Finn v. Mellon

71 Pa. Super. 7, 1919 Pa. Super. LEXIS 19

Opinion

Opinion by

Kephart, J.,

Prior to the passage of the Act of 1901, the Act of April 29, 1844, P. L. 501, Sec. 41, furnished a complete procedure to collect delinquent taxes on seated lands when it was necessary to sell the lands for that purpose. The Act of 1901, P. L. 364, provides when liens shall be allowed for taxes, the method for preserving such liens, the procedure upon claims filed therefor, and for enforcing payment of such claims, etc. Section 2 provides that all taxes lawfully imposed or assessed on any property shall be and they are thereby declared to be a first lien on that property, together with all charges, expenses and fees added thereto for failure to pay promptly. Such liens shall be prior to and fully paid and satisfied out of the proceeds of any judicial sale of the property before any other obligation, judgment, lien or estate with which the property may be charged. A claim for taxes was to be filed in the prothonotary’s office and a scire facias was to issue to reduce it to judgment. This act was followed by the Act of May 21, 1913, P. L. 285, “for the return of taxes on seated lands and providing for the sale of such lands for taxes.” We held this act repealed so much of the Act of 1901 that in any way related to the procedure for the collection of the claims for taxes. “The Act of 1913 furnishes practically the same system that was in existence prior to the Act of 1901......that act would be inconsistent with the provisions contained in the Act of 1913 and the latter, therefore, must effect a complete repeal of the Act of 1901 in so far as it relates to the question of procedure in enforcing collection of delinquent taxes”: Bradford County v. Beardsley, 60 Pa. Superior Ct. 478-482. The Act of 1913' reads: “The return of taxes assessed......against seated lands...... shall be made whenever personal property cannot be found thereon sufficient to pay such taxes, in the same manner and at the same time that return is now made for unpaid county taxes on unseated lands, and whenever any such taxes,......shall not be paid within two years after the day of the assessment thereof such seated lands......shall be advertised and sold by the proper county treasurer at the time and in the same manner and under the same conditions and with the same effect as unseated lands are now sold by such treasurer.” This clearly comprehended all steps in relation to the collection and the enforcement of a claim for taxes. It left nothing of the Act of 1901 with respect to the remedy there provided and the contention that the right to file the claim in the prothonotary’s office, though it is impossible to secure a judgment on such claim, or to issue a scire facias on it, is untenable. If such claim could be filed it would be without limitation as a subsisting lien or without means of enforcement. This 'only serves to emphasize the conclusion that the Act of 1913 effected a complete repeal of the Act of 1901 in the provisions mentioned. Filing a tax claim in the prothonotary’s office under the Act of 1901 is without authority of law.

It is urged that the Act of May 28, 1915, P. L.' 599, recognizes the right of the municipality to file claim for taxes in the prothonotary’s office. This act did not, in any manner, reenact any of the provisions of the Act of 1901 that were repealed by the Act of 1913, later amended by the Act of June 1,1915, P. L. 660. The amending act as a whole was not intended to reach the question of tax liens as such, but it is evident that it was intended to correct certain features of the Act of 1901 in so far as it relates to municipal claims. The reference in Sec. 4 of the Act of 1915 does not undertake to declare that claims may be filed nor the effect of such filing, but merely states that where such claims for taxes have been filed against separate or distinct properties in one amount covering all the properties, the authorities may accept the tax, according to the tax rate and assessed valuation, against any of the pieces of property and thus discharge the lien against such property. It merely declares what may be done as to the many thousands of claims filed prior to the passage of the Act of 1913. Upon consideration of all the acts submitted, we find nothing to support the view that the legislature intended authority be given county treasurers to sell land for taxes, and for the same taxes like authority be given to the sheriff; or that when one procedure was adopted for such sale, it preserved the procedure of the other act. The amending Act of 1915 further would be incomplete and worthless as it provides no remedy for the enforcement of the claim. As the Supreme Court considered the Act of 1901 as being a comprehensive remedy for the enforcement of the collection of taxes, the remedy provided in the Act of 1844 was not an additional remedy for their collection, but in conflict with the remedy contained in the Act of 1901. So it held the Act of 1844, as it related to seated lands, repealed. For like reason, when the Act of 1913, as amended by the Act of 1915, was passed, the Act of 1901, as it related to the questions now under discussion, was repealed, and the procedure under the Act of 1844 reinstated. The remedy provided by the Act of 1844, reestablished by the Acts of 1913 and 1915, is in conflict with the procedure contained in the Act of 1901. But there is nothing in the Act of 1913 that would disturb the second section of the Act of 1901, making taxes a lien against the land assessed. Prior to the Act of 1901, taxes were not liens on seated lands. It was held that there could be no participation in the proceeds of a sheriff’s sale because taxes were not a lien on seated lands: Cohen’s App., 10 W. N. C. 230; Pottsville Lumber Co. v. Wells, 157 Pa. 5. This question is again presented under Sec. 2 of the Act of 1901. If, after a part of this act respecting procedure for collection has been repealed, there was no remedy to enforce the lien thus created, it is questionable whether taxes could be considered liens. Section 2 was all that was left of the Act of 1901, concerning taxes, after the Acts of 1913 and 1915 were enacted. This section specifically gave a lien. If there was no remedy provided for its enforcement, the lien therein contemplated would be worthless. As stated in Burd v. Ramsay, 9 S. & R. 109: “If the legislature had intended to create a lien, they should have provided some direct means of enforcing it, and the inference from want of such a provision is irresistible. It is altogether incredible that they would have trusted to the uncertain and improbable event of the land being, at some period, sold by the sheriff, and of the purchase-money being brought into court for distribution; in which case only the lien would be availing. A lien without retention of possession, or any other means of rendering it productive, is altogether so worthless, as to preclude all idea of its having ever been in the contemplation of anyone.” It was there held that there being no authority to sell the land for taxes, there was no way of enforcing the lien and it would, therefore, be worthless. The Act of 1913 furnishes an effective remedy to enforce the claim, and whether the lien expressed in section 2 should be limited to the duration of the remedy contained in the Act of 1913 or to some other act of assembly, does not concern us in the adjudication of the present case. It is admitted the taxes in the claims here filed were duly assessed and under section 2 they were liens to be paid out of the proceeds realized from a judicial sale of the property charged, at least to be so paid within the time prescribed by the Act of 1913. There is no question raised as to the time of assessment or the validity of the claims from the standpoint of the duration of the lien, but the appellant challenges the total amount of the liens, part of each being admittedly good.

The decree of the court below is affirmed.