90 Iowa 230 | Iowa | 1894
I. The facts in this case are that during the years 1886, 1887 and 1888 defendants W. W. Clark, Lavina W. Clark and A. W. Ford were copart-ners doing business in the city of Des Moines under the firm name of W. W. Clark & Company; that one half of the taxes upon the personal property of W. W. Clark
II. Our statute provides that “taxes upon real property are hereby made a perpetual lien thereon against all persons, except the United States and this state; and taxes due from any person upon personal property shall be a lien upon any real property owned by such person, or to which he may acquire a title, and the treasurer is authorized and directed to collect the delinquent taxes by the sale of any property upon which the taxes are levied, or any other personal or real property belonging to the person to whom the taxes are assessed.” Code, section 865. The taxes in controversy were assessed on personalty of the firm of "W. W. Clark & Company. The real estate sought to
III. It is conceded by counsel that the facts in this case present for our determination the same question as that involved in the case of Trust Co. v. Young, 81 Iowa, 732, 39 N. W. Rep. 116, and 46 N. W. Rep. 1103. It was there held that taxes on personal property which became a lien upon mortgaged real estate after foreclosure and sale of the mortgaged premises, and prior to the expiration of the period of redemption, were a lien superior to any right acquired by the holders of the mortgage by virtue of the foreclosure and sale of the property. On a rehearing, the majority of the court as then constituted adhered to the doctrine announced in the original opinion, Justices G-raecker and RobiNSON dissenting. The writer, who has since become a member of the court, while appreciating the importance of the question presented, and being fully
Now, in the opinion referred to, this language of the statute is so enlarged by construction that, in effect, the statute is -made to say that this lien upon real estate for personal taxes shall be superior to all other liens then existing against said real estate. The statute does not say so, the legislature has not so declared, nor can any such result be reached by applying to this provision of the statute the same rule of construction applied to like language used elsewhere in the Code. Why should a special rule of construction be created for this particular statute? What reason is there for saying that this provision, simply creating a lien, means more than if says? In the Young case it is said in the majority opinion: “It is a general principle in our system of taxation that when taxes are made a lien upon real estate they become prior and superior to all
IY. Can the plaintiff recover from the county the amount of taxes paid, with interest thereon? Plaintiff seems to base her right to recover upon section 870 of the Code. That section provides: ‘ ‘The board of supervisors shall direct the treasurer to refund to the taxpayer any tax, or any portion of a tax, found to have been erroneously or illegally exacted or paid, with all interest and costs actually paid thereon, and in case any real property, subject to taxation shall be sold for the payment of such erroneous tax, interest or costs as above mentioned, the error or irregularity in the tax may at any time be corrected as above provided, and shall not affect the validity of the sale, or the right or title conveyed by the treasurer’s deed, if the property was subject to taxation for any of the purposes for which any portion of the taxes for which the land was sold was levied, and the taxes were not paid before the sale and the property had not been redeemed from sale.” If it be conceded that plaintiff’s case is within the provi
If we treat the claim for a refunding as a liquidated claim or demand against the county, then it seems to us under the wording of Code, section 870, heretofore quoted, it must be presented for allowance to the board before suit can be instituted. It says the board of supervisors shall direct the treasurer to refund, etc. Clearly, the statute contemplates that the board shall have an opportunity to refund without suit, and without being compelled to pay further costs incident to litigation, which they might be willing to avoid by refunding, if they were asked so to do, before an action was commenced. Here is a party claiming a refunding of certain money paid in redemption from tax sale. It is reasonable that the board should have an opportunity to pass upon the justness of his demand before the county can be put to the payment of costs. Brownlee v. Marion Co., 53 Iowa, 488, 5 N. W. Rep. 610; Dickey v. County of Folk, 58 Iowa, 289, 12 N. W. Rep. 290; Richards v. Wapello Co., 48 Iowa, 510.
Y. Is plaintiff entitled to a judgment against the other defendants'? It was the duty of these defendants to pay these taxes, and, as we have held in another division .of this opinion, that duty rested upon them as a copartnership and also as individuals. Plaintiff re
YI. It seems to us that W. W. Clark is impliedly bound to reimburse the plaintiff for the amount she has expended in redeeming these lots from tax sale with interest and costs. He knew these taxes were unpaid. He knew that they would in time become a lien upon these lots. The payment of these taxes, as we have said, was a matter of necessity for plaintiff in order to
We think,-under all the facts of this case, plaintiff should recover from Clark. It is said that, even if plaintiff is entitled to recover of Clark, she has adopted the wrong kind of proceedings; that she should have brought her action at law. That question can not be raised by demurrer. Having failed to move to transfer the cause to the proper side of the calendar in the court below, defendants have waived the error, if any, in the form of the proceedings. Code, section 2519. The court erred in sustaining the demurrer of the defendant W. W. Clark, and for that reason the decision below is BEYEBSED.
SUPPLEMENTAL OPINION.
Satubday, May 26, 1894.
Appellant contends that the plaintiff’s demand is liquidated, and hence we erred in holding that the claim must be presented to the board of supervisors before - an action could be maintained thereon. Brownlee v. Marion Co., 53 Iowa, 487, 5. N.