Dunn v. Winston

Fisher, J., delivered the opinion of the court. The plaintiff below brought this action under the Pleading Act of 1850, in the Circuit Court of Rankin county, to recover a tract of land in the possession of the defendant. The land was entered on the 13th of May, 1835, in the names of Ogden, Hadley and Ludlow. Ogden and Hadley having transferred their interest to Ludlow, he conveyed the land to the plaintiff on the 20th of April, 1837. The land was afterwards on the 10th of December, 1840, patented by the government to Ludlow. The title thus acquired of course inured to his vendee, the plaintiff. The evidence having closed on behalf of the plaintiff, the defendant offered to read to the jury in support of his title, a deed made by the tax collector of said county, on the 3d day of April, 1848, to one F. M£Gowan, whereby it appeared that the land in controversy was assessed as the property of Ogden, Hadley and Ludlow, under the provisions of the Act of 1846, and was sold for the taxes due thereon for the year 1847. The court on motion of the plaintiff’s counsel rejected this deed as evidence, and this presents the only question, which it is necessary to consider. We must assume for the sake of the argument, that the plaintiff was both at the date of the assessment and at the date of the sale, the owner of the land, and then determine the question argued by counsel, whether the tax collector’s deed is sufficient to defeat or rather to convey the plaintiff’s title to M£Gowan; if so, of course the action of the court below was manifestly wrong, in excluding the deed as evidence. The land having been assessed as the property of Ogden, Hadley and Ludlow, when they were not the owners of it, the question is whether the purchaser at the tax sale acquired only their title, or an absolute title, regardless of the true owner, to the land. The solution of this question, must depend upon the provisions of the law, under which the assessment was made, for it may be assumed as undeniably true, that in the absence of express legislation on the subject; the tax collector has no authority to sell the property of an individual, for the payment of his taxes, when he is not shown to be in default in making pay [137] ment. Before an individual can be said to be in default in performing a duty, or in discharging an obligation, such duty or obligation must have been legally created, for the obvious reason,- that there can be no violation of that which never existed. A man can, on general principles, never be in default in paying his taxes, until he has been legally charged with their payment. A tax is but a contribution, which the law requires individuals to make for the support of the government. The amount of this contribution, which each individual is required to make, must depend upon the value of articles of property, of which he is ascertained by the proper officer of the government, to be the owner. The assessor having decided that a particular person is the owner of certain property, determines according to the directions of the law, the amount of tax with which such person shall be charged. These matters having been determined by the proper authority, the law settles the question as to the tax payer’s liability. Whether the officer has erred or not in charging by the assessment, a wrong person with the payment of the taxes upon the property assessed, makes no difference; if he permit the assessment to stand until it is delivered to'the collector, his only remedy is against the assessor for a false assessment, by which such person has been subjected to the performance of a duty, with which another should have been charged. Such being our understanding of the general rule, without express legislation to the contrary, we will proceed to notice the statute under which the assessment was made. Acts of 1846, beginning on p. 71, § 13. This section requires all lands subject to taxation, to be assessed according to their value, to “ be judged of by the owners, agents or attorneys thereof upon oath,” &c. The very first section on the subject, requires that the owner of the land shall be consulted, and that he or his agent shall ascertain the value thereof, and thus indirectly fix the amount of the tax with which he shall be charged on account of the same. Section 14, authorizes the assessor to make the assessment, that is, to value the land when the owner, agent or attorney “ thereof ” shall fail to assess of to give in the same. If in the opinion of the assessor*, there “ shall be a difference in the value of any one tract of land,” he is required “to make such subdivisions, and to affix [138] such valuation on each subdivision as he may think advisable to arrive at the intrinsic value thereof.” What does the law mean, when it says, if there shall be a difference in the value of any tract, &c., the same shall be subdivided, &c. ? Most clearly, when the same tract shall belong to the same person. Here again, we find that the assessment must be in the name of the owner at the time. The owner failing to assess, or to give in his land, the law requires this duty to be performed by the assessor, who is authorized to do no more than the owner. could do, if performing the same duty, himself. . Section 15, regulates the manner in which the assessment shall- be made. The assessor must commence assessing in the lowest number of township and range in his county, and the north-east corner of each township. He is required to “enter in succession all the subdivisions of each section, as they may belong to different individuals, or if the whole of a section belongs to the same, person, then the whole may be set down in one entry upon the assessment list,” unless it be necessary to subdivide it, to increase the value as provided in section 14. Thus again clearly indicating that the assessment must be made in the name of the owner. We may pass from this section to section 40, which provides that the taxes imposed by this law shall be a preferred lien from the first day of May of each year, upon all real estate of the person assessed, situate in the county in which the assessment is made. Could taxes assessed upon property belonging to, or supposed to belong to Ogden, Hadley and Ludlow, constitute a lien upon - property belonging to a different person unknown to the assessment roll? This section is but in harmony with the others, and contemplates an assessment in the name of the owner at the time. Section 59, requires the collector upon making a sale of land, to include in one deed all the lands sold as the property of the same individual, to one person on the same day. He can only know from the assessment list who is the owner of the land, and is of course governed by it in making the deed. If the assessment shows the land to be the land of Ogden, Hadley and Ludlow, it is sold as their property, and the deed conveys to the purchaser their title, which is, as to them, good and valid, unless for good reasons successfully assailed. But it cannot pass the title [139] of another person, for the reason already stated, that he was not charged with the taxes, or adjudged a delinquent in their payment. Both the charge and the delinquency attached to Ogden and others, and it was in virtue of these matters, and these matters alone, the charge against and delinquency of these persons, that the collector was invested with authority to make the sale. The assessor ascertains and reports the person chargeable with the tax, and the collector in turn pronounces at the proper time his judgment, by declaring that such person is legally in default in performing his duty to the government, and¿n-ge#t8^a^ce of such default, the collector in virtue of the>!^rai{fSft^Al^d^^,him by the law, proceeds to sell the land upmi which the tax ljas been assessed, as shown by the assessment. //T,AW &€B-€W)IA While we are of opinion that the qpurt should have almitted the deed, under the rule that the partjwaJnb^^&jSSl a* to the order in which he should introduce his CT^enpe, vet-as^ne party did not intimate that he intended to introduc^other evidence, either showing a title in the defendant or an outstanding title in another person, and as it is the action of the court in overruling the motion for a new trial which is complained of, we do not feel authorized in reversing the judgment for this alleged error, when it is not shown, or believed a different result would follow another trial. Judgment affirmed.