63 Ind. App. 349 | Ind. Ct. App. | 1916
This is a suit brought by appellant against appellees to set aside a sale of real estate for taxes made by appellee Hines, as county treasurer, to quiet title, and for other relief. The complaint was in one paragraph. The several demurrers of appellees thereto for insufficiency of the facts alleged to state a cause of action against them were sustained, to which appellant duly excepted and appealed from the judgment rendered against him on such ruling.
The errors assigned and relied on for reversal of the judgment are: (1) Sustaining the demurrer of appellee Rallihan; (2) sustaining the demurrer of appellees Mary and Abel Barnum; (3) sustaining the demurrer of appellees Wilbert T. Hines, county treasurer, and Joseph C. Kimmel, eo'unty auditor. The other, assignments are unauthorized and present no question.
The complaint is very long and its material averments are, in substance, as follows: On September 10, 1894, one Abel Barnum was the owner in fee simple of the northwest quarter of section 18, in township 34, north of range 10 east, in Noble county, Indiana, and on that date conveyed to appellant by warranty deed the undivided one-half of said real estate, reserving to himself a life estate therein. On March 1, 1910, said grantor was a resident taxpayer of said county and then owned an undivided one-half interest in said quarter section, and other real estate in said county, of the value of $1,000, together with a large amount of personal property of the aggregate value of $30,000. On March 5, 1910, he died testate the owner of said real estate and personal property, and also of other real estate in said county of the value of $5,000. On March 12, 1910, his will was duly probated, by which he devised all his personal property and his real estate in fee simple, to his widow, Mary Barnum, and his son, Abel. Appellee Mary Barnum was appointed executrix of his will, was duly qualified, and she entered upon her duties as such, March 16, 1910. On
It is also averred in the complaint that said tax sale was illegal and void, for. numerous reasons, in substance as follows: That no demand was ever made by appellee Hines, as county treasurer, upon said devisees, or either of them, for personal property to satisfy and pay delinquent tax, and no effort was made by said treasurer to levy upon and sell any of said personal property. No delinquent list was ever made by said treasurer after the first Monday in May, 1912, of the delinquents for unpaid taxes in said county and certified to appellee Kimmel, as county auditor. The county treasurer did not call upon either of said devisees and demand payment of said taxes or make any return showing diligent search for personal property. No notice of the sale of appellant’s lands on February 10, 1913, was given by the county auditor as required by law. The treasurer’s sale of said land was made in the interior .of the courthouse, and not at the door, as required by law. The quantity of land sold was excessive, being of the value of $1,000. At the time of said sale, and during the entire preceding year of 1912, appellant was the owner and in
Appellant asks that the court declare said tax sale illegal and void; that it be vacated and. set aside and his title quieted against each and all of said defendants; “that the said $53.83 be ordered returned to plaintiff, and said certificate of sale issued to defendant Timothy Rallihan be cancelled; that the defendant Mary Barnum be ordered and required to answer concerning the kind, quantity and value of personal property which came into her hands as executrix of the last will of the testator, Abel Barnum,
insufficient for any reason, whether contained in the memorandum or not, notwithstanding the rule that limits this court to points made in, the memorandum in cases where the demurring party complains of the overruling of his demurrer. §344, cl. 6, Burns 1914, Acts 1911 p. 415. Bruns v. Cope (1914), 182 Ind. 289, 105 N. E. 471, 474; Boes v. Grand Rapids, etc., R. Co. (1915), 59 Ind. App. 271, 108 N. E. 174, 176. Section 10343 Burns 1914, Acts 1909 p. 158, provides that the lien of the state for taxes “shall attach on all real estate on the first day of March annually”. Sections 10344, 10345, 10346 Burns 1914 (Acts 1903 p. 49; Acts 1891 p. 199) are as follows: “10344. All the property, both real and personal, situated in any county, shall be liable for the payment of all taxes, penalties, interest and costs charged to the owner thereof in such county, .and no partial payment of any such taxes, penalties, interest or costs shall discharge or release any part or portion of such property until the whole is paid; which lien shall in nowise be affected nor destroyed by any sale or transfer of any such personal property, and shall attach on the first day of March, annually, for the taxes of the year.
“10346. The treasurer shall receive the tax on a part of any real estate charged with taxes, provided the person paying such tax shall furnish a particular specification of such part and shall pay a like proportion of all the several taxes charged thereon for state, .county, road or other purposes; and if the tax on the remainder of such real estate shall remain unpaid, the treasurer shall enter such specification on his return to the county auditor, to the end that the part on which the tax remains unpaid may be clearly known; but such payment shall not discharge any lien of the state, as provided for in this act.”
Section 10324 Burns 1914, Acts 1903 p. 49, makes it the duty of the county treasurer to make search and demand for personal property out of which to pay delinquent taxes of each resident delinquent and to make due return setting forth the fact of his search in case he is unable to find personal property out of which to make such taxes.
Section 10354 et seq. Burns 1914, Acts 1891 p. 199, provide for the making of a list of lands liable for delinquent taxes, posting, notice and sale.
Section 2901 Burns 1914, §2378 R. S. 1881, provides the order of paying debts and liabilities of solvent estates, the fourth clause of which is as follows: ‘ ‘ Taxes accrued upon the real and personal-estate of the deceased at his death, and taxes assessed upon the personal estate during the course of the administration.”
Section 10340 Burns 1914, Acts 1897 p. 226, provides that “It shall be the duty of every administrator, executor * * * to pay the taxes due upon the property of such decedent * * * and, in case of his neglecting to pay any installment of taxes when due, when there is money
While the complaint prays that title be quieted, it is devoid of some of the usual and necessary allegations of such suit, unless such facts be inferred. The prayer is somewhat vague and contradictory and is of little, if any, assistance in construing the pleading. The facts averred, when considered in their general scope and tenor, seem to invoke the equitable powers of the court. Equity looks through form to substance, and the substance here is primarily the restoration of the title to appellant and secondarily the recovery of the part of the taxes appellant claims should have been paid by the testatrix as aforesaid.
Appellees in their briefs say: “There is no contention that the land in question was not liable to be taxed and no contention that the taxes which had become a lien had been fully paid, unless the payment to the county treasurer be considered an absolute payment to the treasurer for the purchaser', Rallihan. This is probably the legal effect of said payment for the reason that the county treasurer has no authority to accept conditional payments * * * while the legal effect of the facts averred would be to establish an absolute payment and a redemption, the purpose of the pleader as gathered from the prayer of the complaint * * * is otherwise.”
We therefore conclude that the complaint as against the purchaser at the tax sale and the county auditor and treasurer is a proceeding in equity to redeem from the tax sale.
Note.—Reported in 112 N. E. 561. Taxation: (a) assessment of, on property of decedent’s estate, 56 L. R. A. 634; (b) right of person paying tax to be subrogated to tax lien, 17 Ann. Cas. 1134; (e) recovery of taxes paid, 94 Am. St. 425. Right of one that advances money for payment of debt or incumbrance against decedent’s estate to be subrogated to creditor’s rights, 11 Ann. Cas. 676; Ann. Cas. 1915C 130. See under (2, 4) 37 Cyc 1285; (3) 37 Cyc 1276; (5) 18 Cyc 420; (6) 37 Cyc 1142; (7) 37 Cyc 1479; (8) 37 Cyc 1415; (9) 37 Cyc 1531; (13) 16 Cyc 1076; (14) 18 Cyc 1192; (15) 37 Cyc 1420; (16) 37 Cyc 443; (17) 18 Cyc 467.