8 S.D. 491 | S.D. | 1896
Lead Opinion
In 1883 the county auditor of the county of Douglas brought forward, and placed upon the delinquent tax list, for the purpose of collecting the same by a sale of the real property of the owner at the time the taxes were assessed, the personal property taxes assessed against the owners of said real property; and the county treasurer of said county proceeded to advertise the same for sale in the usual manner. These personal property taxes had been assessed for various years, extending from 1883 to 1890. The plaintiff had loaned money, and taken mortgages, as security therefor, on a large number of tracts of land so offered for sale, during the years 1887 to 1890, but said mortgages were all executed subsequently to the assessment and levy of the personal property taxes sought to be collected by the proposed sales, and it instituted this action to enjoin the defendants, and especially the said county treasurer, from making the proposed sales, and to have the said personal property taxes declared pull and void. A,
All the facts were stipulated by the parties, and this stipulation was adopted by the court, and constitutes its findings of fact. The only findings that we deem necessary to set out are the following: “(5) That the personal taxes in controversy in this action were levied against the persons as herein indicated, and brought forward and placed upon the tax- lists of said county for the year 1893, against the respective tracts of land herein described, in the following manner, to wit, by M. N. Stultz, county auditor of said Douglas county, before said list was placed in the hands of said county treasurer, and that prior to said time the said personal taxes remained upon the personal tax list of said county.” “(9) That the board of county commissioners of said county, prior to the passage of said resolution, never made any order for the collection of said personal taxes, or took any other action whatever for the collection of the same. (10) That all of said personal taxes that became delinquent prior to the 1st day of November, 1887, were due and collectible six years or more before the commencement of the proceedings of the defendant W. P. VanderZalm to enforce the collection thereof. (11) That prior to October, 1893, the treasurer of said Douglas county took no steps to sell said lands for said personal taxes. (12) That none of said lards are, or were at any time ever, certified as homesteads under the'homestead law of this state.” Upon the filing and adoption of the stipulated facts, the defendants made the following motion: “Now come the defendants, on the filing of the stipulated facts in this cause, and demur to the said facts, and move the court for judgment on the ground that said facts are not sufficient to constitute a cause of action against defendants, and to entitle the plaintiff to the relief asked for in its complaint.”
The appellants contend that, under the provisions of the law existing prior to the act of 1891, the county treasurer had power and was authorized to sell the real estate owned by the party against whom taxes on personal property were assessed for such taxes, and that the proceedings of the county treasurer were regular and valid. This proposition is denied by the respondent, and it insists that, while the personal property tax was made a lien upon the real estate, there was no law authorizing a sale of the real property for such personal property taxes prior to the law of 1891; that no sale under the law of 1891 could be made for personal property taxes assessed prior to the passage of such law; that the failure of the county treasurer to collect such taxes by distress and sale, or to make his return of such personal property taxes, had the effect to release such taxes, as against the plaintiff; and that all personal property taxes assessed prior to 1887 were barred by the statute of limitations of this state. A considerable portion of the briefs of counsel were taken up with the discussion of the question as to whether or not the law of 1891 could be given a retroactive effect as to the personal property taxes assessed prior to its but in the view we
The counsel for the respondent concedes that under the law of 1891 a sale of the real property for the personal property taxes assessed against the owner of such real property pipy be made. But tbe only change made in Sec. 1620 which
The second question requires but little consideration. As we have seen, the law, prior to 1891, did not prescribe, as a condition to such sale, that the treasurer should make and file his return as to his inability to make the personal property taxes out< of the personal property. Sec. 1616 provides that the treasurer shall make such return, and that thereupon such treasurer shall be released from further liability for a failure to collect such taxes; and by Sec. 1617 it is provided that, if he
The third question presented will not be discussed at length, as counsel for respondent does not insist in this court that the action of the board of county comissioners in 1892, in assuming to pass a resolution releasing the real property involved in this action from the personal property taxes, was a lawful exercise of any power vested i,n such board. This attempted release, made subsequently to the execution of the mortgages under which the respondent claims, could not have the effect of an estoppel, as the respondent could not have been influenced in its action by such attempted release. And, the failure of the auditor to bring forward these personal property taxes, and the treasurer to sell the real property to satisfy the same, did not preclude the county, through its county treasurer, from enforcing the collection of the same. The mere delay of the public officers of a county from enforcing the collection of taxes, in the absence of any statute giving to such delay the effect of releasing the taxes, will not have the effect to release the same. Real-estate taxes are made a perpetual lien, valid as against all persons except, etc.; and the personal property taxes are made a lien valid as against all persons except prior incumbrancers. Miller v. Anderson, supra. Our attention has not been called to any statutory provision giving to mere delay to enforce the collection the effect of releasing taxes for which real property is made liable.
This brings- us to the last question presented, namely, were the personal property taxes assessed and levied prior to November, 1887, barred by the statute of limitations? This is an important question, and we have given it careful consideration. Sec. 4833, Comp. Laws, provides: “Civil actions can only be commenced within the periods prescribed in this Code, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute. But the objection that the action was not commenced within the time
Prom these conclusions it follows that the motion of the defendants should have been granted, and judgment rendered for the defendants. We have not deemed it necessary to discuss the question as to whether or not the action was maintainable upon the facts stated, and we express no opinion on that
Dissenting Opinion
(dissenting). It-will be observed that personal taxes from and for the years 1883 to 1890, inclusive were assessed against divers persons, who were the respective owners of the different tracts or quarter sections of land described in the complaint at the time of or since the levy, and prior to respondent’s interest, and that no steps were ever taken to sell the land in satisfaction of such personal taxes until October, 1893, when the respective amounts thereof were for the first time brought forward from the personal tax list, and extended upon the real estate tax list, against the various tracts described in the complaint. While Sec. 1612 of the Compiled Laws provides that ‘ ‘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,” there was, in my opinion, no statutory provision, prior to the law of 1891, authorizing the enforcement of such lien by advertisement and sale of real estate. In addition to the identical provision above quoted, Sec. 865 of the Code of Iowa contains the following provision, omitted from our statute: ‘‘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 against whom the taxes are assessed.” Prior to the proceedings of the coun.ty treasurer to sell the land described in the complaint, in satisfaction of the personal taxes mentioned therein, he and his predecessors had been relieved of all statutory liability for a failure to collect the same, by reason of a resolution of the board of county commissioners, acting under Sec. 1616 of the Compiled Laws; and, from the record, it clearly appears that the various officers of the county whose duty it was to collect such taxes, or declare them uncollectible, had for years re