McCord Mercantile Co. v. McIntyre

• Citation: 138 P. 59,25 Colo.App. 376
• Parties: McCORD MERCANTILE CO. v. McINTYRE.
• Decision Date: 12 January 1914
• Court: Colorado Court of Appeals

138 P. 59

25 Colo.App. 376

McCORD MERCANTILE CO. v. McINTYRE.

Court of Appeals of Colorado

January 12, 1914

Error to District Court, Otero County; C.S. Essex, Judge.

Action by Henry A. McIntyre against the McCord Mercantile Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Hartman & Ballreich and Charles W. O'Donnell, all of Pueblo, for plaintiff in error.

Fred A Sabin, of San Junta, for defendant in error.

CUNNINGHAM P.J.

On or about August 7, 1907, plaintiff in error, as defendant below conveyed by warranty deed to defendant in error, plaintiff below, certain lands in Otero county. The instrument of conveyance contained no express agreement nor was there any agreement, as to whether grantor or grantee should pay taxes that might be assessed upon the land conveyed for the year 1907. The land in question was situated in an irrigation district, organized, presumably, under the statutes of our state, which were adopted first in 1901, and re-adopted, with certain amendments, in 1905. This act will be found at page 910 et seq., Revised Statutes 1908, and in Mills' Annotated Statutes, Revised Edition 1912, at page 1728 et seq. Section 5703, R.S.1908, provides that: "As between the grantor and grantee, where there is in the instrument of conveyance no express agreement as to which shall pay the taxes that may be assessed on the land conveyed, if such conveyance has been made between the 31st day of December and the 1st day of the next July, then the grantee shall pay the tax for the year in which the conveyance is made, but if the conveyance is made between the 30th day of June and the 1st day of the next January, then the grantor shall pay the taxes for the year in which the conveyance is made." It will be seen from the date of the conveyance involved in the case before us that it was made at a time and under circumstances which made the grantor liable, under the statute, for such taxes as had been assessed on the land for the year 1907, and contemplated by section 5703.

1. There had been assessed on the land conveyed certain irrigation district taxes. These the grantor refused to pay and plaintiff, after permitting the land to be sold for the taxes, redeemed the same from the tax sale and brought suit to recover the irrigation district tax. By their pleadings, their stipulation of facts upon which the case was tried, and in their brief, counsel have limited this court strictly to the consideration of but one question, viz., Does section 5703, supra, apply to irrigation district taxes? The record shows that the instrument of conveyance was a warranty deed, but the deed is not set up in the pleadings, nor was it introduced in evidence, and we have no information as to the nature and character of its covenants, other than that it is denominated in the record as a warranty deed, but under the scope of our inquiry, limited as above stated, the covenants of the warranty deed are not important.

Neither counsel for plaintiff nor defendant in error have directed our attention to any case of a similar character, or to any authority directly in point, and we have been able, after vigilant search, to find but one, viz., Tull v. Royston, 30 Kan. 617, 2 P. 866. Kansas has a statute (Gen.St.1909,§ 9392) very similar to our section 5703, and like our section, it is found in the General Revenue Law, or, as the act is termed in the Kansas Statute, "An act to provide for the assessment and collection of taxes." In Tull v. Royston, supra, in considering the question here before us, Chief Justice Horton expressly ruled that their statute, similar to our 5703, and governing the liability, as to taxes, of the grantor and grantee, applied to taxes levied by a city or town for sidewalk improvements. At page 619 of 30 Kan., at page 868 of 2 Pac., Judge Horton says: "While special assessments for improvements in cities are not taxes within section 1, art. 2, of the Constitution, yet we must construe them to be included in the word 'taxes' in section 86, p. 107, Laws 1879"--being the section that corresponds to our 5703. The Kansas court, in construing its statute governing the liability for taxes as between grantor and grantee, said, in the Tull Case, supra: "In construing these sections, the intention of the lawmaker must control, and this intention is to be ascertained from all that is expressed in the statute, rather than from the technical significance of the word 'assessments.' Section 43, c. 19a, Comp.Laws 1879, relating to cities of the third class, favors this construction [meaning the construction holding the conveyance statute applicable to sidewalk or improvement taxes], which reads: 'All taxes and assessments levied under authority of this act shall be placed on the tax roll for collection, subject to the same penalties and collected as other taxes are by law collectible.' " Thus it will be seen that the Kansas court considered the fact that the Legislature of that state, by making the general machinery for the collection of taxes applicable to the town improvement tax, thereby indicated their intention or purpose of making no distinction as between improvement and general taxes, in so far as the conveyance statute is concerned. With equal, if not greater, reason we may rely upon section 3461, R.S., of our irrigation act, which reads as follows: "The revenue laws of this state for the assessment, levying and collection of taxes on real estate for county purposes, except as herein modified, shall be applicable for the purposes of this act, including the enforcement of penalties and forfeitures for delinquent taxes."

2. It will be observed that the Kansas Supreme Court had before it a sidewalk tax case. We think, for reasons which we shall now proceed to give, there is a stronger reason for holding that irrigation district taxes should fall within, and be governed by, the section pertaining to conveyances than sidewalk taxes. Our irrigation district act is modeled upon, and is substantially similar to, the California Wright Irrigation District ...