Hanson v. Franklin

• Decision Date: 21 October 1909
• Citation: 123 N.W. 386,19 N.D. 259
• Parties: HANSON v. FRANKLIN et al.
• Court: North Dakota Supreme Court

19 N.D. 259

123 N.W. 386

HANSON

v.FRANKLIN et al.

Supreme Court of North Dakota.

Oct. 21, 1909.

Syllabus by the Court.

Tax judgments obtained under the provisions of section 57, c. 132, p. 398, Laws 1890, are not ordinary money judgments, and do not expire by the statute of limitations.

Section 57, c. 132, p. 398, Laws 1890, being purely remedial, and merely giving a remedy to enforce existing rights and obligations, is to be construed as applying to taxes levied (but not collected) prior to its passage as well as to those levied thereafter.

The evidence sufficiently shows that John A. Johnson was a member of the firm of Johnson & Gregerson.

The return of the service of the citation issued for the taxes of 1891 sufficiently shows service on John A. Johnson. The inserting of the name “John O. Fadden,” in said return, was a clerical mistake, and will not vitiate the judgment. Defects in the proof of service of a process must be taken advantage of in a direct proceeding, and will not furnish grounds for a collateral attack on the judgment.

The provisions of chapter 132, p. 376, Laws 1890, with reference to the filing of the tax list with the county auditor, the delivery of such list to the board of county commissioners, and the filing of a copy thereof with the clerk of the district court, are not mandatory, but directory.

The judgments and the taxes on which they were rendered were liens on the real estate in controversy. Hence appellant was not prejudiced by the allowance of the amended answer, setting up the taxes as additional liens on the said real estate.

Citations issued for the taxes of each year were introduced in evidence, and were prima facie evidence of the legality of the taxes assessed for these years.

Where judgments were obtained and docketed for personal property taxes pursuant to the provisions of chapter 132, p. 376, Laws 1890, and became liens upon the real property in question, such liens continued, notwithstanding the repeal of the law under which the liens were acquired.

A tax is generally defined as a burden imposed by legislative authority to raise money for public purposes. In its essential characteristics it is almost universally held not to be a debt or in the nature of a debt; the distinction being that a tax does not rest on contract, while a debt does.

Appeal from District Court, Grand Forks County; Chas. F. Templeton, Judge.

Action by Michael Hanson against Mari Franklin and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. J. Mayer (Bangs, Cooley & Hamilton, of counsel), for appellant. J. B. Wineman, for respondents.

CARMODY, J.

Plaintiff, claiming to be the owner in fee of the two quarter sections of land in controversy, situated in Grand Forks county, brought this action to determine adverse claims. The complaint is in the statutory form provided by section 7522, Rev. Codes 1905. The defendants, the state of North Dakota and the county of Grand Forks answered, setting up and claiming as liens adverse to plaintiff's title certain personal tax judgments rendered June 17, 1893, against John A. Johnson, a former owner of the land described in the complaint, for personal taxes claimed to be due from said John A. Johnson for the years 1884, 1885, 1887, 1888, 1890, and 1891, also claiming a lien for real estate taxes for the year 1907. Before the entry of judgment in this action, the real estate taxes were paid, and do not enter into this controversy. The proceedings resulting in these tax judgments were had under the authority of section 57, c. 132, p. 398, Laws 1890. Upon these issues the case came on for trial before the court without a jury. Several weeks after the case was closed, but before the findings had been made by the court, the answering defendants, over plaintiff's objection, were permitted to amend their answer to conform to the proof, setting up as an additional defense the liens of the personal taxes upon which the judgments had been rendered. Thereafter, and upon the findings and order for judgment made by the court, judgment was entered in favor of the answering defendants and against the plaintiff, dismissing plaintiff's cause of action, and adjudging each and all of the judgments to be liens on the said real estate, and further adjudging that, independent of the judgments, the personal taxes of the several years were themselves liens on said real estate. The plaintiff appealed from the judgment, and desires a review of the entire case in this court. Proceedings were instituted against John A. Johnson and Johnson & Gregerson under the provisions of section 57, c. 132, p. 398, Laws 1890. Seven citations were issued and personal service obtained on John A. Johnson, and on June 17, 1893, judgment by default was taken in each case in the district court of Grand Forks county for the taxes, with interest, penalties, and costs. The judgments were duly docketed on July 3, 1893.

Appellant contends, first, that the lien of the tax judgments expired by lapse of time before the commencement of this action; second, as regards the taxes of 1884, 1885, 1887, and 1888, the court was wholly without jurisdiction of the subject-matter, that chapter 132, p. 376, Laws 1890, was clearly prospective in its operation; third, that two of the tax judgments, one for 1887 and one for 1888, were rendered against a copartnership in the firm name of Johnson & Gregerson, and that there is no evidence to show that John A. Johnson was a member of the copartnership; fourth, that there was no service of the citation upon John A. Johnson for the taxes of 1891; fifth, that the proceedings which resulted in the judgments for the taxes of 1890 and 1891 were had in total disregard of the provisions of sections 55, 56, 57, c. 132, Laws 1890; sixth, that the court exceeded its authority in permitting the answering defendants to amend their answer as hereinbefore stated; seventh, that there is no competent evidence of the existence of any taxes or tax liens; eighth, that there can be no lien for the taxes of 1884, 1885, 1887, and 1888 for the further reason that section 1239 of the Revised Codes of 1895, being the same as section 1612 of the Compiled Laws of 1887, was expressly repealed by section 110, c. 126, p. 297, Laws 1897, without any saving clause. We shall dispose of these propositions in the order in which they are stated.

Appellant's contention that the lien of the tax judgments expired by lapse of time, the judgments having been rendered more than 10 years before the commencement of this action, and that after 10 years a judgment is dead for all purposes, must be overruled. The proceeding by which a tax judgment under the provisions of section 57, c. 132, Laws 1890, is obtained, is a statutory proceeding instituted by the state against delinquent taxpayers to aid in the collection of delinquent personal property taxes. We do not regard such judgments as ordinary judgments for money. A tax judgment is but a means provided by revenue statutes for the collection of taxes. The personal taxes for the years 1884, 1885, 1887, and 1888 were levied and assessed under the provisions of the revenue laws of the territory of Dakota, and were by such laws made a lien upon real property owned by the person against whom the taxes were assessed, or to which he might acquire title. As to these taxes the judgments did not create new liens, but were a means to enforce the state's liens created by law, and not to create new liens. The personal taxes for 1890 and 1891 became liens on real property from the date of docketing the judgments obtained for such taxes. A tax judgment, not being a judgment in a civil action, and not being an ordinary judgment for money, does not expire by the statute of limitations. Succession of Armand Mercier on Opposition of the City of New Orleans, 42 La. Ann. 1135, 8 South. 732, 11 L. R. A. 817. In addition to the said tax judgments being liens upon said real estate, the taxes for which the judgments were obtained are liens on the said real estate. Taxes are generally defined as burdens or charges imposed by legislative authority on person or property to raise money for public purposes, or, more briefly, an imposition for the supply of the public treasury. 27 Am. & Eng. Enc. of Law (2d Ed.) p. 578. A tax in its essential characteristics is almost universally held not to be a debt or in the nature of a debt. The distinction between a debt and a tax is that one rests on contract; the other does not. A debt is a sum of money due by contract, express or implied; while a tax is a charge on person or property to raise money for public purposes, and operates in invitum. Unless it is so provided by statute, taxes do not bear interest, and cannot be enforced by means of an action of debt. 27 Am. & Eng. Enc. of Law (2d Ed.) 580-581, and cases there cited. Meriweather v. Garrett, 102 U. S. 472, 26 L. Ed. 197;Iowa Land Co. v. Douglas County, 8 S. D. 491, 67 N. W. 52;Greenwood v. Town of La Salle, 137 Ill. 225, 26 N. E. 1089;Beard v. Allen, 141 Ind. 243, 39 N. E. 665, 40 N. E. 654;Danforth v. McCook, 11 S. D. 258, 76 N. W. 940, 74 Am. St. Rep. 808;City of Augusta v. North, 57 Me. 392, 2 Am. Rep. 55; City of Camden v. Allen, 26 N. J. Law, 398. In Danforth v. McCook the Supreme Court of South Dakota says: “A tax is not a debt in the ordinary sense in which that term is used, but is a charge or burden imposed on property for the benefit of the public.” It is within the constitutional power of the Legislature to make the tax a lien superior to any other security, incumbrance, or lien arising either before or after the assessment of the tax. The taxes for the years 1884, 1885, 1887, and 1888 were levied and assessed under the provision of the revenue laws of the territory of Dakota, and were by such laws made liens upon real property owned by the person against whom the taxes were assessed, or to which he might acquire title. The personal taxes for 1890 and 1891...