Platte Valley Milling Co. v. Malmsten

Calkins, C. In 1892 the Star Mills & Grain Company owned a flouring mill and machinery located upon the right of way of the Union Pacific railroad in Dawson county. Taxes were assessed against this company and entered upon the tax lists for the years 1892, 1893, 1894. These lists were within the proper time delivered to the county treasurer, but the county clerk failed to attach the warrant required by section 83, ch. 77, Comp. St. which was then in force. Taxes were levied against this company for the years 1898, 1899, 1900, and 1901, and the tax lists delivered to the county treasurer on the 1st day of October in each of these years. The county clerk attached the warrant to thése lists shortly after the delivery to the treasurer, and during the month of October in each year, except 1900, in which year the warrant was not attached until November 24. On the 1st day of May, 1897, the said Star Mills & Grain Company executed a chattel mortgage upon the mill and machinery, which was renewed by another chattel mortgage executed on the 1st of May, 1898. The latter mortgage was foreclosed by action in the district court, and the premises were, in pursuance of the order made by said court in said proceedings, on the 6th day of December, 1901, conveyed by the sh'eriff to the mortgagees, who afterwards sold the same to the plaintiff. In May, 1906, the county clerk attached warrants to each of the tax lists for the years 1892, 1893, 1894. None of said taxes being paid, the treasurer then issued a distress warrant to the sheriff as special collector, commanding him to collect from the Star Mills & Grain Company, by distress and sale of its goods and chattels, the entire amount of [732] the taxes of. 1892, 1893, 1894, 1898, 1899, 1900, 1901. Under this warrant the sheriff threatened to seize the mill and machinery, which had been conveyed to the plaintiff; and the plaintiff brought this action to restrain the treasurer and the sheriff as such special collector from levying upon the said mill and machinery for the collection of said taxes. The district court found for the plaintiff as to the taxes of 1898, and against the plaintiff as to the taxes of each and all of the other years, and from a verdict rendered upon this finding the plaintiff appeals. 1. The revenue law in force prior to September 1, 1903, provided that the tax list should be completed and de-. livered to the county treasurer on or before the 1st day of October annually, and that before its delivery the county clerk should attach thereto a warrant under the seal of die county, which warrant should be signed by the clerk, -.nd should in general terms command the said treasurer to collect the taxes therein mentioned according to law; but that no informality or delay in delivering the same after the time specified should affect the validity of any axes or sales or proceedings for the collection of taxes. Comp. St. 1881, ch. 77, art. I, sec. 83. The same statute provided that the taxes assessed upon personal property should be a lien upon the personal property of the person assessed from and after the time the tax books were received by the collector. Section 139. The power of the treasurer to collect personal taxes without the warrant of the county clerk attached to the list has been denied by this court. Reynolds v. Fisher, 43 Neb. 172; Grant v. Bartholomew, 57 Neb. 673. In the former case the court, referring to section 83, say: “The warrant provided for in this section is the treasurer’s authority for enforcing the collection of any and each particular tax of the list to which it is attached when it becomes necessary to resort to any of the proceedings provided by law. To collect the tax, them, the warrant must be in the hands of the collector, and, in this state, attached to the tax list, as his authorization to institute such proceedings. If he pro [733] ceeds without' it, he becomes a trespasser. An officer of the law who makes a levy must be empowered to do so by the proper writ in his possession. So with the treasurer. The warrant required by the law to be attached to the tax list is the source of the right to use the means of collection provided by the statute.” The law requires the list of the taxes to be made, and, when the warrant of the county clerk under the. seal of the county is attached thereto, that the completed document be filed with tire county treasurer. This constitutes the tax books mentioned in section 139. It Avas not contemplated that the list should be filed AAdth the treasurer until the warrant Avas attached. On the contrary, the statute expressly provides that the Avarrant must be attached before the delivery. The list unsigned and unauthenticated could not have any legal or binding force. Such is the universal rule with reference to documents issued by one public officer and filed in the office of another. A familiar illustration is the rule frequently announced by this court that an unsigned and unauthenticated transcript gives it no jurisdiction, and that the filing of an unauthenticatod bill of exceptions has no effect. The principle is the same, and Ave are of the opinion that the filing of the list without the warrant attached did not create a lien upon the personal property of the' Star Mills & Grain Company. The defendant arghes that the filing of the Avarrant with the treasurer in May, 1906, validated this tax; but this argument is based upon the assumption that the lien already existed, and it must necessarily fall Avith the negation of that assumption. 2. This brings us to the taxes of 1898, 1899, 1900, 1901. As we have seen, the court below enjoined the collection of the taxes of 1898, and refused to restrain the collection of those levied for the other years above mentioned. This Avas done upon the authority of the case of Woolsey v. Chamberlain Banking House, 70 Neb. 194, where it Avas held that a chattel mortgage taken upon property before*, the tax books for the year in Avhich the mortgage is given [734] are delivered to tbe treasurer is superior to tbe lien of tbe taxes of that year. That case is in point, and we are satisfied with the rule there adopted for the reasons set forth in the opinion in that case. 3. The defendant interposes an objection to the sufficiency of the petition, on the ground that the plaintiff does not offer to pay the taxes which were a lien upon the property in question. It is a familiar maxim of equity that he who seeks equity must do equity, and in some cases it is held that the offer to do equity must be contained in the bill; but in most instances this principle is satisfied by the court’s making, in its decree, the relief awarded the plaintiff conditioned upon his performance of such equitable obligations as may be imposed upon him. The rule seems to be that the offer to do equity must be made in the petition in those cases where the court could not otherwise enforce the obligation; but, if the right of the defendant does not depend upon any offers or concessions which the plaintiff makes in his bill, it is then unnecessary. Barnard v. Cushman, 35 Ill. 451. In this case the taxes were not levied against the plaintiff, and the plaintiff was under no obligation to pay them. It might be compelled to pay such as were a lien to save its property from sale, but this liability was a purely legal and not an equitable one. The plaintiff contested, not the taxes, but the right of the county to satisfy the same out of his property, and it follows from the conclusions hereinbefore stated that a part of these taxes were a lien upon property which the plaintiff had acquired. The plaintiff might have entitled itself to costs and tó a suspension of the interest by a proper tender of the1 amount of the taxes which were an actual lien upon its property before the commencement of the suit; but it was not necessary for it to do so in order to prevent the sale of its property for taxes which were not a lien upon it. The right of the defendant to have the taxes which constituted a lien upon the plaintiff’s property paid can ■ satisfied, and the maxim of equity above quoted enforced, by making the [735] relief granted the plaintiff conditioned upon the payment, within a time to be fixed by the court, of the taxes which are found to be a lien upon the said property. The following opinion on rehearing was filed June 4, 1908. Former judgment of reversal as modified adhered to: 1. Taxation: Seizure of Personalty. The tax list in the hands of the county treasurer will authorize him to receive and collect the taxes described therein; but to invest him with jurisdiction to seize personal property for the satisfaction or enforcement of a tax lieh thereon, the clerk’s warrant provided for by statute must be attached to such list. 2. -: -. Until such a warrant is attached to the tax list there exists no enforceable lien for the payment of the taxes against the- personal property of a tax debtor. 3. -: Liens: Priorities. A purchaser of personal property under moi’tgage sale, before the tax lien has attached, takes it free of all claims for the taxes. We therefore recommend that the judgment be reversed as to the taxes of 1892, 1893, 1894, and the cause remanded for further proceedings in accordance with this opinion. Jaokson and Ames, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed as to the taxes of 1892, 1893, 1894, and the cause remanded for further proceedings in accordance with said opinion. Reversed.