Hedman v. Anderson ( 1879 )

Cobb, J.

Lester ~W. Platt being the owner of a considerable amount of personal property, shortly before his death mortgaged it to LaEayette Anderson to secure two thousand dollars, which he had borrowed from Anderson about a year before, and for which he had at the time given him his note without security. Platt at the same time made a will in which the said Anderson was named as one of his executors. He soon after-wards died. At the time of his death, Platt was owing the county several hundred dollars for delinquent taxes. Anderson, took possession of the estate of Platt, personal as well as real, presumably as executor, but although he proceeded to prove up his claim of two thousand dollars and interest against the estate, he advertised the personal property for sale under the chattel mortgage. About this time the county treasurer appointed a special deputy to collect the taxes which Platt owed the county at the time of his death. Thereupon said deputy seized certain horses, mules, and ponies for the said taxes, and placed them in the hands of Jonas Hedman (who lived convenient to the Platt farm), for safe, keeping, pending their advertisement and sale for the said taxes, and thereupon Anderson brought this suit and replevied the said property. Upon his own motion and application, Yincent Rummer, the county treasurer, was made a party defendant with Jonas Hedman in the court below.

Upon the trial the district judge ruled out certain testimony offered by the defendants, and directed a verdict for the plaintiff, which rulings are assigned for error and the cause brought to this court on petition in error.

According to the holding of this court in School District No. 2 of Merrick County v. Jacob Shoemaker, 5 Neb., 36, and John A. Creighton, admr., etc., v. J. L. Newton et al., Id., 100, as well as the Ohio cases, Ferrell v. Humphrey, 12 Ohio Repts., 113, and Oaks v. Wyatt, 10 Ohio Repts., 344 (with the correctness of which the writer of this opinion is not entirely satisfied), it was competent for the defendants, under the issue presented, to prove any special matter that would amount to a defense either in whole or in part. There was no error, however, in the courts ruling out the appointment of the special deputy treasurer, because it shows on its face to be a special deputation “ to collect taxes by distress due to Platte county, Nebraska, from the personal property of the estate of Lester "W. Piatt, deceased.” Testimony which had been admitted on the part of defendants showed that the taxes referred to were due from Platt in his lifetime, and testimony introduced by the plaintiff and received without objection, showed that Platt was dead, sometime before the date of the paper offered. The county treasurer had no authority to distrain the property of the estate for the purpose of collecting these taxes, and of course could convey no such authority to a deputy. There being no proof before the court justifying the taking— as there could have been none — it was not error in the cou];t to direct a finding for the plaintiff.'

The assessment and collection of taxes are matters resting exclusively on statutory and constitutional regulations. The statute makes taxes on real property a perpetual lien thereupon, commencing on the first day of March of the current year, etc. Gen. Stat., 917. Neither the taxes upon real or personal property are anywhere made a lien on personal property. Upon the death of the owner of personal property it immediately descends to his personal representatives, to be applied by them in the manner provided by the statute as applicable to the circumstances of each case. Where the estate is solvent of course all of the debts of the deceased are required to be paid, but where it is insolvent the law prescribes the order in which they shall be paid. In such cases, after making certain specified provisions for the widow and infant children of the deceased, the statute provides the distribution of the assets in the following order:

1. The necessary funeral expenses.

2. The expenses of the last sickness.

3. Debts having a priority by the laws of the United States.

4. Debts due to other creditors. [Gen. Stat., 325.]

A claim of the municipal government upon the deceased for delinquent taxes could only come in under the fourth class, and a county treasurer could not be permitted to disturb the order of distribution prescribed by statute by seizing property for the purpose of giving the county a preference among the creditors of a deceased which the law making power has seen proper not to give.

Judgment affirmed.