Hanson v. Franklin
| Decision Date | 21 October 1909 |
| Citation | 123 N.W. 386,19 N.D. 259 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Templeton, J.
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.
After ten years a judgment is dead for all purposes. Merchants' Nat. Bank v. Braithwaite, 7 N.D. 358 75 N.W. 244; Ruth v. Wells, 83 N.W. 568.
Amendment must not change substantially the claim or cause of action. Mares v. Wormington, 8 N.D. 329, 79 N.W. 441; Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811; Murphy v. Plankinton Bank, 100 N.W. 614.
Judgment is void where lack of service appears on face of record Laney v. Garbee, 24 Am. St. 391; Hyde v. Redding, 16 P. 380; Harris v. Sargent, 60 P. 608.
Lien of personal property tax prior to 1890 was surrendered by the State. Gull River Lumber Co. v. Lee, 7 N.D. 135, 73 N.W. 430.
J. B. Wineman, for respondents.
As a condition of relief in equity, applicant must pay or tender just taxes chargeable against his property. State Finance Co. v. Mather, 109 N.W. 350, 15 N.D. 386; Beggs v. Paine, 109 N.W. 323, 15 N.D. 436; Nind v. Myers & Beck, 109 N.W. 335, 15 N.D. 400; State Finance Co. v. Beck, 109 N.W. 357, 15 N.D. 374; State Finance Co. v. Trimble, 112 N.W. 984, 16 N.D. 199; Tracy v. Wheeler, 107 N.W. 68, 15 N.D. 248.
Tax judgment is different from ordinary money judgment. Nichols v. Disler, 31 N.J.L. 461; Nind v. Myers, supra; Danforth v. McCook County, 76 N.W. 940.
Tax lien does not merge into a judgment rendered in an action to enforce it. Boyd v. Ellis, 18 S.W. 29; Beard v. Allen, 39 N.E. 665; Wells County v. McHenry, 7 N.D. 246, 74 N.W. 241.
Statute of limitations do not apply to proceedings to collect taxes. The Iowa Land Co. v. Douglas County, 67 N.W. 52; Merriwether v. Garnett & Sons, 26 L.Ed. 197; Lane County v. Oregon, 7 Wall 71; City of Augusta v. North, 57 Maine 392; City of Camden v. Allen, 26 N.J.L. 398.
Chap. 123 Laws of 1890 is both prospective and retrospective in its operation. Re Taxes, Hennepin County v. Baldwin, 65 N.W. 80; Galusha v. Wendt, 87 N.W. 512; State v. Pors, 83 N.W. 706; State v. Myers, 52 Wis. 628, 9 N.W. 777; Gager v. Prout, 26 N.E. 1013; Sellars v. Barrett, 57 N.E. 422; Biggins v. People, 106 Ill 270; Beresheim v. Arnd, 90 N.W. 506.
Clerical error in substituting name of officers for name of party served will not vitiate. Gibbs v. Southern, 116 Mo. 204; 19 Enc. Pl. & Pr. 707.
Tax judgment cannot be impeached collaterally. Poirier Mfg. Co. v. Kitts, 120 N.W. 558; McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243; Van Gordon v. Goldamer, 16 N.D. 323, 113 N.W. 609.
Under Chap. 132 p. 376, Laws of 1890 as to filing of tax list, and its delivery to County Commissioners etc., are directory merely. Wells County v. McHenry, supra; Beard v. Allen, supra; Danforth v. McCook, 76 N.W. 940; In Re Taxes, Hennepin County v. Baldwin, supra; Iowa Land Co. v. Douglas County, supra; Calusha v. Wendt, supra; State Finance Co. v. Mather, supra; Beggs v. Paine, supra; Nind v. Myers, supra.
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 services 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 co-partnership 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 Complied 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 So. 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. Meriwether 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...
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