property is delinquent. It need not aver how and by whom the levy and assessment were made; 2 nor need it negative defenses arising subsequent to the inception of the tax, as its remission, etc.3 Where one desires to object to the rendition of judgment against delinquent lands, he must show his interest in the property, and, where exemption from taxation is relied upon, the facts which render the property exempt must be pleaded.5 Objections to the form of pleading must be raised by demurrer. filed with a pleading based upon, or referring to it, under the Indiana code. 1. People v. Central Pac. R. Co., 83 Cal. 393; People v. California Pac. R. Co. (Cal. 1890), 23 Pac. Rep. 310; Lockhart v. Houston, 45 Tex. 317; Clegg v. State, 42 Tex. 611. A petition in a suit for the recovery of back taxes, should expressly allege that the land had been returned delinquent, or had been forfeited to the state; but where such facts may be gathered from its allegations, the petition will be good after verdict. Wellshear v. Kelley, 69 Mo. 343; Ricker v. Brooks, 155 Mass. 400. In Fisher v. People, 84 Ill. 491, it was held that the notice of application for judgment against delinquent lands, should designate the years for which the taxes are unpaid, with such certain ty, that one who reads it may readily determine for what year or years the taxes in any particular tract were delinquent. But in Williams v. Hudson, 93 Mo. 524, it was held that the omission to state one of the years for which taxes were due, in a notice of proceedings for the foreclosure of a tax lien for taxes of several years, is not material. Penalties. A complaint in an action for taxes to which a penalty has been added, must show how and when the defendant became indebted for the taxes, and how and when the penalty was added to the amount. People v. Central Pac. R. Co., 83 Cal. 393. Demand and notice must be shown where required. Lockhart v. Houston, 45 Tex. 317. And see Mayhew v. Davis, 4 McLean (U. S.) 213. Under the Maine statute, a defendant in a tax suit is not liable for the costs of the action, or any part thereof, unless it appears that payment of the taxes had been duly demanded, prior to the commencement of the action, and refused. York v. Goodwin, 67 Me. 260. 2. Lockhart v. Houston, 45 Tex. 317; Ottawa Gas Light, etc., Co. v. People, 4. People v. Quick, 87 Ill. 435. In Hess v. People, S4 Ill. 247, it was held that the court has power to make a rule limiting the time for filing objections to judgment, against delinquent land, for taxes, and may enforce the same by refusing to entertain them after the expiration of the time fixed. Who May Move to Vacate.-In Swan v. Knoxville, 11 Humph. (Tenn.) 130, it was held that one who was the owner of lands at the time the report of delinquency was made, has the right to appear and move the court to vacate a judgment rendered thereon. 5. See Cairo, etc., R. Co. v. Parks, 32 Ark. 131; Andrews v. People, 75 Ill. 605; Olcott v. State, 10 Ill. 481. 6. Ottawa Gas Light, etc., Co. v. People, 138 Ill. 336; St. Louis, etc., R. Co. v. Anthony, 73 Mo. 431. And see Sterling Gas Co. v. Higby, 134 Ill. 557. In State v. Yellow Jacket Silver Min. Co., 14 Nev. 220, it was held that a demurrer may be interposed to a complaint in an action for the collection of delinquent taxes, upon any of the grounds of demurrer in ordinary civil actions. Amendments.-In Greer v. Covington, 83 Ky. 410, it was held that the only limitations on the discretion of the court to permit the amendment of the pleadings in an action for taxes, is that the amendment must be in furtherance of justice, and must not substantially change the claim or defense. It rests with the plaintiff to show a lawful levy1 and assessment. The requisite facts may be shown by the production of the records.3 The delinquent list or assessment roll is made by statute, in some states, prima facie evidence of the facts necessary to maintain the action. The general presumption that a public officer has performed his duty, applies to the assessor and other revenue officers. The burden of proof is upon the taxpayer, when he desires to dispute the truth of the facts shown by the record. (c) Defenses. The legislature has power to limit the defenses which may be made to a tax suit, but only so far as the defenses 1. People v. Central Pac. R. Co., 83 Cal. 393; People v. California Pac. R. Co. (Cal. 1890), 23 Pac. Rep. 310; Louisville v. Louisville Gas Co. (Ky. 1893), 22 S. W. Rep. 550; North Tonawanda v. Western Trans. Co., I Sheld. (N. Y.) 371. 2. State v. Washoe County, 14 Nev. 142; People v. Central Pac. R. Co., 83 Cal. 393; People v. California Pac. R. Co. (Cal. 1890), 23 Pac. Rep. 310; People v. Reynolds, 28 Cal. 108; People v. Cone, 48 Cal. 427; Holden v. Eaton, 7 Pick. (Mass.) 15; Lockhart v. Houston, 45 Tex. 317; Clegg v. State, 42 Tex. 611. And see People v. Flint, 39 Cal. 670; People v. Goldtree, 44 Cal. 323. 3. See Scott v. People (Ill. 1892), 33 N. E. Rep. 180; Hosmer v. People, 96 Ill. 58; Mix v. People, 86 Ill. 313; Bristol v. Chicago, 22 Ill. 587; Muskegon v. Martin Lumber Co., 86 Mich. 625; Den v. Helmes, 3 N. J. L. 600; Sheldon v. Van Buskirk, 2 N. Y. 473; San Gabriel Valley Land, etc., Co. v. Witmer, 96 Cal. 623; State v. Eureka, etc., Min. Co., 8 Nev. 15. In Hopper v. Malleson, 16 N. J. Eq. 382, it was held that a recital in a tax warrant of the words, "Whereas it appears to the mayor and aldermen of the city of Paterson that an assessment of four dollars was made against the estate of M.," was not legal evidence of the fact of an assessment and the demand of payment. In Mix v. People, 122 Ill. 641, it was held that a tabulated statement prepared by a county clerk, containing a computation of the taxes due and unpaid as shown by the collector's books of certain towns, is admissible as evidence in a tax suit. 4. People v. Donnelly, 58 Cal. 144; Modoc County v. Churchill, 75 Cal. 172; Durham v. People, 67 Ill. 414; Bristol v. Chicago, 22 Ill. 587; Hosmer v. People, 96 Ill. 58; Buck v. Peo ple, 78 Ill. 560; Mix v. People, 81 Ill. 118; Chiniquy v. People, 78 Ill. 570; Consolidated Coal Co. v. Baker, 135 Ill. 545; People v. Givens, 123 Ill. 352; Fisher v. People, 84 Ill. 491; Putman v. Fife Lake Tp., 45 Mich. 125; State v. Maloney, 113 Mo. 367; State v. Rau, 93 Mo. 126. And see Powers v. Penny, 59 Miss. 5. Such statutes are not unconstitutional. Andrews v. People, 75 Ill. 605; Burbank v. People, 90 Ill. 554. In Los Angeles v. Los Angeles Water Works Co., 49 Cal. 638, it was held that a delinquent list is not prima facie evidence of the correctness of the prior proceedings by which the tax was levied and assessed. 5. Durham v. People, 67 Ill. 414; Mix v. People, 86 Ill. 312; Buck v. People, 78 Ill. 560; Scott v. People (Ill. 1892), 33 N. E. Rep. 180; Beers v. People, 83 ÏÏl. 488; Mix v. People, 81 Ill. 118; Shelbyville Water Co. v. People, 140 Ill. 545. And see State v. Richardson, 77 Mo. 589. 6. Durham v. People, 67 Ill. 414; Mix v. People, 86 Ill. 312; Buck v. People, 78 Ill. 560; Chiniquy v. People, 78 Ill. 570; People v. Givens, 123 Ill. 352; Andrews v. Rumsey, 75 Ill. 598; Mix v. People, 81 Ill. 118; Sherrill v. Hewett, 13 Ñ. Y. Supp. 498; 59 Hun (N. Y.) 619. And see Miller v. Hurford, 13 Neb. 13; People v. Seymour, 16 Cal. 332; 76 Am. Dec. 521; Wattles v. Lapeer, 40 Mich. 624. In Miller v. Hurford, 13 Neb. 13, it was held that an answer which admits the assessment, but claims it to be ille. gal for certain causes therein set forth, shifts the burden of proof as to the assessment upon the party charging the illegality. 7. People v. Wilkerson, 1 Idaho 619; State v. Central Pac. R. Co., 21 Nev. 260; DeTreville v. Smalls, 98 U. S. 517. And see Mix v. People, 116 Ill. 265; excluded are based upon irregularities or formal defects.1 In the absence of such legislative restrictions, any defense may be made to an action for taxes that could be made to an ordinary action.2 The absence of jurisdiction over the person or property taxed,3 the fact that the property taxed was of right exempt from taxation, the absence or illegality of an assessment, or any Muskegon v. Martin Lumber Co., 86 Mich. 625. But the pendency of an application for a judgment against lands for taxes of a prior year is a good defense against the rendition of judgment for the same taxes on a subsequent application. Andrews v. People, 75 Ill. 605. The burden of proof is upon the taxpayer to show that the informality which prevented the collection of a tax of a previous year still exists, in an action for its collection in a subsequent year. People v. Chicago, etc., R. Co., 140 Ill. 210. The legislature has the power to provide that a former recovery shall not constitute a defense to an action to recover taxes. State v. Central Pac. R. Co., 21 Nev. 260. In Biggins v. People, 106 Ill. 270, it was held that a judgment in a suit at law, which exonerated the defendant from liability for back taxes, penalties, interest and costs, does not bar a suit in equity to enforce the statutory lien on the land for the same taxes, penalties, costs, etc. In People v. Chicago, etc., R. Co., 140 Ill. 210, it was held that under a statute providing that where the collection of taxes is prevented by any erroneous proceeding, the amount of such taxes may be added to the taxes on such property for any subsequent year, the judgment rendered in favor of a delinquent taxpayer on account of an informality in the assessment, is no bar to an application for judgment for the same taxes the following year. 1. See State v. Central Pac. R. Co., 21 Nev. 260; State v. Central Pac. R. Co., 21 Nev. 247; State v. Central Pac. R. Co., 21 Nev. 94; People v. Central Pac. R. Co., 83 Cal. 393; People v. Wilkerson, 1 Idaho 619; De Treville v. Smalls, 98 U. S. 517. A law authorizing a judicial proceeding, by which rights of property might be divested or affected, without giving the owner the right to contest every material allegation involved therein, would deprive him of his prop erty without due process of law. Wilburn v. McCalley, 63 Ala. 436. And see Calhoun v. Fletcher, 63 Ala. 574. 2. See State v. Yellow Jacket Silver Min. Co., 14 Nev. 220; State v. Central Pac. R. Co., 21 Nev. 260; Aplin v. Sloman, 84 Mich. 118; Redwood County v. Winona, etc., Land Co., 40 Minn. 512; St. Louis County v. Nettleton, 22 Minn. 356; Houston County v. Jessup, 22 Minn. 552; Olmsted County v. Barber, 31 Minn. 256; Chisago County v. St. Paul, etc., R. Co., 27 Minn. 109. 3. McCrillis v. Mansfield, 64 Me. 198. Evidence in a tax suit, that the defendant had retired from the firm on which the tax was imposed, before it was assessed, and thereafter retained no interest in the firm or in the property taxed, is admissible, under a general denial. Washburn v. Walworth, 133 Mass. 499. The collector's return of service indorsed on the notice in an action for taxes, is not conclusive on the owner, and he may show that in fact he was not served. Riddle v. Messer, 84 Ala. 236. 4. Burcham v. Terry, 55 Ark. 398; State v. Wesleyan Cemetery Assoc., 11 Mo. App. 560; State v. Central Pac. R. Co., 21 Nev. 247. And see Houston County v. Jessup, 22 Minn. 552. The fact that lands against which taxes are sought to be enforced, are exempt from taxation, does not affect the jurisdiction of the court in which proceedings are brought to try and determine the legality of the tax, under the Minnesota statute, Chisago County v. St. Paul, etc., R. Co., 27 Minn. 109; and the court may refuse to set aside a judgment for taxes on that ground. Aitkin County v. Morrison, 25 Minn. 295. In Scholefield v. West, 44 La. Ann. 277, it was held that a taxpayer who pays taxes upon his property assessed in the name of some other person, is estopped from disputing the correctness of the assessment. 5. People v. Nichols, 49 Ill. 517; Oteri v. Parker, 42 La. Ann. 374; Davis . Vanarsdale, 59 Miss. 367; other defect rendering the tax wholly invalid,1 is always a good defense. Payment of the tax before suit is a bar to a recovery;2 but payment under an illegal assessment, is no bar to a recovery, founded upon a subsequent valid assessment.3 Matters which could and should have been set up at an earlier stage of the proceedings and before action brought, are not, as a rule, available by way of defense to the action for the recovery of the tax.4 A party resisting judgment against his property for taxes, cannot raise an objection which does not apply to his property, but only to that of others who do not object;5 nor can he plead a set-off.6 Upon a suit for the collection of taxes, the validity Adams v. Vicksburg Bank (Miss. 1890), A defective assessment roll may be introduced on the trial of a tax suit, to show that the taxes were not legally assessed; but it cannot avail in a collateral attack on a judgment. Eitel v. Foote, 39 Cal. 439. 1. See Otter Tail County v. Batchelder, 47 Minn. 512; St. Louis County v. Nettleton, 22 Minn. 356; St. Louis County v. Smith, 22 Minn. 356; Nashville v. Weiser, 54 Ill. 246; Blanchard v. Powers, 42 Mich. 619; Silsbee v. Stockle, 44 Mich. 561. 2. Chauncey v. Wass, 35 Minn. 1; McDougall v. Brazil, 83 Ind. 211; Driggers v. Cassady, 71 Ala. 529; Pope v. Macon, 23 Ark. 644; Craig v. Flanagin, 21 Ark. 319; Powers v. Penny, 59 Miss. 5; Davis v. Vanarsdale, 59 Miss. 367. And see supra, this title, Payment. But the tender must be of the whole amount due. See Driggers v. Cassady, 71 Ala. 529. And see supra, this title, Payment. 3. North Carolina R. Co. v. Alamance, 82 N. Car. 262; Wilmington R. Co. v. Brunswick County, 72 N. Car. 10; Wilmington Bridge Co. v. New Hanover Co., 72 N. Car. 15; Richmond, etc., R. Co. v. Brogden, 74 N. Car. 707; Wayne v. Savannah, 56 Ga. 488. 4. See Mix v. People, 116 Ill. 265; English v. People, 96 Ill. 566; Lehman v. Robinson, 59 Ala. 220; People v. Whyler, 41 Cal. 351; Rockland v. Rockland Water Co., 82 Me. 188; Boothbay v. Race, 68 Me. 351; State v. Sadler, 21 Nev. 13; Matter of McLean (Supreme Ct.), 6 N. Y. Supp. 230. It is no defense to an application for judgment against delinquent lands, that the taxes are high, where there is no unfairness or injustice in the assessment, and no inequality in the taxes imposed. Buck v. People, 78 Ill. 560; Spencer v. People, 68 Ill. 510. In Houston County v. Jessup, 22 Minn. 552, it was held that the objection that the county commissioners did not designate the paper in which the list of taxes should be published, was not a proper matter for answer in proceedings to enforce the payment of a tax; but should be made by objection on motion to dismiss the proceedings before answering. In Clayton v. Chicago, 44 Ill. 280, it was held that the question as to whether the collector gave notice that he would levy on personal property in default of the tax, and as to the sufficiency of the notice if given, is wholly immaterial, on an application for judgment against lands for taxes. In Lehman v. Robinson, 59 Ala. 220, it was held that where complaint is made that an assessment is excessive or illegal, it should not be collected by coercive process until the county commissioners have acted in the case, but upon their failure to do so, the courts may be called upon to redress the wrong. 5. Buck v. People, 78 Ill. 560; Chiniquy v. People, 78 Ill. 570; Gage v. Busse, 7 Ill. App. 433. Thus, a misdescription or defective description of a tract of land by an assessor, will not affect the tax imposed upon other tracts. Buck v. People, 78 Ill. 560. Nor will the omission of other property in the same jurisdiction. Spencer v. People, 68 Ill. 510. 6. Morris v. Talnier, 39 La. Ann. 47; Wayne v. Savannah, 56 Ga. 448; State v. Baltimore, etc., R. Co., 34 Md. 344; Apperson v. Memphis, 2 Flip. (U. S.) of the organization of the municipality imposing the tax cannot be attacked.1 In some cases, statutes of limitation have been held to apply to actions for the recovery of taxes;2 while in others, it has been held that, though the statute applies to suits by municipalities, it does not apply to an action by the state.3 On the other hand, it has been held that actions for the recovery of taxes are proceedings for the enforcement of a public right, against which no statute of limitation runs.4 (d) Application for Judgment.-An application for judgment must be made at the time named in the notice; previous to that time the 364. And see supra, this title, Taxes Distinguished from Debts. He cannot plead set-off against the collector personally any more than against the state. Humphreys v. Pat ton, 21 W. Va. 220. In Dorsett v. Brown, 83 Ga. 581, it was held that where tax executions belong to the tax collector after the expiration of his term of office, they are subject to existing equities between him and the taxpayer, and he or his personal representatives may, in a proper case, be perpetually enjoined from enforcing them. 1. See Wabash, etc., R. Co. v. Drainage Dist., 134 Ill. 384; St. Louis v. Shields, 62 Mo. 247; Mendenhall v. Burton, 42 Kan. 570; Briggs v. Whipple, 7 Vt. 15; Burt v. Winona, etc., R. Co., 31 Minn. 472. Nor can the regularity of the collector's election or appointment _be_questioned. Odiorne v. Rand, 59 N. H. 504; Law v. People, 87 Ill. 385; Sullivan v. State, 66 Ill. 75. 2. See State v. Yellow Jacket Silver Min. Co., 14 Nev. 220; Perry County v. Selma, etc., R. Co., 58 Ala. 546; Burlington v. Burlington, etc., R. Co., 41 Iowa 134; Rich v. Tuckerman, 121 Mass. 222; Condon v. Maynard, 71 Md. 601; Gunther v. Baltimore, 55 Md. 457; Redwood County v. Winona, etc., L. Co., 40 Minn. 512; San Francisco v. Luning, 76 Cal. 610; Los Angeles County v. Ballerino (Cal. 1893), 32 Pac. Rep. 581; Brown v. Porter, 7 Humph. (Tenn.) 373; San Francisco v. Jones, 20 Fed. Rep. 188. The statute runs from the time the tax becomes due and payable. Condon v. Maynard, 71 Md. 6oi. A promise of payment takes a tax out of the statute, the same as in the case of an ordinary claim. Perkins v. Dyer, 71 Md. 421. In the absence of a Statute of Limitations, applicable to a claim for taxes due, there is no bar to such claim, short of the presumption of payment after the lapse of twenty years. Perry County v. Selma, etc., R. Co., 58 Ala. 546. In Los Angeles County v. Ballerino (Cal. 1893), 32 Pac. Rep. 581, it was held that a cause of action for delinquent taxes is not within the Statute of Limitations with reference to contract obligations, but must be brought within the time provided for action on a liability created by statute. Penalties imposed for delay in the payment of taxes, fall within statutes of limitations applicable to the recov ery of penalties in ordinary_actions. Louisville, etc., R. Co. v. Com., 85 Ky. 198. Statutory provisions that the administrator shall not be held to answer to the suit of any creditor of the deceased, unless it is commenced within two years from the time of his qualification, are applicable to suits for taxes. v. Tuckerman, 121 Mass. 222. Rich 3. See Brown v. Painter, 44 Iowa 368; Des Moines v. Harker, 34 Iowa 84; State v. Henderson, 40 Iowa 242; Jefferson v. Whipple, 71 Mo. 519. 4. Greenwood v. La Salle, 137 Ill. 225. And see McKenzie v. Wooley, 39 La. Ann. 944; Reed v. His Creditors, 39 La. Ann. 115. In Mercier v. New Orleans, 42 La. Ann. 1135, it was held that a judgment for city taxes is not a money judgment, does not possess the attributes of an ordinary judgment, and is not covered by the prescription of judgment defined in the civil code. In Leeds v. Hardy, 43 La. Ann. S10, it was held that the securities for the payment of city taxes are prescriptible, though the tax itself is imprescriptible. |