McGregor v. Montgomery

• Decision Date: 28 October 1846
• Citation: 4 Pa. 237
• Parties: McGREGOR <I>v.</I> MONTGOMERY
• Court: Pennsylvania Supreme Court

4 Pa. 237

McGREGOR v. MONTGOMERY

Supreme Court of Pennsylvania.

October 20, 1846.

October 28, 1846.

Oct. 20.

IN error from the Common Pleas of Jefferson county.

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Jenks and Arthurs, for plaintiff in error.—It was contended on the trial, that as Montgomery lived on the property, he was liable for all the taxes. They were assessed against Robinson. Montgomery was a tenant of one of the tracts only. To charge a tenant, he must be in possession at the time the taxes are assessed. In assessing the taxes against Robinson, the county had made its election; and the property of Montgomery could not be distrained therefore. If taxes are assessed against the real owner of the land, they cannot be collected from the tenant. Property distrained for taxes must be on the premises at the time of making the distress. If Montgomery was liable for a part, he was certainly not liable for the whole amount of the tax assessed against Robinson. Act of the 15th April, 1834, secs. 21 and 46, Purd. Dig. 205-7, and Act of the 29th April, 1844, sec. 41; Pamph. Laws, 501.

The collector must look to the person assessed. Shaw v. Quin, 12 Serg. & Rawle, 300. The taxes cannot be apportioned. The abandonment of a sufficient levy on the goods of the owner of the land, is a satisfaction of the taxes. Parker's Appeal, 8 Watts & Serg. 449.

Clarke, contrà.—It was the duty of the plaintiff to have had the lease at the trial. Robinson had leased to Montgomery, his son-in-law. The lease would have disclosed every thing in relation to the tenure of the property. But it was proved, that Montgomery was in the possession of all the property, as the tenant of Robinson. The assessor is not bound to inquire whether the owner of a property has leased it. Montgomery, as the tenant of Robinson, was liable for the taxes. The distress upon Floyd's lumber (which was abandoned) for the taxes, was a sufficient demand under the act of Assembly. A collector is a public officer, and will be protected in the execution of his duty.

If there was any injury committed by the collector, it was an excessive distress, and the remedy should have been case and not trespass.

Oct. 28. COULTER, J.

This is an action brought by the plaintiff in error, who was plaintiff below, against the defendant, who was a collector of taxes, for selling the plaintiff's property.

The defendant offered his warrant as collector of Porter township, and the collector's duplicate of said township, in evidence, to which the counsel for the plaintiff excepted; the court overruled the exception, and sealed a bill of exceptions. The papers were admitted to be genuine, and properly authenticated.

There is nothing whatever in the exception. The taxes for which the defendant's property was sold were assessed in the name of John Robinson, who was proprietor of six tracts of land in Porter township, on one of which a grist and saw-mill was erected. There was no dispute whatever as to the occupancy by Montgomery of the mill tract, but in relation to the other tracts there was conflicting testimony.

The main question raised was, whether the property of Montgomery could be distrained and levied for the taxes assessed on these lands.

The court instructed the jury quite distinctly, that unless Gilmore Montgomery occupied all these lands at the time of the assessment and levy, that the defendant would be a wrongdoer, and not entitled to protection under the shield of his warrant; and the court imbody the forty-sixth section of the act of the 24th February, 1834, into their instruction, so that there was no room for mistake or misapprehension. The question of occupancy they referred to the jury to be determined by the evidence.

The distress or levy of the mare of Montgomery by the collector was made at a vendue some distance from the premises, and the counsel for plaintiff requested the court to instruct the jury that such a distress was illegal; that no property could...