183 Ind. 530 | Ind. | 1915
— The facts in this case show that in the month of January, 1912, appellee entered into a written ■ contract with Jacob Wolverton whereby he agreed to sell and convey to Wolverton certain described land, at and for the agreed price of $25,000. By the terms of the contract Wolverton agreed to pay Wise $5,000 when the contract was signed and the remaining $20,000 in five years from the date of such contract with interest at the rate of 6% per annum payable semiannually with the right to pay $1,000 or $2,000 at any time interest was due. The contract also provided that Wolverton should pay all taxes and assessments made against such land after the date of the contract and that he should keep the buildings insured for the benefit of Wise and that in the event of his failure to do so, Wise might procure such insurance and make such payments and the amount so paid should become a part of the principal and draw eight per cent interest from the date of payment. The contract further stipulated that time should be treated as the essence of such contract and that in ease Wolverton failed to perform all of his promises and agreements on the day or days specified the contract should become null and void as to the right of the buyer and all payments made and improvements placed upon such real estate by the buyer should be forfeited to the owner in payment of rent, use and occupation of said property and the owner should be released from all liability under such contract and should have a right to take
The complaint recites that a deed for the land to Wolverton was executed concurrently with the execution of the contract and delivered to the First National Bank of the city of South Bend to be delivered to the buyer when he had complied with all of the terms and conditions of the contract' but not otherwise.
The land described in the contract was assessed in the parné of Wise for the year 1912 and the taxes levied upon the same for that year amounted to $124.41. The township assessor and the board of review over the objection of appellee added to the personal property listed by him for taxation the sum of $20,000 as an indebtedness' owing to him under the contract for the sale of the land therein described. This valuation was extended on the tax duplicate and taxes were assessed against the same as personal property in the sum of $286.40. This action was brought by appellee to enjoin the treasurer of the county from enforcing the collection of the tax of $286.40 assessed against the personal property added by the township assessor and approved by the county board of review. The foregoing facts appear ■fully from the allegations of the complaint to which appellant unsuccessfully demurred. A trial was had resulting in a finding and judgment for appellee. Appellant assigns as error the action of the trial court in overruling the demurrer to the complaint and also in overruling the motion for a new trial. The two assignments present the same question in different forms and they may be properly considered together.
Section 10143 Burns 1914, Acts 1895 p. 21, provides among other things that for the purpose of taxation personal property shall include all indebtedness due to inhabitants of this State above the amounts respectively owed by them. If the unpaid balance of the purchase money shown to be owing to appellee under the contract in question is a debt within the meaning of this section it is assessable. In this State a debt, in its general sense, is defined to be a specified sum of money owing to one person from another, and denotes not only an obligation of the debtor to pay but the right of the creditor to receive and enforce payment. Campbell v. City of Indianapolis (1900), 155 Ind. 186, 57 N. E. 920. The contract in question contains an absolute agreement by Wolverton to pay $20,000 in five years from the date of the contract with interest thereon. He has no option under the contract but is bound to pay the amount stipulated if appellee elects to enforce it. In case of default in six months in making payments, the contract gave appellee the right to reclaim the land and forfeit the rights of the buyer, but it also gave him the right to declare the whole amount due and to enforce collection. The amount to be paid by Wolverton to appellee is definite. The creditor is given the right to enforce payment and an obligation to pay is imposed upon the creditor who, if solvent, can not
The facts stated in the complaint are insufficient to constitute a cause of action and the trial court erred in overruling a demurrer thereto. The judgment is reversed with directions to sustain appellant’s demurrer to the complaint.
Note. — Reported in 109 N. E. 745. As to taxation of credits, see 74 Am. Dee. 93. On amount due under contract for the purchase of land not evidenced by note or purchase money mortgage as a credit subject to taxation, see 17 L. R. A. (N. S.) 1220. Taxation as personalty of debts owing by solvent debtors, see 2 Ann. Cas. 754. See, also, 37 Cye. 784.