Wakeman v. Board of Commissioners of Weston County

• Decision Date: 05 February 1929
• Docket Number: 1522
• Citation: 40 Wyo. 53,274 P. 12
• Parties: WAKEMAN v. BOARD OF COMMISSIONERS OF WESTON COUNTY [*]
• Court: Wyoming Supreme Court

274 P. 12

40 Wyo. 53

WAKEMAN v. BOARD OF COMMISSIONERS OF WESTON COUNTY ^[*]

No. 1522

Supreme Court of Wyoming

February 5, 1929

APPEAL from District Court, Weston County; HARRY P. ILSLEY, Judge.

Claim by Mary Wakeman against the Board of County Commissioners of Weston County, Wyoming. Rejection of the claim by Board of County Commissioners was affirmed by the District Court, and claimant appeals.

Affirmed.

E. E Wakeman, of Newcastle, for appellant.

Taxes erroneously paid should be refunded. 2846 C. S. When tax sale is unlawful, county should indemnify purchaser. 2892 C S. State v. Frost, (Wash.) 64 P. 902; Flint v Board, (Kans.) 23 P. 1048; Knapp v. County, (Wash.) 170 P. 559; Walla v. Stutsman, (N. D.) 50 N.W. 832; Pier v. Oneida Co., (Wis.) 67 N.W. 702; Board v. Floatin, (Colo.) 181 P. 122; Hayes v. Co., (Cal.) 33 P. 766. Tax sales must be conducted in strict conformity with the statute. 37 Cyc. 1280. Natrona Co. v. Shaffner, 12 Wyo. 177. Taxes are not a lien unless made so by the statute. Cooley on Taxation, 4th Edition, 1230; Lobban v. State, 9 Wyo. 377, 64 P. 82. 2752 C. S. authorizes a school poll tax. Succeeding sections prescribe the procedure. Poll tax is not a lien on real estate and a sale of land for the collection of poll tax included with lien for other tax invalidates the sale. 37 Cyc. 1287, 26 R. C. L. 398, and cases cited. Plaintiff is entitled to a refund in the amount of the personal property and poll taxes with interest. Cooley's Taxation, 4th Edition, Section 1561; Lynde v. Inhabitants of Melrose, 10 Allen 49; Rice v. Auditor, 30 Mich. 12; Corbin v. Davenport, 9 Iowa 239; Ricketts v. Crewdson, 13 Wyo. 284, 81 P. 1; Electrolytic Copper Co. v. Mines Corp., 34 Wyo. 304; Hayes v. Co., (Calif.) 33 P. 766; Keyes v. State, (Maine) 117 A. 166.

No appearance or brief on behalf of respondent.

TIDBALL, District Judge. KIMBALL, J., and RINER, J., concur.

OPINION

TIDBALL, District Judge.

This case arose on a claim presented by Mary Wakeman, the plaintiff and appellant, to the Board of County Commissioners of Weston County, Wyoming, for a refund of moneys paid by her to Weston County at a sale of real estate for delinquent taxes. The claim was rejected by the Board of County Commissioners, and plaintiff appealed to the District Court of Weston County, where the claim met the same fate, and an appeal has now been prosecuted to this court from the adverse ruling of the District Court.

The facts, briefly stated, are as follows: One George Sewall was charged with taxes for the year 1921 on real estate, personal property, school poll and road poll taxes. The taxes being unpaid and having become delinquent, the county treasurer of Weston county sold the real estate at tax sale on September 6, 1922, to plaintiff and appellant, for the full amount of the taxes charged against Sewall on real and personal property and school poll and road poll taxes. Appellant paid the full amount of the taxes as charged, with penalties, interest and costs, and received a certificate of purchase.

On August 1, 1925, Emil Krause held a mortgage on the real estate in question. The mortgage was originally given prior to the levy of the 1921 taxes and was renewed from time to time by the giving of new notes and mortgages and by certain transfers, until the mortgage finally came into the possession of Emil Krause. However, the lien of the Krause mortgage dated back to the giving of the original mortgage, which was prior to the levy of the taxes in question. Where a mortgage is renewed without the payment of the debt and with no intention to extinguish the original debt, the lien of the renewal mortgage relates back to the time of the original mortgage and continues unbroken under the renewal mortgage. First National Bank of Sheridan v. Citizens' State Bank of Dubuque, 11 Wyo. 32, 70 P. 726; Powers v. Pense, et al., 20 Wyo. 327, 123 P. 925; 40 L. R. A. (N. S.) 785; Bachmann v. Hurtt, 26 Wyo. 332, 184 P. 709; Bolln v. LaPrele Livestock Co., 27 Wyo. 335, 196 P. 748.

The statute, Sec. 2858, W. C. S. 1920, amended by S. L. 1923, Ch. 70, makes a tax upon real estate a lien prior to any existing liens, and also constitutes a tax upon personal property a lien upon the real estate of the person assessed, but such lien is subordinate and inferior to an antecedent mortgage upon the real estate. Lobban v. State, 9 Wyo. 377, 64 P. 82. Such personal property tax lien has been expressly made subordinate to prior liens since 1923 by statute. 1923 S. L., Ch. 70. A tax is not a lien unless expressly made so by statute. Lobban v. State, supra. The statute regarding poll taxes, Secs. 2864 and 3053, W. C. S. 1920 does not expressly make poll taxes a lien upon real estate.

So the personal property tax against Sewall was a lien on the real estate sold for taxes and should have been included in the total tax for the collection of which the property was sold. However, the lien of such personal property tax was subordinate and inferior to the Krause mortgage, so that Krause had a right to redeem upon the payment of the real estate tax alone. Wakeman, the plaintiff and appellant probably still held a lien for the personal property tax paid by her, but such lien was subordinate to the mortgage lien. It therefore follows that the county treasurer was right in allowing the mortgagee to redeem upon payment of the real estate tax alone, and the county commissioners were right in refusing to rebate the personal...