Union Cent. Life Ins. Co. v. Black

• Decision Date: 04 June 1926
• Docket Number: 4291
• Citation: 247 P. 486,67 Utah 268
• Court: Utah Supreme Court
• Parties: UNION CENT. LIFE INS. CO. v. BLACK et al

247 P. 486

67 Utah 268

UNION CENT. LIFE INS. CO. v. BLACK et al

No. 4291

Supreme Court of Utah

June 4, 1926

Appeal from District Court, Sixth District, Garfield County; Joseph H. Erickson, Judge.

Action by the Union Central Life Insurance Company against George K Black and others, to foreclose mortgage on land wherein Piute county intervened and claimed a lien for taxes. From a decree for sale directing that proceeds be applied, first, to pay tax lien, and, second, to pay debt due plaintiff, plaintiff appeals.

AFFIRMED.

C. W Collins, of Salt Lake City, and Hayes & Heppler, of Richfield, for appellant.

G. R Beebe, of Junction, and George Y. Wallace and R. A. McBroom, both of Salt Lake City, for respondents.

GIDEON, C. J. THURMAN and FRICK, JJ., concur. CHERRY and STRAUP, JJ., dissent.

OPINION

GIDEON, C. J.

In December, 1917, George K. Black was the owner of two certain parcels of real estate located in Piute and Garfield counties, this state. The lands are described by metes and bounds in the complaint. On December 3, 1917, Black and wife gave to the Union Central Life Insurance Company, appellant, their promissory note, and secured the payment of the same by a mortgage on the two parcels of land. In this proceeding appellant seeks to foreclose that mortgage.

Subsequent to the execution of the mortgage, and during the year 1920, the exact date does not appear in the record, Black conveyed the premises to Orin C. Snow and others. Respondent Black and his wife and their grantees were made parties defendant, and also Manti City Savings Bank, a subsequent mortgagee.

This action was instituted in March, 1923. Thereafter, in September, 1923, Piute county was permitted to intervene in the action. It thereupon filed a pleading designated "answer and counterclaim." By such pleading Piute county claims title to the property. Said county also claims a superior lien on the premises located in Piute county by reason of taxes levied against the real property during the years 1918, 1919, 1920, 1921, and 1922. The county likewise claims a superior lien against the real property by reason of taxes levied against personal property in those years against the owners of the title to the real estate. The matters to be determined on this appeal affect only the property situate in Piute county.

The district court held that the lien created by the tax on both the real and personal property of the owners of the real property was superior and prior in right to the lien created by the mortgage of appellant. The decree directed a sale of the real property, the proceeds of such sale to be applied, first, to pay the tax lien, and, second, any surplus to be applied on the debt due to appellant.

There is no disputed issue of fact in the case. It is admitted that Black owned the property in December, 1917. It is also stipulated that he owned title to the property on January 1st in the years 1918, 1919, and 1920. It is likewise stipulated that respondent Snow and his associates owned title to the property on January 1st in the years 1921, 1922, and 1923. It further is stipulated that in each of those years the real property was regularly assessed for taxes in Piute county in the name of the then owner of the title. It is likewise stipulated that in each of the years 1918, 1919, and 1920 Black owned personal property in Piute county subject to taxation, and that taxes were regularly assessed against him for much personal property. A similar stipulation was made respecting the personal property belonging to Orin C. Snow and John Snow, owners of the real property in 1921, 1922, and 1923. It is also stipulated that the real property had been sold to pay these delinquent taxes, and that the same had not been redeemed. It is further stipulated that appellant, on or about May 16, 1923, tendered and offered to pay to Piute county all the taxes delinquent and otherwise assessed against the real property in controversy.

The controlling question presented by this record may be stated thus: Is the lien of a personal property tax against the real estate of the owner of the personalty superior or prior in right to a mortgage lien on the realty antedating the assessment and levy of the tax on the personal property? The determination of this question necessarily involves the construction of certain sections of our revenue statutes.

Before considering these particular sections, certain general principles of law uniformly recognized by the authorities and accepted by the parties to this action may be here stated. (a) The Legislature has the undoubted right and power to make taxes a lien upon all the property of the owner of the taxed property, and also to give such lien priority over all other liens of whatsoever nature. (b) To constitute a tax lien against each and all of the properties of the owner at the date of the levy superior to liens already existing against the property such intent of the Legislature must be found in the language used, either expressly or by necessary implication.

The sections of Comp. Laws Utah 1917 relied upon by respondent Piute county to support the trial court's judgment are the following:

Section 5995: "Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all personal property of the delinquent. The judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof."

Section 5996: "Every tax upon personal property is a lien upon the real property of the owner thereof, from and after twelve o'clock m. of the 1st day of January of each year."

Section 5997: "Every tax upon real property is a lien against the property assessed; and every tax due upon improvements upon real estate assessed to others than the owner of the real estate is a lien upon the land and improvements; which several liens attach as of the second Monday in January in each year."

The Legislature of 1896 (Laws 1896, c. 129), by a general and comprehensive act, revised the laws of the state relevant to taxation. The sections quoted were included in the revision (sections 92, 93, 94) in substantially the same language found in the present law.

It is the contention of appellant that the statutes do not by express provision give the lien created by the assessment and levy of a tax priority over an existing lien. It is also its contention that the intent of the Legislature that the tax lien should be superior to existing liens is not reasonably or necessarily inferable or deducible from the language used. On the part of respondent Piute county it is contended that it appears from the language used that it was the clear intent of the Legislature that a tax against personalty and other property should be a lien against the real estate of the owner superior and prior in right to any lien created by private contract. Authorities are cited from other jurisdictions. These authorities are helpful in illustrating the construction of the courts upon particular language found in various legislative enactments. Those authorities, however, do not afford very much aid in determining the legislative intent, unless the language under consideration by such courts is similar to the language found in our statute.

The sections of our statutes quoted above are found in chapter 6 of title 106, Comp. Laws Utah 1917. The general subject treated by this chapter is "Levy and Lien of Taxes." Title 106 contains all the provisions of the statutes relating to taxation. By section 5996, supra, it is provided that "every tax upon personal property is a lien upon the real property of the owner thereof," and by section 5995, supra, that "every lien created by this title has the force and effect of an execution duly levied against all personal property of the delinquent." And it is further provided in that section that "the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof." The express language of section 5996 makes the tax on personal property a lien on the real property of the owner of the taxed personal property. The effect of that lien is stated in section 5995. By express provision of the statute the lien is not removed until the taxes are paid or the property sold.

The Supreme Court of California, in Cal. Loan & Trust Co. v. Weis, 118 Cal. 489, 50 P. 697, had under consideration a question similar to the one here. Sections 3717 and 3716 of the Political Code of California, as those sections are set out in the opinion, are identical with sections 5996 and 5995, supra, except that in section 3716 of the California Code the words "duly levied against all property of the delinquent" are found, while in section 5995, supra, the words are "duly levied against all personal property of the delinquent." The difference in phraseology in no way affects the question involved on this appeal. In the course of the opinion in the California case referred to the court said:

"The mandate of our statutes puts all tax liens upon the same plane, makes them all paramount to other liens, and, under sale for their enforcement, gives to the purchaser a title free and unincumbered. In every case to which our attention has been directed, where the courts have made a distinction between the lien of the personal property tax upon the realty and that assessed upon the land itself, the decisions have been based upon a distinction between the two kinds of liens made by the statutes and recognized by the courts."

The headnote to State of Minnesota v. Central Trust Co. of N.Y., 94 F. 244, 36 C. C. A. 214 (8th Circuit) reads as follows:

"Under Gen. St. Minn. 1894, § 1623, which...