41 Vt. 1 | Vt. | 1868
The opinion of the court was delivered by
This is an action of trover brought against the defendant for two oxen taken, by him as collector of taxes for the town of Westminster, and sold by him for the payment of a tax assessed against the plaintiff by said town.
The principal question involved is whether a certain farm situated in said town, was properly set to the plaintiff in the. grand list of the town,in the year 1865. It appears that the-plaintiff was once the owner of .this, farm, and had been in the possession and occupation of it for a great many years prior to and including the year 1865. In 1857 the plaintiff executed a deed of the farm to his brother, under some arrangement, but what does not distinctly appear. The deed was not left for record until May, 1868. The plaintiff continuing in possession, the farm was set to him in the list every year, and he paid the taxes thereon without objection down to 1865. The main question that seems to have been litigated in the court below, was whether the circumstances and arrangement between the plaintiff and his. brother, were such as to constitute the conveyance a mortgage as between them, the deed being absolute upon its face. This question was submitted to the jury under satisfactory instructions, the. court at the same time holding that, if it was not a mortgage, then the land was wrongfully set in the list to the plaintiff, and h& was entitled to recover. The jury by returning a verdict for th& plaintiff have settled the question, that it was not a mortgage.
The defendant contends, that, conceding that the deed was absolute, and not a mortgage, still the land was properly set to the plaintiff in the list, he being the possessor thereof on the first day-of April, 1865.
By the ninth section of chapter 83 of the General Statutes, it is provided that “All read estate shall be assessed and set in the list, in the town where such real estate is situated, to the person who shall be the owner or' possessor thereof on the first day of' April in each year.” Under this section, we think, there can b& no question as to the right of the listers to set the land in the;
But it is said tbe law in this respect is changed by tbe act of 1863, and that, after that act went into operation, all estate both real and personal was required to be set in tbe list to tbe owner, tbe right to set it to tbe possessor being taken away.
Tbe first section of tbe act of 1863 is as follows: “Section two of chapter. 83 of tbe General Statutes shall be so construed as to require all real and personal estate to be set in tbe list to tbe last owner of said estate on tbe first day of April of each year.”
This act does not refer to section 9 of chapter 83 of tbe General Statutes; and section 2, referred to, says nothing on tbe subject of to whom tbe property shall be set in tbe list. It directs at what per cent, of tbe true value it shall be set in tbe list, and that its value shall be determined as of the first day of April of tbe year in which it is appraised. Still, so far as tbe act of 1863 is to be regarded as changing tbe law of tbe subject to which it relates, it must control both sections.
In what respect does tbe first section of tbe act of 1863 change tbe law ? and to what was it intended to apply ? This act by its. language manifestly was intended to apply only to that class of cases where tbe ownership of real estate changes on tbe first day of April. One man is tbe owner in tbe morning, and liable to have it set in tbe list to him ; in tbe course of tbe day be sells it, and then tbe purchaser becomes tbe owner on tbe first of April, and is liable to have it set to him. Tbe listers would be justified by tbe letter of tbe law, as it stood prior to tbe act of 1863, in setting it to each of them; and if they were to set it to but one, tliey might well doubt as to which of tbe two it ought to be set to. Tbe legislature by this act settled this doubt, by declaring that it should “ be set in tbe list to tbe last owner of said real estate on tbe first day of April of each yearand this, we think, is tbe only respect in which this section has changed tbe law, unless it be said that it should be so construed as to extend the same rule to possessors, when tbe possession is changed on tbe first day of April.
No question is made in this court as to the sufficiency of the warrant.
No question has been made as to the right of the plaintiff to maintain this action under the circumstances of this case, instead of proceeding against the listers or the town; and we have no occasion to consider that question. It is alluded to only for the purpose of excluding any inference that might otherwise be drawn in favor of the proceeding.
Judgment of the county court reversed, and the case remanded.
