Brooks v. Eighmey ( 1880 )

Rothcock, J.

1. TAXES : levsfgnment^" mortgage. In the application made to the court below Brooks sought an order compelling the assignee to redeem from the tax sale. Afterward, and, as we understand . Pending the application for an order, Brooks redeemed from the tax sales. The order finally made required the assignee to pay to Brooks the -amount of the tax on the personal property, with interest at six per cent per annum.

It does not appear that any claim was made for the taxes in the foreclosure proceeding, nor that the decree made any provision for the payment thereof from the proceeds of the sale of the mortgaged property. The court denied the right of Brooks to recover for the taxes upon the real estate.

We are required to determine whether the taxes upon the personalty, as between Brooks and the assignee, should be paid by the latter. The record before us shows that the tax was levied after the assignment of the property. There is some question in our minds whether this was correct, but we must take the record as we find it. There can be no doubt that taxes levied upon the property after the assignment should be paid by the assignee,, and that they are a preferred claim. By section 1 of chapter 14, Acts of the Sixteenth General Assembly, it is provided that in all assignments of property for the benefit of creditors assessments of taxes shall he entitled to priority, and shall be first paid in fall. Of course it must be understood that the payment is to be made from tbe proceeds of the property in the hands of the assignee.

It is true that taxes due from any person upon personal property is by statute made a lien upon any real property owned by such person. Code, § 865. But even if the title to the property had been in Gleed when the tax was levied, the fact that the personal projierty tax was a lien upon the real estate did not absolve Gleed from its payment, as between him and his mortgagee. However’ that may he, this tax having been levied after the assignment was made, it was a charge upon the property in the hands of the assignee, and we think the court correctly held that it should be paid by the assignee, especially as it does not appear that any provision was made for its payment by the decree of foreclosure.

Affirmed.