70 Neb. 194 | Neb. | 1903
This is an action brought in the district court for Johnson county by the Chamberlain Banking House against William H. Woolsey and his bondsmen for the conversion of certain property in the possession of the banking house, the latter holding that property as mortgagee. The sheriff, Woolsey, attempted to justify under certain distress warrants for taxes due from the mortgagor. Under direction of the trial court, the jury returned a verdict for the banking house, and judgment was accordingly entered, to reverse which the sheriff and his bondsmen bring the cause to this court. This case was before this court at a former term (60 Neb. 516), where the judgment was reversed because of erroneous instructions given by the trial court. The controversy arose npon the following facts: Prior to September 1, 1892, George C. Zutavern owned certain livery stock, consisting of horses and buggies in Johnson connty, and was engaged in the livery business in the city of Tecumseh. On the date named, he sold the stock to Rowcliffe & Paine, who conducted the business until November 1,1892, at which time a sale of the stock and busi
The tax lists for Johnson county seem to have been placed in the hands of the county treasurer upon the dates following: For the year 1891, on September 27 of that year; for the year 1892, on September 14 of that year; for the year 1893, on October 5 of that year; for the year 1894,
It remains to be considered whether the distress warrant against Rowcliffe & Cummins for the year 1893 is a lien superior to that of defendant in error. The question is not free from doubt, and our attention has not been called to any decision of this court upon it, or the decision of any other court of last resort, which may be said to be an authority. The tax for 1893, mentioned, became a lien upon all the property of Rowcliffe & Cummins, including that in controversy, October 5, 1893, the date when the tax collector received the books, and defendant in error claims a lien by virtue of a chattel mortgage executed by Rowcliffe & Cummins on November 1, 1892, and also a mortgage executed by Rowcliffe after he became the sole owner of the property on July 24, 1894. The question we are, therefore, called upon to determine is, whether a chattel mortgage on property remaining in the hands of the mortgagor is a superior lien to taxes assessed against such property for succeeding years.
Section 4, chapter 77, of the revenue law provides, “that personal property shall be valued by the assessor at its fair cash value.” This Avould seem to contemplate an assessment upon the property itself, rather than upon the interest which the person in possession might have in the property assessed. Section 139 of the same chapter provides, “that taxes assessed upon personal property shall be
It is contended, on behalf of defendant in error, that, the bank having received its chattel mortgage in 1892, and long prior to the levy of the taxes for 1893, upon which the distress warrant is issued, the lien of defendant: in error is a continuously superior lien to any tax that may thereafter be levied upon or against the specific property covered by the mortgage. For example, suppose A owns personal property consisting of live stock of the value of $500: He executes a mortgage upon the property to B, to secure the sum of $500, to mature at the end of five years, and retains possession of the property; that the property be regularly assessed for taxation in the hands of the owner of the property for each year, for the five years during which the mortgage ran before maturity, and even for a number of years thereafter, and that, at any time before the lien of the mortgage was barred by the statute of limitations, if the county sought to enforce its lien against the property for any of the years for which tax was due, the holder of the mortgage could claim the property, and thus defeat all tax liens that might exist: Each year the assessor might appear to tax the property, and A would say, B has a mortgage on this property for its full value, and while you may value and assess it for taxation if you desire, the county can never collect any tax until after the lien of B’s mortgage is satisfied: And this might be repeated for each year, until B saw fit to take possession under his mortgage. We are unable to accept this construction of the law. We are of opinion that all property within the state is entitled
It is contended, by counsel for defendant in error, that, at the former determination of this case, there was a ruling contrary to the conclusion we have reached. We do not so read that decision. The question doav presented Avas not in the case when it was here before, and the doctrine announced in that decision can be considered authority only so far as it was necessary for and applicable to the questions presented. We are unable to find any decision of this court, or any statute of this state, in conflict Avith the conclusion we have announced, and it follows that the lien for the taxes against RoAveliffe & Cummins, for the year 1893, was a lien superior to that of defendant in error, and that the peremptory instruction of the court was, to that extent, wrong, requiring a reversal of this judgment. It is therefore recommended that the judgment of the district court be reversed and the cause remanded for further proceedings.
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.