Moore v. Missouri State Life Insurance Co., Civil 3376

• Decision Date: 02 April 1934
• Docket Number: Civil 3376
• Citation: 31 P.2d 99,43 Ariz. 337
• Parties: HARRY M. MOORE, as Treasurer of Maricopa County, Arizona, Appellant, v. MISSOURI STATE LIFE INSURANCE COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

31 P.2d 99

43 Ariz. 337

HARRY M. MOORE, as Treasurer of Maricopa County, Arizona, Appellant, v. MISSOURI STATE LIFE INSURANCE COMPANY, a Corporation, Appellee

Civil No. 3376

Supreme Court of Arizona

April 2, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. M.T. Phelps, Judge. Judgment affirmed.

Mr Renz L. Jennings, County Attorney, and Mr. M.L. Ollerton Deputy County Attorney, for Appellant.

Messrs Frazier & Perry, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by Harry M. Moore, as treasurer of Maricopa county, Arizona, from a judgment of the superior court of that county commanding him to accept the taxes upon certain real estate tendered him by Missouri State Life Insurance Company, a corporation, hereinafter called plaintiff. There is no dispute as to the facts, and the only question before us is one of law.

Briefly stated, the facts are as follows: On November 1, 1929 Lazelle E. Wood and Ethel R. Wood, his wife, executed in favor of plaintiff a mortgage on the lands described in the complaint, being then the owners thereof. During the year 1932, and while the mortgage was still a lien on the premises, a tax was levied by the state of Arizona and the county of Maricopa against said premises, and for the same year a tax on certain personal property was assessed against the Woods. On the 28th day of December, 1932, neither the real nor personal property taxes above referred to having been paid, the plaintiff tendered to defendant one-half of the taxes assessed upon the real estate, plus the interest and penalties, and demanded that he accept said amount and issue to plaintiff a receipt therefor. Defendant refused to accept the taxes as tendered and issue a receipt, claiming that the tax on the personal property of the Woods was a lien upon the real estate in question, and that he was not authorized or required by law to accept the taxes levied upon the real estate, without the personal property taxes also being paid.

The question before us then may be stated as follows: Is the county treasurer required to accept from a real property mortgagee the tax upon the real property described in the mortgage, without being tendered at the same time any personal property tax which may have been levied against the owner of the real property?

Section 3101, Revised Code of 1928, which was the law applicable to the situation at the time the mortgage in question was executed, reads as follows:

"§ 3101. Lien for taxes; liability of property; homesteads excepted. Every tax levied under the authority of this chapter upon real or personal property shall be a lien upon all of the property assessed in the name of the particular taxpayer owning or controlling the same. The lien shall attach on the first Monday in January in each year, and shall not be satisfied or removed until such taxes, penalties, charges and interest are all paid, or the property has finally vested in a purchaser under a sale for taxes. The lien shall be prior and superior to all other liens and encumbrances upon all of the property contained in the assessment. Any and all of the property shall be liable for the whole of the tax, and a judgment against real property for non-payment of taxes thereon or on the personal property of the same person, shall not be avoided by showing that the owner thereof was possessed of personal property out of which the taxes could have been...