Schofield v. Green
| Citation | 56 N.E.2d 506,115 Ind.App. 160 |
| Decision Date | 29 September 1944 |
| Docket Number | 17259. |
| Parties | SCHOFIELD et al. v. GREEN. |
| Court | Court of Appeals of Indiana |
John W. Hornaday, of Lebanon, and R. P. Bundy of Zionsville, for appellants.
Frank E. Hutchinson and Scifres & Hallingsworth, all of Lebanon, for appellee.
The will of Mary A. Pitzer, which was probated on March 28, 1903 contained the following item, to-wit: 'I give and devise to my nephew, Emmett Pitzer, for his use and benefit during his lifetime the following described real estate in Boone County, in the State of Indiana, to-wit: the Northeast Quarter of the Southwest Quarter of Section 32, Township 18 North of Range 2 East, and at his death the same to descend to his surviving children.' Emmett Pitzer, then a resident of Boone County, Indiana, took prompt possession of the land, but later removed to Oklahoma where he resided for several years prior to October 11, 1938, when he died, leaving surviving him his four children, the appellants.
He had failed to pay the taxes for said real estate assessed in his name for the year 1933, and they became delinquent. The appellee purchased the real estate at tax sale on February 10, 1936, and on February 14, 1938, no person having redeemed from the sale, the Auditor issued a tax deed which was recorded and which described said real estate. He took immediate possession thereof and has ever since, under claim of ownership, collected the rents, issues and profits thereof and has paid current taxes as they became due. The annual rental value of the land at all times exceeded the annual taxes. The public records of Boone County disclosed that Emmett Pitzer had a life estate in said real estate. Appellants do not admit, but neither do they question the validity of the tax deed nor the regularity of the sale or of the proceedings leading up to it.
Both parties assert ownership of the land, and that is the only issue raised by the pleadings that is discussed in the briefs. The court upon proper request found the facts specially substantially as above condensed, stated conclusions of law thereon favorable to appellee and rendered judgment quieting his title to the real estate.
We are called upon to determine whether the tax deed issued pursuant to the sale for delinquent taxes assessed against the life tenant conveyed only the interest of the life tenant, as claimed by appellants, or whether it also carried with it the fee, as contended by the appellee.
The appellants base their contention principally upon the proposition (1) that taxes in this jurisdiction are a personal liability of the taxpayer--a liability in personam and not in rem, and (2) that the interest taken by the appellants under the will was a contingent remainder which was not subject to assessment for taxation, or sale for taxes.
A construction of their statutes by the courts of the various states has given rise to two opposing theories and two distinct doctrines upon this subject, the adoption of one of which would allow the appellant to prevail, while the other would not.
The language of the will is not ambiguous. It created a contingent remainder in those of the life tenant's children who would be living at the time of the latter's death. Hackleman v. Hackleman, 1928, 88 Ind.App. 204, 146 N.E. 590, 169 N.E. 539; Stephens et al. v. Evans' Administratrix, 1868, 30 Ind. 39.
Our legislature, following the constitutional mandate, has provided that: 'Real property shall be assessed in the place where situated, and to the owner, if known; if not, then to the occupant, if any; and if there be no occupant, then as unknown.' § 64-501, Burns' 1943 Replacement of Vol. 11; that all property within the jurisdiction of the state, not expressly exempt, shall be subject to taxation upon assessment at its true cash value, § 64-103, Burns' 1933; for a demand upon the taxpayer, the levy upon and sale of his personal property to satisfy the taxes and for further proceedings for the recovery thereof, § 64-1511, Burns' 1943 Replacement of Vol. 11; that a lien for unpaid taxes shall attach on all real estate, § 64-2825, Burns' 1943 Replacement of Vol. 11; for the sale of real estate to satisfy taxes unpaid, and that the proper officer shall execute 'in the name of the state, a conveyance of the real estate so sold, which shall vest in the grantee an absolute estate in fee simple * * *', § 64-2401, Burns' 1943 Replacement of Vol. 11. It has also provided that: 'The sale of lands for taxes shall not be invalid on account of such lands having been listed or charged on the duplicate in any other name than that of the rightful owner.' § 64-2414, Burns' 1943 Replacement of Vol. 11, and that the owner, occupant or any other person having an interest in the land sold for taxes may redeem the same within two years, § 64-2301, Burns' 1943 Replacement of Vol. 11.
It is settled law in this state that general taxes constitute a personal liability against the owner of the property upon which the assessment is based. Prudential Casualty Co. v State, 1924, 194 Ind. 542, 143 N.E. 631. It is also true that these taxes should have been paid by the life tenant during his occupancy of the land, Figgins v. Figgins, 1913, 53 Ind.App. 43, 101 N.E. 110, at least where the income from the property is sufficient to discharge them, as was the case here, for it is the duty of the life tenant, under such circumstances, to pay the taxes and if by his failure to do so the property is lost to the remaindermen, the life tenant is liable. Clark et al. v. Middlesworth et al., 1882, 82 Ind. 240. His failure to pay the taxes creates a lien 'in the first instance' upon his interest in the real estate, Figgins v. Figgins, supra [53 Ind.App. 43, 101 N.E. 112]. There was no personal liability against the appellants to pay, and it is at least doubtful whether the...
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