Stephens v. Ells

• Decision Date: 31 October 1877
• Parties: STEPHENS, APPELLANT v. ELLS.
• Court: Missouri Supreme Court

65 Mo. 456

STEPHENS, APPELLANT

v.ELLS.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Cooper Circuit Court.--HON. GEORGE W. MILLER, Judge.

This suit was instituted by the appellant to recover of the respondent, Daniel B. Ells, his proportionate part of certain taxes paid by the appellant, which were assessed against them and one C. C. Ells, jointly, as the owners of certain real estate. The case was tried upon an agreed statement of facts, substantially as follows: In the year 1873, and prior and subsequent thereto, the plaintiff, defendant and one C. C. Ells were the owners, as tenants in common, of certain real estate in the city of Boonville, of which the plaintiff and C. C. Ells each owned an undivided one-fourth, and the defendant the remaining one-half. In said year, and while they were the joint owners of said property, there were assessed against them upon said property certain taxes for State, county and city purposes. The same were legally assessed aginst them, and became due and payable while they were the joint owners of said property. After the levy of said taxes against them, and after they became due and payable, the said real estate was sold under a decree in partition rendered by the Cooper circuit court, in a cause wherein the appellant was plaintiff, and the respondent, together with C. C. Ells and Horatio N. Ells, were defendants, and at this sale the appellant became the purchaser of said real estate, and these taxes were then unpaid and constituted a lien upon said property. The appellant after he had made the purchase and become the sole owner of said property, upon the demand of the collector, paid off and discharged said taxes so assessed against them, and no part thereof has ever been repaid to him, and it is for the recovery of one-half of the taxes so paid that this suit is brought.

The appellant asked the court to declare the law to be, “that if the taxes alleged to have been paid by the plaintiff were jointly assessed against plaintiff and defendant upon the property mentioned in the petition, and at that time plaintiff and defendant were the joint owners of said property, aud continued so to be until after said taxes became due and payable, then said taxes became a personal debt of said parties to the State, county and city, (as the case might be) as well as a lien upon said property, and a subsequent sale did not discharge said indebtedness, but plaintiff and defendant continued personally liable therefor, and if plaintiff paid the whole of said taxes, he was entitled to judgment against said defendant for his part thereof” The court refused to give this declaration of law, but, upon motion of defendant, declared the law to be, “that if the taxes were a lien upon the property when the plaintiff purchased at the partition sale, then there was no warranty, and the plaintiff only purchased the interest of the parties to said suit in said real estate, subject to the lien of said taxes, and if the plaintiff paid the taxes after the relation of tenant in common had ceased, then he could not recover.” Under this ruling of the court there was a finding and judgment for the defendant, and the plaintiff after an unsuccessful motion for a new trial, brings the case here by appeal.

Draffen & Williams for appellants.

The court erred in refusing to give plaintiff's instruction. After the taxes were duly assessed against the appellant and respondent jointly, and became due and payable, they not only constituted a lien upon the land, but were also a personal charge or debt of the owners for which they were severally liable, and for the payment of which their goods and chattels were subject to distress and sale, and a subsequent transfer of the property would not release them from this liability. Notwithstanding the State and county might pursue their lien upon the property, yet the collector could not do this until he had exhausted his remedy against the tax debtor personally. See 2 W. S. (1872) page 1183, § 118; page 1185, § 134, and page 1170, § 59; Jones v. Stanton, 11 Mo. 433; Blossom v. Van Court, 34 Mo. 390; Abbott v. Lindenbower, 42 Mo. 162.

We do not claim to recover by virtue of any warranty at the partition sale under which the plaintiff purchased. That is not the theory of this case, and the instruction given in behalf of the defendant, and the authorities touching warranty at sales of this kind do not meet the point at issue. The simple question in the case now before the court is, not as to whether there was any warranty at the sheriff's sale, but whether the parties who owned the property when the taxes were levied and became due, were personally liable to the State, city and county, for the same, notwithstanding a subsequent sale of the property; and if so, would a payment by one, upon demand of the collector, of the whole tax for which they were each liable, authorize him to recover of his co-debtor his proportionate part of same. These taxes were assessed against the parties to this suit while they were joint owners of the same. It is not the property that is taxed, but the owner Abbott v. Lindenbower, supra.

And “the State and county taxes constitute a liability of the owner of the property as well as an incumbrance upon the land itself.” (34 Mo. 394.) The owner of the property on the first day of August in any year becomes responsible to the State for the taxes of the succeeding year. He is the tax-debtor. His personalty is subject to sale for the same; and we insist that the taxes continued a joint liability of the parties to the State and county notwithstanding the sale, and that the court erred in refusing plaintiff's declaration of law;...