Morrison v. Jacoby

Elliott, J.

Lands of the appellees were sold for taxes and bought by the appellant Morrison. Certificates were issued to him by the proper officer. From these sales the appellees seek relief in this suit. Their complaint shows that the sales were ineffectual to convey title, but it does not show that the lands were not subject to taxation, nor that the description was not sufficient to identify the land, nor that the taxes had been paid. The relief prayed is an injunction against the appellants, restraining the officers from executing a deed to Morrison on the certificate issued to him.

The burden of showing that land was not subject to taxation, and that it was not described, as well as that the taxes were paid, is on the party who resists 'the enforcement of the lien. Scott v. Millikan, 104 Ind. 75; Earle v. Simons, 94 Ind. 573. The presumption- on these points is, therefore, against the appellees.

An illegal sale may be avoided and the acquisition of title prevented where there are irregularities in the proceedings of the officers ; but the avoidance of the sale for such cause, or for similar causes, does not destroy the lien of the State, to which the purchaser is subrogated. A sale may be totally ineffectual to convey title and yet carry the lien. The only causes which will so completely impair the efficacy of a sale as to destroy the lien are those specifically enumerated in the statute.

The policy of the law is to compel the payment of taxes, and to attain this end, penalties are imposed upon the citizens who fail to pay their taxes as the law requires. It is obvious that if no penalty were attached there would be no compulsion, and revenues essential to the conduct of the government could not be collected. Recognizing this principle, we have in many cases held that, although a sale may not be sufficient to carry title, it will, nevertheless, be sufficient to carry a lien, and with it the right to the penalty provided by law. The general doctrine upon this subject is so well and strongly stated by Niblack, J., in St. Clair v. McClure, 111 Ind. 467, and so fully applies here, that we quote what was there said:

“ In the recent case of State, ex rel., v. Casteel, 110 Ind. 174, it was, upon full consideration and a careful review of our decided cases, held that, under section 6487, R. S. 1881, when construed in connection with other provisions relating to the same subject, there were only three contingencies in which the sale of lands for delinquent taxes is absolutely void — that is to say, ineffectual for any purpose — the first being where the lands shall not have been liable to taxation; the second where the taxes have been paid before the sale; and the third where the description on the tax duplicate is so imperfect as to fail to identify the land. It was further held that, under the succeeding section (6488), the lien, which the State has on the. lands so sold, is, in all other cases, transferred to, and vested in, the purchaser, his heirs or assigns; and that, in case the sale fails to convey title, the amount paid by the purchaser may be recovered back by the enforcement of his acquired lien against the lands.

“ These holdings led us to the very natural conclusion that no sale of lands for taxes due, which transfers to, and vests the lien of the State in, the purchaser, can properly be treated as, or adjudged to be, a void sale, and to that conclusion we still adhere.

“ Our cases have quite uniformly recognized the doctrine that if the taxpayer has sufficient personal property to pay his taxes at the time his lands are sold to pay them, the sale is ineffectual to convey title; but the rule of decision that the sale of lands for taxes, under such circumstances, transfers to the purchaser the lien of the State, is quite, if not equally, well recognized. Ward v. Montgomery, 57 Ind. 276; Flinn v. Parsons, 60 Ind. 573; Hosbrook v. Schooley, 74 Ind. 51; Bender v. Stewart, 75 Ind. 88; Lawson v. Hilgenberg, 77 Ind. 221; Sloan v. Sewell, 81 Ind. 180; Parker v. Goddard, 81 Ind. 294; Crecelius v. Mann, 84 Ind. 147; Jenkins v. Rice, 84 Ind. 342; Schrodt v. Deputy, 88 Ind. 90; Locke v. Catlett, 96 Ind. 291; Hilgenberg v. Board, etc., 107 Ind. 494; Ludlow v. Ludlow, 109 Ind. 199; State, ex rel., v. Casteel, supra.

“ This doctrine, and the rule of decision stated, rest upon the established theory that where a taxpayer owns both real and personal property, the latter is primarily liable for all the taxes assessed against him, but that a lien nevertheless attaches to the real estate for accruing taxes, by which it becomes secondarily, and, if need be, ultimately, liable for the payment of such taxes, and upon the further theory that the lien which so attaches is not divested by the failure of the proper officer to seize and sell personal property, but is transferred to, and vested in, the purchaser when the real estate is sold for the non-payment of the taxes.”

In McKeen v. Haskell, 108 Ind. 97, it was held, in accordance with the general principle asserted by our cases, that, where a lien is transferred to the purchaser, although the sale does not carry title, the purchaser is entitled to the penalty prescribed by law.

It was said in Scott v. Millikan, supra, in speaking of the lien, that “ It has been held, and properly so, that these statutes do not authorize the purchaser at a tax sale to institute proceedings and enforce such a lien and recover the increased penalties during the two years allowed for redemption, but that in an action by the land-owner, even before the expiration of the two years, the purchaser will be protected. Montgomery v. Aydelotte, 95 Ind. 144; Reed v. Earhart, 88 Ind. 159. See, also, Brown v. Fodder, 81 Ind. 491.”

In Peckham v. Millikan, 99 Ind. 352, the question was fully examined and a like conclusion reached, and this is true of Helms v. Wagner, 102 Ind. 385. The reason upon which the decisions rest is thus stated in Scott v. Millikan, supra: “ The purpose of these statutes is to facilitate the collection of taxes, by inflicting penalties upon the delinquent owner, and holding out a reward .to the purchaser.”

The provisions of the statute are in themselves quite clear. The act of 1881, with much particularity, provides on what terms land may be redeemed before a deed is executed, graduating the penalty according to the length of time the taxpayer suffers his land to remain unredeemed. R. S. 1881, section 6466. The act of 1872 was even more stringent and explicit in its provisions. 1 R. S. 1876, pp. 118,129. The act of 1883 carries out the same general principle. Acts of 1883, p. 96.

It can not, therefore, be doubted that, the policy of our revenue laws is to induce purchasers to buy at tax sales, and to compel the citizens to pay their taxes. For this reason reward is offered the purchaser and a penalty visited on the delinquent citizen.

In furtherance of this general policy, the Legislature provided for the security of the purchasers by enacting that if the title failed they should have a lien for taxes, interest, penalties and costs. This provision is embodied in the acts of 1872, 1881 and 1883.

In all of the cases we have cited, as well as in many others,, it has been uniformly held that the lien of the State will pass to the purchaser, even though the sale does not give the; slightest ground to an absolute title. The principle has been applied to sales of property at private sale. McWhinney v. City of Indianapolis, 98 Ind. 182; Peckham v. Millikan, supra. It has been, indeed, applied in almost every form which the question could assume. Sloan v. Sewell, 81 Ind. 180, and cases cited; Culbertson v. Munson, 104 Ind. 451; Watkins v. Winings, 102 Ind. 330.

The current of judicial opinion runs with our own. The-Supreme Court of Kansas has declared in many cases that, the lien of the'State vests in the purchaser. In the latest of these cases it was held that the purchaser might enforce the lien for taxes, interest, penalty and costs, although the deed was void on its face. Stetson v. Freeman, 14 Pac. Rep. 256 ; Smith v. Smith, 15 Kans. 290; Belz v. Bird, 31 Kans. 139; Harris v. Curran, 32 Kans. 580.

In Barke v. Early, 72 Iowa, 273, it was held that, although the sale was invalid, yet the defendants were entitled to “ recover all taxes’ for which the land was sold, and taxes subsequently paid by them, with penalties, interest and costs, provided by the statute to be paid upon redemption, from a tax sale.”

The subject was fully discussed in McLaran v. Moore, 60 Miss. 376, and it was said, in speaking of counsel’s argument that there was no authority to sell: u This is true, and because of want of power no title to the land passed by the conveyance, and for this reason complainant failed to recover the land in ejectment. But title or a valid conveyance is not necessary to the enforcement of the statutory lien. On the contrary, if a valid conveyance could be shown, it would be-fatal to the complainant’s bill, for no man may enforce a lien upon his own lands. There can not be degrees of voidness,, and one void title is necessarily as ineffectual as another. A sale by the collector under a void assessment, or for taxes levied at the wrong time or place, or a sale made at a wrong time, would all be void ; but neither a valid assessment, levy, nor sale is necessary to support the claim to the lien' conferred by section 1718, as has been distinctly declared in the cases heretofore cited.”

In other cases the question is discussed by the court from whose opinion we have quoted. Cogburn v. Hunt, 56 Miss. 718; Mayer v. Peebles, 58 Miss. 628.

The court, in White v. Shell, 84 Mo. 569, speaking of counsel’s argument that a void sale did not transfer a lien, said: “ This line of argument at once sets at defiance and nullifies the statute above quoted; for if the proceedings are regular, the tax purchaser will get the title, and he could not rightfully be defeated in any action by or against him to recover the property.”

Our conclusion on this branch of the case is, that the statutes, since 1872, secure to the purchaser at a tax sale, not void for the reasons expressly enumerated in the statute, a lien upon the land upon which the taxes were leviable.

This lien, as is evident from the statutes and from our decisions,- vests in the purchaser holding under a certificate. R. S. 1881, section 6466; 1 R. S. 1876, p. 124; Acts of 1883, p. 96.

If there were any doubt on the general provisions it is dispelled by the clause which reads thus: “ In case the party purchasing the land, or his assigns, fail to take a tax deed for the land so purchased, within six months after the expiration of the two years, no interest shall be charged or collected from the redemptioner after that time.” Section 6466, supra.

It is a familiar rule of statutory construction, that no word or clause of a statute shall be deemed meaningless if it can be possibly avoided, and this clause would be meaningless if only purchasers holding under a deed were entitled to the benefit of the general statutory provisions. But statutes are to be construed as forming a uniform system, and so construing the statutes for the collection of taxes, this clause finds an appropriate place. Robinson v. Rippey, 111 Ind. 112, and cases cited.

We agree with the appellants’ counsel that the lien of the State passed to Morrison, because the complaint does not show that the sale was void for any of the reasons enumerated in the statute. While agreeing with counsel upon this point, and upon the additional point that a tender was necessary, we can not agree that the complaint does not show an offer of the proper amount. It is true that the exact amount is not stated, but it is averred that it was “ the full amount of taxes, interest, penalty, costs and charges.” This averment is uncertain, but the remedy for uncertainty is seldom by demurrer. In a very great majority of cases the appropriate remedy for the defect under immediate mention is by a motion to make more specific. That is the appropriate remedy in this case.

Counsel for appellants contend that a tender is required in all such cases as this, and that it must be kept good by bringing the money into court. In support of this proposition they cite Harrison v. Haas, 25 Ind. 281; Jones v. Summer,27 Ind. 510; Lancaster v. DuHadway, 97 Ind. 565; Rowe v. Peabody, 102 Ind. 198.

Appellees’ counsel, in a very able argument, insist that, although a tender is necessary, still it is sufficient without bringing the money into court. They base their argument upon what is said to be the rule in equity, and affirm that it is enough to aver a tender and an offer, accompanied by a readiness and willingness to pay the money, and that this is sufficient, without actually bringing it into court. In support of this position a number of cases are cited, and we have examined them with care.

The first of the cases cited is that of Hunter v. Bales, 24 Ind. 299, which asserts the doctrine of Irvin v. Gregory, 13 Gray, 215, where it was said: “ The vendee does not make a strict unconditional tender, but only an offer upon receiving the conveyance, without which he is not obliged to pay. When money is brought into court, with a plea of tender, it is an admission of the party bringing it that the adverse party is entitled to it, and may take it out when he pleases. But in a suit for specific performance, it is sufficient for the plaintiff to offer by his bill’ to bring in his money, whenever the sum is liquidated, and he has a decree for performance.” Lynch v. Jennings, 43 Ind. 276, asserts a similar doctrine.

It is manifest that these cases are not in point. This is so, because here the lien of the appellant is fixed and certain, and, therefore, of a character that required unconditional payment or an absolute tender before its enforcement could be enjoined.

In Spath v. Hankins, 55 Ind. 155, the plaintiff sought to compel the enforcement of an agreement to redeem, and the question of tender was not considered or discussed, although it seems, perhaps, to have been tacitly assumed by court and counsel that an offer to pay, without an actual tender, was sufficient.

The decision in Ruckle v. Barbour, 48 Ind. 274, was, that where a sheriff’s sale is invalid, it may be set aside although there w7as no tender of the amount of the judgment. It is clear that the case last cited is not in point, for the reason that the purchaser had not paid any money on his bid, while here Morrison had paid what it was the duty of the appellees to pay.

In Lancaster v. DuHadway, supra, the question arose, precisely as it does here, upon a demurrer to the complaint, and in just such a suit as this, and it was ruled that the complaint was bad. It was there said: “ The appellee insists that the complaint was insufficient, because the appellants do not aver that they bring the money tendered into court for him, or offer to pay it upon obtaining the relief demanded. This objection is well taken.” The question was decided, and counsel are in error in asserting that what was said on the subject is mere dicta. Upon the principle of stare decisis, we must adhere to this ruling unless we are certainly forced to the conclusion that it does not correctly declare the law. This we are not willing to affirm. There is good reason for the decision. The amount due the defendants is due unconditionally, is liquidated, and is a claim which equity and law made it the duty of the plaintiffs to pay. In such a case money ought to be paid into court, so that the defendant may take it out if he chooses. It is not equitable that the plaintiffs, by merely offering to pay what they long before should have paid, should be allowed to keep the money from the defendants until a final decree puts an end to the controversy. Surely, the plaintiff asking equity in such a case must do more than make a mere offer to pay only in the event that it is so ordered, or after the lien is judicially declared. It is no hardship upon him to pay the money into court, while his failure to do so might work injury to the defendant. It would, at all events, abridge the right of the defendant to elect to take it out. We think the ruling is in harmony with our decisions in analogous cases, and in subsequent cases Lancaster V. DuHadway, supra, has been cited with approval. Jones v. Ewing, 107 Ind. 313 ; Shannon v. Hay, 106 Ind. 589 ; Russell v. Cleary, 105 Ind. 502; Rowe v. Peabody, supra; Peckham v. Millikan, supra.

It is not easy to perceive why, in such a case as this, there should be any distinction between actions at law and suits in equity. We think there is really none, and what-was said of a party in a somewhat similar case may be here appropriately said of the appellees : “ If he pretends to avail himself of the plea of tender in equity, because he could not ■ make it at law, he ought to be held to as great strictness as he would be held to at law.” Taylor v. Reed, 5 Monroe, 36. In speaking of a bill to redeem from a mortgage, it was said, in Daughdrill v. Sweeney, 41 Ala. 310: “ If a legal tender was made, of the money acknowledged by the complainant in each case to be due, it should have been followed up by a payment of the money into court, at the time of filing their respective bills; and a compliance with this requisition should be shown by an appropriate averment in each bill. Such an averment not having been made, the bill in each case is without equity.”

For the defect in the complaint we have pointed out the judgment must be reversed.

Filed Dec. 22, 1887.