Estate of Morgan v. Messenger

Bishop, J. 1. Adjudication. I. We may give consideration first to the appeal from the order in probate made by the Webster district court. It is to be observed that the initial application was wholly ex parte, and the same and the order •, .. i i i i made thereon had reference solely to taxes which had accrued subsequent to the death of the testator and while settlement of the estate was in progress. No appearance had been made on behalf of Clay county in the probate proceedings by way of a claim filed or otherwise. This being the situation, we think the application amounted to nothing more than a statement of conditions then existing, as understood by the executor making such application, and asking authority to proceed. In no sense could such proceeding be construed as an adjudication respecting the subject-matter of the amount of taxes due, and therefore binding upon either the executors or the county. By force only of such initial order it must be manifest that the former could not be required to make payment to the county, espe-' cially of an amount in excess of its due; nor, because of such order, could the latter in attempting to force collection be compelled to accept less than was actually its due. It follows that the subsequent order from which the appeal is taken involved no error. 2. Assessment of omitted property. II. Coming now to the appeal in the -equity case, we may begin by disposing of the contention made by appellants to the effect that no legal assessment was made. Conceding that appellants are in position to insist upon the point, we think it is. wholly without merit. [252] Section. 1374 of the Code makes it'the duty of the county treasurer to proceed to collect taxes on withheld or omitted property when apprised thereof. In terms the section does not require that he shall list or assess the property in a prescribed formal way before proceeding to collect. The determination by him that property has been omitted, and his ascertainment of the amount of taxes due on account thereof, is taken to be a substitute for the assessment required by the general provisions of the statute relating to that subject. Galusha v. Wendt, 114 Iowa, 597; Beresheim v. Arnd, 117 Iowa, 83. Chapter 50, page 33, Acts 28th General Assembly, was enacted with the evident expectation that the work of making discovery of omitted property would be facilitated by the employment of agents for that purpose. Among other things the act requires that before listing any property discovered a notice shall be given fixing a- time and place at which objections to the proposed assessment may be made. The Code section and the later legislative act are to be considered together, and therefrom no more can be said than that the treasurer, when satisfied that property has been omitted, shall make the fact to appear properly of record in his office as a basis upon which further proceedings may be had. What was done in the instant case makes it unnecessary to consider what might be the effect of a failure to make such record. It appears that when E. G. Morgan, Jr. appeared in response to a notice and demand, admitted to have been regularly made by the treasurer, that the subject-matter of the character and value of the property subject to taxation was taken up between said executor and the tax agents in the employ of the county, and a basis for assessment arrived at. We think it sufficiently appears that all this was called to the attention of the treasurer and had his approval. Thereupon there was entered up in what was known as the “ Omission Record^” an official record book belonging to the treasurer’s office, and in which was entered up all matters [253] having relation to assessments on withheld or omitted property, the name of the estate, the kind and value of the property owned in each yearj the rate of taxation for each year, and the amount of taxes due. Now, that the clerical work of writing the entries in the record was done hy one of the tax ferrets, or agents, conceding that such was the course of proceeding, is immaterial, inasmuch as it clearly appears that what was done was with the approval and under the supervision of the treasurer. The assessment thereby became his act. It is not necessary that such officer shall by his own hand do all the work, clerical and otherwise, incident to his office. In Snell v. Ft. Dodge, 45 Iowa, 565, it was asserted that an assessment was invalid because the assessor had employed others to fix valuations and make up the assessment lists. But, it having been made to appear that the work done was submitted to and approved by the assessor, the contention .was declared to be without merit. The prim ciple involved applies with equal force to the fact conditions presented hy the instant case. 3. Mistake: equitable relief; evidence. Proceeding to the issue of mistake, it appears conclusively enough that of the moneys and .credits included in the amount of the assessment the sum of $31,500 had heen in truth disbursed by the executors during the Iear 1894, as claimed by them. The fact situation came about in this way: Such disbursement had been made without an order of court being obtained authorizing the same, and the executors had been advised to and did omit any reference thereto in their 1896 report, the intention, as asserted, being to subsequently procure ' an order having the effect to cover and validate the distributive'payments thus made. Matters stood in this way when the executor was called upon to take up the subject of back taxes as hereinbefore referred to. Now, a careful reading of the record makes it appear conclusively that the inclusion in the assessment of the amounts previously disbursed to the devisees under the will did not result from any [254] forgetfulness, or from any mistake of fact on tire part of the executor, E. G. Morgan, Jr. According to his own testimony given upon the trial the fact of such disbursement having been made was discussed between himself and the county agents and authorities before the assessment was made, the discussion taking the form of a contention as to whether or not the amount of the disbursements should of right be included in the assessment; those representing the county affirming the right, and the executor denying. The dispute ended in the executor acquiescing in an assessment in the amount as made, being inclusive of the disbursements. This being the state of the record, manifestly the plaintiffs must fail in this action. Conceding the power of a court of equity to grant relief as against mistakes of fact, including the matter of voluntary payments made, yet here there was no mistake of fact, and there is no room for the application of the doctrine invoked. If mistake there was, it was one respecting the status of the parties from the standpoint of legal right or duty. We need not enter upon a discussion of the rules which obtain in cases of that character. Granting then that an assessment as for the year 1896 could not have been enforced as against the amount of moneys and credits so previously disbursed, and that the county ought not in good conscience to insist upon payment, we have no basis in the record before us to grant the relief prayed. 4.Same. As to the assessments for the years subsequent to the year 1896, as affected by payments to devisees, it is sufficient to say that here also the record fails to show that the same were paid under mistake of fact. In the view we have taken of the case, we need not discuss the merits of the claim made by the plaintiffs in respect of the payment of taxes, expenses, etc. As to the claim that in making up the assessment, the fact was overlooked that worthless notes, securities; etc., were being included therein, we have to say, conceding such to be a proper matter for determination in |he form presented, that the relief de [255] manded could not be granted. The subject had relation to values only, and if a taxpayer voluntarily gives in for taxation securities at their face value concerning which doubts may exist as to their collectibility, or which may afterwards prove to be uncollectible, while he might have relief at the hands of an equalization board, still we know of m> reason for allowing resistance to be made to a tax once assessed, or, if paid, for allowing the amount to be recovered back. As defendants do not allege any grounds, or make any demand, for affirmative relief we do not undertake to determine their rights under the dishonored check in the hands of the treasurer, or to recover the' amount thereof in some other form of action, should they be advised to prosecute such action. We conclude that the trial court was right in dismissing the equity action at the costs of plaintiffs. Upon each appeal the judgment is affirmed.