In re Assessment of Taxation of Certain Land Contracts to Boyd
| Decision Date | 08 June 1908 |
| Citation | 116 N.W. 700,138 Iowa 583 |
| Parties | IN RE ASSESSMENT OF TAXATION OF CERTAIN LAND CONTRACTS TO H. E. BOYD, Referee; DALLAS COUNTY, IOWA, and HENRY P. LODS, County Auditor, Appellants, v. H. E. BOYD, Referee, Appellee |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--HON. EDMUND NICHOLS, Judge.
THIS is a proceeding to charge a referee in partition with taxes upon certain contracts made by him for the sale of lands belonging to the heirs of Elias Cardell, deceased. The trial court held that the referee was not liable for taxes upon the contracts and Dallas county and its auditor appeal.
Affirmed.
D. H Miller, County Attorney, and Miller & Russell, for appellants.
L. V Harpel and Cardell & Fahey, for appellee.
The facts are not in dispute. So far as material, they are as follows: In January of the year 1905 H. E. Boyd, a resident of the town of Minburn, in Dallas county, was by order of court appointed referee to sell certain real estate involved in a partition suit among the heirs of Elias Cardell, deceased. Pursuant to said order, Boyd entered into several contracts for the sale of different portions of said land, which contracts were reported to and approved by the court appointing the referee. All this was done during the year 1905, and all save one of these contracts were in the possession of the referee on January 1, 1906. The referee did not return these contracts for assessment, and thereafter the county auditor gave him notice to show cause why these contracts should not be assessed. Boyd appeared and filed his objections, and these were overruled, and the auditor entered them for assessment. Thereupon the referee appealed from said order to the district court, where his objections were sustained, and the assessment annulled and discharged. The appeal is from this ruling.
The order of the court appointing the referee directed him to make sales of the land and to divide the proceeds among the owners according to their respective shares, and authorized him to make sales for cash or partly for cash, the balance to be paid in three equal annual payments. Pursuant to this authority, the referee entered into sixteen contracts which are involved in this controversy. In each of these contracts the referee agreed to sell to the purchaser all his right, title, and interest in and to the real estate describing it for an expressed consideration, naming it, and the purchaser agreed to purchase the same for an agreed price and to pay that sum to the referee, his heirs or assigns, in a manner specified in the contracts. In eight of these contracts was the following provision:
And it is expressly agreed by and between the parties hereto that the time and times of payment of said sums of money, interest, and taxes as aforesaid is the essence and important part of the contract; and that if any default is made in any of the payments or agreements above-mentioned to be performed by the party of the second part, in consideration of the damage, injury, and expense thereby resulting, or that may be incurred by or to the party of the first part thereby, this agreement shall be void and of no effect, and the party of the second part shall have no claim in law or equity against the party of the first part, nor to the above-mentioned real estate, nor any part thereof; and any claim or interest or right the party of the second part may have had thereunder up to that time by reason hereof, or any payments and improvements made hereunder, shall on all such default cease and determine and become forfeited, without any declaration of forfeiture, re-entry, or any act of the party of the first part.
The others had this stipulation in lieu of the one just quoted:
And said referee hereby agrees to procure the approval of this sale by the court, and to make and execute to said purchaser a good and sufficient referee's deed and have same approved by the court, and to furnish said purchaser an abstract showing perfect title to said premises. And said referee hereby agrees that in case he shall fail to have this sale approved, and a good and sufficient referee's deed made, executed, and approved and abstract furnished showing perfect title, that he will refund to said purchaser said sum so paid to him, and neither party shall have any claim upon the other.
None of the land covered by these contracts was in Dallas county, and it does not appear where the owners thereof resided January 1, 1906. Five of these contracts were not approved by the court until after January 1, 1906, but the others were approved during the year 1905. These contracts were all carried out, and deeds made pursuant thereto by the referee in every case save one, and it does not appear what was done under it. What is known as the A. E. Olson contract was fully performed by the purchaser before January 1, 1906, and Leary, one of the purchasers, paid the amount due under his contract on the day the same was approved by the court. The referee received the money thereon December 30, 1905, and delivered the deed January 2, 1906.
Two primary questions arise upon this appeal as follows: (1) Are the contracts such as that, had they been made by an individual in his own name, they would have been subject to assessment for taxation? (2) Are they or any of them assessable in the hands of the referee? It is said that the contracts involved are mere options, and not contracts of purchase, and In re Shields Bros., 134 Iowa 559, 111 N.W. 963, is cited as an authority for the proposition. That case does not so hold, and is clearly distinguishable in its facts from the one in hand. No evidence was introduced tending to show that these contracts were intended as mere options. We have no doubt that after the approval of the court each and all of these contracts could have been enforced against the purchasers by proper action in court. Where one holds an enforceable contract for the sale of land, he has such a credit as is subject to taxation. Clark v. Horn, 122 Iowa 375, 98 N.W. 148; Cross v. Snakenberg, 126 Iowa 636, 102 N.W. 508; Perrine v. Jacobs, 64 Iowa 79, 19 N.W. 861. Schoonover v. Petcina, 126 Iowa 261, 100 N.W. 490, is not in point. Had the contracts been made by an individual in his own right, they would undoubtedly have been assessable.
II. The next question is much more difficult of satisfactory solution. Boyd was a referee with powers already mentioned. He was commissioned to sell the land as a referee, and, in fact, had no title to, right, or interest in the lands sold. He was not a receiver of the property, nor was he a trustee thereof. He was simply an officer of court appointed for the purpose of selling or making contracts for the sale of the land and to divide the proceeds among the owners. Were these land contracts assessable to him as such referee? Appellant relies primarily upon the fundamental principle that taxation is the rule and exemption from taxation the exception as announced not only in our own, but in many other cases, as for example, in Trustees v. State, 46 Iowa 275, and Ft. Des Moines Lodge v. County, 56 Iowa 34, 8 N.W 687; while appellee says with equal confidence that there can be no taxation except as authorized by statutory or constitutional provision, citing C., M. & St. P. R. R. v. Phillips, 111 Iowa 377, 82 N.W. 787; Tallman v. Treasurer, 12 Iowa 531. There is no real conflict in these rules. Of course, no property can be taxed until the lawmaking power authorizes and requires it to be done. But, when property in general is made subject to taxation as it is by sections 1303 and 1308 of our Code, he who would claim an exemption must be able to point to a statute or some rule of law which gives him the right. ...
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