81 Vt. 43 | Vt. | 1908
This is a bill in chancery to remove a cloud from the title of about one hundred and eight acres of land, part of lot No. 96 and the whole of lot No. 101 in the second and third divisions in Woodbury, Vt. The alleged cloud consists of a collector’s deed bearing date April 6, 1899. The deed is based upon an alleged vendue sale to the defendant on the 26th day of March, A. D. 1898, to satisfy a tax assessed against the orator for the sum of $18.50 and $1.71 costs of collection. It is not disputed but that the orator’s title to the land in question is perfect, if the defendant’s is void. The defendant claims that his title is valid and therefore is not a cloud upon the orator’s title, but is the title itself, and is superior to and destructive of the orator’s claimed title.
The .law is well settled in this State, that one who claims under a collector’s deed based upon a sale to satisfy a tax assessed upon the real estate sold, sustains the burden of proving the regularity of every antecedent act necessary to the validity of the tax, the levy, and sale. Hall v. Collins, 4 Vt. 316; Spear v. Ditty, 9 Vt. 282; Bellows v. Elliott, 12 Vt. 574; Sumner v. Sherman, 13 Vt. 612; Carpenter v. Sawyer, 17 Vt. 121; May v. Wright, 17 Vt. 97; Langdon v. Poor, 20 Vt. 13; Chandler v. Spear, 22 Vt. 388; Townsend v. Downer, 32 Vt. 183; Cummings v. Holt, 56 Vt. 384; Downer v. Farrell, 61 Vt. 530, 17 Atl. 482.
Numerous objections are raised by the orator to the validity of the defendant’s title, among which is the objection that no notice is shown to have been given by the collector to the orator of the time and place when and where he would be to receive the tax, before making the levy and sale; and the further objection that it does not appear in the master’s report that the collector sold no more real estate than was necessary to satisfy the tax and legal charges.
The orator was a nonresident at the time of the assessment, levy, and sale. The master reports that he is unable to find that the collector ever gave the orator any notice of the time and place when and where he would be to receive the tax; nor
We think that the notice should be given to a nonresident as well as to a resident, not only upon principle, but also upon a fair construction of section 504 V. S. The closing sentence of that section clearly points to the conclusion that may was used in the sense of must; for it declares: ‘ ‘ The time appointed for payment shall not be less than twenty days nor more than forty days from the time when the letter is deposited in the post-office.” It would be unreasonable to hold that the Legislature intended to give the collector discretionary power to give or withhold the notice and at the same time made it an imperative duty that such notice should not be less than twenty nor more than forty days from the time it was deposited in the post-office and the time fixed for payment. It is more reasonable to hold that the Legislature intended that notice must be given in the case of a nonresident as well as a resident, but that it permitted such notice to be given by letter in the manner marked out by the statute, in lieu of any other notice or excuse for giving notice, such as demand and absolute refusal to pay.
The burden of proving notice to a nonresident, we think, is cast upon the defendant to the same extent and with the same strictness as in the case of a resident taxpayer; and the defendant having failed to prove such notice, fails to make out his title to the land in question, and the decree below might be sustained upon this ground alone without noticing any of the other objections to the defendant’s title; but the other defect above mentioned, being equally serious, we have taken occasion to consider that also.
The right to sell real estate to satisfy a tax is wholly dependent upon the statute, 498, Y. S., and the right to sell is limited to the authority expressed. By that section the collector is authorized to sell only “so much of said land as is necessary to pay such unpaid taxes thereon with the costs.” If he sells more than is necessary for that purpose, he exceeds the power conferred upon him by the law, and such sale is therefore void. In the case at bar, the collector sold the entire 108 acres which
The absence in the master’s findings of these facts so essentially necessary to support the defendant’s claim of title, renders it unnecessary to consider the objections to the legality of the tax and other objections to the legality of the other proceedings of the collector; for the objections already considered show the defendant’s claimed title wholly void.
Decree below affirmed with costs and cause remanded.