The Board of County Commissioners of The County of Ness v. J. C. Hopper and The Ness City Mill

• Decision Date: 11 February 1922
• Docket Number: 23,517
• Citation: The Board of County Commissioners of The County of Ness v. J. C. Hopper and The Ness City Mill, 204 P. 536, 110 Kan. 501 (Kan. 1922)
• Court: Kansas Supreme Court
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF NESS, Appellant, v. J. C. HOPPER and THE NESS CITY MILL, LIGHT & ICE COMPANY, Appellees

204 P. 536

110 Kan. 501

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF NESS, Appellant, v. J. C. HOPPER and THE NESS CITY MILL, LIGHT & ICE COMPANY, Appellees

No. 23,517

Supreme Court of Kansas

February 11, 1922

Decided January, 1922

Appeal from Ness district court; ROSCOE WILSON, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.TAXATION--Taxes in Default--Foreclosure of Tax Lien--Title Holder Not Liable for Deficiency in Amount Realized from Sale--Removal of Improvements.In the absence of statute there is no personal liability on the title holder of real property for any deficiency in the amount realized from the sale of such property under tax foreclosure proceedings, although such deficiency may have been caused in whole or in part by the removal of improvements from the property while the county's lien for unpaid taxes existed thereon.

2.SAME--Subject of Taxes Wholly Statutory.The entire subject of taxation is statutory; the method prescribed for the recovery of delinquent taxes is statutory, and it does not exist apart from the statute.

Richard J. Hopkins, attorney-general, and A. W. Wilson, county attorney, for the appellant.

E. T. Foote, of Hutchinson, for the appellees.

OPINION

DAWSON, J.:

This novel action seeks to charge the defendant owners of certain town lots with a personal judgment for damages for the removal of improvements therefrom, which caused a deficiency in the amount realized on the sale of the lots under tax foreclosure proceedings.

Prior to 1911 the Ness City Mill, Light & Ice Company owned the town lots in question.On these lots was a mill of considerable value, equipped with engines, boilers, machinery, etc.The mill was partially destroyed by fire on June 21, 1911.The defendant Hopper, president of the milling company, took over the property on an agreement to pay certain debts of the corporation.Hopper junked the damaged property; he sold the boiler for $ 200, the machinery for $ 200, other material for $ 300, removed the well casing, and took away about $ 200 worth of stone from the walls and foundations.It is agreed that all this stuff had to be removed ere the mill could have been rebuilt, and that the mill machinery was valuable only as junk.

The taxes on the lots for the years 1911 to 1917 inclusive, totaling $ 555.63, were not paid, and the county brought an action against Hopper and the milling company to foreclose its tax lien.Judgment in rem was entered in favor of the county, and the lots were sold by order of the court for $ 50.The costs of the action were $ 17.76, leaving the net sum of $ 32.24 to apply on the seven years' taxes chargeable on the property.

Thereafter, and on the theory that because Hopper had severed from the realty the partially destroyed equipment, well casing, stones, etc., he had damaged the property, and had therefore diminished its value as security for the satisfaction of the county's lien for taxes, this action was begun.The facts were all developed by the pleadings and an agreed statement of facts, and the trial court gave judgment in favor of the defendants.

The county board appeals, seeking to fasten liability on Hopper by applying to this situation the rule of personal liability which prevails in some jurisdictions where an insolvent mortgagor or one holding under him commits waste to such an extent as to reduce the value of the mortgaged premises...