donee will make the gift complete and valid as if accepted by the donee in person.

3. TITLE AND OWNERSHIP--Trust Created. A gift made to a third person for the benefit of another creates a trust which will be administered and controlled like other ordinary trusts.

James D. Snoddy, for plaintiffs in error.

John H Crain, and John C. Cannon, for defendant in error.

OPINION

GRAVES, J.:

Austin W. Hall and Corolin F. Hall were husband and wife and resided at Trading Post, in Linn county. She died September 24, 1884, leaving personal property of the value of $ 4016.50. This property passed into the poted Personal Property Tax-roll; and said county treasurer gave him a receipt therefor with the indorsement thereon: 'Paid under protest.'

"(17) At the time, and immediately before paying said sum of $ 150.52 to said county treasurer on July 14, 1905, plaintiff delivered to said county treasurer a written protest against the payment of said tax and costs, claiming that it was illegal and void.

"(18) On July 27, 1905, plaintiff filed with and in the office of the county clerk of Johnson county, Kansas, and presented against said county, a bill and demand duly verified asking the allowance and repayment to him of said sum of $ 150.52, so as aforesaid paid by him under protest to the county treasurer of Johnson county, Kansas, on the 14th day of July, 1905, which claim was not allowed but was by said board of county commissioners rejected; and this action was commenced August 8, 1905. The case was tried before the court, January 25, 1906, both parties asking the court to make separate findings of fact and conclusions of law.

"Just before the trial commenced defendants in open court offered to let plaintiff take judgment for the sum of $ 4.30 with interest thereon from July 14, 1905, at 6 per cent. per annum, being the amount of costs charged against plaintiff by the county clerk on said hearing to discover omitted property and interest thereon, which offer plaintiff declined to accept."

"CONCLUSIONS OF LAW.

"(1) That the tax paid by plaintiff to the county treasurer of Johnson county, Kansas, under protest, July 14, 1905, was illegal.

"(2) That the notes and trust deeds upon which said tax was levied were not subject to taxation in Mission township, Johnson county, Kansas, for the years 1903 and 1904.

"(3) Said tax having been paid under protest, the plaintiff should recover in this action, from the defendant county, the sum of $ 150.52, with interest thereon from July 14, 1905, at the rate of 6 per cent. per annum, and costs."

A judgment was rendered according to the conclusions of law, to reverse which the commissioners prosecute this proceeding in error.

The statute providing for the assessment and collection of taxes declares that all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed. Personal property is defined to include every tangible thing which is the subject of ownership not forming part or parcel of real property; also, tax-sale certificates, judgments, notes, bonds and mortgages, and all evidences of debt secured by lien on real estate. All personal property must be listed and taxed each year, in the township, city and school district in which it is located, on the first day of March, except in certain specified instances not material to this controversy. (Gen. Stat. 1901, §§ 7502, 7503, 7509.)

The plaintiff contends that the judgment of the district court should be upheld because the property taxed was not in this state and had no location in Mission township in Johnson county.

It will be observed the statute places tax-sale certificates, judgments, notes, bonds and mortgages and all evidences of debt secured by lien on real estate in the same category for purposes of taxation and distinguishes them from tangible personal property.

In the case of Kingman Co. v. Leonard, 57 Kan. 531, 46 P. 960, 34 L. R. A. 810, it was demonstrated that a judgment rendered by a court of this state has no independent situs of its own, and that for purposes of taxation it must, under the statutes of this state, be regarded as attending its owner at his place of residence, although that be in a foreign state. In the case of Mecartney v. Caskey, 66 Kan. 412, 71 P. 832, it was decided that tax-sale certificates issued by a county treasurer of this state have no independent situs of their own, and that, like judgments, their situs for purposes of taxation must be deemed to be the domicil of their owner, although he be a nonresident.

The doctrine that the debt evidenced by a note or secured by a mortgage is the substantial element of the owner's taxable property, that the note or mortgage is merely evidence, and that generally the debt and its evidence have no independent situs of their own, is now so strong in its own credit that it needs no sureties by way of citations of authority.

From the statute, the decisions referred to, and the legal doctrine stated, it must follow that the property taxed in this case had its situs at the domicil of its owner in Mission township, Johnson county, unless some substantial reason exists for making an exception in its favor.

Only one matter worthy of consideration can be suggested: In the cases cited, which involved the right to tax intangible property belonging to non-residents of this state, it was intimated that such property might acquire a situs here for purposes of taxation. Notes, mortgages, tax-sale certificates and the like might be brought into the state for something more than a temporary purpose, be devoted to some business use here and thus become incorporated with the property of this state for revenue purposes. Such a situs has aptly been termed a "business situs." (Herron, Treasurer, v. Keeran, 59 Ind. 472, 477, 26 Am. Rep. 87; In re Jefferson, 35 Minn. 215, 28 N.W. 256.)

Conceding for the purpose of argument that a resident of this state who is the owner of intangible property like that assessed in this case may give it a business situs in a foreign state and that it was the...