Stuard v. Southern Engine & Boiler Works

Whitfield, C. The reporter will set out fully the facts in the case. We notice only two assignments of error. Sections 4341 and 4342 of the Code of 1906 are as follows: “4341. If the taxes, assessed shall not be paid when due, and sufficient real and personal estate cannot be found of which to levy the same, the collector shall ascertain who are indebted to the person liable for the taxes, an'd shall make a list thereof, and advertise the indebtedness for sale at the courthouse door, giving five days’ notice in the manner prescribed for the sale of personal property distrained; and shall sell the indebtedness, of whatever kind, or so much as may be necessary to pay the taxes and costs, to the highest bidder, for cash, and make to the purchaser an assignment thereof ; and it shall be sufficient to describe the same, in general terms, as the indebtedness of the debtor to the party assessed for taxes, stating as near the amount as can be; and such sale and assignment shall vest the indebtedness in the purchaser, who shall be entitled to sue for mnd collect the same. And if sufficient indebtedness can-mot be found in his county to make the whole tax, the •collector shall certify the whole or the balance, as the •ease may be, to the collector of any other county where indebtedness may exist; and the collector receiving the certificate shall advertise and sell such indebtedness, and collect the taxes, with five per centum thereon, and pay over the tax to the collector from jvhom the assessment [901] was received. After the indebtedness shall have been advertised, it shall not be lawful for the owner thereof to sell, assign, collect, or compromise the same without paying the taxes. And the tax collector may levy on the shares or interest of the delinquent taxpayer in any corporation, company, or partnership, and dispose of the same as if levied on under execution. “4342. The owner of the debts or property sold under the last preceding sections shall have six months from the day of sale in which to redeem his property, by complying with the conditions prescribed for the redemption of land sold for taxes; and the assignment of the debt or conveyance of the property by the collector shall be dealt with as provided for the conveyance of lands sold for taxes. The time for redemption shall not prevent the purchaser from exercising the rights of an owner, except the -right to compromise or sell; but, in case of redemption, he shall be responsible for the real value of what he may have realized from the debt or property.” It will be observed that in section 4342 in the second line, the word “sections” is in the plural, whereas, in Code of 1892, section 3827, the word is “section” in the singular. It is insisted for the appellee that, the word being in the plural in section 4342, the whole phrase reading “the last preceding sections,” the redemption of personal property provided for in section 4342 applies to all the preceding sections back to section 4315, inclusive. But the examination of those preceding sections from 4315 to 4340, inclusive, have no reference to the redemption of personal property. The language in section 4342, “the debts or property sold under the last preceding sections,” must therefore be held to refer to section 4341 only; that is to say, to the debts of the tax delinquent, and the shares or interest which he may own in any corporation, company, or partnership. We think the context of section 4342 clearly shows that the word “sections,” in that section, should be in the singular, and that the only personal property in respect to which [902] redemption is provided for is the particular personal property enumerated in section 4341. It was simply a clerical error, putting the word “sections” in the plural. Section 3827 of the Code of 1892 is identical with the section 4342 of the Code of 1906, except that the word is “section,” in the singular in section 3827 aforesaid. This being so, we are unable to find any provision in the law for the redemption of any other personal property than that described in section 4341, and the personal property here, the sawmill plant, including the boiler involved, is not, of course, covered by said section. But the tax collector sold the whole mill plant, worth several thousand dollars, for the sum of about fifty-four dollars taxes. It would have been very easy for the tax collector to have sold some part of the machinery, which would have brought this small amount of taxes, without sacrificing the whole mill plant by such a sale. There could have been no practical difficulty about doing this. When land is sold, it is the duty of the tax collector to sell the smallest legal subdivision of a large tract of land that will bring the taxes. Said section 4342, in providing for the redemption of the personal property therein, dealt with methods of redemption analogous to the mode of redemption obtaining where land is sought to be redeemed. The sale of a mill plant worth several thousand dollars, for the trivial sum of about fifty-four dollars, when there could have been no possible practical difficulty in selling a small part of the machinery, or some • small portions of the things belonging to the machinery, and realizing the taxes, is indefensible. The disproportion is so shocking that the sale must be held to have been in excess of the power of the tax collector to sell, an act of gross oppression, for which the sale must be declared void. Affirmed. Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the decree is affirmed.