141 Va. 116 | Va. | 1925
delivered the opinion of the court.
A temporary injunction was granted. Davis, treasurer, demurred to the bill. C. Lee Moore, Auditor of Public Accounts, appeared specially and filed a petition in which he objected to the jurisdiction of the court on the ground that the suit was “in effect a suit against the Commonwealth of Virginia; that petitioner as Auditor of Public Accounts is a proper party to this suit; and that by the statutes, for sueh cases made and provided,, jurisdiction to hear such cases is conferred only upon, the Circuit Court of the city of Richmond,” and prayed that the case might be dismissed.
Two questions are presented for our consideration. Was the estate of the remaindermen liable for the taxes and levies assessed against the land; and was the Auditor of Public Accounts a necessary or proper party to the suit? Both must be answered in the negative.
In Tabb v. Commonwealth, 98 Va. 47, 34 S. E. 946, 51 L. R. A. 283, all of the statutes relating to the assessment and collection of taxes were reviewed and the conclusion reached that “taxes and levies * * which accrue during the estate of a tenant for life, are liens on the estate of the life tenant only, and not on the estate of the remaindermen, and cannot be enforced against the latter.”
In Glenn v. West, 106 Va. 356, 56 S. E. 143, it is said: “It is a well settled rule of law that the burden of paying taxes is upon the life tenant rather than upon the remaindermen. ’ ’
The taxes could have been made out of other property of the life tenant, or by selling or leasing her life estate in the land.
It is insisted, however, for the Commonwealth that the treasurer also had the right to resort to the timber standing on the land for the collection of the taxes, and reliance is placed upon section 2439 of the Code, copied in the margin.
The legislative intent to protect the estate of the remainderman from taxes assessed on real estate in the possession of a life tenant, is plainly indicated by the statutes for the assessment and collection of taxes so fully discussed by Judge Riely in Tabb v. Commonwealth, supra, and which remain substantially unchanged. Among these statutes is section 2488 of the Code (section 661, Code 1187), providing that, upon the sale of real estate for taxes assessed thereon, “the right or title to such estate shall stand vested in the grantee in such deed as it was vested in the party •assessed with the taxes or levies on account whereof the sale was made, at the commencement of the year for which said taxes or levies were assessed, or any person claiming under such party,” and that “nothing in this section shall be so construed as to affect or divest
The timber on the land had never been separately assessed and constituted a part of the land itself, and, in view of our decision, where there has been a severance in the title to the land into a life estate and a remainder thereafter, we cannot concur in the argument for the Commonwealth that the taxes imposed by the State are imposed upon the whole estate in the land and that the whole can be subjected to their payment.
No doubt it was and is entirely competent for the legislature to make the whole estate in the land liable for the taxes and levies thereon, but it has not done so. As the life tenant gets the whole of the income from the land, it is ordinarily only fair that he should pay the "taxes thereon, but if it is unproductive he can surrender his estate therein and thereby relieve himself of the burden.
So, also, it might be fair and right for the taxes to be apportioned between the life tenant and the remainderman, but the legislature has not so declared, nor provided any machinery for such apportionment, and hence no such apportionment can be made either by the administrative officers or the courts. It is a •purely legislative question, and until the legislature •exerts its power there can be no apportionment. Commonwealth v. P. Lorillard Co., 129 Va. 74, 105 S. E. 683; County of Sussex v. Jarratt, 129 Va. 672, 106 S. E. 384, 627.
Was the Auditor of Public Accounts a necessary or proper party to this litigation? If he was, it is conceded that the suit could be brought only in the Cir
In view of the holding that the remainder is not liable for the taxes assessed against the life tenant, it would probably be sufficient to answer the question in the negative, as no right of the State was involved and no relief against it was sought. The validity of the assessment was not called in question, the constitutionality of the law under whieh.it was made was not assailed, the correctness of the tax ticket and the right to sell under it any property of the life tenant liable-therefor was not even intimated. All of the cases, cited for the Commonwealth involved one or the other of these questions. Johnson v. Hampton Institute, 105 Va. 319, 54 S. E. 31; Baker v. Briggs, 99 Va. 360, 38 S. E. 277; Eyre v. Jacobs, 14 Gratt. (55 Va.) 422, 73 Am. Dee. 367; Commonwealth v. Carter, 126 Va. 469, 102 S. E. 58.
But the suit was in no sense a suit against the State or the Auditor, nor was the latter a necessary or proper party thereto. It was a suit in equity, not to injoin the enforcement of a valid tax ticket against the property of the party liable for the tax, but to enjoin the treasurer of Henry county from doing an illegal act, to-wit, from endeavoring to enforce the collection, of the tax ticket against property not liable therefor. Such a suit is not a suit against the State. Blanton v. Southern Fertilizing Co., 77 Va. 335; Tiller v. Excelsior Coal Co., 110 Va. 151, 65 S. E. 507; Poindexter v. Greenhow, 114 U. S. 270, 5 S. Ct. 903, 962, 29 L. Ed 185; Ex parte Young, 209 U. S. 123, 28 S. Ct. 444, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, and cases cited.
We find no error in the decree of the Circuit Court of Henry county, and it is accordingly affirmed.
Affirmed.
Code, section 2439.—“Any timber or wood growing on the land belonging to the person or estate assessed with taxes or levies may be distrained and sold, so far as necessary, to pay the amount of such taxes and levies and expense of sale, and shall be sold standing in the manner prescribed for the sale of goods and chattels, other than horses, mules, and oxen, under distress or levy for taxes; and the purchaser shall have the right to cut and carry away such wood or timber within twelve months after the purchase of the same, with the right of ingress and egress for this purpose, but shall not haul