Miller v. Wisener
| Decision Date | 20 April 1898 |
| Citation | 45 W.Va. 59,30 S.E. 237 |
| Parties | MILLER. v. WISENER et al. |
| Court | West Virginia Supreme Court |
Taxation — Right of Set-Off — Forthcoming Bond—Contracts—Public Policy— Statute of Frauds.
1. A taxpayer cannot set off the sheriff's individual indebtedness to him, even though the sheriff has settled with the state treasury for such taxes.
2. No set-off of the sheriff's individual indebtedness can be allowed against a forthcoming bond given on the levy of taxes, under Acts 1893, c. 23.
3. A contract between a sheriff and a taxpayer, by which the taxpayer is to act as a sheriff's attorney at a fixed sum, to be applied on the taxpayer's taxes, is against public policy, and a court will not apply it as payment on the taxes.
4. A contract to render personal services for a longer term than one year is void, under the statute of frauds, and no suit can be maintained upon the contract itself; but, after performance of the service, there may be recovery of its worth upon a quantum meruit.
(Syllabus by the Court.)
Error to circuit court, Berkely county; E. Boyd Faulkner, Judge.
Action by Charles H. Miller against J. Nelson Wisener and others. Defendants had judgment, and plaintiff brings errqr. Reversed.
Flick, Westenhaver & Baker and M. T. Engles, for plaintiff in error.
D. B. Lucas and Forrest W. Brown, for defendants in error.
BRANNON, P. Charles H. Miller was sheriff of Berkeley county for a term of four years, commencing 1st of January, 1889, and had in his hands taxes against Wisener for 1889, 1890, 1891, and 1892. The legislature passed chapter 23, Acts 1893, providing that a sheriff of a former term should have power of distress for taxes unpaid, and gave theparty whose property might be levied on the right to give a forthcoming bond, such as might be given in case of the levy of a fieri facias or distress warrant, and provided that such bond should be returned to the clerk's office of the circuit court, and that such proceedings might be had thereon as were provided in relation to forthcoming bonds under distress warrants, and that "defense may be made to a suit or motion upon such bond that the amount levied for is not due in whole or in part, or that the levy or distress is otherwise illegal." Miller levied the said taxes upon Wisener's property, and Wisener gave such forthcoming bond; and a motion for an award of execution on said bond was made by Miller in the circuit court of Berkeley, and Wisener filed plea of payment and specification of payment and set-offs. The case was tried, and, upon a demurrer to evidence, judgment was rendered for Wisener, and Miller comes to this court by writ of error.
Wisener's defense is that, before the opening of Miller's term as sheriff, they made a contract by which Wisener was to act as counsel for Miller, as sheriff, for his term of four years, for $300 per year, and that It was to be applied in satisfaction of Wisener's taxes. The question then comes up whether Wisener can get in his claim either as set-off or as payment. I will first inquire whether it can be admitted as a set-off. I think it cannot be, because public taxes are not liable to set-off. Humphreys v. Patton, 21 W. Va. 223. But it is contended that that rule of the common law cannot prevail in this case because of the wording of the said statute, when it says that defense may be made "that the amount levied for is not due in whole or in part, or that the levy or distress is otherwise illegal." I do not think that that provision will admit a set-off, because, before that act, it was not allowable, and the words of the act do not create a new defense; nor can we fairly suppose that the legislature intended to create a defense not valid already under the law. That clause was only intended as a saving clause, to prevent the bond from operating as an estoppel or bar against existing valid defenses which would have been admissible against the taxes without the bonds, and not to.create new defenses. Allen v. Hart, 18 Grat. 722, is cited to support the adverse theory; but I think a correct Interpretation of that case will support my theory, and overthrow the adverse theory. That case holds that set-off may be allowed against a forthcoming bond given under a distress warrant for rent. Now, that bond was substituted for the action of replevin and its bond; and Judge Moncure saw clearly that when the statute which he had In hand declared, as does the statute we now have In hand, that defense might be made on the ground that the "distress was for rent not due in whole or in part, or was otherwise illegal, " it al lowed just such defenses as might have been made under the old law to an avowry for rent In the action of replevin, —that it preserved those defenses only. He did not pretend that it enlarged defenses against rent by giving defenses not before existing. He proceeded to show, therefore, that set-off was allowable to an avowry for rent, and therefore was allowable against a...
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