Every evening, Wilmington daily commercial., 1922-03-11

last cited case. retained Jurisdiction
because in that case the allegation OF
illcgaifty in the A~ssssment against
the real estate OF complainant for
sidewalk improvements was not ap-
parent on tho record Of tho proceed
inEs, but II It existed, lay outside the
record In parol.
| "The only ground upon which II n
commended tho court may retain juris-
diction In tho pending Case II that the
tax in question In lien on real cs-
tate and being illegal constitutes n
cloud on tho complainent's title. As
Stunning tho tax to bo illcKrl. (the cor
RICHNESS OF which assumption l have
In tho flrst portion OF this opinion re-
jected) the question then L.: Is It a
Hen on real cstate7 II II In. then In
Wow on tho decision in Murphy v.
City OF Wilmington. supra. and Cats
v. Town Of Smyrna, supra, tho court
would have Jurisdiction, because the
alleged illcgality II tho tax Ia NOT np-
parent anywhere IN tho proceedings
authorizing II.
"Is. then. tho tax levied under Sec
ton "a OF the school law lien on
real cs.ate2 II is web settled tina,
taxes do not constitute lien on the
assessed property unless expressly
made 30 by siatute. In 70 Lord. &c.
Chemical Co, 7 Del. On. 24s, ~ Al
IT'S: Morrow V. Dows. rs N. j. Eq
sS9; Linn V. O'Neill. 90 ~ J. l.. 60:
Quimby v. Wood. 10 X. I. til: IS All
ia9; Tompkins " Little Rock. &c.
Co, rs Fed. 3ss: Cooley on Taxation
Gard ed SOS, citing cases
Nowhere IN any OF the provisions 81
the school Inw IL II provided that ths
taxes provided for by Section 81 ehaI
constitute n lien on tho property as.
sessed. Under tho authorities JUS
cited. tho tax In question ~ not a lier
on complainant's real estate.
''rhls Ia so unless there In forco In
the argument az tho solicitors for ths
complainant that by clear implica.
ton derived from other provisions ol
tho school law, the tax In question Il
made lien. Before stating tn
reasons advanced In support 81 thil
argument, II should be said that iient
for taxes nro not 20 he erected by pro.
SYMPTOMS. II the Legislature moan,
| ~ I'm w w ~ t'tts 81 WI fafttl
say go. II has frequently. said no with
respect 20 other taxes II 'fGS~docirin'
that the existence Of liens may b
gathered from inference and inpli
cation is 70 be accepted. then titles Z.
property are In danger OF being en-
veloped In doubt. Those who con
template purchh sing real estate woul'
negotiate IN fear and take title Wit
apprehension, for where liens ma
arise by construction and Inference
I there could not be that degree OF as
surance which Is essential in deal
o ings among men respecting the sal
, and transfer of real property. / q
r not say In no case can there DO
, lien created by necessary implication
There may be. But II so, 10 must DO
case where the implication Is so plat
= az 20 be tantamount 10 positive Ian
- guage. Certainly the presumptlo
should be- against the lien where II
n sought 10 establish It by inference.
Now. I'm the case before me. III
10 complainant argues that the tax
!. question Is made lien by necessar
!. inference. | cannot agree with u
contention. II Is said that tho act
Section 81 provides that in collectir
the said tax. ne Cthe collector) sha
proceed in the manner and have 9
the powers OF the collector OF coun
!, taxes County taxes are epecifical
, made a lien on real estate for "
years, and the collectors may proce'
against the real estate. Hence #
argued the school tax collector mi
= likewise enforce a lien against the a
a sessed real estate. II not. how C;
e, ne proceed in the manner and have
e the powers of the county tax coIlecto
IT 1.-THE county tax collector may sue {
II taxable, seek 10 make the tudgme
ST obtained out OF personal property
real estate generally held by the "a
is able, and in some cases attach I
OF body the t;s.ble. He may also G
IFS force the lien by proceeding TO sell
r. assessed land after complying w
lie. the provisions specially regulating Z
nd procedure. This being so. the clal
n. of the school law authorizing the C
s. lector OF school tax to proceed in
nd manner and have tho powers OF
as county tax collector. means this. q
on he is TO employ such remedies as ;
ty adequate TO the school tax situad
err II the school tax We're declared by
ID statute TO be lien on the asses.
Die property as is the case with !
I'M county tax. then the school tax c
he lector would 10y reason of the clal
on referred TO have the power similar
ire that OF county tax collector TO
dy force the lien. But there being
he such statutory lien for a school I
Did this particular power OF a county
ne collector has nothing under the sch
OF law upon which 10 operate.
Use II need not discuss this point Z
he Their 1t is very clear 10 me that
IN, argument advanced cannot serve
ors attach TO the school tax assessed
Ill feature OF lien.
he There being no lien created by
a law upon the lands OF the complain
eal for the tax in question. there can
a no question OF a cloud on his title.
or, ION both grounds urged by tho
ed PENDANTS. the motion 10 discharge
is rule should be granted, and the
not murrer should be sustained.
len Let an order DO prepared
ty. cordingly."
re-