Cobban v. Hinds

MR. JUSTICE PIGOTT, after stating the case, delivered the opinion of the court. [348] 1. The contention of the plaintiff, to the effect that the assessment for 1890 was void because made upon several parcels of land in gross, and without separate valuation, has been considered in the late case of Deloughrey v. Hinds, 23 Mont. 260, 58 Pac. 709, and held untenable. The facts pleaded in the case at bar are not to be distinguished, upon principle, from those presented in the Deloughrey case, the doctrines whereof we affirm and again apply. The plaintiff, and those under whom he claims, were conclusively charged with knowledge of the time and place, appointed by law, when and where the board of equalization would meet; they knew that the lands owned by them would be assessed for the year 1890; and no excuse is offered for their omission to seek at the hands of the board a correction of the informality or irregularity of which they now complain. 2. The plaintiff insists that the assessments are void because the lands were listed by the assessor to persons other than the owners. The several statutes in force when the respective assessments were made furnish a complete answer to the contention. In 1890, Section 46 of “An act to provide for the levy of taxes and assessment of property, ’ ’ approved September 14, 1887, was in effect. It provided: “When, any lands or town lots are offered for sale for any taxes, it shall not be necessary to sell the same as the property of any person or persons; and no sale of any land or town lot for taxes shall be invalid on account of its having been charged on the assessment roll in any other name than that of the rightful owner or charged as unknown; but such land must in other respects be sufficiently described on the tax roll to identify it, and the taxes for which it is sold be due and unpaid at the time of such sale.” In 1891 there was passed “An act concerning revenue, ’ ’ approved March 6th of that year. Section 13 of this act, after providing that the assessor must assess property to the person by whom it was owned or claimed, or in whose possession or control it was, proceeds to declare that ‘ ‘no mistake in the name of the owner, or supposed owner, of real property, renders the assessment thereof invalid;” section [349] 148 of the act is as follows: “When land is sold for taxes correctly imposed as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof, affects the sale or renders it void or voidable, ” — a paraphrase being: When land is sold, for taxes correctly imposed thereon, as the property of a particular person ('or when land is sold, as the property of a particular person, for taxes correctly imposed upon the land), no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof, affects the sale or renders it void or voidable; and section 197 provides that “m> assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was. not completed within the time required by law. ’ ’ These provisions of sections 13, 148 and 197 of the act of 1891 were incorporated into the Political Code of 1895, and appear as-sections 3700, 3916 and 4014. Under these statutes it is-plain that the listing of land in the name of a person other than the owner is but an irregularity or informality which, of itself, does not avoid the assessment nor render the tax illegal ’ or unauthorized. The name of the owner of the real property is, for all purposes of taxation except perhaps the imposition * of a personal liability, comparatively unimportant. Support for these views is found in Landregan v. Peppin, 86 Cal. 122, 24 Pac. 859; Haight v. Mayor, etc., 99 N. Y. 280, 1 N. E. 883; Merrick v. Hutt, 15 Ark. 331; Trust Co. v. Weber, 96 Ill. 346; State v. Matthews, 40 N. J. Law 268; Bradley v. Bouchard, 85 Mich. 18, 48 N. W. 208; Hill v. Graham, 72 Mich. 659, 40 N. W. 779; Stilz v. City of Indianapolis, 81 Ind. 582; Schrodt v. Deputy, 88 Ind. 90; Strauch v. Shoemaker, 1 Watts & S. 166. The listing of lands to the wrong-person affords no ground for restraining the collection, by sale of the property itself, of the taxes due thereon. "Sections 4023 to 4026, inclusive, of the Political Code, prohibit courts and judges from enjoining the collection of any tax, and from restraining the sale of the property for nonpayment of any tax, except in those instances where the tax is illegal, or not author [350] ized by law, or where the property is exempt from taxation, and provide the means and remedies whereby the rights of persons who deem the taxes irregularly or improperly demanded of the owners, or sought to be enforced against the property, may be guarded and protected, and of these remedies the plaintiff, if injured, may avail himself. In this case it is not pretended that the property was exempt, nor that the taxes were not levied in conformity with the law, nor is there a suggestion that the valuation was unjust or excessive. The plaintiff and his grantors knew — or, what is equivalent to knowledge, were bound to know — that the property was liable to taxation, and would be assessed annually, and that a listing to one other than the owner would not avoid an assessment otherwise regular. He and they knew when the taxes would fall due and should be paid, and he cannot, in this action, successfully urge, as a reason why his lands should be relieved of the lien for taxes, that he did not know of the assessment, and had no opportunity to discharge the taxes. 3. Section 4017 of the Political Code provides that the taxes assessed prior to July 1, 1895, must be collected under the laws in force at the time the assessment was made, and in the same manner as if the Code had not been passed. When the assessment of 1890 was made, a notice of four weeks before the sale of property for delinquent taxes was required, whereas the notice under which the treasurer now threatens to sell the lands is but a three weeks’ notice. This irregular-' ity or infirmity, whatever consequences might flow from it touching the proposed sale when made, has not the effect of rendering the taxes illegal or unauthorized by law. Nor does the fact that the treasurer intends to violate sections 3922 and 3923 of the Political Code, by exposing for sale, for the delinquent taxes for 1898, part of the lands purchased by the county at the sale for the taxes of 1897, and yet unredeemed, entitle the plaintiff to an injunction. Section 4026, supra, declares that the remedy provided by sections 4024 and 4025 “shall supersede the remedy of injunction and all other remedies which might be invoked to prevent the collection of [351] taxes or licenses alleged to be irregularly levied or demanded, except in unusual cases, where the remedy hereby provided is deemed by the court to be inadequate. ’ ’ There is nothing in this case sufficient to warrant the granting of the equitable remedy of injunction against the intended sale. The remedy at law is plain and adequate for the redress of the plaintiff’s alleged grievances. The judgment is therefore reversed, and the cause remanded, with instructions to sustain the demurrer to the complaint. Reversed and remanded.