Jones v. McLain

Mr. Chief Justice English

delivered the opinion of the Court.

The lands in controversy were assessed by Danley, the sheriff and assessor of Pulaski county, for the year 1857, as the property of Allen McLain, sold for the taxes, etc., charged upon them, in April, 1858, and purchased by Alexander D. Jones^ who obtained the collector’s deed, and filed a bill for confirmation of his title.

In his answer to the bill McLain made one objection to the regularity of the sale, which the chancellor held to be sustained by the proof, and fatal to the tax title, and we think his decision, upon that point, was correct; and that other objections of minor importance, discussed by counsel, need not be noticed.

■ The collector in his deed recites that McLain failed to pay the taxes on demand, etc., " and not knowing of any personal property of the said McLain, and he wholly failing to show to the collector any personal property whereon to levy and make distress for the same,” etc., the collector proceeded to levy upon and advertise the lands for sale, etc.

McLain was a resident of Pulaski county at the time of the assessment and sale, and had been for twenty years before.

Although the taxes constitute a lien upon the land of the resident, as well as upon the land of the non-resident taxpayer, yet the land of the delinquent resident is not subject to sale for the taxes charged upon it, “ if sufficient personal property belonging to him, liable to be taken, whereon to levy and make distress for the payment of such taxes, can be found. Gould's Dig., chap. 148, secs. 106, 107; Merrick & Fenno vs. Hutt, 15 Ark. 340; Kinsworthy et al. vs. Mitchell & wife, 21 Ark. 154.

The recital in the deed of the collector — “ not knowing of any personal property, etc., — -is not a direct'and satisfactory mode of reciting that sufficient personal property of the delinquent could not be found, but for the purposes of this case, the recital in jhe deed may be treated as sufficient to put upon McLain the burthen of proving that he had, at the time the lands were levied upon, a sufficient amount of personal property, liable to be taken by the collector, and within his reach upon such reasonable diligence as the law imposes upon him, to satisfy the taxes charged upon the lands, as the answer of McLain, in effect, alleges.

The taxes assessed upon the lands for the year 1857, amounted to $26 62.

For the same year, and it appears in the same list with his lands, McLain gave in for assessment, ten head of horses and mares, over two years old, valued at $500; and one hundred head of neat cattle, over two years old, valued at $800. This personal property stood assessed to him, upon the tax book in the hands of the collector, at the time the lands were levied on and sold.

J. D. Little testified, in substance, as follows: I am well acquainted with Allen McLain, and have known him since 1849. He was then, and still is, a citizen of Pulaski county. He is the owner of about one hundred head of cattle, and claims about twenty head of horses, and fifty head of hogs. The cat-tie are worth $7 per head, or $700, and the horses $50 ahead. I have lived in two miles of him since the fall of 1852. Since that time he has had the amount of property stated above, etc.

Elias Cohe testified that he lived about a mile from McLain, and had known him for twenty-five years. That he owned personal property to the amount of some three or four thousand dollars: and was the owner of that much personal property in the first of the year 1858, etc.

George W. Hardy, testified: I have known Allen McLain ever since 1853. He has resided in Pulaski county since that time. I have been frequently at his house, and from what I saw, am warranted in the belief thathe was worth from $1,500 to $2,000 of personal property, at any timé since I have known him, and in the year 1858, etc.

Other witnesses corroborate the above, to the extent that McLain was the owner of personal property consisting of horses, cattle, hogs, etc., of value far exceeding the amount of taxes charged upon his lands for the year 1857.

The argument of counsel, that the witnesses do not state that the personal property referred to by them, was in Pulaski county, and within the reach of the collector, is not entitled to very grave consideration.

When the witnesses state that they had known McLain for many years, that he resided in Pulaski county, that they lived near him, had frequently been at his house, and that he had so many horses, cattle, hogs, etc., the inference is very plain that they meant that the property referred to by them was in his possession, and at his place of residence.

' Nor is there any testimony conducing to prove that the horses, etc., of McLain were running in the range, as supposed by counsel, and not to be found by the collector, and that on that account he resorted to a sale of the lands, etc.

On the contrary, Josiah M. Giles, one of the deputies of the collector, testifies that he was the only deputy that collected the taxes of 1857, in Campbell township, where McLain resided.' That he made no effort to obtain from him personal property in satisfaction of his taxes, nor did Danley, or any of his deputies do so within the knowledge of witness. That from his knowledge of McLain’s condition, he thought he was able, and had plenty of personal property to pay his taxes. He generally gave in a good many horses and cattle in his assessment list. Witness was at his house once during collecting time, to serve writs, but had no recollection of calling on him for his taxes.

The truth of the whole matter, as it appears from the depositions, is, that McLain deposited money with Hutt, his merchant, and instructed him to pay his State and county taxes7 but not to pay his road tax. The deputy of the collector called on Hutt for payment, and he tendered the amount of the State and county taxes, but refused to pay the road tax. as directed by McLain; and the deputy declined to'receive any portion of the taxes, unless the whole, including the road tax, was paid. Whereupon, the collector proceeded to advertise and sell the lands assessed in the name of McLain, without going to his residence, or sending a deputy, to levy upon personal property, or to see if any could be found.

We think, upon the pleadings and evidence, the decree of the Chancellor dismissing the bill, and canceling the tax deed of appellant, was right, and the decree must be affirmed.

Mr. Justice Fairchild did not sit in this case.