Hinchman v. Morris

• Decision Date: 02 April 1887
• Citation: 29 W.Va. 673,2 S.E. 163
• Court: West Virginia Supreme Court
• Parties: Hinchman v. Morris, Adm'r, and others.

2 S.E. 163

(29 W.Va. 673)

Hinchman

v.Morris, Adm'r, and others.

Supreme Court of Appeals of West Virginia.

April 2, 1887.

1. Taxes—Assignment—Subrogation.

The levying and collecting of a tax, whether state or county, is a matter solely of statutory creation. Such taxes are not debts; and, unless they are by plain implication or expressly authorized to be assigned legally or equitably, they are incapable of assignment; and no one can be subrogated to the rights and remedies of the state.

2. Same—Voluntary Payment by Sheriff—Remeby Against Tax-Payer.

If, therefore, under the Code of Virginia of 1860, a sheriff settled in full with the auditor, and paid all the state taxes not returned delinquent, he cannot thereafter, by distraint, or in any other manner, make out of any tax-payer not returned de-

[2 S.E. 664]

linquent the amount of his taxes so advanced for him by the sheriff, as he cannot be subrogated to the state's rights or remedy for such tax; nor can he in any manner make it out of his estate, real or personal, either before or after his death; and when he has made this settlement and payment in full to the auditor, without any promise expressed or implied by the tax-payer to refund him the amount, he cannot recover it of him in any action of assumpsit or any other action; nor can he make the amount of these taxes out of his estate either as taxes or as a debt due to him.

3. Appeal—When it Lies—Decree.

No appeal can be allowed under our statute authorizing appeals to this court on the ground that the decree complained of adjudicated the principles of the cause, unless all questions of controversy in the cause, which have in any manner arisen, were adjudicated by this decree, or had been previously settled before this decree was entered.

(Syllabus by the Court.)

Appeal and supersedeas from circuit court, Cabell county.

On September 1, 1877, John S. Wilkinson filed his petition in the cause of Elizabeth Hinchman, Curator, etc., v. Charles K. Morris, Adm'r of John Morris, Dec'd, et al., which was a creditors' suit then pending in the circuit court of Cabell county, brought to subject the assets of John Morris, deceased, both real and personal, to the payment of his debts. This petition was as follows: "John S. Wilkinson, your petitioner, represents that he was deputy-sheriff of Cabell county in the year 1860; that, as such deputy-sheriff, he paid the tax-bill against the estate of said John Morris for said year, hereto annexed as part of this petition, and said payment was not satisfied by said Morris, and that he has never been repaid the same; that he has a right to be substituted to the lien of the state for the taxes on said lands of John Morris, and he prays that his tax claims may be declared prior liens for his benefit and

general relief."

The following is the exhibit filed with this petition:

Morris, John, to 8. C. C. Dr., 1860:

Tax on property for Rev. and capitation,... $26 72

Tax on property for city levy,----5 69

Tax on 2, 300 Ac. L. Rev., $9.20, C. P.. $1.56,--10 76

Tax on 992 Ac. do. Rev., 47.61, C. P., 8.09,--55 70

Tax on 88J Ac. do. Rev., 2.82, C. P., 48,-3 30

Tax on 170 Ac. do. Rev., 68, C. P., 13,--81

Tax on 780 Ac. do. Rev., 4.96, C. P., 84,-5 80

Tax on 285 Ac. do. Rev., 11.40, C. P., 1.94,--13 34

Tax on 1, 450 Ac. do. Rev., 58.09, C. P., 9.86,-67 86

Tax on 400 Ac. do. Rev., 1.60, C. P., 27,--187

Tax on 200 Ac. do. Rev., 4.80, C. P., 82,--5 62

Tax on 70 Ac. do. Rev., 56, C. P., 10,--66

Tax on 115 2-9 Ac. do. Rev., 46, C. P., 8, 54

Tax on 566 Ac. do. Rev., 9.07, C. P., 1.54,--10 61

Tax on 63^ Ac. do. Rev., 2.04, C. P., 35,-2 39

Tax on 69 3-5 Ac. do. Rev., 86, C. P., 15,-101

$242 32

It will be observed that there is an error in adding up the items of this tax-bill of $29.64; the true amount of this tax-bill being $212.68, instead of $242.32.

On May 18, 1882, John S. Wilkinson was permitted by the court, against the objection of Morris' administrator, to amend this petition, by setting out at length the character of his claim, and stating that John Morris, owning a large amount of property, —he having this tax ticket for 1860 to collect as deputy for William R. Morse, as sheriff of Cabell county, —settled it, and paid over the amount, instead of returning it as delinquent, as was his custom in such cases; that John Morris died shortly afterwards, in 1862, without pay-

[2 S.E. 865]

ing the petitioner the amount so paid for his use, and without ratifying the payment for him of taxes; the petitioner never having pressed him for its payment. The petitioner claims that, at the time of his death, this tax bill was a valid and subsisting lien upon the real estate of the said Morris for the use of the petitioner, and it has never been paid by the administrator of John Morris, and that this tax-bill, by the statute of distributions, is a preferred charge on the real and personal estate of John Morris; and the petitioner alleged that in this cause there was in the hands of the receiver of the court, the proceeds of the sale of John Morris' real estate, a large amount, amply sufficient to pay this claim in due order of administration. This suit was instituted in 1864 as a regular creditors' bill; and this amended petition asks that his claim be paid out of the assets of Morris now in the hands of the receiver, and for general relief. This amended petition was sworn to. The administrator of John Morris answered this petition, which answer was replied to generally. This answer claims that this exhibit filed with the petition and amended petition was a regular tax ticket. It points out the fact that on its face this tax ticket, if it be one, shows that $32.41, the first two items, were not for taxes on real estate. He claims that no part of this tax ticket was a lien on the real estate of John Morris, after the payment of it as stated in the amended petition.

The answer states that in the years 1860, 1861, and 1862, John Morris had an abundant personal estate out of which all his taxes could have been enforced; that he was a southern man, who, with his family, was driven from his home in 1862, and his personal estate was lost, stolen, or destroyed; and the petitioner, seeing this was being done, would not levy on his property for his taxes, and thus saved a little of it. This answer relies on the statute of limitations as a bar to the petitioner's claim, and it claims that this tax is not a preferred claim under the statute of distribution. He admits that there will be in this cause ample funds in the hands of the receiver to pay this claim if it were a preferred claim, but insists that it would be gross injustice to other more meritorious creditors, the estate being insufficient to pay all the debts.

The cause in which this petition and answer were filed had been pending ever since 1864, and the record was very voluminous; and a very small part of it, and that fragmentary in its character, is copied in the record before us. But, as the counsel for the appellee have expressly declined to ask for a writ of certiorari to bring up any other portion of the voluminous record, and as, on careful examination, I think we can with reasonable certainty decide the present controversy, which is apparently the only remaining controversy in the cause of Hinchman's Curators v. Morris'' Adm'r et al., undecided, we have concluded to decide the controversy presented by this petition without ordering, at our own instance, a writ of certiorari to bring up omitted parts of the original record. We feel justified in assuming that there is no other subject of controversy undecided in this cause, from what appears on the face of the record presented to us, taken in connection with the proceedings had in this court, and the conduct and action of the appellee's counsel. These proceedings appear, from the fragmentary record before us, to have taken place prior to the filing of said petition in this cause. This creditors' bill, filed in 1864, by a creditor of John Morris, who died in 1862, was brought in the circuit court of Cabell to settle up his estate, and to subject his real estate, which included 14 different tracts in Cabell county, to the payment of his debts, his personal estate being insufficient for that purpose. The cause was referred to Commissioner Thornburg. The decree ordering the reference is not, as it ought to have been, copied in the record before us, but we can see from a subsequent decree that it ordered Commissioner Thornburg to ascertain and report the real estate owned by John Morris at the time of his death, and liable to be subjected to the payment of his debts, and also to ascertain and report all the debts of John Morris at the time of his death. Commissioner

[2 S.E. 866]

Thornburg ascertained and reported to the court what real estate John Morris owned at the time of his death, but he never did complete the ascertainment of, or report to the court, the entire indebtedness of John Morris at his death. Commissioner Thornburg resigned his office before completing this report, and on October 18, 1866, an order of reference was made in this cause, referring it to Commissioner Miller to perform the unfinished duties imposed by this former decree on Commissioner Thornburg. On May 22, 1867, Commissioner Miller made his report, a small part of which is copied in the record before us, but apparently all that is necessary to decide the only remaining controversy in this cause; that is, the controversy involved in this appeal now before us. He in this report states that he reported "the indebtedness of the estate of John Morris to each and every creditor. The following will show the amount due, as far as ascertained." Then comes a statement of the judgments against John Morris in his life-time, a statement of the notes due from him, and a statement of the open accounts due from him, and unpaid fee-bills, among which is listed, as due sheriff of Cabell county, (1860,) taxes, $242.32. It will be observed that, in listing...