State  v. Duncan

• Decision Date: 31 December 1879
• Citation: 71 Tenn. 679
• Parties: State of Tennessee et als. v. Martha W. Duncan et als.
• Court: Tennessee Supreme Court

71 Tenn. 679

State of Tennessee et als.

v.Martha W. Duncan et als.

Supreme Court of Tennessee.

December Term, 1879.

FROM DAVIDSON.

This bill was filed in the Chancery Court at Nashville by the State of Tennessee, the county of Davidson, and the Mayor and City Council of Nashville against Martha W. Duncan and other persons having an interest in the land described in the bill. There were eleven grounds of demurrer, as follows:

1. Because the court has no jurisdiction over the subject matter, or to grant the relief prayed for.

2. Because B. J. Lea, Attorney-General, W. K. McAlister, Jr., City Attorney, John Ruhm and Thos. L. Dodd have no authority in law to file this bill.

3. Because the bill is multifarious, in that it joins parties whose interests are separate, distinct and independent, etc.

4. Because complainants' remedies are full, adequate and complete at law, and they do not allege the exhaustion of such remedies.

5. Because complainants' remedies, under the act 1873, relating to collections of back taxes, are full, adequate and complete, and they do not allege the exhaustion of such remedies.

6. Because this court has no jurisdiction to collect taxes or order sales of property for unpaid taxes, except under said act of 1873, and this bill is not filed under that act.

7. Because this court has no inherent jurisdiction to collect taxes or order sales of property for unpaid taxes, even after all legal and statutory remedies have been exhausted.

8. Because said taxes are not liens on the property, or if liens, statutory liens, and this court has no jurisdiction to enforce the decree by sale.

9. Because the court will not decree a partition except when parties praying for same are owners in common, in possession under an undisturbed title.

10. Because this court will not remove cloud, except where one shows a good legal title in himself.

11. Because there is no statute authorizing the filing of such bill.

The Chancellor overruled the demurrers, and the cause was heard on bill, answer and proof, and a decree rendered in favor of each complainant for the amount of the taxes proper, with six per cent. interest from the day each tax sale took place, also for all the costs up to and including the condemnation in the circuit court, being, in the case of each separate tract, one dollar for entering up judgment of condemnation, and fifty cents for the return of the officer. But all costs of sales, including printer's fees, and the penalties claimed under secs. 570, 571, Acts of 1873, were disallowed. The Chancellor also disallowed the claim of complainants to ten per cent. interest under the act of March 23, 1875, ch. 80. He decreed a sale free from the equity of redemption and on time. Complainants and defendants appealed. A. G. Merritt Ch.

ATTORNEY-GENERAL LEA, JOHN RHUM, THOS. L. DODD and W. K. MCALISTER, JR., for Complainants.

JAMES TRIMBLE for Defendants.

MCFARLAND, J., delivered the opinion of the Court.

The bill in this cause was filed in the Chancery Court at Nashville in the name of the State of Tennessee, the county of Davidson and the Mayor and City Council of Nashville, and alleges, in substance, that the defendant, Martha W. Duncan is and, during the time afterward mentioned, has been the equitable owner of two valuable pieces of real estate, particularly described as situated in the city of Nashville. That from the year 1868 to 1878 inclusive, all the taxes assessed for all purposes in favor of the several complainants remain unpaid. That, except for the year 1878, said pieces of property have from year to year been sold under the laws in force at the time, and bid in, in the name of the several Comptrollers, for taxes and costs and charges, no one else bidding. Said sales were in pursuance of condemnation in the circuit court, except for the years 1878 and 1879, when the law did not require condemnation, and when, according to the law then in force, the property was bought in by the proper officer in the name of all the complainants jointly, but no deeds have been taken. The bill then makes the following statement: “Complainants are advised that they did not acquire full and perfect legal titles to any of said property because of irregularities in the proceedings for condemnation, advertisements and sales; furthermore, because the law providing for condemnation and sale of property does not vest complainants with the right and power to become owners in fee of property sold by them for the enforcement of tax assessments and liens under ordinary condemnation and sale at law, and finally, because the fact that complainants' officers bid in the property at their sales probably placed complainants in the position of trustees purchasing at their own sales.” They say they are willing to perfect the sales if the defendants so elect, in which event they pray a partition among themselves. But that they really only desire the payment of taxes, interest, costs, etc., and are willing, even if the sales in their favor be valid, to waive the right to hold the entire property, and have it sold by decree of the court for the taxes and interest, costs and penalties, giving to the defendant the benefit of all the property, or its proceeds over these sums. And this is in substance the relief prayed for.

Many causes of demurrer were assigned, and overruled by the Chancellor. A very ingenious and earnest argument has been made in support of the demurrer in this court. The stress of the argument has been upon those grounds of demurrer which, in various forms, raises the question of the jurisdiction of the court. The argument may be briefly stated as follows:

That taxes are allowed only in accordance with express statutory provisions. That especially the lien claimed upon real estate for the taxes due thereon is only given by statute, and our statutes point out special statutory remedies for the collection of all taxes and the enforcement of all liens for taxes, and by necessary implication prohibit the enforcement of such rights in other modes upon the principle that where a statute creates a new right unknown to the common law, and at the same time gives a specific remedy for its enforcement, the right can not be enforced in any other mode, and that a court of chancery has no ordinary inherent jurisdiction of a case of this character.

It is argued that the ordinary statutory mode of reporting, condemning and selling lands, changed afterward by the act of 1875, to a sale without condemnation, is the remedy given in the first instance in the collecting of taxes. That in cases like the present, where lands have been sold under proceedings that turn out to be invalid, a special remedy is given under the acts of March 27, 1872, and March 21, 1873, which provide for a special commissioner, and give authority to him to file a bill in his own name in the chancery court for the sale of the land for the taxes, etc., in the manner therein set forth, and that the remedy given in these acts apply especially to a case like the present, and exclude all other remedies; that the present bill is not filed in the name of a commissioner, and is otherwise a departure from the remedy specified in these acts, and consequently can not be maintained. Taxation is regulated by statute, but the right is inherent in the government, and while remedies are given by statute, yet it was held as far back as 1828, that taxes, when assessed, become a personal debt, and the government is entitled to all the remedies for their collection, including an ordinary suit at law, if it chooses to resort to that remedy. Mayor and Aldermen of Jonesboro v. McKee, 2 Yer., 167. And the same in substance was held in the case of Rutledge v. Fogg, 3 Col., 554, where a claim for taxes was allowed to be filed as a debt, and paid out of the proceeds of the realty in an insolvent proceeding in chancery.

The lien given for taxes is statutory, but the original act of 1813, which first declares the lien, does not appear to have pointed out any special mode for its enforcement. But it can hardly be doubted that any valid sale of land for taxes in the...