Rothschild v. Begole

Long, J. Plaintiff was the owner of an undivided one-third interest in certain pine timber lands, and on March 9, 1887, he made a contract with defendants to sell them the timber on the lands. Under this contract, defendants were allowed till March 9, 1898, to remove such timber. The contract provided that the defendants “shall from time to time, and in due season, pay all the legal taxes which may hereafter become due on said premises, land, and timber, unless released as herein specifically provided.” The contract also provided that— “Whenever said second parties shall serve a written notice on said first party,- déclaring that they have cut and removed all the pine timber they desire from the lands listed and described in said notice, and thereby releasing said lands and all timber remaining thereon back to said first party from all rights under this contract, that thereupon said second parties shall be released from paying any taxes which may be assessed, after the [390] date of sterling said notice on said first party, on'tlie lands listed and described in said notice.” On July 10, 1889, July 21, 1891, and May 31, 1892, notices were given by the defendants, as provided by the contrae!, that the timber had been taken off the land upon certain lists contained in the notices. The taxes were not paid by the defendants for those years upon the lands contained in those lists. Plaintiff paid those taxes, and brings this action to recover the amount so paid, contending that, under the contract’ the defendants were bound to pay them. Those lands, under the tax law, were listed for taxation in the month of April of each year. Plaintiff contends that the clause of the contract above quoted compels the payment by the defendants, although the notices were given before the taxes became a lien on .the land; that they were only to be released from paying any taxes which were assessed after the date of serving said notices; and- that such taxes were assessed before the; notices were given. We think the word “assessed,” as used in the contract,: can have no such restricted meaning. It includes all the steps necessary to be taken in the legitimate exercise of-the power of taxation. The mere listing of the lands for. the purpose of taxation is not a completed assessment: No amount has as yet been ascertained to be a charge-upon the land, and in fact no amount has been ascertained until the board of supervisors meet, in the month of October following. As was said by this Court in Harrington v. Hilliard, 27 Mich. 271: “When thus equalized by the board, the roll is again-delivered to the supervisor, with a certificate of the amount of the various taxes to be raised in his township;, and the supervisor, between that time and the first Monday in December, is required to apportion the amount and impose the taxes according to such equalized valuation, and to place the roll in the hands of the township. treasurer for collection; ánd if is from this date that the : statute declares the taxes upon real estate to be a' lien: [391] thereon. It is therefore clear that up to this' time tírele is no tax upon the land which can be paid by or to. anyone, * * * and the land is; just as clear, from any- charge or lien on account of the taxes to be assessed for the current year as it is- from those of- any future year. * * * There is simply a liability to future taxation. * * * But though it is clear the statute makes these taxes, after they are imposed and the roll has gone into the hands of the treasurer for collection, a charge upon the person owning the land on the second Monday in May, it does not make them a charge from that day-, nor until the taxes have been imposed. Until then there is no charge nor any duty to pay, as no such taxes yet exist.” Speaking further upon the subject of the listing to be made in May, it was said: “This, though called an ‘assessment roll,’ is but a. list of the taxable persons and the property and its valuation in the township.” The tax law itself (Act No. 153, Laws of 1885) seems to provide when the assessment is to take place, as section 26 provides that the supervisor of each township, after the certificates are made by the board of supervisors in October, “shall proceed to assess the taxes apportioned to his township.” In Wells v. Smyth, 55 Penn. St. 159, the Court follows the definition of assessment as laid down in Bratton v. Mitchell, 1 Watts & S. 313, as follows: “The assessor values and returns to the commissioners, who apportion the sum to be raised in the township on the several tracts,; — -in fact, who perform the most important part of the assessing. The list returned to them and their action on it is the assessment.” See, also, State v. Fournet, 30 La. Ann. 1104. ' When these notices were given, there was no assessment of taxes on the lands so released. There had been no tax extended, and in fact could not be until the meeting of the board of supervisors in October following. The parties, at the time the notices were given, could not have ascertained by any mode the amount to be paid; [392] No amount was at that time assessed. The court below was correct in holding that no recovery could be had. The judgment below must be affirmed. The other Justices concurred.