108 Ill. 380 | Ill. | 1884
delivered the opinion of the Court:
Taxes assessed on the capital stock of a corporation are a personal property tax. A tax on personal property does not become a lien on any personal property until the tax books ' are delivered into the hands of the collector, and it does not become a lien on real estate until the collector, on failure to collect the tax from personal property, charges the same on such real estate in his application for judgment for delinquent taxes. (Cooper v. Corbin, 105 Ill. 225; Binkert v. Wabash Ry. Co. 98 id. 206; Belleville Nail Co. v. The People, id. 399; Carter v. Rodewald, ante, p. 351.) It does not appear that any personal property was sold in this case on which the taxes in question were a lien, and their levy on the real estate was subject to the prior deed, of trust made and recorded in 1874. The tax charged upon the real estate here is not a tax assessed on it, but a tax assessed upon personal property, and sought to be collected by charging the same against real estate. Any lien in respect of these taxes is subsequent to that of the deed of trust, and is to be held as subordinate thereto.
These principles and authorities would seem to be decisive of this case; but they are claimed by appellee to be without application to the facts of the present case, because of the particular provision contained in the deed of trust in respect to payment of taxes. The deed provides, that upon default in any of its terms the trustees are authorized to enter upon all the gas works premises and property conveyed, and operate the same, and collect and receive all income, rents and profits, and after deducting “all payments for' taxes, assessments, charges and liens upon said works and premises, to apply the same to the debt secured by the deed of trust; ” and in case of a default in payment for three months, the trustees were authorized to sell and dispose of the. property, and after deducting all payments made by them for taxes or assessments thereon, to pay over the balance to the bondholders. It is said that thus, by the express terms of the deed of trust, all taxes and assessments were to be. paid. We do not so read that there was any agreement here to pay taxes which the county could avail itself of as a promise iu its favor to pay the taxes. The deed no doubt authorized the trustees to make payment of any taxes, and in case of their doing so, to reimburse themselves out of the property; but we can not construe the language as imposing any obligation to pay the taxes, and especially those accruing, as did these, before taking possession of the property. We fail to find, then, in this provision in the deed of trust as to payment of taxes, a ground to sustain the prayer of the petition.
We hold that the bondholders had a paramount lien on the property embraced in the deed of trust for the satisfaction of their debt, and that the circuit court should have dismissed the intervening petition of the county. The decree upon that petition is reversed, and the cause remanded for further proceedings in conformity with this opinion.
Decree reversed.
