In re Life Ass'n of America N.C. Hudson

• Decision Date: 28 March 1882
• Citation: 12 Mo.App. 40
• Parties: IN RE LIFE ASSOCIATION OF AMERICA; N. C. HUDSON, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 40

IN RE LIFE ASSOCIATION OF AMERICA; N. C. HUDSON, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 28, 1882.

1. The state's demand for taxes is not barred by section 6045 of the statute, and an order made thereunder limiting the time of filing claims, cannot be interposed against the payment of such a demand out of a fund in court.

2. The superintendent of insurance must, under the statute, pay taxes upon land of a dissolved insurance company out of funds of the company in his hands.

3. Taxes upon real estate are, under the statute, a personal charge against the owner, and his personal property may be subjected to the payment thereof.

4. If taxes are a lien upon land sold under a mortgage, the collector is not affected by any equities between the parties to the sale, nor by any statements made thereat by the trustee.

5. The collector is not restricted to a proceeding against the land, but may proceed against the personalty of the person who was owner of the land when the taxes became a lien thereon.

6. A suit instituted by the collector to enforce the state's lien for taxes against the land does not estop him from pursuing any other remedy given by statute for the collection of taxes.

7. A petition by a tax collector to subject funds in the hands of a receiver to the payment of taxes, will not avail to subject the fund to the payment of taxes not due when the petition was filed.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

GEORGE W. TAUSSIG and JAMES TAUSSIG, for the appellant: The petitioner claims payment of taxes out of the money in the hands of the superintendent of insurance, in charge of the Life Association of America, on two grounds: First, that section 6047 of the Revised Statutes of Missouri expressly provides for and requires such payment.-- In re Receivership, 3 Abb. App. Dec. 239; Phillips v. Rowse, 49 Mo. 586. Second, that under our statutes, the personal assets of the Life Association are subject to levy for such taxes, and that these assets being now in custodialegis, the court should apply them to the satisfaction of the taxes.--Rev. Stats., sects. 6754, 6826; Burr. on Tax. 257; 4 Cranch, 412; 9 Cranch, 70; 6 Wheat. 119; 12 Ala. 617; 14 Ind. 466; In re Henley, 9 L. R. (Ch. Div.) 469. Third, That at common law, independent of statutory provisions, the collector has a right to have his petition granted.--3 Cent. L. J. 715, 716.

W. J. RELFE and W. L. SCOTT, contra: The claim for these taxes, including what is strictly state taxes, is barred, by virtue of section 6045, inasmuch as the claim is, for the first time, asserted after the expiration of the time prescribed under the decrees limiting the time for filing claims.-- School District v. Gorges, 50 Mo. 194; Abernathy v. Dennis, 49 Mo. 468; Riley v. Choquitti, 18 Mo. 220; Armstrong v. Channin,66 Pa. St. 221; St. Charles v. Powell, 22 Mo. 525. That the foundation of this claim against the personalty for unpaid taxes on realty is that of personal liability, see Burroughs on Taxation, page 4, section 7. As respects the claims for the taxes of 1879, the same is barred, by reason of the proceeding instituted by the collector, and still pending in the circuit court, to subject the real estate to their payment. The remedy by the proceeding in rem is an exclusive one. It is prescribed by statute, and is based upon the statutory conditions to be found in sections 6825, 6836, Revised Statutes 1879. The land being ““““delinquent,” the statute is mandatory upon the collector to proceed in rem.Sect. 6825. To permit him to pursue both remedies at the same time would be oppressive to the subject, and is averse to the spirit of our laws and institutions.-- Camden v. Allen, 2 Dutch. 400. To recognize his right to postpone the proceeding in rem until the legislation in respect to the personalty is ended, would be against the policy of the law which contemplates and provides for the speedy and certain collection of the taxes in the subjection of the land itself to their payments.--Rev. Stats., sect. 6841. No remedies can be adopted except those prescribed by statute. The collection of taxes is a matter solely of statutory provision and regulation, and no means can be resorted to to coerce their payment, other than those expressly provided by the statute.-- Carondelet v. Picot, 38 Mo. 125. No doctrine of the law is more clearly recognized or more firmly established than that where the statute prescribes a particular remedy all other remedies are excluded.-- The State v. Lyman, 1 Mason, 481; Girding v. Tewksberry, 3 Mass. 307; Smith v. Drew, 5 Mass. 504; Bigloe v. Cam. Turn. Co., 7 Mass. 202; Calklin v. Baldwin, 4 Wend. 667; 10 Mass. 378. Compensation must be sought in the way pointed out by the statute, and none other.-- Lebanon v. Olcot, 1 N. H. 339; Roys v. Bradshaw, 20 Johns. 735; Calklin v. Baldwin, 4 Wend. 667; 10 Mass. 378. This doctrine has been directly applied to the matter of the collection of taxes; and the right to bring an action for their recovery or to pursue any other remedies than those provided by the statute is squarely denied.-- Camden v. Allen, 2 Dutch. 398; Pearce v. City of Boston, 3 Metc. 520; Lance County v. Oregon, 7 Wall. 71; Shaw v. Picket, 26 Vt. 482.

THOMPSON, J., delivered the opinion of the court.

This is an intervening petition of the tax collector of the city of St. Louis, in a proceeding wherein the Life Association of America is being would up by the superintendent of the insurance department of the state, under the control of the circuit court. The petition, together with an agreed statement of facts and certain extracts from the record of the proceeding to wind up the Life Association, shows that the Life Association was formerly the owner in fee of a certain tract of ground and building thereon in St. Louis, known as the Masonic Hall; that while the building was thus owned by the insurance company, taxes were assessed against it for the years 1879 and 1880; that on November 10, 1879, a decree was made by the circuit court dissolving the insurance company, and that thereupon this real estate, together with the other assets of the company, passed into the hands of the superintendent of the insurance department, and title thereto in fee simple vested in him and his successor in office, as provided in section 6043 of the Revised Statutes; that while the title to this real estate was thus vested in the superintendent of the insurance department, namely, on August 1, 1880, there were further assessed against it taxes for state, city, and school purposes for the year 1881; that this intervening petition was filed on May 16, 1881, and that these last taxes were not enforceable until October 1, 1881, as provided in section 6754 of the Revised Statutes; so that these last taxes were not due at the time of the filing of the petition.

It also appears that the Life Association of America, and afterwards the superintendent of the insurance department, as already stated, held the title to the property, subject to a deed of trust, made to secure certain bonds and coupons; that on March 9, 1881, this title was conveyed by the superintendent of the insurance department by a quitclaim deed executed under the orders and with the approval of the circuit court having charge of the winding-up proceeding against the insurance company, to George W. Taussig, for the consideration of $500; that thereafter, on April 28, 1881, the property was sold under the deed of trust at public auction to Meyer A. Rosenblatt, for $71,200; that there remain unpaid of the indebtedness secured by the deed of trust, about $75,000; that the grantor in said deed of trust, the Masonic Hall Association, from which the Life Association of America derived its title, has been since 1873, and still is, insolvent; that Mr. Rosenblatt purchased the property on behalf of himself and the other bondholders, and that he now holds and owns all of the bonds and coupons secured by the deed of trust; that at the sale under the deed of trust it was announced by the auctioneer, and by an attorney for some of the bondholders, that the purchaser of the property would take it subject to the taxes for the years 1879 and 1880.

It is also admitted that the Life Association of America was the owner and in possession of the property in question from November, 1873, continuously until November 10, 1879, when it was dissolved; that during this period it collected all the rents of the same, paid all taxes assessed against the same until those assessed for the year 1879, and also paid the interest coupons secured by the deed of trust in question, down to and including those which fell due on June 1, 1879; that the total rents and income from the property were not sufficient at any time to pay the expense of keeping it in good repair, of running the building, and of paying the interest coupons secured by the deed of trust in question; but that the rents and income were larger than the amounts disbursed for repairs, for the running of the building, and for taxes; and that the property was not worth, at the time of its purchase by Rosenblatt, the amount of the encumbrance thereon.

It also appears that prior to the sale under the deed of trust, a proceeding was instituted in the circuit court to enforce the state's lien for taxes against the property for the year 1879, as provided for in section 6836, et sequitur, of the Revised Statutes, and that this suit was pending at the time of the hearing of this petition in the circuit court.

It is further agreed that the superintendent of the insurance department had a general knowledge of the fact that taxes had been assessed against this real estate, but did not know the exact amount; that he has had at all times since November 10, 1879, and had at the time of the hearing of this petition, in his possession, personal property of the Life Association of America, consisting of money, the proceeds of sales of real...