160 A. 475 | N.H. | 1932
This action is brought against a tax collector and the vendees who bought personal property sold by him upon a distraint for taxes. The regularity of the sale is not seriously questioned, and the property sold was owned by the person taxed. A tax collector is not liable "for any cause whatever except his own official misconduct." P. L., c. 66, s. 40. It follows that there should be judgment in his favor. Osgood v. Welch,
As to the purchasers at the sale, different questions are presented. It has been the law here for many years that in a contest over the title to real estate sold to perfect a tax lien thereon the validity of the tax is open to inquiry. Glynn v. Maxfield,
The same procedure has been followed where there has been a distraint upon personal property. While no case of this nature has been found wherein the assessment was adjudged to be invalid and the distraint avoidable, there are numerous instances where the question has been investigated upon the assumption of the existence of a right to litigate it. Johnson v. Dole,
It may be that neither in the case of a sale of real estate nor of a distraint upon personal property has there been a logical observance of the rule that a tax assessment is a judgment not subject to collateral attack. But the procedure is of long standing, and is largely based upon statutes which have been reenacted many times. It works out the substantial justice which the statute (P. L., c. 66, s. 39) declares to be the test of right in these proceedings.
In this action to recover the value of property distrained for the payment of a tax, the plaintiff is entitled to challenge the validity of the tax for the purpose of impeaching the title of the purchasers at the collector's sale.
"Taxes cannot be assessed except by authority of the legislature." Boston Maine Railroad v. Concord,
The only statutory provision claimed to authorize the tax here in question is that found in section 6, chapter 60 of the Public Laws. "Buildings, mills, machinery, wharves, ferries, toll-bridges . . . are taxable as real estate." The statute was amended to read as above by Laws 1917, chapter 6. Before that time it read: "Buildings, mills, carding machines, factory buildings and machinery," etc. P. S., c. 55, s. 3. Just what the purpose of this amendment was may not be entirely clear. The provision as to carding machines was probably repealed as obsolete, and apparently the remainder of the deletion was designed to make it plain that the owner of a mill which it might be argued would not be classed as a factory could not escape taxation as to its machinery. But whatever the object was, the fact that the designated subjects were to be "taxable as real estate" is satisfactory evidence that there was no purpose to tax machines which were not attached to the realty or used in connection therewith.
The only case in our reports which could be thought to bear upon the question now raised is Dresser v. Hopkinton,
The sale being subject to avoidance upon the ground that the property was not subject to taxation, the plaintiff is to have such relief as justice requires. P. L., c. 66, s. 39. The original act (Laws 1895, c. 64) limiting the risk of failure of title which theretofore had been *486
taken by the purchaser at a tax sale (Perham v. Company,
The question, what justice requires, is for the superior court to decide, subject to the limitation that the conclusion reached must be based upon sufficient evidence. The facts now presented show that the plaintiff had a plain remedy by petition for the abatement of the tax. He neglected to take this, and the collector had no option in the matter of proceeding to collect; and the tax has been paid to the town. The defendants bought at a regularly conducted sale by a public officer, who was undertaking to collect a tax, from the laying of which no appeal had been taken or abatement asked. Whether, if the purchasers had bought knowing that the collector had no right to sell, or if, upon tender, their refusal to deliver went beyond reasonable delay to ascertain their rights (Hett v. Railroad,
Case discharged.
All concurred. *487