Anspach & Stanton's Appeal

Mr. Justice Clark

delivered the opinion of the Court, March 1st, 1886.

The special Act of 1st April, 1873, relating to the lien of taxes in the county of Delaware provides, in its'last section, that so much of any Act of Assembly as is inconsistent therewith is thereby repealed.’ The prior Act of 3d Februaiy, 1824, which was afterwards extended to the county of Delaware, relates to the same matter, and in its 1st section provides that all taxes lawfully imposed, for any- purpose, on real estate, shall be a lien thereon, which lien shall have priority to, and “ shall be fully paid and satisfied before, any recognizance, mortgage, judgment, debt, obligation or responsibility,” with which the said real estate may become charged, or to which it may become-liable, from and after the passage of that Act. The lien created under this Act of 1824, it will be observed, takes effect at the date of the assessment, is indefinite in its duration, and can bp discharged only by payment. The 1st section of the Act of 1st April, 1873, first above referred to, is identical in form, but limits .the lien there created to “a period of one year from the time .said taxes, rates and levies are imposed and assessed,” unless' within that period a claim or formal lien shall be entered, in the manner directed, in the office of the Prothonotary of the Court of Common Pleas of the county.

In respect of the limitation of the lien of the assessment, these statutes are clearly and obviously inconsistent. It may be conceded that many of the provisions' of the Act of 1873 are merely re-enactments, declaratory of the Act of 1824, and. that others, which are new, are in no way in conflict with the provisions of the earlier statute, but it is certain that in whatever respect the Act of 1824 is inconsistent with the Act of 1873, the former must yield to the latter. The provision for a lien without limit is certainly inconsistent with that for a lien for one year only, for if by the direction of the 1st section of the Act of 1873 the assessment is declared to be a lien for a year only, that necessarily precludes the existence of the lien for any longer period, or for an indefinite time ; statutory provisions so irreconcilable cannot stand together. Nor do we favor the construction that the lien, in analogy to that of .a. judgment, was intended to be indefinite as respects the tax debtor, and limited to one year as to bona fide purchasers and mortgagees. If such was the intention of the legislature we would certainly expect to find in the body of the statute some manifestation of it, which would put the question beyond the merest conjecture.

We are not called upon in this case to decide whether or not, the Act of 1873 is a substitute for and fully supplies the Act of 1824, and whether the latter statute is thereby repealed by implication ; it is sufficient, for the purposes of this case, for us to say, that so much of the'Act of 1824, or of any other Acts, as is inconsistent with the Act of 1873, is thereby repealed.

The requirements of the Act of 1824, as to the registering of the taxes in the office of the County Commissioners, have been held to be directory only; failure to register-did not affect the validity of the unlimited lien which was thereby provided: Parker’s Appeal, 8 W. & S., 449; Wallace’s Estate, 9 P. F. S., 401. The Act of 1873, however, provides that the taxes shall be liens for the period of one year from the time of the assessment, “ and when entered ” on the docket, as directed, in the Court of Common Pleas, shall “continue” liens as the judgments of the said court, and shall be collectible by execution. The continuance of the lien depends upon the performance of the conditions recited in the Act; the requirement is therefore-mandatory. The entry in the Prothonotary’s office must be made upon the proper official return, made in the manner and at the time indicated, certainly before the lien of the assessment expires.

H. C. Eyre & Co., after their purchase on 7th March, 1871, used, the property in their, business, as iron founders and machinists, until June, 1883, when they made an assignment for creditors. The mortgage of Anspach & Stanton, when it was given, was the only lien on the land, excepting that of a prior mortgage. In November, 1883, judgment was obtained on this mortgage, by seire facias, and upon a levari facias the property was sold for $500 ; this sum, having been paid into court, and an Auditor appointed to make distribution, claims were presented for taxes, assessed and remaining unpaid, as follows: School, 19th June, 1882, $84.83 ; city, 19th June, 1882, $100 ; countv, 7th March, 1883, $35.35 ; citv, 2d April, 1883, $101; school, 15th June, 1883, $40.40. There was at all times, prior to the sale by the assignee for creditors, abundant personal property on the premises, from which these taxes might have been made. The only claim or formal lien which was afterwards entered was for the city taxes of 1882 (assessed on the 19th June of that year), but as it was not entered until the 27th August, 1883, the lien was lost, and the entry was of no avail. The school and city taxes for 1882 are not, therefore, entitled to participate in the fund for distribution.

The taxes for 1883, however, were at the time of the sheriff’s sale still subsisting liens against the property, and as the sale of the premises was upon the mortgage itself, and the proceeds are sufficient to pay and discharge the taxes, not only the lien of the mortgage but the lien of the taxes also, under the provisions of the Act of 1873, are divested, and are entitled to come upon the fund arising from the sale. It is of no consequence, we think, that there had been personal property on the premises, out of which the collector might have levied the taxes. It was, of course, the duty of the collector, if he desired to be released from responsibility for these several assessments, to be diligent in his endeavors, prior to making his return, to collect the taxes from any personal property which he might know, or by reasonable diligence could have known, to be on the premises, but the lien of the assessment cannot be defeated by the neglect and want of diligence of the collector ; what would be the effect of a return, false in this respect, upon the claim filed thereon, in continuance of the lien, is a question not involved in the case.

In what has been said we must be understood as referring to “ taxes ” in a somewhat restricted sense, as in a former decision of this court, Harvey v. Borough of South Chester, 11 W. N. C., 458, we held, that the Act of 1873 has special reference to taxes in the strict sense of the word, and makes provision for registering and collecting the same, and-that it has no application to municipal claims or assessments, which were, made liens, entitled to priority of payment by prior Acts of Assembly.

We are of opinion, therefore, that the taxes for 1883 have priority to, and should be fully paid and satisfied before the mortgage, and must be allowed in full in this distribution.

The decree of the Court of Common Pleas is reversed, and the record is remitted, in order that distribution may be made in accordance with this opinion ; the appellees to pay the costs of this appeal.