Iowa Land Co. v. Douglas County

Fuller, J.

(dissenting). It-will be observed that personal taxes from and for the years 1883 to 1890, inclusive were assessed against divers persons, who were the respective owners of the different tracts or quarter sections of land described in the complaint at the time of or since the levy, and prior to respondent’s interest, and that no steps were ever taken to sell the land in satisfaction of such personal taxes until October, 1893, when the respective amounts thereof were for the first time brought forward from the personal tax list, and extended upon the real estate tax list, against the various tracts described in the complaint. While Sec. 1612 of the Compiled Laws provides that ‘ ‘taxes due from any person upon personal property shall be a lien upon any real property owned by such person, or to which he may acquire a title,” there was, in my opinion, no statutory provision, prior to the law of 1891, authorizing the enforcement of such lien by advertisement and sale of real estate. In addition to the identical provision above quoted, Sec. 865 of the Code of Iowa contains the following provision, omitted from our statute: ‘‘The treasurer is authorized and directed to collect the delinquent taxes by the sale of any property upon which the taxes are levied, or any other personal or real property belonging to the person against whom the taxes are assessed.” Prior to the proceedings of the coun.ty treasurer to sell the land described in the complaint, in satisfaction of the personal taxes mentioned therein, he and his predecessors had been relieved of all statutory liability for a failure to collect the same, by reason of a resolution of the board of county commissioners, acting under Sec. 1616 of the Compiled Laws; and, from the record, it clearly appears that the various officers of the county whose duty it was to collect such taxes, or declare them uncollectible, had for years re*506garded the same as unavailable, and their affirmative acts and general conduct would fully justify a conclusion that no attempt would ever be made to subject the property of respondent to the payment thereof. Upon the theory of abandonment, under the circumstances of the case, and in the absence of any assertion of the statute of limitations, private rights should be regarded of more persuasive force than those of the public; and the county should be estopped, by the laches of its officers, from enforcing its tax lien upon real property by a sale of the same for personal taxes levied so many years ago, and declared to be unavailable. Bradley v. Hintager (Iowa) 16 N. W. 204. In the case of City and County of San Francisco v. Jones, 20 Fed. 188, the court said: ‘ ‘The state has officers specially appointed to attend to these particular duties, and no others, and, if they neglect their duties, the state which appoints them, if any one, should be the party to suffer. To permit the state, after the lapse of many years, to recover, by suit, taxes allowed to run uncollected, with 5 per cent penalty, and, in the language of Justice Swayne, the ‘most devouring rate’ of 2 per cent per month interest, would be to inflict unendurable oppression.” True it is that the omission to sell real estate for the personal taxes of its former owners is not, in this case, to be attributed to negligence or unnecessary delay on the part of appellants’ predecessors, because there was, as I believe, no statute authorizing such proceeding. The lien upon the land not being enforceable under the statute existing at the time respondent became the mortgagee or grantee thereof, its interests were at the time in no manner affected thereby, unless the law of 1891, under which appellants were acting, was retroactive, and authorized the sale of said real property for the personal taxes of former owners, or insolvent mortgagors who have left the county and are presumptively unable to respond in damages. While Sec. 96 of Chap. 14 of the Laws of 1891, by express provision, makes taxes due upon personal property a lien upon real estate, such lien is only en*507forceable in the specific manner provided, and not until after the filing of the county treasurer’s return showing that he is unable to make such taxes out of the personal property of the tax debtor; and Sec. 132 of said chapter declares that an emergency exists, because ‘ ‘the present revenue laws of the state of South Dakota are imperfect and inadequate.” From a careful examination of the law of 1891, creating the right, and relating to the steps essential to the subjugation of real property to a payment of taxes levied upon personal property, there is nothing to indicate a legislative intention to give such provisions any retroactive force or effect. American Inv. Co. v. County of Beadle (S. D.) 59 N. W. 212. I am convinced that no provision of law exists authorizing appellants to sell the real estate described in the complaint for taxes assessed against the personal property of former owners, and that a case was presented to the trial court which, in equity, authorized and justified the granting of a perpetual injunction. The judgment appealed from ought to be affirmed.