111 Ind. 467 | Ind. | 1887
Complaint by Samuel McClure against Henry St. Clair and John H. Wernlce, auditor of Ripley county, to set aside a sale of lands for taxes, and for an injunction. The complaint averred that the plaintiff was the owner of certain particularly described tracts of land in Ripley county, and that he became such owner, by purchase at a sheriff’s sale, on the 7th day of January, 1879; that, on
St. Clair and Wernke demurred separately to' the complaint, but both of their demurrers were overruled.
Some further proceedings put the cause at issue and led to the substitution of Nicholas Cornet as a defendant instead of
In the recent case of State, ex rel., v. Casteel, 110 Ind. 174, it was, upon full consideration and a careful review of our decided cases, held that, under section 6487, R. S. 1881, when construed in connection with other provisions relating to the same subject, there were only three contingencies in which the sale of lands for delinquent taxes is absolutely void—that is to say, ineffectual for any purpose—the first being where the lands shall not have been liable to taxation; the second where the taxes have been paid before the sale; and the third where the description on the tax duplicate is so imperfect as to fail to identify the land. It was further .held that, under the succeeding section (6488), the lien, which the State has on the lands so sold, is, in all other cases, transferred to, and vested in, the purchaser, his heirs or assigns ; and that, in case the sale fails to convey title, the amount paid by the purchaser may be recovered back by the enforcement of his acquired lien against the lauds.
These holdings led us to the very natural conclusion that no sale of lands for taxes due, which transfers to, and vests the lien of the State in, the purchaser, can properly be treated as, or adjudged to be, a void sale, and to that conclusion we still adhere.
Our cases have quite uniformly recognized the doctrine that if the taxpayer has sufficient personal property to pay his taxes at the time his lands are sold to pay them, the sale is ineffectual to convey title; but the rule of decision that the sale of lands for taxes, under such circumstances, transfers to the purchaser the lien of the State, is quite, if not equally, well recognized. Ward v. Montgomery, 57 Ind. 276;
This doctrine, and the rule of decision stated, rest upon the established theory that where a taxpayer owns both real and personal property, the latter is primarily liable for all the taxes assessed against him, but that a lien nevertheless attaches to the real estate for accruing taxes, by which it becomes secondarily, and, if need be, ultimately, liable for the payment of such taxes, and upon the further theory that the lien which so attaches is not divested by the failure of the proper officer to seize and sell personal property, but is transferred to, and vested in, the purchaser when the real estate is sold for the non-payment of the taxes.
It follows that the complaint did not state a sufficient cause either for setting aside the sale to St. Clair, or for an injunction against the auditor, and that, in consequence, both demurrers to it ought to have been sustained.
The judgment is reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion.