Miller v. Anderson

• Decision Date: 05 February 1891
• Citation: 47 N.W. 957,1 S.D. 539
• Parties: MILLER, Plaintiff and Appellant, v. PETER J. ANDERSON et al., Defendants and Respondents, and Spink County, South Dakota
• Court: South Dakota Supreme Court

1 S.D. 539, 47 N.W. 957 (1891)

MILLER,

Plaintiff and Appellant,

v.PETER J. ANDERSON et al.

,

Defendants and Respondents,

and

Spink County, South Dakota

South Dakota Supreme Court

Appeal from Circuit Court, Spink County, SD

Hon. A. W. Campbell, Judge

Reversed.

L. H. Hole, Alva E. Taylor and John L. Pyle

(Bartlett Tripp and E. B. Soper of counsel)

Attorneys for Appellant.

R. B. Hassell and John H. Myers

Attorneys for Respondent.

Argued Oct. 28, 1890. Opinion filed Feb, 5, 1891

KELLAM, J.

This action was brought by appellant to foreclose a mortgage upon real estate in the county of Spink, made by said respondent Anderson to appellant Miller, on the 11th day of March, 1886, and duly recorded in the office of the register of deeds of said Spink county on the 22d day of April, 1886. The complaint is in the usual. form. and alleges as to the defendant Spink county: "Sixth. That the defendant Spink county claims to have some interest in said property, or lien thereon by virtue of an assessment for taxes against said defendant Peter J. Anderson for the year 1887 and for the year 1888, while said Anderson was the owner of the equity of redemption in said real estate. That plaintiff alleges that said taxes were assessed. on the personal property of said Peter J. Anderson for the year 1887 for twenty-six dollars, and on the personal property of said Peter J. Anderson for the year 1888 for twenty dollars; and plaintiff alleges that said taxes were assessed after the recording of said mortgage to plaintiff, and whatever lien they may be on the interest of said Anderson in said real estate is subsequent and inferior to the lien of plaintiff's mortgage." To this complaint the defendant Spink county demurred on the following grounds: "That said sixth paragraph, which is the only paragraph in said complaint alleging any cause of action against said defendant, does not state facts sufficient to constitute a cause of action." This demurrer was sustained, and from such judgment this appeal is taken. The record presents this single question: Were the taxes assessed against defendant Anderson upon his personal property in the years 1887 and 1888 liens upon the real estate described, prior and superior to the lien of the mortgage thereon, executed March 11, 1886, and recorded April 22, 1886? The answer must depend upon the construction and effect given to Section 1612, Comp. Laws, for only by force of statute are taxes liens upon the tax debtor's property of any kind. Hine v. Commissioners, 19 Wall, 655; Jaffray v. Anderson, 66 Iowa, 719, 24 NW 527; Philadelphia v. Greble, 38 Pa. St, 339. Said Section 1612 is as follows: "Taxes upon real property are hereby made a perpetual lien thereupon against all persons and bodies corporate, except the United States and the territory, and taxes due from any person upon personal property shall be a lien upon any real property owned by such person. or to which he may acquire a title." If the first paragraph of this section were not in existence, and the only taxes which were made liens by any statute were personal property taxes, (and that is the language of the second paragraph of this section,) we seriously doubt if there would be room for question as to its meaning or effect. Statutory liens are not infrequent, and it may be opportune, if not helpful, to notice a few of them, the language by which they are created, and the conceded legal effect of such language. By Section 5104, Comp. Laws, a docketed judgment is "a lien on all the real property … of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof … or which he shall acquire at any time thereafter. Comparing these two provisions,—the one as to the lien of personal property taxes, and the other as to the lien of a judgment, we discover nothing in their language to justify giving them a radically different effect, or to suggest that the lawmakers so intended. In each case the subject of the lien is the same; "the real property" of the debtor, and the extent of the lien, so far as described, is the same. It is simply a "lien." By Section 5562, Compiled Laws, it is provided that "from the time of filing such complaint [in bastardy proceedings] a lien shall be created upon the real property of the accused … for the payment of any money and the performance of any order adjudged by the proper court." Here, again a lien is declared, not upon the interest of the accused in real property, but upon the real property itself, precisely as in case of personal property taxes. Other instances might be cited in which in nearly, if not the identical, language employed in said Section 1612, the statute has created liens upon real estate, but it has never to our knowledge been claimed that the term "lien," so used, meant necessarily a first lien. By what right or rule of construction are these words occurring in said Section 1612 compelled to carry an entirely different meaning from that universally given and conceded to them when found elsewhere? Is it because of the character of the lienholder, in one case, generally a private party, and, in the other, the sovereign? or on account of the purpose of the tax and the object of making it a lien, to-wit, to promote and secure public revenues? If either or both, then why is not the same construction claimed for the statute making tines in criminal actions a lien on the real property of the defendant? The beneficiary is the same in both cases, the fine goes with the tax to increase the public revenue, and the object of making it a lien is to secure its collection as in case of the tax, and in respect to both the legislative will and intent is declared almost in the same words. Under our statute a mechanic "shall have a lien" for his labor upon "the building, erection, or improvement, and upon the land belonging to such owner," but it is evident that in the judgment of the legislature this alone did not create a lien precedent to those already existing, but intending that effect, they regarded it as necessary to so specifically provide by Section 5480. But reading the entire Section 1612 together, it is inexplicable to us, why, if the legislature intended to put both real and personal property taxes on a common footing, and make them both liens to the same extent and of the same rank, they should not have used terms at least suggestive of such intent. If by force of a general principle, as stated in the majority opinion of the supreme court of Iowa, hereinafter referred to, the lien declared was necessarily a first one, why was it not as safe to rely upon that principle in the case of real estate taxes as in the case of personal property taxes? As to the former they were careful to state that the lien was "against all persons," thus definitely fixing its rank as a lien, and then in direct contradistinction as to personal property taxes, they provide that they shall simply be a lien. Gathering the meaning and intent of this act from its language, (and this is a primary rule of construction,) we conclude that that part of said Section 1612 which relates to personal property taxes gives a lien for the same to the tax creditor from the time they become due upon any real property then owned or subsequently acquired by the tax debtor, subject. however, as in case of other liens created by law, to general statutes governing questions of priority or rank. Impressed with this interpretation, Section 4335, Comp. Laws, answers all there is left of this question. "Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia." The lien of appellant's mortgage attached, as against respondent Spink county, in April, 1886. The taxes became due and thereupon a lien in 1887 and 1888 respectively.

Since the argument of this case the supreme...