
    Keeler and others vs. Chicester.
    NEW YORK,
    May, 1835.
    A school district collector, like a town collector of taxes, may levy the same upon any goods and chattels lawfully in the possession of the person liable to pay the tax, although such person be not the owner of such goods and chattels.
    The authority to make suchlevy extends not only to the collection of taxes for erecting or repairing school houses, but to all taxes which may be imposed by the trustees of a school district.
    Error from the Monroe common pleas. Keeler and two other persons brought in a suit against Chicester in a justice’s court, and declared against him in trespass for taking and carrying away a cutter or one horse sleigh. On the trial, it appeared that Chicester, as a deputy sheriff, by virtue of an execution against one Henry Lyon, on the 9th day of March, 1832, levied on the cutter and left it in the possession of Lyon. The execution was returnable on the first Monday of May, succeeding the levy. On the twelfth day of May, the cutter still remaining in thepossessionof Lyon,it was levied up- > on by a collector of a school district, for a school district tax imposed upon Lyon, by virtue of a warrant issued by the. trustees of such district, and subsequently sold by the collector and bought in by the plaintiffs as trustees of such district, and possession taken thereof. In December following, the defendant sold the cutter under the levy made by him in March, and delivered possession thereof to the purchaser— one S. Gates. Whereupon the plaintiffs brought their suit. The justice rendered judgment for the plaintiffs. The common pleas of Monroe reversed the justice’s judgment, and the plaintiffs sued out their writ of error.
    
      A. Pratt, for plaintiffs.
    
      A. W. Stow, for defendant.
   By the Court,

Savage, Ch. J.

If this was an ordinary conflict between two officers, the defendant would undoubtedly have the superior right, as the execution was issued and levied before the levy by the collector,and there was no such delay as to make the execution dormant. Whether the execution was dormant or not is considered by the defendant’s counsel the only question in the case, and may therefore have been the only quest’on agitated in the common pleas; if so, they decided that point correctly. But there is another, and an important question, upon which there does not appear to be,any adjudged case ; and that is, whether the collector of the school tax was not justified in taking the property of any person lawfully in the possession of the person liable to pay the tax.

The general act respecting the collection of taxes, declares that, “ In case any person shall refuse or neglect to pay the tax imposed on him, the collector shall levy the same by distress and sale of thegoodsand chattelsof the person who ought to pay the same, or of any goods and chattels in his possession, wheresoever the same may be found, within the district of the collector; and no claim of property, to be made thereto by any other person, shall be available to prevent a sale.” 1 R. S. 397, § 2. “ No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this state.” 2 R. S. 522, § 4. The collector shall give public notice of the time and place of sale, and the sale shall be by public auction.” 1 R. S. 398, § 3. If the property shall be sold for more than the amount of the tax, the surplus shall be returned to the person in whose possession the property was, if no claim be made by any other person. If the surplus be claimed by another person, on the ground of being owner, and such claim is admitted by the person for whose tax the property was sold, the surplus shall be paid to such owner; but if the claim is contested, the surplus shall be paid to the supervisor of the town, to be paid by him to the person who shall be adjudge owner by due course of law. 1 R. S. 398, § 4. 2 id. 555, § 28, 29. The principle of these provisions is found in the revised laws and previous statutes, 1 R. L. 95, § 12, 2 id. 512, § 9, with the exception that by them the overplus was always paid to the person chargeable with the tax. In both the principle is distinctly recognized, that any property found in the possession of a person liable to pay the tax, may be taken and applied to the payment of such tax. In the revised statutes relating to common schools, the authority given to the collector is not so full. The 88th §, 1 R. S. 484,directs the collector, in case any inhabitant shall not pay such sum (his tax) on demand, to levy the same of his goods and chattels, in the same manner as on executions issued by a justice of the peace, &c. This section relates to any tax-list or rate-bill issued by the trustees of the district. The words, “ in the same manner as on executions” are probably intended to regulate the mere manner, that is, as to the notice necessary, and the manner of sale at public auction ; but this section, of itself, would not justify the taking the property of a person other than the person charged with the tax. The legislature, in 1831, have amended this section, Statutes, 1831, p. 248, § 2, as follows : “ The warrant annexed to any tax-list, for the collection of district tax for erecting or repairing any school house, shall command the collector, in case any person named in such list shall not pay the sum set opposite to his name on demand,to levy the same of his goods and chattels, in the same manner as on warrants issued by the board of supervii sors to the collectors of towns ; and such part of the 88th section of article five of the aforesaid title as is repugnant thereto is hereby repealed.” This section speaks of a tax for erecting or repairing a school house; but I apprehend it will operate upon all taxes imposed by the trustees. The previous section, for instance, which relates to taxes for the payment of the wages of the teachers, p. 481, § 75, sub. 8, 14, directs the collector to execute the same, in like manner with other warrants directed to him. Now, the 88th section, before referred to, is the only one which prescribes the manner of the execution of the warrant; and the act of 1831,1 think, should be so construed as to extend to alltaxesimposedbythetrustees There is no reason for any distinction; and the legislature spoke of one species of taxes probably by way of description of the section they intended to alter, as taxes for building and repairing are much the most important taxes imposed in school districts. An equitable construction will certainly extend the amendment to all taxes collected by collectors of districts. What the tax was imposed for, in the present instance, does not appear. But whatever was the object of the tax, I think it was to be collected in the same manner, and the collector of the school district was clothed with the same powers, as the collectors of towns in collecting town and county taxes. If I am right in this opinion, then the sale to the plaintiffs by the collector of school district was valid. The cutter was Lyon’s ; he was the general owner. The levy by the deputy sheriff gave the sheriff a special property; but had the property been changed entirely, by a sale by the sheriff, that would have made no difference. The fact that the cutter was found in the possession of Lyon, subjected it to the payment of taxes which Lyon was bound to pay. The plaintiffs was therefore entitled to recover. The justice’s judgment was right, and the judgment of the common pleas, reversing it, should be reversed.

Judgment reversed.  