Brown v. Dinsmoor

| Superior Court of New Hampshire | Sep 15, 1824

Richardson, C. J.

delivered the opinion of the court.

One question in this case depends upon the construction of the statute, entitled “ an act for taxing the lands and buildings of nonresidents,” which enacts, that “ the selectmen, “ &e., shall make out in writing under their hands, and deliv- “ er the same to the several collectors, on or before the 30th “ May, annually, a list of all such assessments, and insert “ therein the name of the owner, if known, otherwise the “name of the original proprietor, and the number of acres “ taxed, and the number of the lot and range ; and the proportion of each assessment to each lot, or tract, of land “ taxed, shall be set against said lot, or tract of land, in the “ list aforesaid ; and if any building of a nonresident shall be “taxed, the number of the lot, or oilier description of the “ land whereon it stands, shall be mentioned in said list. “ And if Ihe name of the owner and the original proprirtm “of any land he unknown, the quantity of land, the uumlie; “ of the range and lot, if Jolted, otherwise such descript ion u of tbe land taxed, as it is usually known by, being inserted “ in said list, shall be a sufficient description of said land.” If this clause in the statute has made it necessary to insert in the list, delivered to the collector, the number of the range and lot, or some other description of the land taxed, the title, under which this defendant claims to hold the land in dispute, must fail; for the list, he produces, is defective in this respect ; and no title, resting upon a sale by virtue of a public statute, can be legal, unless all the directions of the statute have been substantially pursued, 14 Mass. Rep. 177, Blossom vs. Cannon.—4 Crunch. 403, Stead’s executors vs. Course—18 John. 441, Jackson vs. Morse.

On the part of the defendant it is contended, that, w here the owner is known, the statute requires no description of the land taxed ; that it is only in cases, where the owner is unknown, that the number of the lot and range, or some description of the land, is required to be inserted. But the plaintiff contends, that not only the name of the owner, or original proprietor, if known, must be inserted, but also tbe number of acres taxed, and the number of the range and lot; and such is the language of the statute, that it may be construed either way ; and the question to be decided is, which is the true construction ?

It appears to us, that it was the intention of the legislature, that the number of the range and lot, or some description of the land taxed, should, in all cases, be inserted in the iisl delivered to the collector. There are several reasons, upon which we ground this opinion.

In the first place, it is fit and proper, that the non-resident should be able to ascertain, from the list itself, that the tax, which is set to him, has been assessed in fact upon his land, and not upon the land of another, lie seems entitled to know specifically for what he is taxed, and that there is no mistake. We should therefore expect to find in the statute some provision, requiring a description of the land taxed.

Another argument in favor of this construction is- this ; the statute requires the proportion of each assessment, to ea-ch lot, to be set against such lot in the list, which is in fact a requirement, that each lot shall be taxed severally. The oh-ject of this provision was to enable any person, who should become the owner of a lot, to pay the taxes, which might have been assessed upon it, and thereby prevent a sale of it: and the fifth section of the statute enacts, that if more than one person shall be interested in any lot, or tract of land, each one may pay his proportion of taxes, and the share of the delinquent only shall be sold. These provisions seem to us to indicate an intention in the legislature, that each lot should be liable to sale only for the taxes assessed upon it; and we have no doubt, such was the intention. It is obvious from the provisions of the statute, that the tax binds the land, whoever may become the owner. In a country, where the title to real estate passes from one to another as often as it does among us, it would be extremely inconvenient and mischievous to render one lot of land liable to be sold for tax* .es assessed upon another, merely because they happened to belong to the same person, when the tax was assessed. It is then important, that the list should contain a description of the land taxed, that the collector may know what land he is authorized to sell ; and that it may appear, that the land sold was the land, upon which the tax was assessed.

The statute requires the collector, previous to the sale, to publish in a newspaper, and post up in the town, where the the land lies, a notification, which shall contain the same description of the land taxed, as the act requires should be made in the lists, and also the time and place of sale. As one object of the notification must be to give notice to all, who may be disposed to purchase, some description of the land to be sold would seem to be useful, and not less useful, in this respect, when the owner was known, than when he was unknown.

Another argument, in favor of this construction, is the provision in the act, which expressly declines, that if any building of a non-resident shall be taxed, the number of the lot, or other description of the land, whereon it stands, shall be mentioned in said list. There does not seern to us to be any necessity of a description of the lot in this instance, which must not exist with equal force, when the lot itself is taxed.-

The provisions of former statutes seem to have some bearing on this question. The statute of March 16,1780, (1 N. H. Laws 520,) enacted, that there should be sent to the person appointed to receive the taxes at Exeter, “ a “ copy attested by the selectmen of the list of taxes,” &c., viz. “ the owner's name, where known, and where unknown, “ the name of the original proprietor, or owner, together “ with the number of the lots, quantity of land, and the several “ sums, at which the said land shall be assessed.” Nowin this clause it does not admit of a question, that the intention was, that the number of the lots and the quantity of land should be inserted, whether the owner was known, or unknown. They are coupled directly with the sums assessed, and stand in the same relation to the rest of the sentence ; and without the insertion of the sums assessed, the list would have been useless. A similar provision was inserted in the statute of June 11, 1784, sec. 5, (1 N. H. Laws 527,) and the statute of February 7. 1789, sec. 5, (1 N. H. Laws 536.)—And it sems to us, that if the legislature had intended to alter the law', in this respect, in the statute now under consideration, they w ould have used language much more explicit, and would not have left it doubtful, whether they had, or had not, effected their intention.

We are, therefore, of opinion, that the title upon which the defendant relies, is defective, because the list, delivered to the collector, contained no description whatever of the land taxed. It is, therefore, unnecessary to examine the other objections.

Another question, which this case presents for decision, is, whether the acts, done by the defendant, were an injury to the inheritance of the plaintiff. For if the plaintiff’s rever, sionary interest has not been injured, this action cannot be maintained. Cases of this description have not very frequently occurred ; but the principles, which have been laid down and established in relation to waste, afford a very satisfactory solution of this question.

W'aste is defined in the books to be “ a spoil or destruction “ in houses, gardens, trees, or other corporeal hereditaments, si to the disherison of him, that hath the remainder or rever-. ic sion in fee simple or feetail.” 2 Black. Com. 281.-3 ditto 224.—Comyn’s Digest. “ Waste” C 2,-Coke Litt 53, a.

Whatever act then can, under any circumstancfes, be deemed waste, must be an net injurious to the inheritance. But the converse of this proposition is not true. For many acts, done by a tenant in the common course of husbandry, would not be deemed waste, vHiieh. if done by a stranger, would be deemed injurious to the inheritance.

It is said, “ if a man fell trees, it is waste, and if he suffer “ the germins upon the roots of the trees to be again “ newly destroyed, the same is new waste.” Fitz-Herb. N. B. 59,—Comyn’s Digest “Waste” D 5.—Coke Litt. 53, a.

If the plaintiff’s tenant had cut the trees, which the defendant in this case took, and had sold them, there would be no doubt, that it would be waste. 2 N. H. Rep, 430, Elliot vs. Smith. We are, therefore, of opinion, that the cutting of the trees, mentioned in the declaration,must be deemed an injury to the inheritance, for which an action on thft case may be maintained.