Lee v. Stanard

• Decision Date: 14 May 1900
• Citation: 15 Colo.App. 101,61 P. 234
• Parties: LEE v. STANARD, County Treasurer.
• Court: Colorado Court of Appeals

61 P. 234

15 Colo.App. 101

LEE v. STANARD, County Treasurer.

Court of Appeals of Colorado

May 14, 1900

Appeal from district court, Kiowa county.

Proceedings between John Lee and A.H. Stanard, county treasurer, to determine priority of liens on stock levied on for taxes. From a judgment in favor of the county treasurer, Lee appeals. Reversed.

Where personal property consisting of a herd of horses was distrained for taxes in the hands of a subsequent mortgagee on the trial of the right to the property, the mortgagee having exhibited his chattel mortgage, established a prima facie right, and the burden then devolved upon the treasurer to establish a superior right under the tax lien.

This is an agreed case, made by the parties pursuant to chapter 24 of the Code. The parties stipulated as follows: A certain herd of horses, branded 55 on left shoulder, known as the "55 herd," consisting of mares and geldings of all ages, and colts, numbering upwards of 500,--the exact number being unknown,--ranged in the counties of Bent and Kiowa, but chiefly in Bent. In the years 1892, 1893, 1894, and 1895, schedules were returned to the assessor of Kiowa county by George H. Hill, as agent for Alexander Pitts, of a certain number of horses as being assessable in Kiowa county; and upon those schedules, and by virtue of the levy for those years, and the assessment by the county assessor, taxes were charged upon the proper books against George H. Hill, as agent for Alexander Pitts, upon "200 head of stock range horses," as follows: For the year 1892, $119.59; for the year 1893, $105.80; for the year 1894, $60.93; for the year 1895, $114.75. No return of the property was made for the year 1896, and the assessor listed it himself. The taxes for that year were $67.44. On the 24th day of February, 1896, George H. Hill executed to Alexander Pitts a mortgage of the entire "55 herd" to secure the payment of two notes of the same date made by him, and payable to Pitts,--one for $415, due in 1 year, and one for $1,559.75, due in 15 months. This mortgage was recorded in the office of the recorder of Bent county on the same day. On the 27th day of February, 1893, Pitts assigned the notes and mortgage to John Lee. On the 9th day of March 1896, Hill executed to John Lee a mortgage of the same herd to secure four notes of that date, made by Hill to Lee,--one for $1,500, due May 1, 1896, one for $1,000, due May 1, 1897 one for $370, due May 1, 1898, and one for $7.90, due May 1, 1900. This mortgage was recorded in both Bent and Kiowa counties. Both mortgages covered, not only the herd, but its natural increase. Contemporaneously with the execution of the last mortgage, a written agreement was entered into between Hill and Lee, which, after reciting that most of the horses were in an unbroken condition, and that, to render them salable, it was necessary to gather and break those fit for sale, to brand others, and, in general, to care for the herd, and that Hill had not sufficient money or credit to properly care for the horses and gather and break them, provided that the horses might be gathered and broken by Lee, and as many of them as were fit for sale, sold by him; that the expenses of managing the herd, not to exceed $1,500 per year, might be paid out of the sales; that no person should be employed at higher wages than might be agreed upon by the parties to the agreement; that none of the proceeds of the sales should be applied to any purpose other than the payment of the necessary expenses, and the discharge of the debts secured by the mortgages; and that, if Lee should advance any money in the management of the herd or the effecting of sales, he should be reimbursed from the sales. Within a short time afterwards Lee took possession of the mortgaged property pursuant to the agreement, and gathered, broke, and branded horses; but the proceeds of the sales were insufficient to pay the running expenses, so that no money was applied upon the notes. During all the time from the first assessment there were sold annually, out of the herd, from 100 to 125 head of horses. The description of the horses, as listed and assessed, did not refer to brands or ages, or other means of identification, but was simply "200 head of stock range horses." Pitts was at all times the owner of personal property in Bent county of a value in excess of the amount of the taxes. On the 11th day of May, 1897, by virtue of a distraint warrant issued on the 30th day of April, 1897, for the collection of the taxes of 1892, 1893, 1894, and 1895, and the accrued interest, the treasurer of Kiowa county levied upon 96 head, belonging to the "55 herd" and in the possession of Lee in that county, consisting of 12 suckling colts, 13 yearlings, 6 two year olds, 10 three year olds, 54 four year olds, and one whose age is not given, and advertised the property for sale. Thereupon this cause was submitted to the district court for the determination of the question whether the county had a claim upon the property distrained for the taxes of those years, which was superior to the lien of the mortgages held by Lee, or whether the right of Lee took precedence of the claim of the county. The decision was in favor of the county, and judgment was entered accordingly. Lee appeals.

Allen M. Lambright, for appellant.

D.M. Campbell and Chas. B. Hughes, for appellee.

THOMSON J. (after stating the facts).

We do not see how this judgment can be upheld. Section 2819 of the General Statutes provides as follows: "All taxes levied or assessed upon personal property of any kind whatsoever shall be and remain a perpetual lien upon the property so levied upon, until the whole amount of such tax is paid; and if such tax shall not be paid on or before the first day of January next succeeding such levy, it is hereby made the duty of the county treasurer to collect the same by distress and sale of any of the personal property so taxed, or of any other personal property of the person assessed; and if such property so taxed, or any part thereof, shall have been removed from the county wherein the same was taxed, or is so conditioned that the treasurer cannot find or obtain the same, then the county treasurer shall sue the person so taxed, in an action of debt before any court of his county having jurisdiction; *** and may obtain a judgment for the amount of such tax, together with all costs, interest and charges thereon, and may have execution therefor against any of the property, real or personal, of such person." The following is from section 2833 of the General Statutes: "Horses, mules, cattle and sheep running at large and not being worked, shall in all cases be returned and assessed in the county in which they are being herded or kept on the first day of May in each year." The lien for which section 2819 makes provision attaches to the specific property assessed or levied upon, and while, for the collection of the tax, any property of the person assessed may be taken, as against a subsequent purchaser or incumbrancer, only the property to...