Maish v. Bird
| Decision Date | 01 January 1884 |
| Citation | 22 F. 180 |
| Parties | MAISH v. BIRD and others. |
| Court | U.S. District Court — Southern District of Iowa |
Wright Cummins & Wright, for complainants.
Sherman Mitchell & Dudley, for county treasurer.
William K. Bird, in January, 1882, was engaged in the mercantile business at Des Moines, Iowa. On the sixth of January he executed a chattel mortgage on his stock in trade to the Iowa National Bank to secure his indebtedness to this bank. Certain other creditors levied writs of attachment on the property, and the complainant, to whom the mortgage had been assigned, replevied the same, and also filed a bill for the foreclosure of the mortgage. The court appointed a receiver who took possession of the property, and, under direction of the court, sold the same, the proceeds being held for distribution to the parties to whom it should be ultimately adjudged to be due. The county treasurer of Polk county now applies to the court for an order directing the receiver to pay out of the funds realized from the sale of the goods the taxes assessed against W. K. Bird for the year 1882. This application is resisted by the complainant, on the ground that the fund is not sufficient to pay his claim in full, and that the taxes are not a lien upon the property or its proceeds, no levy thereof having been made upon the property. On part of the county treasurer it is urged that the matter stands just as it would if an actual levy had been made, for the reason that when the taxes became delinquent, so that a levy therefor could have been made, the property was in possession of this court, and that he could not, therefore, seize the same, and that the court will, therefore, deem that to have been done which would have been done had not the possession by the court of the property forbidden it.
Under the provisions of the statutes of Iowa, taxes are not declared to be a lien upon personalty. Section 857 of the Code provides that if any one neglects to pay the taxes assessed against him before the first day of February, the treasurer is directed to make the same by distress and sale of his personal property, and the tax-list alone shall be sufficient warrant for such distress. The taxes claimed by the treasurer were for the year 1882, and hence the treasurer could have distrained for the collection thereof on or after the first day of February, 1883. At that time the goods were in possession of the receiver. Assuming, without deciding it that the fact that the court, through the receiver, had possession of the goods, should be deemed to place the treasurer in the same position as though he had created a lien on the property, the question then arises whether such lien for the taxes assessed against W. K. Bird for the year 1882 is superior or paramount to that of complainant as mortgagee, or is there an equity in favor of such taxes which entitles them to priority? I do not find that this...
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