Lobban v. State ex rel. Carpenter

• Decision Date: 12 March 1901
• Citation: 64 P. 82,9 Wyo. 377
• Parties: LOBBAN, COUNTY TREASURER, ETC., v. STATE, EX REL. CARPENTER, ET AL
• Court: Wyoming Supreme Court

64 P. 82

9 Wyo. 377

LOBBAN, COUNTY TREASURER, ETC., v. STATE, EX REL. CARPENTER, ET AL

Supreme Court of Wyoming

March 12, 1901

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Mandamus in the name of the State, on the relation of Mary L Carpenter and Francis Bacon, against J. M. Lobban as treasurer and ex-officio collector of taxes of Sheridan County, to compel said treasurer to issue and deliver to the relators a tax receipt in full for all taxes due upon certain lands. The facts are stated in the opinion.

Affirmed.

Charles Lenwood, county attorney, and Appelget & Mullen, for plaintiff in error.

Mandamus in this case does not lie. The taxes were a lien upon the land at the time of the foreclosure of the mortgage, and the priority of liens might have been determined in an action to foreclose the mortgage by making the county a party defendant. That would have been in the ordinary course of law. Again, an action might have been maintained to quiet title. So, the relators could have paid the tax claimed to constitute a lien, and brought suit to recover it back. (State v. Nelson, 4 L. R. A., 300.) The treasurer had no authority to release the tax lien. (Neil v Barron, 8 O. S. & C. P., 424.) There was an adequate remedy at law. (High Ex. Leg. Rem., Sec. 80, 81; People v. Board, 27 N.Y. 378; People v. Mayor, 25 Wend., 680; U. S. v. Clock, 128 U.S. 40; San Mateo Co. v. Maloney, 71 Cal. 205; Howland v. Eldridge, 43 N.Y. 457; State v. Whiteside, 3 L. R. A., 777.) The right to mandamus must be clear. (High, Secs. 9, 10, 14.) The county is a necessary party since the treasurer has no interest in the taxes. He does not represent the corporate interest of the county to such an extent that a determination against him will bind the county. He is not directed to issue a receipt in full as the relators demand. He performs his whole duty when he receipts for the money he receives.

The tax lien is superior to that of the antecedent mortgage. (Osterberg v. Union Trust Co., 93 U.S. 424; Cooley on Taxation, p. 445; State v. Central Trust Co., 36 C. C. A., 214; Morey v. Duluth, 77 N.W. 829; Cal. L. & T. Co. v. Weis, 50 P. 697.)

E. E. Lonabaugh, for defendants in error.

By the foreclosure of the mortgages by advertisement, as permitted by statute, the relators obtained title to the lands free and clear of any and all subsequent liens and incumbrances. (Pearson v. Gooch, 40 A. 390; Mutual L. & B. Co. v. Haas, 27 S.E. 980.) Mandamus is an appropriate remedy. The tax is not attacked, nor is its legality in question. The tax originally assessed against the mortgagor has ceased to constitute a lien upon the lands. The relators ought to have a receipt showing the payment of all the taxes standing against the lands. There is no adequate remedy at law. (McNary v. Wrightman, 52 P. 910.) The lien of a tax levied upon personal property, on the lands of the person assessed, is inferior to a prior mortgage. (Gifford v. Calloway, 46 P. 626; Miller v. Anderson, 47 N. W., 955; Bibbins v. Clark, 57 N. W., 884; Macalt v. Newark, 42 N. J. L., 45.)

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

In February, 1890, James H. Hopkins, then the owner of certain land in Sheridan County, executed two mortgages, covering separate tracts thereof, to Alfred T. Bacon, for $ 3,000 each. At a sale, upon foreclosure by advertisement of the mortgages in April, 1897, the relators became the purchasers of the lands for an amount less than the sum due upon the mortgages. Until such sale said Hopkins remained the owner of the lands, subject to the said mortgages.

During the years 1895 and 1896, said Hopkins was also the owner of a large amount of personal property, located in the county aforesaid, subject to taxation; and in those years taxes were levied by said county, against said Hopkins, upon said lands, and the personal property aforesaid. The taxes so assessed and levied were delinquent and unpaid at the time of the foreclosure of the mortgages.

On or about October 26, 1897, the relators, as owners of the lands, caused to be paid to plaintiff in error, as county treasurer and ex-officio collector of taxes, the sum of $ 197.07 the same being the aggregate amount of delinquent taxes, including penalty and interest charges, assessed and levied upon the said lands, while Hopkins continued the owner thereof. The collector accepted the said sum, but although the same was demanded, refused, and continues to refuse to issue and deliver to relators a tax receipt in full, and as for all taxes against said lands and legally chargeable thereto, claiming that all of the unpaid and delinquent personal tax assessed to the said Hopkins constitute a lien upon the lands superior to the title of relators.

The foregoing facts are set out in the petition in this cause; and a writ of mandamus is prayed for, commanding the collector to issue and deliver to relators a tax receipt in full of all legal demands against the lands for the years 1895 and 1896. A general demurrer to the petition was overruled, which ruling was duly excepted to, and the plaintiff in error elected to stand upon his demurrer, and refused to further plead. Thereupon, the court found the facts set forth in the petition to be true, and ordered that a peremptory mandamus issue.

The respondent assigns as error, (1) that the court erred in overruling the demurrer to the petition, and, (2) that the court erred in rendering judgment in favor of relators. The questions raised and discussed by counsel are two only, viz: First, Does the personal tax assessed against the mortgagor, Hopkins, constitute a lien upon the lands superior to the mortgages previously executed thereon, and in force when the taxes were so assessed and levied, and superior to the title of relators obtained at the foreclosure sale? Second: Is mandamus a proper remedy?

1. It is well settled that taxes are not a lien unless expressly made so by statute; and, when liens are expressly created by statute, they are not to be enlarged by construction. Cooley on Taxation, 414; Bibbins v. Clark, 90 Iowa 230, 57 N.W. 884.

In a recent Colorado case it was said: "The fundamental rights of all governments to levy taxes is universally recognized. The power is broad enough to include authority to make the taxes a lien which shall override any other security or incumbrance, whether created anterior to the levy, or subsequent to the assessment. To ascertain whether it has been exercised in any given case, we must resort to the particular legislation respecting it in the jurisdiction wherein the lien is asserted." Gifford v. Callaway, 8 Colo.App. 359; 46 P. 626. The court in the same case say further, "Legislation directly charging the realty with the lien is prerequisite to its existence; without it, taxes are not thus collectible, either as against the owner or an incumbrancer.

Our statutes upon this subject are as follows:

"On the thirty-first day of December in each year, the unpaid taxes of that year shall become delinquent and shall draw interest at the rate of eight per cent per annum until paid, or collected by distress and sale, in addition to the penalty imposed by the preceding section, and taxes upon real property are hereby made a perpetual lien thereon, against all persons and corporations except the United States and this State, and taxes due from any person or corporation on personal property, shall be a lien on real estate owned by such person or corporation." (R. S., Sec. 1870.)

"All taxes levied upon personal property of any kind whatsoever, shall be and remain a perpetual lien upon the property so levied upon, until the whole of such tax is paid; Provided, however, That in case of a transfer of property before payment of said tax levied thereon and after such levy, the tax thus levied shall be collected from the person or persons against whom the same are levied, if such person has real or personal property out of which payment can be enforced; but if such person be not possessed of such real or personal property, then the payment thereof shall be enforced against the property thus taxed." (R. S., Sec. 1859.)

Although by the terms of Section 1870 taxes levied upon personal property are a lien upon the real estate owned by the person from whom such personal taxes are due, it is to be observed, that the lien thus provided for is not expressly made prior or superior to any other existing lien or incumbrance. A lien is created merely, without any attempt to fix its priority in respect to other liens. It would seem that had the legislature intended to impart to the lien of the personal tax upon land of the tax payer a priority over antecedent liens placed upon the property by the owner, in good faith, that intention would have been expressed by plain and apt language. Indeed, we think the duty to have done so to be clear.

But this matter has recently received the consideration of other courts, where the whole question has been ably and exhaustively discussed, and the conclusion reached that, under statutes very much like our own, and not at all dissimilar in principle, the lien of the personal tax upon the land of the owner of the personal property assessed, is not superior, but is inferior to antecedent incumbrances. Gifford v. Callaway, supra; Bibbins v. Clark, 90 Iowa 230, 57 N.W. 884; Miller v. Anderson, 1 S.D. 539, 47 N.W. 957.

As our views are in accord with the decision in those cases, we deem any elaborate discussion on our part, at this time, unnecessary, and we will therefore content ourselves with brief references to the cases cited.

The statute of Iowa provides that "taxes due from any person upon personal property shall be a lien upon any real...