Ream v. Stone

• Decision Date: 28 March 1882
• Citation: 1882 WL 10234,102 Ill. 359
• Parties: JOSEPH REAM et al.v.SUMNER R. STONE et al.
• Court: Illinois Supreme Court

102 Ill. 359

1882 WL 10234 (Ill.)

JOSEPH REAM et al.

v.SUMNER R. STONE et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. BEASON & BLINN, Messrs. BEACH & HODNOTT, and Messrs. FORREST & HUMPHREY, for the appellants:

The tax books for 1873, 1874 and 1875, contained no warrant authorizing the collector to distrain and sell property, for which reason it is claimed these taxes were void. These several taxes were all carried forward on the tax book each subsequent year, up to the time the temporary injunction was granted. These taxes being afterwards carried forward and placed upon the tax books of 1876, to which a sufficient warrant was attached, cures the defect complained of. Union Trust Co. v. Webber, 96 Ill. 348.

It is claimed these taxes are not a legal claim against the purchasers. This is not so, for the reason that the several decrees in the United States Court provide that such purchasers shall take subject to all taxes assessed and due thereon. The purchasers are not innocent ones. Mr. LUTHER DEARBORN, and Mr. W. H. CAMPBELL, for the appellees:

For the purpose of taxation there is no difference between tangible and intangible property. It is a personal property tax. Binkert v. Wabash Ry. Co. 98 Ill. 205; Belleville Nail Co. v. People, etc. 98 Id. 399.

For this tax there is no lien on the property originally assessed, but it is a lien that attaches to all the personal property of the tax debtor, without regard to whether it was previously assessed or not. Binkert v. Wabash Ry. Co. supra; Hill v. Figley, 23 Ill. 418.

If the tax debtor mortgages or sells the property assessed before the tax books, with a legal warrant attached, come into the hands of the collector, the lien of the mortgagee, or the title of the purchaser, can not be affected. Gaar, Scott & Co. v. Hurd, 92 Ill. 315; Binkert v. Wabash Ry. Co. supra; Hill v. Figley, supra.

In the case of Union Trust Co. v. Webber, 96 Ill. 359, the party obtained his claim after the assessment of the tax, and after the property had become charged with it. The personal tax can not be a lien upon the real estate of the tax debtor until the steps required by the statute have been taken, and no steps were taken in this case. Rev. Stat. chap. 120, sec. 183; The Belleville Nail Co. v. The People, supra.

But in no event can the personal tax be charged against the real estate, as against the mortgagee, even though he had notice of the personal tax when he took his mortgage. Schæffer v. People, 60 Ill. 179; Belleville Nail Co. v. People, supra.

The lien being created by the warrant, the warrant must be such as is required by law, to create that lien. It is in the nature of an execution. Hill v. Figley, 25 Ill. 156; Cooley on Taxation, pp. 301, 302.

To be a lien, it should contain the distraining clause. Rev. Stat. chap. 120, secs. 136, 137. The book containing the railroad tax should have the warrant. Rev. Stat. chap. 120, sec. 51.

The warrant became dead after the return. Hill v. Figley, 25 Ill. 156.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The object of this bill is to cause to be enjoined the seizure and sale of certain railroad property for the payment of taxes assessed against the Indianapolis, Bloomington and Western Railway Company. Complainants are a purchasing committee, representing certain bondholders, and they claim to own what was originally the Havana, Mason City and Eastern railway, but more recently known as “The Indianapolis, Bloomington and Western extension.” The taxes, of which collection is being pressed, are those assessed against or on account of this property, for the year 1873, and the capital stock taxes assessed against the corporation on account of this property, for the years 1874 and 1875.

Complainants purchased at a sale of the master in chancery for the Circuit Court of the United States for the Southern District of Illinois, under a decree of that court foreclosing a mortgage executed on the 28th of June, 1872. The sale occurred February 6, 1879, and a deed was executed to the complainants on the 9th of May, 1879. George B. Wright was appointed receiver of all the property (including this property) of the Indianapolis, Bloomington and Western Railway Company, by decree of a competent court, on the 1st of December, 1874, and he was then placed in possession thereof, and thenceforth retained the same until after the conveyance to the complainants, when he surrendered to them possession of the property conveyed to them. The circuit court enjoined the sale of the property claimed by the complainants, for the payment of the taxes in question, and in this ruling we think there was no error. It is provided by section 254 of the Revenue act, (Rev. Stat. 1874, p. 809,) “the taxes assessed upon personal property shall be a lien upon the personal property of the person assessed, from and after the time the tax books are received by the collector.” It is provided by a previous section (136), “to each town or district collector's book, a warrant, under the hand of the county clerk and seal of his office, shall be annexed, commanding such town or district collector to collect, from the several persons named in said town or district collector's book, the several sums of taxes therein charged opposite their respective names.” And the next section (137) provides, that “in all cases the warrant shall authorize the town or district collector, in case any person named in such collector's book shall neglect or refuse to pay his personal property tax, to levy the same by distress and sale of the goods and chattels of such person; and it shall require all payments therein specified to be made by such town or district collector on or before the tenth day of March next ensuing.” And the 51st section of the same act requires, that “the county clerk shall procure, at the expense of the county, a record book, properly ruled and headed, in which to enter the railroad property of all kinds as listed for taxation, and shall enter the valuation as assessed, corrected and equalized, in the manner provided by this act; and against such assessed, corrected or equalized valuation, as the case may require, the county clerk shall extend all the taxes thereon for which the property is liable; and at the proper time fixed by this act for delivering tax books to the county collector, the clerk shall attach a warrant, under his seal of office, and deliver said book to the county collector, upon which the said county collector is hereby required to collect the taxes therein charged against railroad property, and pay over and account for the same in the manner provided in other cases. Said book shall be returned by the collector, and be filed in the office for future use.”

It will thus be seen that the warrant is an indispensable part of the tax books, and that it is that which confers power upon the collector to levy and distrain for the payment of the tax. And so, in Hill et al. v. Figley, 23 Ill. 418, we said: “We have no hesitation in believing that the legislature intended to bind all the personal property in the hands of...