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(100 Va 631)

PARTLOW ▼. LICKLITER. (Supreme Court of Appeals of Virginia. Nov.

20, 1902.)

APPEAL-REVIEW-EXECUTION-PROPERTY SUBJECT.

1. On appeal from a judgment rendered on trial of claim by third person to property levied on under execution, an order of a court issued in a chancery cause, the record of which was admitted in evidence, cannot be reviewed.

2. Code, § 2877, provides that, if any person transact business in his own name without any addition as "factor" or "agent," all the property and stock used in such business shall, as to his creditors, be liable for the debts of such person. Code, 2465, as amended by Acts 1899-1900, p. 89, provides for the recording of muniments of title valid between the parties, but void as to purchasers without notice. Held, that the stock of one doing business in his own name is liable for his debts, though the title of some other person to such property be of record, under Code, § 2465, as amended.

Error to hustings court of Staunton.

Action by Ella F. Lickliter against William F. Lickliter. Judgment for plaintiff. On levy of execution Fannie L. Partlow asserted title. Judgment for plaintiff in execution, and claimant brings error. Affirmed.

Patrick & Gordon, for plaintiff in error. S. D. Timberlake and J. M. Perry, for defendant in error.

WHITTLE, J. The salient points of this case are as follows:

On December 17, 1901, a writ of fieri facias came into the hands of the sergeant of the city of Staunton, issued upon a judgment confessed that day by William F. Lickliter in favor of Ella F. Lickliter in the hustings court of that city. The execution was levied on personal property in the possession and used in the business of William F. Lickliter, but to which Fannie L. Partlow asserted title by virtue of a bill of sale executed by William F. Lickliter to her, and recorded prior to the confession of judgment.

Upon the petition of the officer, and in accordance with the provisions of section 2999 of the Code, the parties were convened to the January term, 1902, of the hustings court for the determination of their conflicting rights and claims in respect to the property in controversy.

The trial of the case was had before a jury upon the following issues directed by the court:

"Whether or not, at the time the execution of Ella F. Lickliter against William F. Lickliter was levied upon the goods mentioned in the officer's return thereon, the said William F. Lickliter was transacting business as a trader, with the addition of the words 'factor,' 'agent,' and 'company' or 'Co.,' and failed to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house where such business was transacted, and also by notice published for two weeks in a news

paper printed in the city of Staunton; or if said William F. Lickliter transacted such business in his own name, without any such addition, and acquired or used said goods in said business.”

In the interval between the levy of the execution and trial of the issues above named Fannie L. Partlow obtained an injunction from the judge of the circuit court of Augusta county, certified to the hustings court of the city of Staunton, to which court the bill was addressed, enjoining William F. Lickliter from collecting certain accounts and notes mentioned in the bill, from negotiating the same, and from interfering with the property and business in question. The sergeant and Ella F. Lickliter were also enjoined from taking possession of the property or business.

The bill was not a bill of interpleader, but charged that the officer was threatening to interfere with and take possession of the business and property. All the defendants answered the bill, and upon notice the hustings court dissolved the injunction.

On the trial of the issues before the jury the record of the injunction proceedings was introduced in evidence, and was, in that aspect alone, incorporated by bill of exceptions into the record now before this court.

By their verdict the jury returned a negative response to the first inquiry submitted, but upon the second issue rendered the following verdict:

"We, the jury, find that William F. Lickliter did transact the business on Greenville avenue, in the city of Staunton, in his own name, as a trader, and was transacting such business in his own name at the time of the levy of the execution of Ella F. Lickliter, on the 17th day of December, 1901, and did acquire and use said property levied upon in said business."

There was a motion on behalf of Fannie L. Partlow to set aside the verdict as contrary to the law and evidence, which motion the court overruled, and rendered judgment upon the verdict in accordance with the provisions of section 2998 of the Code.

The case is here upon writ of error to that judgment.

It is also sought upon this record to review and reverse the order of the hustings court dissolving the injunction in the chancery cause. To that end there is a separate petition, upon which an appeal was granted by one of the judges of this court.

Of that branch of the case it is sufficient to observe that the record certified by the clerk of the lower court does not purport to be the record of the chancery cause in which the appeal is pending, but the record of the law case in which the chancery proceedings were interpolated as part of the evidence.

This attempt to review or attack collaterally the order of a court in a cause, the record of which is only before this court as evidence in another case, is not permissible.

Spotts v. Com., 85 Va. 531, 536, 8 S. E. 375; Powers v. Iron Co. (Va.) 41 S. E. 867, 869.

The appeal in the chancery cause must, therefore, be dismissed, as having been improvidently allowed.

The issues referred to were regularly submitted to the jury upon correct instructions, the verdict is sustained by the evidence, and there was no error in the refusal of the lower court to set aside the verdict.

The remaining question for decision is whether the second paragraph of section 2877 of the Code applies to a case in which the title of the owner of the property levied on is evidenced by a recorded bill of sale. The language of the provision is: "Or if any person transact such business in his own name, without any such addition, all the property, stock, and choses in action acquired or used in such business shall, as to the creditors of any such person, be liable for the debts of such person."

It is insisted that, if the statute be held applicable to such case, it is in conflict with section 2465, amended, p. 89, Acts 1899-1900.

That section occurs in chapter 109 of the Code, the registry statute,-which provides for the recordation of muniments of title in general, and of sundry other transactions affecting the title to property, valid between the parties, but declared to be void as to purchasers for valuable consideration, without notice, and creditors, until and except from the time that they are duly admitted to record.

Section 2877 falls in a different category. It is found in an independent chapter, which deals with a restricted class,-partners, partnership associations, factors, agents, and traders, and was passed in the interest of trade and commerce. It operates chiefly upon shifting stocks of goods, wares, and merchandise bought for the express purpose of daily indiscriminate sale, and constantly changing hands; property difficult of accurate description, and impossible of continued identification through the medium of the registry laws. To undertake to apply those laws to that class of citizens and to that species of property, if their enforcement were practicable, would operate as an embargo on trade.

Other mischiefs and inconveniences intended to be prevented by the statute are pointed out in the recent cases of Hoge v. Turner, 96 Va. 624, 32 S. E. 291, and Edmunds v. Plano Co., 97 Va. 588, 34 S. E. 472, in which section 2877 is construed. On the other hand, the section affords the true owner simple and effectual means of protecting his property (provisions which would be quite unnecessary if he is already protected by recording his title).

In the case of Hoge v. Turner, in discussIng the subject of ownership, the court said: "The language of the statute is plain, explicit, and imperative. It leaves no room for exception or qualification. If any person, as

is alleged in this case, transact business as a trader in his own name with the addition of the word 'agent,' or in his own name without such addition, and fail to comply with the provisions of the statute, it makes all the property, stock, and choses in action acquired or used in such business absolutely liable for his debts, whether contracted in the particular business or not, and without regard to knowledge by the creditor of the principal, if principal there be. Knowledge or want of knowledge plays no part in the application of the statute. That is an immaterial matter."

The conclusion from that statement of the law is irresistible that knowledge or notice of ownership, actual or constructive, will not exempt the property from liability for debts of the party in possession and conducting the business. To hold otherwise would be to ingraft upon the statute an exception not warranted by the language, and tend to defeat its manifest object.

The case of Edmunds v. Piano Co. is relied on to sustain the contrary view, but the decision is not susceptible of that construction. It is true, in describing the status of some of the property involved in that litigation, the fact is adverted to that it was consigned to the Hobbie Piano Company for sale under written contracts which were not recorded. But the liability of the property for the debts of the defendant company was not placed upon that ground, nor was the language there employed intended to overrule or modify the doctrine announced in the previous case in that particular.

It follows from the foregoing views that there is no error in the judgment complained of, and it must be affirmed.

(100 Va. 591)

STEVENSON v. HENKLE. (Supreme Court of Appeals of Virginia, Nov. 20, 1902.)

TAXATION-ASSESSMENT-MISTAKE IN NAMEEFFECT ON TAX-SALE OWNERS-APPEAL. 1. An assessment to the "Basic City Chilled & Roller Iron Works Co.," while the name of the owner at the time was the "Basic City Chilled Roll & Iron Works," was not insufficient, so as to nullify all subsequent proceedings, where, as a matter of fact, it was shown that the true owner had full knowledge of all the proceedings culminating in the tax deed to the property, and intended to redeem the property, and there was no other company with a like name, or one at all similar, doing business or owning property in the county, and it was further shown that the property had been assessed in the same manuer before, and the taxes paid by the owner.

2. Under Code, § 459, providing that the clerk of every county or corporation court shall make out a list of deeds, giving the names of the grantors and grantees, except mortgages and deeds of trust, which lists are to be sent to the commissioners for their counties in assessing property, realty should be assessed in name of owner, and not of trustee.

3. Only such alleged errors as are involved in the record, and have been considered by the lower court, can be reviewed on appeal.

4. Code, § 661, providing that a right acquired on tax sale shall stand in the grantee in a tax deed as it was vested in the party assessed for the taxes, refers to the character of the title in the grantee in such deed, whether in fee simple or otherwise, and does not provide that the purchaser shall take the land subject to the lieus resting thereon at the time the taxes were assessed.

Appeal from circuit court, Augusta county. Suit by one Stevenson against F. L. Henkle. Decree for defendant, and plaintiff appeals. Affirmed.

J., J. L. & R. Baumgardner, for appellant. Elder & Elder and J. M. Perry, for appellee.

HARRISON, J. By deed dated November 5, 1895, the Basic City Chilled Roll & Iron Works, a corporation created by the laws of Virginia, became the owner of the property involved in this controversy, consisting of about four acres of land, and improvements thereon, situated at Basic City, Va.

On the 5th day of December, 1895, that company eonveyed the property to the Central Trust Company of Camden, N. J., in trust to secure 100 bonds, of $1,000 each. This deed of trust was recorded in the county court clerk's office of Augusta county.

Under the head of "Table of Town Lots in the Town of Basic City, in the County of Augusta, in South River Magisterial District," this property was assessed for taxation in the name of "Basic City Chilled & Roller Iron Works Co." The taxes for 1897 being delinquent, it was listed for the nonpayment of taxes in the same name in which it was assessed, and advertised in that name for sale by the treasurer of Augusta county. At the sale, on the 26th day of December, 1898, between the hours of 10 in the morning and 4 in the afternoon, the property was knocked out at public auction to F. L. Henkle for the sum of $62.74; that being the amount

Iron Works was informed of the tax sale, and determined, in accordance with its duty in the premises, to redeem the property, and that in pursuance of this purpose the attorney and agent of the company agreed with Henkle, the purchaser, that he should be paid $76.08,-an amount somewhat in excess of the sum to which he would be entitled under the statute,-and that in consideration thereof Henkle would cancel and surrender all rights acquired by him as purchaser at the tax sale; that, in accordance with this agreement, a tender of the sum agreed upon was made to Henkle, who refused to accept it; that Henkle should be required to accept the $76.08, which had been kept intact, and carry out his agreement, by releasing and surrendering his rights under the tax-title deed.

In his answer the appellee, Henkle, broadly and emphatically denies that he ever made the alleged agreement, or that such a proposition was ever at any time made to him. There is no evidence in the record tending to support this allegation. On the contrary, it seems to have been abandoned both here and in the court below.

The second ground of objection to the deed alleged in the bill rests upon the proposition that in the assessment of this property there was an error in the name of its corporate owner; that the name of the owner at the time of assessment was "Basic City Chilled Roll & Iron Works," while the assessment was to the "Basic City Chilled & Roller Iron Works Co." On account of this variance in name, it is further alleged that the appellee only acquired such estate as was vested in the person assessed with the taxes, and that as the taxes were assessed against the "Basic City Chilled & Roller Iron Works Co.," and the property sold as the property of that company, there passed to Henkle, as the re

due the treasurer thereon. On the 5th daysult of such assessment and sale, only such of February, 1901, after the period allowed for redemption had expired, the purchaser at the tax sale obtained from the clerk of the county court a deed of conveyance, and had the same duly recorded. It appears from this deed, regular on its face, that all formalities preceding its execution, required by law, had been complied with.

The appellant, who is a lien creditor of the Basic City Chilled Roli & Iron Works, secured by and claiming under the deed of trust already mentioned, instituted this suit in March, 1901, to have the tax-title deed to the appellee, F. L. Henkle, declared void, upon certain grounds set forth in the bill, and, if the deed should be held valid, then to have the lien of the trust deed under which appellant claims declared prior in dignity to the lien of the taxes for the enforcement of which the sale resulting in the tax title deed was made. The bill assails the deed under which appellee claims upon the groundFirst, that, prior to the close of the redemption period, the Basic City Chilled Roll & 42 S.E.-43

property as was vested in a corporation or partnership of that name, and as no corporation or partnership bearing the name of "Basic City Chilled & Roller Iron Works Co." existed, having any interest in or right to the property in question, no right or title passed by virtue of the tax-title deed to the appellee.

In the petition for appeal it is further contended that this error in the name of the company constitutes a material irregularity, that nullifies all subsequent proceedings; that it was, in effect, a failure to give notice to the true owner of the land of its assessment for taxation, its return as delinquent, its advertisement for sale, its sale, and the successive steps leading to the execution, delivery, and recordation of the deed to appellee.

The authorities generally hold that, if a mistake in name is not calculated to mislead, it is immaterial and will be disregarded. The underlying principle in such cases is that a person whose property is liable to assessment for taxes shall not be permitted to

evade payment of his just proportion of the public burden by any errors, omissions, or irregularities that do not prejudice his rights. Westhampton v. Searle, 127 Mass. 502; Lyle v. Jacques, 101 Ill. 645; State v. Mathews, 40 N. J. Law, 269; Thorndike v. Inhabitants of Camden, 82 Me. 39, 19 Atl. 95, 7 L. R. A. 463; State v. Diamond Val. Live Stock & Land Co., 21 Nev. 86, 25 Pac. 448; O'Neal v. Bridge Co., 18 Md. 1, 79 Am. Dec. 669. In the case at bar the assessment reads, "Basic City Chilled & Roller Iron Works Co.," instead of "Basic City Chilled Roll & Iron Works." This variation in the name in which the property is assessed, from the exact style of the company, is too slight to have possibly misled the Basic City Chilled Roll & Iron Works to its prejudice; and, as a matter of fact, it is abundantly shown that it did not do so. There is no evidence tending to show that the purchaser at the tax sale was guilty of any fraud, concealment, or wrongdoing. It is not pretended that the taxes for which the property was sold were not chargeable thereon, or that they had been paid.

The contention is that because the owner of the property is described in the assessment, advertisement, and sale as the "Basic City Chilled Roller & Iron Works Co.," instead of "Basic City Chilled Roll & Iron Works," all proceedings culminating in the deed to appellee are a nullity. That the Basic City Chilled Roll & Iron Works had full notice of these proceedings is not denied. Indeed, it is admitted in the bill that appellant knew of the sale for taxes, and intended to redeem the property. The record shows that there was no other company with like name, or one at all similar, that was doing business or owning property in Basic City or Augusta county. It further shows that the property had before 1897 been assessed in the same manner that it was for 1897, and the taxes paid by the owner. It further appears that, prior to the return of the property as delinquent for the nonpayment of taxes, the treasurer of the county called the attention of D. K. Joslin, who was the president, treasurer, and one of the directors of the company to which the property belonged, to the fact that the taxes for 1897 were past due and unpaid, and that unless they were paid the property would be returned delinquent. It further appears that the property was duly advertised for sale, and that, in addition to the usual advertisement, the treasurer mailed a copy of the advertisement to D. K. Joslin, and received a letter from Joslin, dated February 4, 1899, in which he says: "I have not as yet heard from you as I expected, but hope that you stopped the sale. Please send me statement of taxes due on properties at Basic City, known as 'Match Factory,' 'Chilled Roll Works,' and 'Paper Fabriqui,' as my intention is to see that all these taxes are paid at an early date." The treasurer savs

he is sure that in reply to this letter he told Joslin that the "Chilled Roll Works" had been sold as advertised, and that from time to time afterwards he called his attention to the fact that the property had been sold, and suggested that he redeem it. А сору of the advertisement is in the record, and its sufficiency to give the Basic City Chilled Roll & Iron Works full notice of every fact material to be known by it in connection with the sale is plain. Besides, as already seen, it is clear that Joslin, president, treasurer, and director of the company, actually knew that the property was to be sold, knew a few weeks after the sale that the property had been sold, and promised to pay the taxes at an early day. Under such circumstances, it cannot be successfully maintained that the Basic City Chilled Roll & Iron Works was misled or prejudiced by the slight and immaterial change of its corporate name by the officers of the law in their efforts to enforce the collection of the public revenue. The appellant, realizing this, makes the further contention in his petition that the legal title to this property was in the Central Trust Company, and the beneficial ownership in the creditors secured by the deed of December 5, 1895; that the Basic City Chilled Roll & Iron Works only owned an equity of redemption; and that the property should have been assessed. in the name of the trustee, or the beneficiaries under the trust deed, or both, in such manner as to give them notice of the delinquency, advertisement, and sale. This contention is without merit. No such mode of assessing property is known to our law. On the contrary, section 459 of the Code provides that the clerk of every county or corporation court shall annually make out a list of all deeds for the partition and conveyance of land, giving the names of the grantors and grantees, except deeds of trust and mortgages to secure the payment of debts. These lists are sent to the auditor of public ac counts, and delivered by the clerk to the commissioners for their guidance in assessing property. The other sections of the Code are in harmony with section 459, and exclude, by implication, the idea that property must be assessed in the name of the trustee in a deed of trust to secure debts, or in the names of those secured in such deed. The transfer to the trustee was not made for the purposes of taxation, but the taxes were, after the trust deed, as before, assessed properly in the name of the grantor in the trust deed.

Other grounds of objection to the proceedings culminating in the tax title, and under which the appellee claims, are assigned in the petition and urged in argument, but they need not be considered, for two reasons: First. They are outside of the case made by the pleadings, and there is nothing in the record to show that they were ever brought to the attention of the court below. We can only consider such alleged errors as are in

volved in the record, and have been considered and passed on by the lower court. Union Bank v. City of Richmond, 94 Va. 316, 26 S. E. 821. Second. Even if these objections were within the case made by the pleadings, they could not avail appellant, under the express language of the statute (Code, § 661, as amended by Acts 1899-1900, p. 1234). Thomas v. Jones, 94 Va. 756, 27 S. E. 813; Coal Co. v. Thomas, 97 Va. 527, 34 S. E. 486. These two decisions are controlling authority in this case for the conclusion that no valid objection has been shown to the deed in question, or to the proceedings which led to its execution.

The only remaining contention involves the order of priority between the tax lien and the lien of appellant under the deed of trust.

It is well established that the tax lien has priority, and that a tax sale is made clear of prior incumbrances. Simmons v. Lyle's Adm'r, 32 Grat. 752; Com. v. Ashlin's Adm'r, 95 Va. 145, 28 S. E. 177; Thomas Jones, supra. These cases hold that the tax is prior in dignity to judgment liens and to the vendor's lien. There is no distinction in principle between the cases. For the same reason that the tax is held to be prior in dignity to a judgment lien and a vendor's lien, it must be paramount to a deed of trust lien. Indeed, it is said in Thomas v. Jones, supra, that taxes are prior in dignity to all other lens,-must be so from the very necessity of the case; otherwise the state would be powerless to collect her revenue. The liens upon the land would, as in the case at bar, often be greater than the value of the land, and, the tax lien being inferior, the land would escape all taxation. The provision in section 661 of the Code that "the right or title to such estate shall stand vested in the grantee in such deed as it was vested in the party assessed with the taxes or levies on account whereof the sale was made," refers to the character of the title that shall be vested in the grantee in such deed, whether it be a fee simple or otherwise. It has no reference to liens, and does not mean, as contended, that the purchaser takes the land subject to the liens resting thereon at the time the taxes were assessed.

For these reasons, we are of opinion that there is no error in the decree complained of, and it must be affirmed.

(100 Va. 702)

VALLEY TURNPIKE CO. v. MOORE. SAME v. STRICKLER. (Supreme Court of Appeals of Virginia. Nov. 20, 1902.)

JUSTICE OF THE PEACE-APPEAL-JURISDIC

TION-MANDAMUS.

1. Under Code Va. § 2956, an appeal from an order of a justice is in the first instance to the county or corporation court of the county, except in a case involving the constitutionality of the ordinance or by-law of a corporation, when

the appeal is cognizable by the circuit court having jurisdiction over such county or corporation. Held, that a litigant claiming a right to appeal from a judgment of the justice to the circuit court must make it appear that the case comes within the exception of the statute, in which case the appeal lies directly to the circuit court, and not through the county court.

2. Where an appeal from a justice, which should have been taken to the circuit court, was taken to the county court, the county court had no jurisdiction to order its removal to the circuit court, but could only either dismiss the appeal or remand the case to the justice.

3. Where the primary object of the litigation is to enforce the collection of money demands for an amount below the jurisdiction of the supreme court, the burden is on appellants to show some other ground of jurisdiction.

4. An order of the county court dismissing an appeal from a justice for lack of jurisdiction is not a final order from which an appeal will lie.

5. On dismissal by the county court of an appeal from a justice, mandamus is the proper remedy to compel the court to proceed to the conclusion.

Error to circuit court, Augusta county.

Action by the Valley Turnpike Company against one Moore and by the same plaintiff against one Strickler. Judgments before a justice for plaintiff, and defendants appeal to the county court. The case is removed to the circuit court, and from an order remanding the cases to the county court, plaintiff brings error. Dismissed.

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WHITTLE, J. These cases, involving cognate questions, were, by agreement of counsel, heard together.

Both originated in warrants issued by a Justice of the peace on behalf of the Valley Turnpike Company to recover of the defendants certain tolls alleged to be due by them, respectively, for the use of the company's turnpike.

In the first-named case judgment was rendered for the plaintiff for the full amount of its account, $10.57, with interest and costs, and on the application of the defendant an appeal was allowed to the county court. After the case reached that court, the attorney for the company made affidavit that he verily believed the constitutionality of an ordinance or by-law of the company, a corporation, was involved, in that the case involved the right of the company to collect the tolls ordained by its duly constituted authorities as proper and legal tolls, by it under the law entitled to be received from the defendant for and on account of the travel set out and described in the account sued on. Whereupon the county court, on motion of the company, and over the objection of the defendant, entered an order removing the case to the circuit court.

In the second-named case, the warrant, which was for $14.63, was tried by a dif

4. See Mandamus, vol. 33, Cent. Dig. § 74.

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