The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1906-12-20

TAX LIEN
CASE DECIDED
SUPREME COURT GIVES OPINION
TODAY AGAINST w. c. ACHI AND
OTHERS IN TAX MATTER.

very important opinion was hand
ed down by the Supreme Court this
morning in the matter of the enforce
ment of tax liens by foreclosure in
equity. The case was that brought by
James L. Holt tax assessor VS. w. C.
Achi the Kapiolani Estate Ltd, the
German Savings and Loan Society of
San Francisco and James f. Morgan
trustee. The suit was a bill in equity
brought by the tax collector to enforce
J by foreclosure, a statutory lien for de-
linquent taxes of $2,945. SO for the year
1902 and $1,4OO for the year of 1908 on
certain lands of Achi The opinion
which was written by Associate Jus
tice Hartwell and concurred in by the
remainder of the court, is a very able
one and it win undoubtedly be much
quoted in mainland litigation of sim
liar character.
The lands in question were conveyed
to Achi by the Kapiolani Estate for
100000. He secured payment of the
purchase money, by a mortgage of the
property to the estate in February 1901.
Subsequently in May of the following
year the estate assigned this mortgage
to the German Savings and Loan So
ciety Achi mapped out the property
sold certain lots, the taxes on which
were not included in the present action
and then made a trust deed of the
property to Morgan. On December
1903 the plaintiff brought assumpsit
against Achi for the delinquent taxes
already mentioned, and obtained juds-
was issued January 49, 1904 and return
| ed February II, 1904, nulla bona. An
| alias execution, issued the same day,
was returned February 10, nulla bona.
| The defendants demurrers sustained
in the circuit court on the ground that
! the case was not one of equity jurisdic-
! ton and a decree was made dismiss
/ ing the bill. The plaintiff appealed to
! the Supreme Court.
The defendants raised the following
/ point that the statutory method of Sc
! curing payment of taxes by distress or
I personal property or by obtaining a
judgment in an action for the taxes
and taking out execution on the judg.
! ment is the only available procedure
that the tax lien, being legal and MOI
equitable, can be enforced i'm no way
which is not provided by statute anC
that in the absence of a statutory pro
cedure for it's enforcement equity can,
not afford relief without legislative au
thority therefor; that it is not judi
cial question whether the statutory pro.
, cedure for the collection of taxes is
| effective or not that being a subject
! of exclusively Legislative consideration
and that inadequacy of remedy, il
the sense that it fails to produce the
money to satisfy a claim, does not give
equity jurisdiction"
A large number of authorities were
cited in the appeal before the Supreme
Court and after giving all careful con
sideration the court decides that in
the absence of any statutory method
! of enforcing a tax lien It may be fore
| closed in equity
The decree appealed from is reversed
! and the case is remanded to the cir
! cult judge with leave for the defend
/ ants to plead or answer within ten
! days thereafter.
The attorneys were f. Andrade with
M. F. Prosser, deputy attorney general
on the brief, for plaintiff; A. Lewis Jr
| (Smith & Lewis) for the German Saw
ings and Loan Society and James f.
Morgan trustee, and c. w. Ashford
| for Achi and the Kapiolan Estate.