|United States State Supreme Court of Pennsylvania
|59 Pa. 401
|23 February 1869
|Wallace's Estate. Russell's Appeal.
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Appeal from the decree of the Orphans' Court of Allegheny county: In the estate of Thomas Wallace, deceased: No. 133, to October and November Term 1868.
W. W. Thompson, for appellant.—The provisions for registering taxes are merely directory: Pennock v. Hoover, 5 Rawle 317; Parker's Appeal, 8 W. & S. 451. The lien is unlimited: 2 Tr. & H. Practice 524; Aurand's Appeal, 10 Casey 151; Konigmaker v. Brown, 2 Harris 273; Acts of 1824 and 1844.
M. W. Achison, for appellee.—Taxes are not an indefinite lien: Burd v. Ramsay, 9 S. & R. 109; In re Wilson, 4 Barr 164. Liens not appearing upon record are discountenanced: Kauffelt v. Bower, 7 S. & R. 73.
The opinion of the court was delivered, February 23d 1869, by WILLIAMS, J.
The appellant was the collector of taxes in the First Ward, Pittsburg, from 1852 to 1858 inclusive, and, during this time, state, county and city taxes were annually assessed on the Bank Exchange property, owned by Thomas Wallace, and included in the duplicates that came into his hands for collection. He settled his duplicates in regular course during the period for which he was collector. In 1859 Wallace confessed judgment in his favor as collateral security for the taxes then remaining unpaid, and died in the same or following year, largely indebted. In 1864 the Bank Exchange property, of which he died seised, was sold by his administrator under an order of the Orphans' Court for the payment of debts, and the residue of the proceeds of sale, after satisfying certain judgments in favor of the purchaser that were first liens, came into the administrator's hands, together with the proceeds of some personal property, for distribution.
On the hearing before the auditor appointed to distribute the funds, the appellant claimed that the proceeds of the sale of the real estate in the hands of the accountant should be applied in satisfaction of the unpaid taxes, or to the judgment taken as collateral security therefor, on the ground that by the Act of 5th of April 1844, extending the provisions of the Act of 3d of February 1824, relating to taxes on certain real estate in the city and county of Philadelphia to the county of Allegheny, these taxes were the first liens on the property and entitled to be first paid out of the proceeds of sale. It was admitted that, during the years in which the taxes were assessed and became payable, up to the date of the sale, there was sufficient personal property on the premises, if levied upon, to have satisfied the taxes. The auditor refused to apply the fund arising from the sale of the real estate to the payment of the taxes, and appropriated it in satisfaction of the judgment in favor of the appellee, which was prior in date to the judgment of the appellant as collateral security for the unpaid taxes.
The Orphans' Court confirmed the report of the auditor, and directed the funds to be paid out in accordance with the distribution made by him.
The case comes before us on an appeal from this decree, and the appellant contends that the court erred in dismissing his exceptions to the auditor's report, and in refusing to appropriate the proceeds of the sale of the real estate to the payment of the taxes. Were the taxes then a lien on the property at the time of the sale? It is undoubtedly true, as the appellant contends, that under the provisions of the Act of 3d of February 1824, as enlarged and extended to the county of Allegheny by the Act of 5th of April 1844, the taxes in controversy became a lien on the real estate sold by the administrator, from the date of their assessment, and that they had priority to all other liens or encumbrances charged thereon after the passage of the latter act. Nor was it necessary to the existence and preservation of the lien, as the auditor seems to have decided, that the taxes should be registered in accordance with the provisions of the Act. These provisions are merely directory, and a failure to comply with them does not affect the validity or duration of the lien. This was the construction given to the act by this court in Parker's Appeal, 8 W. & S. 449, and its correctness has...
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