Kean v. Kinnear

Opinion by Mb. Justice Mitchell, By the act of April 29,1844, sec. 41, P. L. 501, real estate on which personal property cannot be found sufficient to pay the taxes assessed thereon, and where the owner refuses or neglects to pay, shall be returned by the collector to the county commissioners for the purpose of sale. But by the proviso of the same section no sale shall be had until the owner shall have refused or neglected to pay for the space of two years. By the act of May 13, 1879, sec. 2, P. L. 55, in all cases where land has been sold or returned for sale for taxes, the owner may show that there was on it sufficient personal property to pay all the taxes assessed thereon which might have been seized by the collector if he had used due diligence “ and in such case the title of the original owner shall not be doubted.” To the same effect is the act of June 8, 1885, P. L. 71, making valid sales for taxes irrespective of the fact whether seated or unseated, but providing that nothing in the act should validate or authorize the sale of any land in fact seated at the time of the assessment, if there was sufficient personal property on the premises to pay all taxes assessed thereon, liable to have been seized therefor. And by the act of April 15, 1834, sec. 46, P. L. 518, the goods and chattels of any person occupying any real estate shall be liable to distress and sale for taxes in like manner as if they were the goods of the owner of such real estate. From these statutory provisions it is clear that the law has established the order of liability for taxes to be, first, the personal property on the premises, secondly, demand on the owner individually, and, lastly, the land itself, and it is only on the failure to collect by either of the first two methods that resort can be had to the third and the land be legally sold or returned for sale. The collector proceeding directly against the land except under the prescribed conditions is without warrant of law and liable as a trespasser. In the present case the collector returned that “ by a proper ■effort he could not find sufficient personal property by a legal :sale of which such taxes or any portion thereof could have been ■collected.” The plaintiff having given evidence that there was such property on the premises, had made out a prima facie case of false return which- should have gone to the jury. It is said in appellee’s paper-book that the property was grain in a gran [643] ary not accessible to the collector for levy. No authority is cited to show that a tax collector may not peaceably break open a locked barn or grain bin, but without reference to whether or not that would have been a sufficient excuse, the facts were for the determination of the jury. There remains the question of damages. It is no answer to say that the plaintiff only paid her own debt, for which she was personally liable, and therefore has suffered no damages. A debtor may pay his debt out of whatever fund he chooses, and when the law stops in to make the payment by compulsion, he h;i£ a right that the order of liability which the law has established shall be strictly followed. The plaintiff had the right to have these taxes collected in the first instance out of the goods on the premises. By the action of the collector in passing by these goods and returning the land, the plaintiff was put under duress to pay in money. Even if the goods had been her own she would have been entitled to nominal damages which would have included the costs of advertisement, etc., which she was obliged to pay. But it appears in plaintiff’s evidence that the •goods on the premises belonged to the tenant who had covenanted to pay the taxes as a part of his rent. If therefore the collector had done his duty by collecting the taxes from those goods, the plaintiff would have been relieved from the payment altogether. Whatever she did pay therefore, under the compulsion of the return of her land for sale, was a loss and damage to her, resulting directly from the defendant’s illegal act. While it is no part of a collector’s office to enforce contracts between lessor and lessee, yet the fact that incidentally he may ' be doing so does not relieve him from the duty of proceeding according to law, and if he departs from this obligation he makes himself liable for any damages which may result to other parties. Judgment reversed and procedendo awarded.