Lucking v. Ballantyne

• Decision Date: 30 March 1903
• Citation: 132 Mich. 584,94 N.W. 8
• Court: Michigan Supreme Court
• Parties: LUCKING, Receiver of Taxes, v. BALLANTYNE.

94 N.W. 8

132 Mich. 584

LUCKING, Receiver of Taxes, v. BALLANTYNE.

Supreme Court of Michigan

March 30, 1903

Appeal from Circuit Court, Wayne County, in Chancery; Joseph W Donovan, Judge.

Suit by James W. Baldwin and another against W. J. Gould & Co. and another, in which John Ballantyne was appointed receiver. From a decree for petitioner on petition by Thomas M Lucking, receiver of taxes, to compel payment of certain taxes by Ballantyne as receiver, the latter appeals. Reversed.

Henry B. Graves, for appellant.

Timothy E. Tarsney (John W. McGrath, of counsel), for appellee.

CARPENTER J.

Defendant Ballantyne, the receiver in the above-entitled cause, asks this court to set aside a decree rendered by the court below compelling him to pay the petitioner, the receiver of taxes of Detroit, $1,714.14 for city taxes assessed against the defendant corporation, W. J. Gould & Co., as the owner of the receivership property. The facts are as follows: On February 28, 1902, W. J. Gould & Co. executed and delivered to said Ballantyne, as trustee, a mortgage upon its stock of goods and other personal property, situated in the city of Detroit to secure the payment of the aggregate amount of $84,740, owing to a number of its creditors. March 1, 1902, said Ballantyne was appointed receiver of the property covered by said mortgage in this suit, instituted for the purpose of its foreclosure. Until July 12, 1902, said mortgaged property was sold in the ordinary course of trade. The balance undisposed of was sold in a lump at that time. The property covered by the chattel mortgage is insufficient to pay all the debts secured thereby. The assessment for the taxes in question was made against W. J. Gould & Co. It is insisted that the decree of the court below can be sustained on two grounds: (1) That the lien created by the law for the payment of taxes is superior to the lien created by the chattel mortgage under which the receiver holds; (2) that the assessment may stand as an assessment against the receiver.

1. The lien for taxes is given by section 10 of chapter 10 of the charter of the city of Detroit (see Act No. 472, p. 714, Loc Acts 1901), and reads as follows: 'All city taxes upon personal property shall be and remain a lien thereon until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien.' It is not necessary to decide whether the tax lien attached April 1st, when the property was listed for assessment, or July 1st, when the tax roll was placed in the hands of the receiver for collection. See Eaton v. Chesebrough, 82 Mich. 214, 46 N.W. 365. The mortgage was given several weeks, at least, before the tax lien attached. The question, then, is, does the language of the section above quoted make the lien for taxes superior to liens existing when such tax lien takes effect? Clearly, nothing in the language...