City of Sanford v. Dial

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This appeal is from an order overruling demurrers to a bill of complaint brought to foreclose the lien of tax certificates for State and county taxes, the demurrers being addressed to allegations that stated liens of the city for special assessments "are subject, subordinate, junior and inferior to the lien" of the tax certificates for State and county taxes that are being foreclosed.

The Constitution contains the following:

"The Legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits." Sec. 5, Art. IX.

The statutes contain the following:

"All taxes imposed pursuant to the Constitution and laws of this State shall be a first lien superior to all other liens on any property against which such taxes have been assessed which shall continue in full force and effect until discharged by payment." Sec. 894, C. G. L.

"It shall be the duty of all sheriffs, commissioners, masters in chancery, or other officers, whose duty it shall be to make sale of any property under the process or order of any court, to pay from the proceeds of such sale, after the payment of the costs of the proceedings wherein the said sale is made, and the counsel fees if any allowed by the court, all taxes, state, county and municipal, which may be assessed, due and unpaid against the said property, including any and all sums which may be required to be paid to redeem the same from the lien of all back taxes to pay certificates outstanding against the same." Sec. 954, C. G. L.

"Special assessments for improvements, hard-surfacing, and paving of any streets shall be payable by the owners of the property abutting upon said street or streets assessed for said improvement at the times and in the manner stipulated in the resolution providing for said improvement, and said special assessment shall be and remain liens superior in dignity to all other liens, except liens for taxes, until paid." Sec. 104, Chap. 9897, Acts 1923, Sec. 5030, C. G. L.

"Taxes and assessments, together with the interest imposed for delinquency and cost of collection, shall be and continue a lien upon the property assessed, superior to all other liens or claims until the same shall be paid." Sec. 79, Chap. 9897, Acts 1923. Sec. 7, Chap. 9897, Acts 1923.

Chapter 14572, Acts 1929, authorizes the foreclosure of the liens of tax certificates, Sec. 13; and provides that the lands may be "sold to satisfy the decree in the same manner as in the foreclosure of mortgages on real estate, and such decree shall have the force and effect of a decree foreclosing a mortgage on real estate." Sec. 23; and "the purchaser at any sale in suits for the foreclosure of tax certificates or deeds shall be entitled to a deed and the same process and remedies to obtain possession of the premises as in suits for the foreclosure of mortgages. The title to the land conveyed by such deed shall be indefeasible as to all parties defendant in the action." Sec. 28, Chap. 14572, Acts 1929.

The last quoted section of the statutes, considered with the other statutes, contemplates that the lands sold under foreclosure decree will bring enough at the sales to pay all State and municipal taxes and all legal and not released municipal assessments against the property sold and the title conveyed is "indefeasible" "as to all parties defendant in the action;" but State and municipal taxes and assessments remain a lien upon the lands until paid or released, when statutes give the liens and provide that such liens shall continue until paid.

In proceedings to foreclose tax liens under Chapter 14572, Acts of 1929, it is proper for the bill of complaint to set out all the municipal liens against the lands. Amounts due on State and county tax sale certificates being foreclosed are to be first satisfied; and if the lands sold under judicial decree do not bring enough to satisfy all State and municipal liens which by law continue until they are paid, the purchaser of the lands at the judicial sale takes title subject to any unpaid State and municipal tax liens upon the lands including special assessment liens until they are satisfied or released, where such liens are for the benefit or protection of the municipality and such liens by statute continue until paid. The general demurrer was not well taken and the special demurrer is too broad in its scope.

Affirmed.

TERRELL AND DAVIS, J.J., concur.

BUFORD, C.J., AND ELLIS, J., concur in the opinion and judgment.

BROWN, J., not participating.

ON REHEARING. Opinion filed May 5, 1932.