Morrison v. Jacoby

• Decision Date: 22 December 1887
• Docket Number: 12,833
• Citation: 14 N.E. 546,114 Ind. 84
• Parties: Morrison et al. v. Jacoby et al
• Court: Indiana Supreme Court

14 N.E. 546

114 Ind. 84

Morrison et al. v. Jacoby et al

No. 12,833

Supreme Court of Indiana

December 22, 1887

Reported at: 114 Ind. 84 at 93.

From the Kosciusko Circuit Court.

L. H Haymond and L. W. Royse, for appellants.

J. S Frazer, W. D. Frazer, L. C. Jacoby, J. Morris and J. M Barrett, for appellees.

OPINION

Elliott, J.

Lands of the appellees were sold for taxes and bought by the appellant Morrison. Certificates were issued to him by the proper officer. From these sales the appellees seek relief in this suit. Their complaint shows that the sales were ineffectual to convey title, but it does not show that the lands were not subject to taxation, nor that the description was not sufficient to identify the land, nor that the taxes had been paid. The relief prayed is an injunction against the appellants, restraining the officers from executing a deed to Morrison on the certificate issued to him.

The burden of showing that land was not subject to taxation, and that it was not described, as well as that the taxes were paid, is on the party who resists the enforcement of the lien. Scott v. Millikan, 104 Ind. 75, 3 N.E. 647; Earle v. Simons, 94 Ind. 573. The presumption on these points is, therefore, against the appellees.

An illegal sale may be avoided and the acquisition of title prevented where there are irregularities in the proceedings of the officers; but the avoidance of the sale for such cause, or for similar causes, does not destroy the lien of the State, to which the purchaser is subrogated. A sale may be totally ineffectual to convey title and yet carry the lien. The only causes which will so completely impair the efficacy of a sale as to destroy the lien are those specifically enumerated in the statute.

The policy of the law is to compel the payment of taxes, and to attain this end, penalties are imposed upon the citizens who fail to pay their taxes as the law requires. It is obvious that if no penalty were attached there would be no compulsion, and revenues essential to the conduct of the government could not be collected. Recognizing this principle, we have in many cases held that, although a sale may not be sufficient to carry title, it will, nevertheless, be sufficient to carry a lien, and with it the right to the penalty provided by law. The general doctrine upon this subject is so well and strongly stated by Niblack, J., in St. Clair v. McClure, 111 Ind. 467, 12 N.E. 134, and so fully applies here, that we quote what was there said:

"In the recent case of State, ex rel., v. Casteel, 110 Ind. 174, 11 N.E. 219, it was, upon full consideration and a careful review of our decided cases, held that, under section 6487, R. S. 1881, when construed in connection with other provisions relating to the same subject, there were only three contingencies in which the sale of lands for delinquent taxes is absolutely void--that is to say, ineffectual for any purpose--the first being where the lands shall not have been liable to taxation; the second where the taxes have been paid before the sale; and the third where the description on the tax duplicate is so imperfect as to fail to identify the land. It was further held that, under the succeeding section (6488), the lien, which the State has on the lands so sold, is, in all other cases, transferred to, and vested in, the purchaser, his heirs or assigns; and that, in case the sale fails to convey title, the amount paid by the purchaser may be recovered back by the enforcement of his acquired lien against the lands.

"These holdings led us to the very natural conclusion that no sale of lands for taxes due, which transfers to, and vests the lien of the State in, the purchaser, can properly be treated as, or adjudged to be, a void sale, and to that conclusion we still adhere.

"Our cases have quite uniformly recognized the doctrine that if the taxpayer has sufficient personal property to pay his taxes at the time his lands are sold to pay them, the sale is ineffectual to convey title; but the rule of decision that the sale of lands for taxes, under such circumstances, transfers to the purchaser the lien of the State, is quite, if not equally, well recognized. Ward v. Montgomery, 57 Ind. 276; Flinn v. Parsons, 60 Ind. 573; Hosbrook v. Schooley, 74 Ind. 51; Bender v. Stewart, 75 Ind. 88; Lawson v. Hilgenberg, 77 Ind. 221; Sloan v. Sewell, 81 Ind. 180; Parker v. Goddard, 81 Ind. 294; Crecelius v. Mann, 84 Ind. 147; Jenkins v. Rice, 84 Ind. 342; Schrodt v. Deputy, 88 Ind. 90; Locke v. Catlett, 96 Ind. 291; Hilgenberg v. Board, etc., 107 Ind. 494, 8 N.E. 294; Ludlow v. Ludlow, 109 Ind. 199, 9 N.E. 769; State, ex rel., v. Casteel, supra.

"This doctrine, and the rule of decision stated, rest upon the established theory that where a taxpayer owns both real and personal property, the latter is primarily liable for all the taxes assessed against him, but that a lien nevertheless attaches to the real estate for accruing taxes, by which it becomes secondarily, and, if need be, ultimately, liable for the payment of such taxes, and upon the further theory that the lien which so attaches is not divested by the failure of the proper officer to seize and sell personal property, but is transferred to, and vested in, the purchaser when the real estate is sold for the non-payment of the taxes."

In McKeen v. Haskell, 108 Ind. 97, 8 N.E. 901, it was held, in accordance with the general principle asserted by our cases, that, where a lien is transferred to the purchaser, although the sale does not carry title, the purchaser is entitled to the penalty prescribed by law.

It was said in Scott v. Millikan, supra, in speaking of the lien, that "It has been held, and properly so, that these statutes do not authorize the purchaser at a tax sale to institute proceedings and enforce such a lien and recover the increased penalties during the two years allowed for redemption, but that in an action by the land-owner, even before the expiration of the two years, the purchaser will be protected. Montgomery v. Aydelotte, 95 Ind. 144; Reed v. Earhart, 88 Ind. 159. See, also, Brown v. Fodder, 81 Ind. 491."

In Peckham v. Millikan, 99 Ind. 352, the question was fully examined and a like conclusion reached, and this is true of Helms v. Wagner, 102 Ind. 385, 1 N.E. 730. The reason upon which the decisions rest is thus stated in Scott v. Millikan, supra: "The purpose of these statutes is to facilitate the collection of taxes, by inflicting penalties upon the delinquent owner, and holding out a reward to the purchaser."

The provisions of the statute are in themselves quite clear. The act of 1881, with much particularity, provides on what terms land may be redeemed before a deed is executed, graduating the penalty according to the length of time the taxpayer suffers his land to remain unredeemed. R. S. 1881, section 6466. The act of 1872 was even more stringent and explicit in its provisions. 1 R. S. 1876, pp. 118, 129. The act of 1883 carries out the same general principle. Acts of 1883, p. 96.

It can not, therefore, be doubted that the policy of our revenue laws is to induce purchasers to buy at tax sales, and to compel the citizens to pay their taxes. For this reason reward is offered the purchaser and a penalty visited on the delinquent citizen.

In furtherance of this general policy, the Legislature provided for the security of the purchasers by enacting that if the title failed they should have a lien for taxes, interest, penalties and costs. This provision is embodied in the acts of 1872, 1881 and 1883.

In all of the cases we have cited, as well as in many others, it has been uniformly held that the lien of the State will pass to the purchaser, even though the sale does not give the slightest ground to an absolute title. The principle has been applied to sales of property at private sale. McWhinney v. City of Indianapolis, 98 Ind. 182; Peckham v. Millikan, supra. It has been, indeed, applied in almost every form which the question could assume. Sloan v. Sewell, 81 Ind. 180, and cases cited; Culbertson v. Munson, 104 Ind. 451, 4 N.E. 57; Watkins v. Winings, 102 Ind. 330, 1 N.E. 638.

The current of judicial opinion runs with our own. The Supreme Court of Kansas has declared in many cases that the lien of the State vests in the purchaser. In the latest of these cases it was held that the purchaser might enforce the lien for taxes, interest, penalty and costs, although the deed was void on its face. Stetson v. Freeman, 36 Kan. 608, 14 P. 256; Smith v. Smith, 15 Kan. 290; Belz v. Bird, 31 Kan. 139, 1 P. 246; Harris v. Curran, 32 Kan. 580, 4 P. 1044.

In Barke v. Early, 72 Iowa 273, 33 N.W. 677, it was held that, although the sale was invalid, yet the defendants were entitled to "recover all taxes for which the land was sold, and taxes subsequently paid by them, with penalties, interest and costs, provided by the statute to be paid upon redemption from a tax sale."

The subject was fully discussed in McLaran v Moore, 60 Miss. 376, and it was said, in speaking of counsel's argument that there was no authority to sell: "This is true, and because of want of power no title to the land passed by the conveyance, and for this reason complainant failed to recover the land in ejectment. But title or a valid conveyance is not necessary to the enforcement of the statutory lien. On the contrary, if a valid conveyance could be shown, it would be fatal to the complainant's bill, for no man may enforce a lien upon his own lands. There can not be degrees of voidness, and one void title is necessarily as ineffectual as another. A sale by the collector under a void assessment, or for taxes levied at the wrong time or place, or a sale made at a wrong time, would all be void; but neither a...