83 Kan. 634 | Kan. | 1911
'The opinion of the court was delivered by
The appellant, as sheriff, levied a tax warrant on personal property, part of a stock of merchandise and fixtures sold and transferred to the appellee on April 15, 1907, after taxes for that year had been assessed thereon. These taxes were not paid, and :a tax warrant was issued therefor January 25, 1908, against the former owner. The appellee treated the levy as void, replevied the property from the sheriff, ■and recovered judgment for possession. The sheriff •appeals.
The statute under which the appellant claims that his proceedings should be upheld provides:
“If any person in this state, after his personal prop■erty is assessed and before the tax thereon is paid, shall ¡sell all of the same to any one person, and not retain sufficient to pay the taxes thereon, the tax for that year shall be a lien upon the property so sold, and shall at ■once become due and payable, and the county treasurer ¡shall at once issue a tax warrant for the collection thereof, and the sheriff shall forthwith collect it as in ■other cases. The one owing such tax shall be civilly liable to any purchaser of such property for any taxes he owes thereon, but the property so purchased shall be liable in the hands of the purchaser or purchasers for such tax; provided, however; if the property be sold in the ordinary course of retail, trade it shall not be so liable in the hands of the purchasers.” (Laws 1899, ■eh. 248, § 4, Gen. Stat. 1909, § 9236.)
It is argued that because the county treasurer did not. issue his warrant at once when the transfer of the goods was made the goods should' not be bound for the tax. The lien, however, is expressly given by the statute, and does not rest upon the will of the treasurer. This lien can not be extinguished by mere delay in enforcing it. The provision for the prompt issuance of the warrant is to facilitate collection while the property can be found. The collection of taxes can not be enjoined on account of any mere irregularity nor because of the failure of an officer to perform the duties assigned to him upon the day specified in the statute.. (Bank of Garnett v. Ferris, 55 Kan. 120.) The purchaser of the goods, who took them subject to the lien, was not injured by delay in enforcing it. He might have discharged it by making payment, and the statute gave him the right to recover from the party owing-the tax.
The tax warrant was for one gross sum, which, it
The sheriff was rightfully in possession of the property to satisfy the lien for taxes, and should have been allowed to proceed to make collection. The judgment is reversed, and the cause is remanded for further proceedings in accordance with these views.