Brophy v. Commonwealth , 134 Va. 250 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

The first question presented by the assignments of error is this:

1. Was the assessment of the Plumbers Soapstone Company with the taxes for the years 1906 and 1907, which the order of court under review adjudged to be a lien on the parcel of 333 jA acres of land conveyed to that company in 1905 by the former owner of the larger tract of 527 acres, of which the 333 ¡¡A acre parcel was a part, not merely an erroneous, but an absolutely invalid assessment, because of its failure to comply with the requirements of the statute law on the subject?

The question must be answered in the negative.

A number of authorities are cited for the plaintiff in error, namely, 27 Am. & Eng. Enc’y of Law (2nd ed.) 660, 762, 683, 686; Mosser v. Moore, 56 W. Va. 478, 49 S. E. 537; 26 R. C. L. p. 357, to the effect that a valid assessment is indispensable to the proper levying of a tax; that it is essential to the validity of an assessment of real estate that it contains a description of the property “sufficiently accurate and certain to enable the owner readily to identify it as his and to furnish a basis for the tax lien and for proceeding in rem against the tract should such become necessary for the collection of the tax;” that, “when the revenue statutes direct each tract of real estate to be separately listed and valued,” as do such statutes in Virginia, “as a rule this requirement is held to be mandatory and compliance therewith is essential to the validity of the assessment;” and that if the property is not described in the tax list with sufficient accuracy and particularity to render it capable of ready identification by the owner, the defective description cannot be supported by extrinsic evidence and the fact that the owner was not actually misled does not validate the assessment.'

And Minor on RealProperty, section 1138, is also cited, dealing with the subject of the validity or invalidity of sales of land for delinquent taxes, where, among other things, this is said:'

“The exercise of the power of taxation is a taking of a person’s property by the State and falls within the purview of the fourteenth amendment to the Federal Constitution, providing that ‘no State shall deprive any person of life, liberty or property without due process of law.’

* * * *

“With respect to taxation it is settled that ‘due process of law’ demands (1) That the property to be taxed be properly and accurately listed for taxation in books kept for the purpose open to the public, in such manner as to inform persons interested of the property to be taxed, its owner, and the amount of the tax; (2) that the property be valued * * *; (3) that upon such valuation the tax shall be levied or extended in the proportion designated by the tax law.

“These are the fundamental and jurisdictional steps in ‘due process of law’ as applied to taxation, and no State law can dispense with any of them without violating the Federal Constitution, though the manner of performing them is in the discretion of the legislature.”

The foregoing statements of the law are undoubtedly correct. It is plain, however, that the record does not present a case of an assessment which falls within the condemnation of the aforesaid authorities.

None of the evidence before the court below is certified. The certificate shows only certain facts proved. We must presume that the assessment in question was made in accordance with the requirements of the statute law on the subject in all particulars not negatived by the facts certified. The burden was upon the petitioner in the court below, and no less so here, to show affirmatively such noncompliance with the statutory requirements as invalidates the assessment.

It appears from the record that although the, at that time, owner of the 33334 acre parcel of land, the Plumbers Soapstone Company, was assessed for the years 1906 and 1907, and with the quantity of 527 acres of land, the amount of the tax returned delinquent thereon for those years, respectively, was only “the balance due” by such then owner, which, as evidenced by the respective amounts of the tax extended for those years, is shown to have been only the tax on the value of the 33334 acre parcel of land — and also to have been the correct amount of that tax, as the court below found, as is shown by the judgment under review. Since, under the provisions of the statute law on the subject, the delinquent list, in respect to the matters shown by it, follows the list made by the commissioner of revenue, where, as in the instant case, a tract formerly owned by one person has had a portion of it conveyed by him to another, we can draw no other conclusion from the meagre facts proved by the plaintiff in error, as certified in the record before us, than that the Plumbers Soapstone Company was assessed in 1906 and 1907 merely with the value of the parcel of 333)4 acres which was conveyed to that company, as such value was fixed by the commissioner of revenue as required by section 471 referred to in the statement preceding this opinion; that the amount of the tax for 1906 and 1907, respectively, extended by the commissioner of revenue upon this land was not the tax on the value of the whole 527 acres, but the tax on the 333)4 acres only; and that the 333)4 acre parcel of land was in all respects fully and accurately identified by the description of it on the land books and in the delinquent tax list, as required by law, except in the single particular that the number of acres therein was erroneously stated as 527 instead of 333)4- This was merely an error in stating the acreage of the land assessed, which did not affect even the amount of the tax, much less make the assessment void. It seems plain that an assessment of land which states the name of the owner correctly, describes the land as required by the statute in all respects, save the correct acreage,- values the land correctly and extends the tax upon that valuation, is not a void, but merely an erroneous assessment.

The original entry of the assessment for the years 1906 and 1907, and the delinquent lists for those years, all open to public inspection and matters of record in the clerk’s' office, described the 333)4 acre parcel of land assessed with sufficient accuracy and particularity to render it readily capable of identification by tbe owner; tbe amount of tbe tax extended against tbe owner did not embrace any of the tax on the residue of the 527 acre tract not owned by such owner, and was only the correct amount of the tax properly assessable against the 333acre parcel of land, as the court below found, as aforesaid. Thus was given, first to the Plumbers Soapstone Company, and subsequently to all later owners of the 3333^ acre parcel of land, down to and including the plaintiff in error, notice of the parcel of land assessed and the correct amount of the taxes assessed against it, and for which the Commonwealth,, before and after it was returned delinquent, held a lien upon, such land; and the payment by any of such owners, at any time, of the amounts as assessed against such parcel of land, and for which it was returned delinquent, would not have required the payment of any tax on the residue of the original tract of 527 acres.

Hence the assessment was not invalid because of insufficiency of its description of the property or of the designation of the amount of the tax thereon.

A number of authorities are cited for the plaintiff in error to the effect that where a tract or lot of land belongs to two or more persons the assessment of the whole tract and the extension of the tax on the whole to one of the persons is an illegal and void assessment. The authorities cited which so hold are 26 R. C. L., p. 360; Miller v. City of Lincoln, 94 Neb. 577, 143 N. W. 921; State Finance Co. v. Myers, 16 N. D. 193, 112 N. W. 76, 78; State Finance Co. v. Beck, 15 N. D. 374, 109 N. W. 357, 358; Johnson County v. Tierney, 56 Neb. 514, 76 N. W. 1090, 1093; Bradford v. Durham, 54 Or. 1, 101 Pac. 897, 135 Am. St. Rep. 807; Jennings v. Collins, 99 Mass. 29, 96 Am. Dec. 687; Neu v. Voege, 96 Wis. 489, 71 N. W. 880; Frazier v. Prince, 8 Okl. 253, 58 Pac. 751; Roberts v. First Nat. Bank, 8 N. D. 504, 79 N. W. 1049; Lancy v. Boston, 186 Mass. 128, 71 N. E. 302; McKeown v. Collins, 38 Fla. 276, 21 So. 103. But these authorities so hold on the ground, which is expressed in the case of Johnson County v. Tierney, as follows: “Where the land owned by one person is assessed with the land of another, under one aggregate valuation, so that neither can determine the amount of the tax for which his property is liable, the uniform holding of the courts is that the entire tax is void.” (Italics supplied.) It is manifest from what we have said above that these authorities have no application to the instant case.

2. But if we should be in error in the conclusion reached above from the meagre record before us of the facts of the case, and if it were true that the assessments and delinquent lists for 1906 and 1907 did not extend the tax for the definite amounts of $79.72 and $194.90 for those years respectively, but for some larger amount (which is not stated in the certificate of facts before us), on the valuation of the whole 527 acres (which fact also is not stated in the certificate of facts before us); still, the said $79.72 and $194.90 were unquestionably the taxes for the years mentioned “due upon the real estate mentioned in the petition;” and section 2456 of the Code, under which the petition in this ease was filed, gave the court jurisdiction to enter the order it did as to the taxes so “due,” although they may not have been theretofore legally assessed. The statute, in substance, provides the method for the assessment by the court of the taxes which are “due,” but which may have not been theretofore properly assessed; and the applicant for relief under such statute subjects himself to the jurisdiction of the court to require him to pay the taxes found by the court to be so “due” as the condition upon which he is allowed to thereafter hold the land free and clear of any tax lien therefor.

The order under review will be affirmed.

Affirmed.