City of Logansport v. Case

24 N.E. 88, 124 Ind. 254, 1890 Ind. LEXIS 309

• Court: Indiana Supreme Court
• Decided: April 5, 1890
• Docket: No. 12,521
• Status: Published

Opinions

Berkshire, J.

The appellee, who was the plaintiff below, filed her complaint, originally, in one paragraph, and afterwards, with the permission of the court, added two additional paragraphs.

Pending the trial, the second paragraph was dismissed by the appellee.

By the first and third paragraphs the appellee seeks to enjoin the treasurer and clerk of the city of Logansport from executing to the purchaser a deed to certain real estate for which the appellant Millikan holds a certificate of purchase under a sale for delinquent taxes claimed to be due and owing to said city from former owners of the said real estate, and a cancellation of the certificate is demanded.

The appellants ■ filed demurrers to the said paragraphs of complaint, which were overruled by the court, and they excepted.

In the first paragraph certain irregularities are alleged which are sufficient to render the sale ineffectual to convey title to the purchaser, but there is nothing averred to bring the case within section 6487, R. S. 1881, which was the statute in force when the sale was made, nor to bring it within section 1, p. 95, Acts 1883. (See Elliott’s Supp., section 2142).

It is conceded, in this paragraph, that the sale carried with it the sum for which the sale was made, together with lawful interest, and also transferred the lien of the State to the purchaser; and it is averred that a tender of $501.60 was made to the city treasurer in payment of the amount due.

There is no averment in the paragraph that the tender is brought into court for the benefit of the purchaser. For this reason, if for no other, this paragraph of the complaint is bad.

The third paragraph, in its prefatory averments, is very similar to the first paragraph, and alleges a tender to the treasurer of the city of Logansport of $501.60 for the use of the purchaser at the tax sale, and in the absence of an averment that the amount tendered is brought into court for the use of the purchaser, thus keeping the tender good, it avers that the amount which the appellee should pay can not be ascertained except as it may be fixed by the court, and asks the court to ascertain and fix the amount, and offers to pay the amount so ascertained, and when the amount is ascertained and paid, demands a cancellation of the purchaser’s certificate, and a permanent injunction enjoining the city officers from executing a deed.

The amount of the certificate was known to the appellee when she commenced her suit, and had she brought that sum, together with the additional sum which she admitted she ought to pay into court for the purchaser, and in her complaint so informed the court, all objection on this ground to the complaint would have been obviated; but this she did not do, and the paragraph offers no sufficient excuse for her failure so to do. This renders the complaint bad. See Morrison v. Jacoby, 114 Ind. 84, and cases cited.

The appellants filed an answer in two paragraphs, the first being the general denial.

The second paragraph was stricken out by the court on motion of the appellee, but as this ruling of the court is not material to our conclusion we need not notice it further.

The cause being at issue was submitted to the court for trial, but before the court announced its finding the appellee brought into court for the use of the appellant Millikan the sum of $535.

The court thereafter found that the sale represented by said certificate was void, but that the said Millikan was entitled to said sum of $535, and afterwards rendered judgment declaring the said tax sale void; that the appellee was the owner of said real estate, and that she recover of the appellant Millikan her costs and charges in the action laid out and expended.

It was further ordered by the court that the said sum of $535, less the costs, be paid to the said Millikan on condition that he execute to the clerk a receipt for the same.

This judgment is a little unusual, to say the least of it. The appellant Millikan filed a motion to modify the judgment, but as the judgment must be reversed we need spend no time in considering this motion.

The appellant Millikan filed a motion for a new trial, which motion the court overruled, and he excepted. He then filed a motion to tax costs, which was overruled, and he excepted, but we need not consider the motion, in view of the conclusion to which we have come.

It is unimportant whether the rights of the parties are to be determined under the law as it stands since the amendment to section 6487, R. S. 1881, by the act of March 5th, 1883, or as it stood before the amendment.

Section 6487, before the amendment, related entirely to sales ineffectual to transfer the lien of the State to the purchaser, and the section as amended relates to sales of the same character. The only difference in the section as it originally stood and as amended, is that the amended section contains the following words not included in the original: “ Or if the sale or attempted sale is made without authority of law.” These words refer to sales that do not fall within the scope or purview of the statute, and not sales contemplated by the statute; but in the proceedings something is omitted which the law requires, or something which is required is not done in the manner prescribed.

It is not contended that the sale under consideration was not one contemplated by the statute, nor that the treasurer and clerk of the city had no power under the law to make the sale, but the contention is that they did not proceed in the manner which the statute prescribed.

As the sale was one contemplated by the statute, and one which the officers making it were empowered to make, and as the real estate was subject to taxation, and the tax had not been paid, and the description not so imperfect as to be ineffectual to transfer the lien of the State, it was not a sale falling within said section 6487, as it originally stood, nor within its provisions as amended.

It was a sale falling within the provisions of section 6488, R. S. 1881, and carried to the purchaser the taxes, interest, penalty, and costs, together with the lien of the State, and included all the benefits given by the statute to purchasers at such sales to induce them to purchase. Said section 6488 reads thus:

“ If any conveyance for taxes shall prove to be invalid and ineffectual to convey title because the description is insufficient, or for any other cause than the first two enumerated in the preceding section, the lien which the State has on such lands shall be transferred to and vested in the grantee, his heirs and assigns, who shall be entitled to recover from the owner of such land the amount of taxes, interest, and penalty legally due thereon at the time of sale, with interest, together with the amount of all subsequent taxes paid, with interest; and such lands shall be bound for the payment thereof.”

Under sales of the character provided in section 6487, supra, the purchaser acquires no legal or equitable claim against the taxpayer or his property; he must look for reimbursement to the city or county causing the sale to be made. But if the sale is one which falls within section 6488, supra, the purchaser has no claim against the county or city, but has his lien against the real estate. State, ex rel., v. Casteel, 110 Ind. 174; Morrison v. Jacoby, supra. When the statutes under consideration were passed the General Assembly was well informed as to the invalidity of tax sales as a means of conveying title, and that in all the cases brought to this court involving the validity of tax titles, not one had been found effectual to convey title. Knowing, as we do, that the Legislature was thus informed it would be a violent presumption on our part to presume that section 6466, R. S. 1881, was only intended to apply to sales effectual to convey title, and especially when to do so would remove all inducement to persons to become purchasers at tax sales, and when it appears all through the act that one of the chief objects that the Legislature had in view was to hold out inducements to purchasers. To so construe the statute would be to place- the Legislature in the false attitude of making provision for a class of sales that only existed in the imagination, and leaving practically unprovided for all sales that would be — all save the few falling within section 6487, supra, and thus giving no encouragement to purchasers, the contrary of which was the evident purpose of the Legislature. The more reasonable conclusion is that the General Assembly took a practical, common-sense view of the situation, and had in mind the worthlessness of tax sales as a means of conveying title to real estate sold, and the large delinquent lists in the different counties throughout the State, and undertook to provide a remedy whereby the revenues of the State could be the more promptly and effectually collected. With this end in view the present laws were enacted, and all sales classified into two classes: Sales absolutely void, and sales valid for all purposes except to convey title, and for that purpose ineffectual. In construing the different sections of the statute for the collection and assessment of taxes the court can not ignore but must regard the classification which the Legislature has made as to tax sales. If we regard and keep in mind the classification made by the General Assembly we need have no difficulty in ascertaining and determining the rights of a purchaser at a tax sale, including the remedies which the law affords him; and the rights and remedies of the land-owner are made equally clear.

If the sale is one which falls within section 6487, supra, the purchaser must ask the county or city, as the case may be, to refund him his money, with six per cent, interest; but if the sale is valid, but ineffectual to convey title, there must be a redemption under the provisions of section 6466, supra, within two years after the sale, or the purchaser is entitled to a deed.

If this court should declare, in the face of the statute, that if when the sale is made the taxpayer has personal property out of which the tax could have been levied, that that renders the sale of his real estate void, it would be to recognize a class of sales not known to the statute, and leave the purchaser remediless except so far as equity might subrogate him to the rights of the State. And if we would be justified in holding a tax sale void because of the fact that the State had a lien on personal property of the taxpayer, then it would be equally our duty to hold such sale void for any other infirmity appearing in the proceedings leading up to and into the sale as made, and thus by judicial legislation we practically strike from the statute sections 6466 and 6488, supra. But we think this court has virtually settled the questions here involved. In Morrison v. Jacoby, supra, Elliott, J., speaking for the court, said : “ 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. * * * 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 Slate, 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.”

We pause here to inquire what is the penalty provided by law? The answer must be, where the taxpayer seeks to remove the lien from his property, at any time after the sale, before the expiration of the two years (when the purchaser is entitled to a deed), the purchase-money named in the certificate, the costs of the sale, and ten per centum in addition where the redemption takes place within six months from the day of the sale; if, after six months, and within one year, the purchase-money, costs of sale and fifteen per centum • if, after one year, and within two years, the purchase-money, costs of the sale, and twenty-five per centum addition, as provided in section 6466, supra.

The statute will be examined in vain for any other provision which meets the case; and from the number of times that the court in the case above refers to the said section, it is evident it had its provisions in mind when referring to the lien and penalty provided by law.

We may add further, right here, as a circumstance tending strongly to support our conclusion, that the law, in fixing the rights of the parties after the tax deed is executed, recognizes no difference in sales _ not absolutely void by virtue of the provisions of the statute.

In St. Clair v. McClure, 111 Ind. 467, this court said, through Niblack, J.: “ 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

In Scott v. Millikan, 104 Ind. 75 (79), Zollaks, J., delivering the opinion of the court, it is said : “ 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.” The court further said in that case : “ 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 foregoing passages are quoted in Morrison v. Jacoby, supra, with approval. But in the last named case the court goes on to say: “ 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.”

In view of the case which the court had before it, which was an action to enjoin the execution of a deed, as is the case now under consideration, what did the court mean in the employment of the language just quoted, if in a case where the sale was ineffectual to convey title, but carried to the purchaser the lien of the State, it did not mean to be understood as holding that there must be a redemption from the sale provided in section 6466 ?

The language would have been meaningless as well as inappropriate ; but in view of the conclusion to which the court arrived, the language is clear, forcible and appropriate to the questions the court had under consideration. But the court goes on to say : “ 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 tó 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.” But we quote further from the opinion in this case, as indicating the mind of the court as to what are the rights of purchasers at tax sales where the lien is carried to the purchaser but the sale ineffectual to convey title to the real estate : “ 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 isa 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.”

As we have already said, this case covers the whole ground and decides the questions which we have considered. The reasoning and conclusion of the court are well supported by former decisions of this court therein cited and by cases not cited, and are certainly in accord with the letter and spirit of the statute and the evident intention of the Legislature.

Our conclusion is that as the appellee did not offer to redeem from the sale upon the terms required by said section 6466, the court erred in overruling the motion for a new trial. The case of Michigan Mutual L. Ins. Co. v. Kroh, 102 Ind. 515, cited by counsel for the appellee, is virtually overruled as to the terms upon which the lien of the State, in a case like the one here involved, may be removed from the real estate of the delinquent land-owner, by the cases of Morrison v. Jacoby, supra, and St. Clair v. McLane, supra.

Filed April 5, 1890; petition for a rehearing overruled June 6, 1890.

The judgment is reversed, with costs.