Miller v. McGehee

60 Miss. 903 | Miss. | 1883

Campbell, C. J.,

delivered the opinion of the court.

The extent of the right of tire Board of Supervisors of Wilkinson County to levy taxes for 1882 was not to exceed fifteen and a half dollars on the thousand dollars of taxable property.

The fact that the defendant below held the goods as tax-collector, by virtue of a seizure for taxes due from the plaintiff, was not a bar to the action of replevin, if the tender was a continuous one of all that was due, and the plaintiff was ready to pay the money into court as it might direct. The cases denying that replevin will lie for goods taken for taxes are not applicable here. We perceive no objection to replevin for goods wrongfully seized by a collector of taxes. Our statute regulating replevin contains no such exception, as do the statutes of many States, and is broad enough to embrace this case. Replevin will lie against a collector of taxes for goods wrongfully detained by him, but if anything is due for which he has the right to hold the goods the action must fail, for then the detention is not wrongful. If the plaintiff relies on a tender of all that is due as entitling him to a return of his goods he must be ready to pay what is due so that the court may order the money paid in and adjust the controversy by awarding the money to the collector and the goods to the plaintiff.

The cases in which a tender of the taxes due was held to make a subsequent sale of land unlawful are not applicable to this case, for this is a controversy pending in court in which the claim of the plaintiff to have return of the goods is founded on his tender of Avhat was due from him, and he must be continually ready to pay it, and the court should in all such cases require the payment of the money into court subject to its disposition if the plaintiff’s claim is maintained, and should decline to try the case until that is done. In that way justice may be done between the suitor and the tax-collector, and all objection to the maintenance of the action of replevin in such cases will be removed.

In this case the tender of what was due was made by the plaintiff below prior to the 15th of December, 1882, andis not averred to have been continuous. No offer to pay eighteen dollars on the thousand of his- property as assessed was made on the trial, and no willinguess to pay it was stated in the statement of facts on which the case was tried. For this reason the judgment should have been for the defendant below (appellant), and we reverse it and direct judgment here for the appellant.