Union Central Life Insurance v. Chapin

Given, C. J. 1 I. This case was submitted upon the pleadings and an agreed statement of facts. The following, we think, is sufficient statement to show the issues and material facts: Frank P. Lewis, Seth PI. Hadley, and Lindley PI. Rash were co-partners under the firm name of Lewis, Hadley & Rash, in business as retail merchants at New Providence, in Hardin county, Iowa, and were assessed in that county upon 'their stock of merchandise for the years 1893, 1894, and 1895 in the aggregate sum of $320.28 taxes, which they failed to pay. In February, 1895, they exchanged their said stock of goods for a half section of land in Sioux county, Iowa, to 'which they received title. The goods remained in Hardin county until Play, 1895, when they were taken to Cherokee county, Iowa. On February II, 1896, Lewis, Hadley, and Rash, their wives joining therein, executed to the plaintiff a mortgage on said land to secure a loan of $4,000, which mortgage provides as follows: “Said first party shall not suffer waste; shall pay all taxes and assessments upon said property, to whomsoever [413] let or assessed, and including personal taxes, before delinquent; and shall deliver to said party at its office in Cincinnati, Ohio, immediately upon payment of all of the taxes and assessments aforesaid, duplicate receipts of the proper officer for the payment thereof; * * * a failure to comply with any one of the agreements hereof causing the whole debt at once to become due and collectible, if said second party or assigns so elect. * * * All money paid by said .second party or assigns for insurance or taxes shall bear interest at the rate of eight per cent, per annum, payable annp.ally, and be a lien on said land under this mortgage.” On the same day that plaintiff’s mortgage was made, said mortgagors executed another mortgage on said land to Van Evera ■& Hobinson to secure a loan of $500, which contained the same provisions as to taxes, and provided that it was junior to plaintiff’s mortgage. A third mortgage, junior to both these, was given in March, 1896, to the II. L. Spencer Company. These mortgages were recorded soon after their execution. On January 5, 1897, the defendant obtained a judgment for $290 in Hardin county against said firm, and of this judgment he filed a transcript in Sioux county on January 15, 1897. On February 23, 1897, suit was brought in ■Sioux county to foreclose said second mortgage, to which action this plaintiff was not made a party. Decree of foreclosure was rendered, and on June 26, 1897, the land was sold to James Van Evera thereunder. The H. L. Spencer Company redeemed from that sale and the defendant as judgment creditor redeemed from said company, receiving an assignment of the sheriff certificate, under which he received a sheriff’s deed July 2, 1898. On July 11, 1896, the treasurer of Hardin county certified said unpaid personal taxes of 1893, 1894, and 1895 by certificate in form as follows making by seperate certificate for each year, differing -only in the year and amounts: “Treasurer’s Office, Hardin County, Iowa. “Eldora, Julyll, 1896. [414] “I, II. W. Moir, treasurer of said county, do hereby certify that the following is a correct abstract of the taxes assessed in said county for the year 1893 against Lewis, Hadley & Hash, late a resident of Providence township, in said county, but who is now supposed to be a resident of Sioux county, Iowa, which said taxes are due and remain unpaid as herein set forth. Personal value, $3,500.00: KIND OP TAX. State, county, school, road, school hosue, district tax, bridge, pauper...................................................$ 91.00 Penalty and pauper......................................... 25.48 Total..............................................$ 116.48 “M. W. Moik, Treasurer.” These certificates were sent to and received by the treasurer of Sioux county, and entered upon the records of his office July 14, 1896. At the tax sale in December, 1896, the treasurer of Sioux county sold said land for delinquent taxes aggregating $429.08, of which $25.39 were taxes on the land, and the remainder for said personal taxes. Plaintiff was the purchaser at said sale, and as such paid all of said taxes. It is admitted that said co-partnership has never been dissolved, that it and all the members thereof have continuously resided in Hardin county, and that each of said members has owned property in that county. It appears that on November 26, 1896, the plaintiff, throug’h Van Evera & Eobinson, its then agents, notified said mortgagors to pay said taxes, and that they failed to do so'. The defendant concedes the plaintiff’s right to recover the amount of the taxes assessed against the land, and has paid that sum to the auditor of the county in redemption therefrom; therefore the contention is as to plaintiff’s right to foreclose on account of the payment of said personal taxes. II. There is no doubt that the plaintiff, under the terms of its mortgage, had a right to pay all delinquent taxes, real and personal, legally charged against the land, and to recover the amount thereof under its mortgage; and equally clear, we think, that the defendant has a right to [415] redeem from the plaintiff’s mortgage. The controlling contention is -whether said personal taxes were so charged against said land as that plaintiff is entitled to recover for-the payment of the same under its mortgage. The fact that plaintiff paid the taxes by purchasing at the tax sale gives-it no greater rights than if it had paid them after delinquent and before sale. The defendant’s contentions are that. said personal taxes were not legally charged against the land, for that said firm has not been dissolved; that it, nor any of' its members, had removed from Hardin county, but had continued to reside therein; and that each of said members had property in said county that might be subjected to the-payment of taxes. Also that, if plaintiff has a lien for the-taxes paid by it, it is j’unior to defendant’s rights under his • sheriff’s deed. The plaintiff claims — and correctly so — that, as it was not a party to the foreclosure of the second mart- • gage, it is not concluded as to the claims it now makes. It claims that, as defendant’s j’udgment was not rendered nor transcripted until after plaintiff had paid said taxes, the-plaintiff’s claim for the taxes is prior to any claim of the defendant under his j’udgment. That plaintiff having notified said Van Evera & Robinson and the said mortgagors of the existence of said taxes, and demanded that they pay the-same, and they having failed to do so, the defendant is es-topped from contesting the validity of the lien of said taxes, and from resisting plaintiff’s claim thereto'under its mortgage. Plaintiff asks that, if defendant’s lien under his sheriff’s deed is held prior to plaintiff’s for the taxes, it be permitted to redeem from the defendant. [415] III. Under the statutes as they existed at the time-of. these transactions, individuals composing a co-partnership,.. were personally liable for taxes due from the partnership and taxes .due upon personal property were a lien upon real. property owned within the county where assessed, and might be collected by a sale of such real estate or byo seizing and' selling personal property. Section 861 of the 0‘ode of 18Y3: [416] (section: 1409, present Code) is as follows: “In all cases of ■delinquent taxes in any county, where the person upon whose property the same were levied shall have removed into another county, leaving no property within the county where .the taxes were levied out of which the same can be made, the treasurer of the county where said taxes are delinquent shall make out a certified abstract thereof, and forward the same to-the treasurer of the county in which the delinquent resides ■or has property, when the treasurer transmitting said abstract has reason to believe that said taxes can be collected thereby.” Section 862 provides that on filing the abstract in the office of the treasurer to whom the same was sent “it shall have the full force and effect of a levy of taxes in that comity, and the collection of the same shall be proceeded with in the same manner provided by law for the collection •of other taxes.” It requires no citation of authoriy to show that statutes prescribing the mode of assessing and collecting taxes must be strictly pursued. But see Tallman v. Treasurer, 12 Iowa, 531; Chicago, R. I. & P. R. R. Co. v. City of Davenport, 51 Iowa, 451; Jaffray v. Anderson, 66 Iowa, 119; Bibbins v. Clark, 90 Iowa, 235. The facts being that said co-partnership continued to exist, and it and its members continued to reside in Hardin county, and that sai'd members had some property in that county subject to be ■seized for the payment of said personal taxes, we think the ■certification of said taxes to the treasurer of Sioux county was unauthorized. It may be that the property owned in Hardin county by the members of the co-partnership, was not .sufficient to pay these personal taxes, but the fact remains that neither they nor their co-partnership had removed from that county. We have seen that these taxes were assessed upon said merchandise for the years 1893, 1894, and 1895, ■that said firm continued to own the goods until in February, 1895, and that the purchasers continued to keep the goods 'in Hardin comity until May, 1895. Under chapter 35, Acts Twenty-fourth General Assembly, then in force, said taxes [417] were a lien on said stock of goods, even as against the purchasers, and therefore it cannot be said that there was no property in Hardin county out of which the taxes could have been made. Plaintiff’s counsel contend that the error in the treasurer’s certificate as to the residence of the tax debtors and the omission to show that they had left no property in Hardin county are mere irregularities, and cites eases to the effect that equity will not interfere to prevent the collection of taxes authorized by law to which the property is justly liable, on account of irregularities; notably Litchfield v. Hamilton County, 40 Iowa, 66. Removal from Hardin county, “leaving no property within the county where the taxes were levied out of which the same ■can be made,” is the only basis upon which the certification of the taxes to another county for collection may be made: These conditions did not exist; hence there was no authority for the certification, and the land was not justly liable for the taxes. The absence of these essential facts is quite different from the irregularities found in the cited cases. In Chicago R. & M. R. Co. v. Carroll County, 41 Iowa, 155, the treasurer omitted to note that the assessment was made by him, and this was held to be an irregularity that did not affect the legality of the taxes. In Sioux City & St. P. R. Co. v. Osceola County, 45 Iowa, 169, matter held to be irregularity was the charge that the tax had not been levied by the township trustees, was not carried out against the property by the township clerks, and that they did not certify a list of delinquent taxes. In Conway v. Younkin, 28 Iowa, 293, the error complained of was an omission of the assessor to insert the name of the person whom he intended to assess jointly with another as owners of the property. In the Case of Litchfield, supra, the matter held to be irregularities were in the classification of the lands by the supervisor as to their values, the assessments of lands to unknown owners in 80-aore tracts, the want of the warrant to the tax list, and the [418] failure of the treasurer to offer the lands for sale at a time' required by law. Our conclusion is that under the facts the treasurer of Hardin county was not authorized to make a certified abstract of said personal taxes, and forward the same to the treasurer of Sioux county for collection, and that such certification did not have the effect of a levy on the mortgaged Ians, nor make said land chargeable with said uersonal tax. 3 IV. There is no question but that the plaintiff had a right to protect its security by providing, as was done, in its mortgage, as to the payment of personal as well as real taxes that might become a charge upon the land. That these personal taxes were due and owing by the mortgagors was no reason why plaintiff might pay and make them a charge on the land under its mortgage, unless they had become a lien upon the land to the prejudice of the security. It would not be claimed that plaintiff might have paid these taxes in Hardin county, and made them a charge upon the land under the mortgage, merely because they were due and unpaid. We do not see why the fact that the plaintiff notified the mortgagors tod the mortgagees in the second mortgage to pay the taxes, nor the fact that the foreclosure of the second mortgage, under which defendant holds his title, and his judgment, were after the tax sale, render these personal taxes a valid lien on the land; neither do we see any reason why the defendant should be estopped from denying plaintiff’s right to recover these taxes. He did nothing to induce plaintiff to pay these taxes. Plaintiff presents a number of contentions, but, as we view the case, they are all answered by the conclusion that the certification of the abstracts of these personal taxes to Sioux county was unauthorized under the facts; that they did not, therefore, become a charge upon the land; and that plaintiff was not entitled to make them so, under its mortgage, by paying the same. We think the decree is correct, and it is aeeirmed.