57 N.H. 556 | N.H. | 1876
Lead Opinion
FROM COOS SUPREME JUDICIAL COURT.
This case, though coming before us on a motion to set aside the verdict of the jury, on the trial on review, is really to be considered and decided as if the original case, reported in
The case finds that no notice of the sale of the land in question was posted in the Location; that for two or three years *569 prior and up to the time of the sale there had been six families residing in the easterly part of the Location, in small, ordinary dwelling-houses; that each of said settlers occupied a small farm or clearing where his dwelling-house was located; and that there was no place except dwelling-houses at which a notice of sale might have been posted.
The defendant requested the court to instruct the jury that inasmuch as it appears that there was a settlement in Wentworth's Location, consisting of several families of inhabitants residing in the Location in October, November, and December, 1849, and January, 1850, it was necessary that the sheriff of the county of Coos should have posted a notice of the sale in question in some public place in the Location. The defendant also claimed that on the evidence of the plaintiffs it appeared that in 1849 there were several places in Wentworth's Location so public that an advertisement, if posted in any one of them, would have been seen by many persons, and especially by the residents of the place; he therefore requested the court to order a verdict for the defendants. Both of these requests should have been granted.
The plaintiffs claim under a tax-title derived from Charles Bellows, father of the female plaintiff, who was the sheriff of the county of Coos, and acting collector of taxes in Wentworth's Location. The sale was made in January, 1850. The statute then in force required the collector to "post an advertisement or notice of the sale in some public place in the town or place where the lands to be sold were situated, for eight weeks before the sale." Comp. Stats. 128, 131.
This, the case finds, was not done. It is well settled, by repeated decisions of all the courts of this country, that the power of a collector to sell lands for the non-payment of taxes is a naked power, not coupled with an interest; and in all such cases the law requires that every prerequisite to the exercise of the power must precede its exercise; — that the agent must pursue the power, or his act will not be sustained. Parker v. Rules, Lessee, 4 Wheat. 77; Lyon v. Hunt,
In Spear v. Ditty,
"When the statute, under which the sale is made, directs a thing to be done, or prescribes the form, time, and manner of doing anything, such thing must be done in the form, time, and *570
manner prescribed, or the title is invalid; and in this respect the statute must be strictly, if not literally, complied with. Chandler v. Spear,
"Trace it ever so far, and through ever so many hands, whoever sets up a tax title must show that he has complied with all the requirements of the statute, unless, indeed, the former owner were the purchaser. It is a cardinal principle, that a man shall not be divested of his interest in his property but by his own acts, or the operation of law, and where proceedings are instituted to change the title to real estate by operation of law, the requirements of the law, under which the proceedings are had, must be strictly complied with." Jackson v. Estey, 7 Wend. 148, 151; Cook v. Shepard, 7 Cow. 88.
In Russell v. Dyer,
Many more authorities in support of this position might be cited, but it is not necessary. It is founded so firmly upon principles of equity and natural justice, as not to admit of reasonable doubt.
Again: it is a maxim of the law, that notice is of the essence of things to be done.
It is a fundamental rule, that in judicial or quasi judicial proceedings, affecting the rights of the citizen, he shall have notice and an opportunity to be heard before the rendition of any judgment, decree, or order against him; — in other words, he must be warned, and have his day in court. If such is the law of notice in judicial proceedings, it applies with much greater force to the exercise of ministerial power, where the act is not only summary but the notice is merely constructive, where the proceeding is in the nature of a judgment, and terminates in the divestiture of the title to real estate. Blackwell on Tax Titles 214.
In Russell v. Dyer,
In Neale v. Fenwick, 4 Rand. 585, 591, the court quote with approbation from the opinion of MARSHALL, C. J., in Williams v. Peyton, 4 Wheat. 77, and say it was contended in the argument *571 that no advertisement of the sale was required by the law; that the law should direct a public sale of property without notice to be given, would be a perfect anomaly, and would lead to consequences so mischievous that we could not without the strongest reason be justified in imputing such a course to the legislature, especially where a man's highest estate — his land — was to be forfeited and lost to him by the summary process of distress and sale for the non-payment of taxes."
In that case, the law of 1782, amending and reducing into one the several acts for ascertaining taxes, c., did not contain the provision for notice contained in the act of 1781.
In DeLogney v. Smith,
In Reaves v. Kershaw, 4 Martin 513, the court held, that, although there is no law prescribing the way in which constables shall give notice of sales, or whether they are bound to give any notice, they are nevertheless bound to give the same notice as sheriffs upon the sale of property.
Again: it is said that collectors have no power to sell land except in pursuance of the provisions contained in the statute, and can only sell in the precise cases in which it has been so authorized. Brown v. Veazie,
It would seem, then, upon general principles and upon authority, that a sale of land by a collector of taxes, without notice and without a strict and literal compliance with all those provisions of the statute for the protection of the citizen, is invalid.
How is it attempted to excuse this want of the notice, which the statute peremptorily requires? By asserting that the jury, under proper instructions, have found that there was no public place in the Location, consequently the law could not be complied with and the notice required by law could not be given, and the maxim "Lex non cogit ad impossibilia" is invoked to sustain this position.
It is further said, that this is not now an open question in this state, however it may be elsewhere; that this court have decided many times, that where there is no public place, notice is not necessary, and need not be posted in the town or place where the lands to be sold are situated.
Let us examine these positions.
There was, on the trial, no dispute about the following facts: There were six hours occupied by settlers, each having a small farm which he occupied. It is the province of the jury to balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from facts proved. *572 Here there was no evidence to be weighed, no probabilities to be balanced, the credibility of witnesses was not to be passed upon, and there was no occasion to call in a jury to draw inferences and conclusions from facts proved. Here the facts, so far as they related to the question of notice, were not in dispute.
In Tidd v. Smith,
When, as we have seen, the object of the law is to give notice so that the delinquent tax-payer may have opportunity to pay his taxes and save his land, any construction which will tend to accomplish such a result is the true one. That the posting of a notice on one of these six dwelling-houses would have tended to give notice to the owner that his land was to be forfeited for the non-payment of his taxes, on the facts stated in the case, is not an open question. The occupants of these houses, some of them, were in possession under a contract with the owner to purchase. The former agent of the owner lived about six miles northerly of the Location, and in going to Errol, or to the settlements in Maine, he frequently crossed the Location; and had a notice been posted on one of these six dwelling-houses this fact would have been known to all the others as well as to the former agent, and through them would have come to the knowledge of the owner. The occupants of these houses would undoubtedly have communicated to the owner the fact that his land, in which they had an interest, was advertised to be sold for non-payment of taxes. If either notice was to be dispensed with, that at the hotel in Lancaster could have been best omitted, if the real purpose was, as we must presume it was, to give notice so that the tax might have been paid without the sale of the land. Again, it is said that this is not now an open question, but I am not prepared to admit this proposition. Let us examine and see how it stands upon authority. *573
The first reported case, where the question of what is a public place for the purposes of posting a notice is considered is Tidd v. Smith, supra, but upon this question that case is no authority. That case only decides that in the town of Deerfield, a town containing nearly two thousand inhabitants, situated in a comparatively densely populated part of the state, and which in 1823 contained two meeting-houses, eight taverns, six stores, and two post-offices, a shoemaker's shop was not, as a matter of law, a public place, for the reason that there were other places in that town that were so much more public.
The next case is Wells v. Burbank,
The next case wherein the question is considered is Wells v. Company,
Now when, as we have seen, the authorities upon which that decision is based do not support it, and when, upon general principles and upon the great weight of authority in other *574 jurisdictions, it cannot be sustained, that decision ought not to be conclusive in the decision of the questions now before us.
It is further said, that to reverse the former decision in this case would unsettle many titles, and therefore, though it may not be correct, it should not now be changed. An examination, however, of the records, shows that but very few, if any, titles depend on this question, — so few that this position is entitled to but little consideration. Entertaining these views, I am of opinion that
The verdict should be set aside, and a new trial granted.
Concurrence Opinion
This is a writ of entry to recover the grant of land called Wentworth's Location, and is the case reported in
The case calls for a judicial interpretation of the expression "public place," as it is used in the statute. The defendant contends that, as a matter of law, there must have been a public place in the Location at the time of the sale. The plaintiffs contend that the question is res adjudicata in New Hampshire, and we are referred in their brief to the following authorities: Tidd v. Smith,
Tidd v. Smith decides that a shoemaker's shop in the town of Deerfield, in the year 1820, was not a public place within the meaning of "An act for taxing the lands and buildings of non-residents." The case was judicially interpreted in Russell v. Dyer,
Gibson v. Bailey was a writ of entry to recover a tract of land in Unity. The tenants claimed by virtue of a tax sale, and, for the purpose of showing that the sale was valid, they introduced a record of a warrant for a town-meeting, and a return thereon, as follows: "Unity, March 11, 1823. We, the selectmen of Unity, certify that we have posted up a true copy of the within warrant at the house of Francis Chase, fifteen days previous to said meeting." The court held the return insufficient, because it did not show that the warrant was posted at a public place; and also, that the return might be so amended as to show "that Francis Chase's was a public place." The case does not seem to be very important. It may have some bearing upon the question whether or not, in case of doubt, an officer may be permitted to select a public place.
The next case is Wells v. Burbank. This is a leading case, and a very important one. It was trespass for breaking and entering the plaintiff's close in the township of Success. It was admitted that the township was uninhabited. The court say, — "It is not necessary to settle at this time what may be a public place within the meaning of the statute. Practically, it is generally supposed to mean a tavern, store, or other place where people are in the habit of resorting for the transaction of business. Perhaps a meeting-house, open from week to week for public worship, may come within the description. How we might hold in this case, if there had been a dwelling-house within the township, but no place more public, we have no occasion to inquire. As there was no inhabitant, there could be no public place. Lex non cogit ad impossibilia. The result is, not that the tax could not be collected because no advertisement could be posted in a public place in the township, but that it might be collected without such advertisement, if the other notices required by the statute were duly given."
I doubt the soundness of the doctrine advanced in the last paragraph of the above quotation, and I do not see how it can be reconciled with the doctrine of Russell v. Dyer,
"It is an old maxim of the law that every statute authority to divest the title of one without his consent and transfer it to another must be strictly pursued, or the title will not pass." Olcott v. Robinson, 20 Barb. 150; Grosvenor v. Little, 7 Greenl. 376; Mather v. Chapman,
In Wells v. Company,
Wells v. Burbank,
In regard to the above quotation, I wish to remark, in the first place, that I do not find the "sufficient grounds for a distinction" spoken of; and, in the second place, that it is quite clear that Wells v. Burbank was not altogether satisfactory to the court that rendered the decision in Wells v. Company. For one, I am willing that Wells v. Burbank should stand, not because I think it is good law, but because it might work mischief in disturbing titles to overrule it at the present time. But I am unwilling to travel any further in that direction.
The case of Scammon v. Scammon,
The distinction between the present case, and the cases of Wells v. Burbank and Wells v. Company, is broad and clear. In both of those cases the question was as to the necessity of posting up advertisements in places entirely uninhabited. In the present case, the question is as to the necessity of posting up an advertisement in a place where there are six inhabited dwelling-houses. The very point to be decided now was expressly left open in Wells v. Burbank. The court say, — "How we might hold in this case if there had been a dwelling-house in the township, but no place more public, we have no occasion to inquire."
It is not easy to see how a purchaser at a tax sale could infer from Wells v. Burbank that the court would regard as unimportant a failure to post an advertisement in the place where the lands to be sold lay, if there were six inhabited dwelling-houses there.
There is also a very significant passage in Russell v. Dyer,
It seems, then, that the precise question involved in this controversy, instead of having been adjudged heretofore in accordance with the claim of the plaintiffs, was declared to be an open question in 1845, when Wells v. Burbank was decided; and in 1861; when Russell v. Dyer was decided, the court settled the true definition of a "public place," if it had not been previously settled, and announced that, according to that definition, it would hardly be "possible to conceive any inhabited place which would not have more than one public place."
We come now to the opinion which has already been rendered in this case. The court say, — "If the whole question what *578 constitutes a public place for the purpose of notice were a new one, there might be good reason to give it a more careful examination than it has yet received in this state, and to consider whether the true construction of the statute is not that notice should be posted in the town, inhabited or uninhabited, travelled or untravelled; whether the notice should not be posted in one of the most public places, in a place as public as any, or in a place where it would be as likely to be seen as in any; whether the word "public," used to describe a place of notice, is arbitrary and technical, or whether it requires that notice should not be posted at a place in the town where it would be materially less likely to be seen by such persons as might happen to be in or to go into the town, than at some other place in the same town; whether the statute does not imperatively require notice to be posted in the town, and whether the chief object of the word "public" was not to prevent an intentional or negligent concealment of the notice, by posting it at a place not public as compared with other places in the town; whether the word means anything more than a place relatively and comparatively public, and, at all events, not essentially and peculiarly less public than other places in the same town, if there is no place of common resort. Very strong reasons might be given for such a construction."
The above argumentative statement is very clear and convincing; and I think it is in accordance with the definition of a "public place" previously adopted in Russell v. Dyer. But the court go on to say, — "But the general question is not an open one (Wells v. Company,
CUSHING, C. J. The main question in this case, which is as to the meaning of the term public place in the statute, appears to me not to be attended with much difficulty.
The cases which have been cited by the industry of counsel are Tidd v. Smith,
The exact point of this case has not, I think, been decided in either of the cases cited, but I think the fair result of the reasoning in those cases is the conclusion reached by my brother STANLEY.
In Wells v. Burbank, the town of Success, where the lands in dispute lay, had no inhabitants, and the dictum of PARKER, C. J., was carefully qualified by him with the remark, "How we might hold in this case if there had been a dwelling-house within the township, but no place more public, we have no occasion to inquire." This remark, I think, makes the dictum, which was not the point actually decided, entirely inapplicable to the principal case.
I do not think, either, that the maxim lex non cogit ad impossibilia is rightly applied. It does not appear to me that a tax is a debt of any higher obligation than any other honest debt; and I can see no reason why the requirements of the statute should not be as rigorously fulfilled in appropriating a man's property to the payment of a tax, as in appropriating it to the payment of a debt. There is no principle which I can find, in morals or justice, by which the state is bound to any more rigorous observance of its laws in enforcing the payment of other honest debts, than in enforcing the payment of its own claims.
In Russell v. Dyer, twice before the court, while the remarks of the learned judges' arguendo tend very strongly to show that they would have held that there was a public place in Wentworth's Location — the land now in dispute — it was in fact held that the officer's return, that there was but one public place in Nash Sawyer's Location, was conclusive on that point; and the statute requiring that the advertisement should be posted in two public places, it was impossible to comply with the law, and therefore the levy was void.
The impossible thing, to which the law compelled no one, was the collection of the debt out of that property, just as, in Wells v. Burbank, it would seem that the impossible thing ought to have been the collection of the tax. It appears to me that Russell v. Dyer substantially overrules the dictum in Wells v. Burbank, although a distinction, which I think is without a difference, has been taken between the collection of a tax and of a debt.
The question in regard to the proper parties does not necessarily arise in this case, and it is not necessary to form or express any opinion upon it.
After the foregoing opinions were delivered, Ray, Drew, and Jordan, with whom were Geo. A. Bingham and Sargent Chase, in behalf of the plaintiffs, moved for a rehearing, and argued in support of the motion, as follows:
It was conceded that no notice of the sale was posted in the Location. *580
The plaintiffs' testimony tended to show that there was no public place in said Location, either before, or during the eight weeks before, January 29, 1850, the day it was sold. Six families resided in the easterly part thereof for two or three years preceding the day of sale, in small log or framed houses, — two or three on the easterly side of the Magalloway river, and the rest upon the westerly side. Each settler's dwelling-house was located on a small farm or clearing.
There bad never been any church, meeting-house, school-house, hotel, office, mechanic-shop, store, sign-post, guide-post, board or bog by the wayside, no public highway or bridge, or any other place, except said dwelling-houses, at which a notice of said sale might have been posted. No person had ever known a notice or advertisement of any kind to be posted in the Location before said sale.
Upon the question now before the court, the above statement must be taken to be true, because the jury, under the instructions given by the presiding judge, returned a verdict in the plaintiffs' favor. What ever the plaintiffs' testimony tended to prove after verdict in our favor, must be taken as being proved.
The question then arises, whether or not, as matter of law, the court ought to have instructed the jury that it was absolutely necessary for the sheriff, at the time named, to post a notice of this sale at some dwelling-house on the Location, as the defendant requested; — or, in other words, Ought the court to have ordered a nonsuit or verdict for the defendant? The solution of this inquiry depends upon whether it is a question of law merely, on the one hand, or a question of fact merely, or a mixed question of law and fact, on the other. If the latter, the case was properly sent to the jury. In the language of DOE, J., in Cahoon v. Coe,
This question involves the construction of a statute which was intended to apply at large throughout the entire state, and the duty of the court is, not to encroach upon the province of the *581 legislature, but, in the light of common-sense, good conscience, and legal reason, to endeavor to ascertain what the legislature meant when they used the phrase "public place." We deny that by any fair or reasonable construction of the statute it can be inferred that the legislature meant to include a private dwelling-house when they used the term "public place" in the statute. The defendant's counsel lay excessive stress upon the clause of the statute requiring the advertisement to be posted in the town where the land lies. They ignore altogether the words public place. That phrase is clearly one of limitation. The legislature intended that the notice should be posted in a public place, just as much as they intended it should be posted in the town. The most natural and genuine way of construing a statute is to construe one part by another part of the same statute, so that, if possible, no sentence, clause, or word shall be treated as superfluous, void, or insignificant, especially where the two clauses are parts of the same section inseparably connected with and necessarily dependent on each other. Blackwell on Tax Titles 610; ib., 56, and authorities cited. This doctrine is elementary, and needs no citation of authorities.
"It is safer," says Mr. Justice ASHURST, "to adopt what the legislature have actually said, than to suppose what they meant to say." Jones v. Smart, 1 Term R. 51; Hardin v. Owings, 1 Bibb. (Ky.) 214; Briggs v. Georgia,
The phrase public place is entitled to greater weight, as found in this section of the statute, than that portion of the statute referring to the towns wherein the lands lie. Had the legislature intended that a notice should be posted in the town anyway, the words public place would have been omitted.
The maxim expressio unius est exclusio alterius applies here in reference to the term public place. Words are to be understood according to the most known and popular use of them, unless there is something in the statute to restrain their operation. Were it possible to conceive of any technical sense in which these words might be used, that sense favors the plaintiffs' view instead of the defendant's. Construe this phrase either liberally or strictly, and its meaning is clear and certain. There is no doubt about the popular or the legal sense in which these words are, and always have been, used and understood.
What is a public place? See definitions. "Public" — Worcester's Dictionary; — "Public" — Webster's Dictionary; — "Public" — 2 Bouvier's Law Dictionary.
A distinction has been made between the terms public and general; they are sometimes used as synonymous. The former term is applied strictly to that which concerns all the citizens and every member of the state, while the latter includes a lesser, though still a large, portion of the community. 1 Gr. Ev., sec. 128.
"Place" — Webster's Dictionary. This word in the statute under consideration has a more limited signification than town, because it refers to some point within a town. But the place intended must be a public place, as contradistinguished from a private place: "Place of *582 business;" — 2 Bouv. Law Dic.; — "Public place" — Commonwealth v. Feazle, 8 Grat. (Va.) 585; Commonwealth v. Vandine, 6 Grat. 589; 18 Ala. (N.S.) 415; 12 Grat. 492.
The word public, as used in our statutes, has a well defined and well understood meaning, its legal and popular sense being one and the same thing exactly, and stands opposed to — contradistinguished from — the word private: as, public service — private service; public sale (auction) — private sale; public house — private house; public act — private act; public road — private road; public place — private place.
What is the law of New Hampshire as to public place? Tidd v. Smith,
"The general understanding of community on a question of this nature is entitled to much respect, and it is believed this understanding has viewed as `public places' houses of public worship, inns, and perhaps, in some places, shops where goods are retailed. We are not aware that a mechanic's shop has ever been considered a public place anywhere."
Cambridge v. Chandler,
Cardigan v. Page,
Gibson v. Bailey,
Wells v. Burbank,
Baker v. Shepherd,
Scammon v. Scammon,
Russell v. Dyer,
Same case reheard,
The following remark by SARGENT, J., is obiter dictum: "It may be observed that upon either of the last views, it is hardly possible to conceive any inhabited place which would not have more than one public place" (p. 398). No such case as ours was before the court. We are surprised to see this remark quoted as an authority." In commenting on Wells v. Burbank, Judge SARGENT remarks that the cases are not the same. "The law relating to sales of land for taxes was not necessarily the rule for levies on execution, and the court not being bound by that case as authority, decided, upon the convictions of their own minds, upon the case before them" (p. 399). Wells v. Company,
BARTLETT, J. (p. 255), says, — "Sargent's purchase, though uninhabited, might properly be taxed [citing Wells v. Burbank and Russell v. Dyer, Laws 1831, p. 26, Laws 1805, p. 448], and was made liable to a tax by the legislature." Laws November, 1840, p. 173. "In Wells v. Burbank,
Cahoon v. Coe,
There is not an authority in the New Hampshire reports to sustain the view taken by the defendant on this question. Only a single dictum can be found giving the defendant's view the slightest countenance or support (
It is just as wrong for the court to apply the doctrine of lex non cogit ad impossibilia to an uninhabited town, as to a town which has no public place, in the popular or legislative sense, although inhabited. The doctrine has never obtained within this state that the court would apply any more rigid, stringent, or different rules of construction to the statutes under which real estate is sold for taxes, than to other statutes concerning other subjects. A substantial compliance with the provisions of the statute is all that has ever been required. Cass v. Bellows,
It is absurd for the defendant's counsel to contend that the owners of Wentworth's Location did not have abundant constructive notice of the sale. They well knew it was liable for a state tax annually; that such tax was invariably committed to the sheriff of Coos county for collection; that if not previously paid, a copy of the list, c., would be on file from the eighth day of the June session of the general court until the first day of September; that the land would then be advertised in the state paper at Concord and in the county paper, and also at a public place at the County seat. It is conjectural merely, that a notice of this sale posted on the Location would have been of the slightest consequence, by way of inducing anybody to pay the tax for which the land was sold.
The suggestion has been made, that the court below erred in submitting the case to the jury instead of granting the defendant's motion for a nonsuit, on the ground that the facts were not in dispute; that they were substantially agreed upon by both parties; and therefore that the only matters to be settled were questions of law, which were for the court to determine instead of the jury. What facts were in dispute? What facts were agreed on? The defendant asserted that there was a public place in Wentworth's Location. The plaintiffs denied it. That issue was submitted to the jury upon the evidence adduced by both sides.
The only fact agreed on, or about which there was no contention, was the existence of five or six private dwelling-houses in that township. It is too clear for argument, that a mere private dwelling-house is not generally a public place. Some dwelling-houses, by reason of the uses to which they are devoted, may become public places. In a given case where this issue is made respecting a dwelling-house, one party affirming that it is a public place and the other party denying it, the question must, from the necessity of the case, be referred to the jury, under proper instructions. It is elementary, that "to balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from facts proved [or admitted, it does not matter which], belongs to the jury." Pray v. Burbank,
We quote the language of Judge HUNT in R. R. Co. v. Stout, 17 Wall. 637, touching the province of the jury in a case of negligence alleged against the corporation, where the facts were conceded, and the only contention was as to the deduction to be drawn therefrom — whether such deduction should be made by the court or be found by the jury. "Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may presume to be clearly established, from which one sensible, impartial man would infer that negligence existed; another man, equally impartial, would infer that there was no negligence: It is this class of cases, and those akin to it, that the law commits to the decision of a jury. It is assumed that twelve men know more of common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts, thus occurring than call a single judge."
The recent case of Sherwood v. Insurance Co., decided in the New York court of appeals May 30, 1876, found in the Law and Equity Reporter for July 12, 1876, page 51, is directly in point. The court say, — "Where facts depend either upon conflicting evidence, or upon inferences to be drawn from the facts proved, it is always a question for the jury and not for the court."
What is or is not a public place, other than inns, meeting-houses, post-offices, railway stations, and the like, is as much matter of fact to be found by the jury under instructions, as the question of the abandonment of real of personal property — Jones v. Lumber Co.,
The court is generally unwilling and declines to draw inferences and conclusions from circumstances proved, and thereby determine controverted questions of fact, because such things are not among the ordinary duties of the court. Even the assent or request of the parties in a case agreed does not impose upon the court any such duty. Pray v. Burbank, before cited; Woodman v. Eastman,
This action has been pending nearly six years. At large expense it has been twice tried by the jury, resulting both times in a verdict for the plaintiffs. The instructions now under consideration, after full argument and long deliberation by the former court, consisting of five judges, were held correct, none dissenting. Surely, no mere pride of opinion will restrain this court from fully reconsidering its decision upon a point supposed by us to have been so firmly settled the other way as to be beyond the possibility of reversal, or from coming to a different conclusion, unless thoroughly satisfied that there was great gross, and fundamental error at the trial. It is for the interest of the state that there be an end of litigation; but it is of higher interest that the end be justly reached.
W. H. Heywood, in reply.
We might well submit the question now presented upon the authority of the opinions already delivered in this case. But we desire again to call the attention of the court to the opinion, as reported in
In the first place, it is assumed that the question here raised was properly submitted to the jury, when in fact there was no question for the jury whatever. There was no substantial difference in the evidence of the plaintiffs and the defendant as to the character, situation, and uses of all the six or eight houses situated upon Wentworth's Location at the time of the sale in question, and then inhabited.
As is maintained in the opinion of STANLEY, J., there was no question for the jury, the fact being unquestioned as to the existence of these dwellings in the place where the land offered for sale was situated; and it is a question of law whether the statute required a notice to be posted in the place where the land to be sold lies.
The position taken in the opinion in 52 N.H., that the question here presented is not an open one, and that the term public place has received a technical construction by the decisions in this state, beginning with Tidd v. Smith,
We have always been aware of the fact that this portion of Judge PARKER'S opinion may well be treated as a dictum of the judge who delivered the opinion, as is maintained by Judge STANLEY, and that it is a very questionable interpretation of this statute, which contains the positive provision that the notice shall be posted in the place where the land lies. Rev. Stats., ch. 47, sec. 5. But, when it is considered that the sale of Success, then in question, was made in January, 1842; that Success was then an uninhabited wilderness, which could only be reached during the eight weeks prior to the sale by a tramp of several miles on snow-shoes, — that case has no application to the one at bar. And the case of Wells v. Company,
In sec. 5, ch. 47, Rev. Stats., it is provided that the sale shall be in the nearest town in which the court of common pleas is holden, "and such sale shall be advertised therein, as well as in the place where the lands lie." This last provision of the statute is one of great importance, for the purpose of giving to the land owner and persons who may desire to be bidders full information of the sale; and the sheriff who *592 made this sale failed to comply with all important prerequisite of the statute.
But what was the excuse of the sheriff for not posting a notice upon the Location? The case shows, that for two or three years prior to and up to the time of the sale there had been and were six families residing upon the Location, each family occupying small ordinary dwelling-houses, and a small farm or clearing where their dwelling-house was located; that there was no church, meeting-house, school-house, hotel, office, mechanic's shop, store, sign-post, guide-post or board, box by the wayside for depositing newspapers for subscribers or others, no public highway or bridge, nor any other place except dwelling-houses, at which a notice of said sale might have been posted.
It appears from the evidence of most if not all the plaintiffs' witnesses, that people occasionally came upon and passed through Wentworth's Location, either upon business, or for the purpose of hunting and fishing, and would obtain meals and lodging of the people residing upon the Location, wherever they could get in. And all the settlers would furnish such accommodations as they had, although none of them held out inducements to such travellers.
On the case so stated, the plaintiffs' counsel contend that it was not necessary to post a notice, because there was no public place there. It certainly cannot be contended that the places enumerated, none of which were in the Location, are all of the places that can be called public, for it is quite certain that the list does not specify one description of place that is now more public than almost any other, viz., a railroad depot. Then it is nothing to say that there were none of those places usually considered public ex vi termini there. Neither does it exclude the fact of a public place, when it is found that there was no place but a dwelling-house that could be so called; for, in the case of Gibson v. Bailey,
The cases relied upon by the plaintiffs do not sustain their position, but other cases not referred to clearly show that the true interpretation of the term "public place," as used in our statute, has not received any *593 technical or arbitrary construction; but, on the contrary, the true construction of this term is that it has a relative application, and that a hotel, church, store, c., places which, in ordinary language, are called public places, are so or not in accordance with their location, and as they are places of resort or otherwise; and in thinly settled places, where there are no hotels, places of public worship or for other public meetings, stores, c., that are ordinarily called public places, other places, or conspicuous objects, like a bridge, post by the roadside, or dwelling-house, may be regarded as public. See Gibson v. Bailey, before cited.
In the case Russell v. Dyer,
It is the logical conclusion, from this review of the case of Tidd v. Smith, that the term "public place" is a relative term, and in a place where there is no more public place than an ordinary dwelling-house then a dwelling-house is a public place within the meaning of the statute; and if the plaintiffs' evidence shew, as they contend, that all the houses upon the Location stood equal as places of common resort, then the notice might well have been posted at any one of those houses. The decision in Russell v. Dyer,
This question is alluded to in Baker v. Shepard, *594
To show that the practice has been to post a notice in the place where the land lies, although uninhabited, we refer to the following reported cases:
Cambridge v. Chandler,
STANLEY, J., C. C. At the adjourned term, in March, 1875, we were unanimously of the opinion that the verdict should be set aside, for the reason that no notice of the sale by the sheriff, under which the plaintiffs claim, was posted in the Location. The plaintiffs, however, not satisfied with that decision, seasonably moved for a rehearing; and upon this motion, as well as upon the merits of the question, the parties have been fully heard, both in briefs and orally.
The magnitude of the interests involved, as well as the fact that the opinion heretofore announced seems to overrule a former decision in this cause, in
Two questions are presented in regard to the necessity of notice: The first is, whether there was a public place on the Location at which the notice might have been posted.
On this branch of the case it is strenuously urged, that the question whether there was a public place there way for the jury; and, by the industry of counsel, numerous authorities, commencing with Tidd v. Smith,
It is distinctly stated in Tidd v. Smith, that, where the facts are not in dispute, the question as to what is a public place is one of law for the court; and no case can be found which controverts that position. The question is not like the question of what constitutes negligence, or what constitutes a defective highway, or the question of due diligence, skill, reasonable time, probable cause, intention, etc.: it is like the question what constitutes a sale. "Where the facts are proved and not controverted, it is a question of law whether they show a sale; but where material facts are left in doubt, the question is to be decided by the jury, under suitable instructions as to the law." Fuller v. Bean,
In this case, the following facts were not in dispute, to wit, "that the Location was inhabited; that there were six occupied dwelling-houses there;" — and so much being admitted, it was for the court to say whether there was a public place there within the meaning of the law. That on these undisputed facts the court ought to have found there was a public place, at which notice should have been posted, is clear. That PARKER, C. J., when Wells v. Burbank,
The term "public," as applied to place, is not an absolute but a relative term, and, as used in the statute, means nothing more than a place relatively and comparatively public, — at all events, not essentially and peculiarly less public than other places in the same town, if there is no place of common resort. It is used in contradistinction to the term "private," and to signify that the notice was to be given in such way as would be likely to have the effect intended, namely, to apprise the tax-payer that his land was to be forfeited for the non-payment of his taxes, at a given time, unless prevented by previous payment, and also to inform the public so that there might be buyers. The law is to be construed, if it can be, so as to effectuate the intention of the law-makers. The chief object of the use of the word public was, to *596 prevent an intentional or negligent concealment of the notice by posting it at a place not public, as compared with other places in the town, — in a place open to the inspection of all those who chose to examine it. The evident object of the law is, to have the notice of the sale made as public as circumstances reasonably require, that all who are interested in it, in a way, may have the privilege of attending the sale if they see fit.
The view contended for by the plaintiffs would require us to hold that the term "public" is absolute, and applies to certain things and to no others; that unless there were some place like a hotel, post-office, store, or other place of common resort, there was no public place, and consequently notice was not required, or that the tax could not be collected. Had there been in this Location, instead of six houses, six hundred, all just alike, all occupied, all private in the sense that no public business was transacted at either of them, and that neither was a place of common resort, the rule must be the same, and notice could not be given. It would then follow that the land could not be sold, from the inability to give the statute notice, or, that one of the first requirements of the statute could be dispensed with, and the land sold without it.
That it was the intention of the legislature to subject all property to taxation is too plain to require argument, and that it was not the intention to take the property of individuals for the non-payment of their taxes, without notice actual or constructive, and an opportunity of payment, is equally plain; and that the view here suggested tends to accomplish the purposes intended by the statute, both in the collection of the tax and in the notice to the tax-payer, is obvious.
But, assuming that the term public, as applied to place, has a technical meaning, — that by it is meant a place openly and notoriously public, a place of common resort, — the question then arises, whether, in the absence of such a place, the statute requirement of notice can be dispensed with. In Lebanon v. Griffin,
As sustaining this view, the following, in addition to the authorities heretofore cited, are in point: Newell v. Wheeler,
It is declared in Art. 15 of the bill of rights, that no man shall be "deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." *597
In Mayo v. Wilson,
The maxim lex non cogit ad impossibilia is no doubt true, and may be applicable to this case; but, as suggested by my brother CUSHING, in the matter of the collection of the taxes, the impossible thing, to which the law compelled no one, was the collection of the tax where the provisions of the statutes cannot be complied with, — not the dispensing with the provisions of the statute, especially those intended for the benefit of the person whose land is taken.
It would be strange, indeed, if the legislature, which in all other matters affecting private rights have been so scrupulously exact in requiring notice actual or constructive, should, in the matter of the sale of land for the non-payment of taxes, where the owner's highest interests are concerned, have dispensed with this most important requisite. No suit, however trifling, can be prosecuted to final judgment without some notice, actual or constructive. The statute, after pointing out how notice shall be given in almost every conceivable case, provides that in any case where no form of notice is specified in the statute, or the notice therein specified cannot be given in the mode prescribed, the action may be entered in court, and such notice ordered as the case requires. Gen. Stats., ch. 204, sec. 9, p. 414. That the law should require such exactness and nicety in the matter of notice, in all suits, however small the amount in controversy, and allow it to be dispensed with in a matter so important as the sale of land for taxes, cannot be seriously entertained.
The injustice of such a view is well illustrated in this case, where property worth several thousand dollars was sold for the non-payment of a tax of three dollars. Were the statute silent upon the subject of notice, very strong reasons might be urged why it was necessary. The state does not seek to confiscate the property of its citizens. All it attempts to do is to enforce the payment of their taxes. Notice to the owner, that unless the taxes were paid his estate would be sold, would tend to accomplish this result. Again: for the purpose of collecting the tax by a sale, it is essential that there should be buyers present, and the posting of a notice in the place where the lands to be sold are situated would tend to this result. So such notice would apprise the occupants of the lands that they were to be sold, and their rights as occupants might be determined, and they would have an opportunity to be present and protect their interests.
In an able opinion by HOLMES, J., in Abbott v. Lindenbower, 42 Mo., *598
it is held that it is beyond the power of the legislature to authorize a proceeding by which land is sold for taxes without any notice at all; and the same view was enforced by the high court of errors and appeals, in Mississippi, in an opinion by HARRIS, J., in Griffin v. Mixon,
In the course of that opinion, he says it is for those who claim to derive a right under a power so extraordinary to inform us whence it is derived and where it may be found; or in what moment of folly or infatuation an intelligent people, deserving rational liberty, cautious of restraint and jealous of power, have thus abandoned one of the cardinal rights, for the protection of which free governments are instituted. These remarks seem to me eminently just and sound. It is one of the cardinal principles of the law that no man shall be condemned unheard, and no man shall be despoiled of his goods or estate until after notice, actual or constructive, and an opportunity to be heard.
But we are not called on to hold that the legislature could not authorize the sale of land for the non-payment of taxes without notice. All the case requires is, that we should hold a sale impossible and unauthorized where the notice required by the statute has not been given.
The opinion in this case, in 52 N.H., is forcibly urged upon our attention, and I have examined it. Its examination satisfies me that the court did not accept the plaintiffs' view as a correct exposition of the law upon this question; but they felt obliged to adopt it, under the belief that the question was not a new one, and that many titles might be disturbed if any other view were adopted. It is quite apparent, I think, that the learned judge who delivered the opinion did not investigate very fully, with the view of determining to what extent this question had been settled by previous decisions; and the same is true in regard to the case of Wells v. Company,
In
No case can be found in which such views are stated, until the decision in Wells v. Burbank, supra. That was the first case in which it was held that notice might be dispensed with where there was no public place, and that case was not published until 1864. The question in that case was not like the question in the present, for the town, the title to which was in dispute, was entirely uninhabited; nor was the decision of this point necessary to the decision of the cause. The court held the tax title invalid on other grounds, — in fact, sustaining the position here taken, that there must be a strict compliance with the *599
requirements of the law, — holding the title invalid, because, among other things, the tax was nine cents too large, the learned chief-justice saying, the maxim do minimis non curat lex cannot save it. Upon the matter of notice, the language of the chief-justice is identical with that used by him as counsel in Cambridge v. Chandler.
The defendant objects, that, the action being in the name of the husband and wife, and the declaration alleging seizin in the right of the wife, and the evidence showing that she was sole seized, there was a misjoinder; and I think this objection is well taken. Gen. Stats., ch. 164, secs. 1, 13; Whitcher v. Burton,
The action of review was brought February term, 1873, after the passage of the act of 1872, and, for the purposes of amendment, it is to be regarded as a new action. Badger v. Gilmore,
It is also objected, that the amendment of the account of sale was improperly allowed; but this objection cannot be sustained. The amendments were allowed by the presiding justice at the trial term, and no question of discretion is reserved. The only question is, whether the sheriff had the power to make those amendments, the clerk who made the record being dead.
The clerk was not an officer known to the law. He was simply the servant of the sheriff. The acts of the clerk were those of the sheriff; and the allowance of the amendment falls within the rule laid down in Avery v. Bowman,
The objection, that the account of sale was not returned to the proper court, is not well taken. The certificate of the clerk upon the original return not the only evidence as to the place where it was filed; and the case shows that the copy of the return produced was certified to by the clerk of the court, having by law the custody of such papers. We think this is sufficient.
The evidence contained in the affidavit of Charles Bellows, stating *600 the day when the notice was posted, and that he took it down on the day of the sale, and that, in his belief, it remained posted during the time required by law, was evidence tending to show a compliance with the law, and was properly received; and from the fact of its being posted and of its being taken down, as stated in the affidavit, the court or jury would be justified in finding a compliance with the law in these respects.
The objection that the tax was not seasonably assessed was decided, substantially, in this case, in
Several other objections were taken to the proceedings in the sale of the property in question, and to the evidence admitted on the trial, but, as I am of the opinion that the plaintiffs' title is fatally defective, I have not considered it necessary to express any opinion upon them.
CUSHING, C. J. I have no desire to add anything to what I have before said.
RAND, J., C. C. This case has been very fully and ably argued on the motion for a rehearing, and I have endeavored to reconsider it, free from any influence derived from pride of opinion. "To admit that we have been in the wrong, is a proof that we are wiser than we were." But one ought to be satisfied that he has been in the wrong before making the admission. I am not so satisfied. On the contrary, the reconsideration of the cause has strengthened my conviction that the result reached by the court is right.
It is urged by the plaintiffs, that whether or not a certain place is a public place is a mixed question of law and fact, which ought to go to the jury. But when the facts are admitted, the question is one of law. Nothing can be clearer than that. It was settled in Tidd v. Smith. Now, it is conceded that very many facts are in dispute. But this is a matter of no importance, provided enough facts are admitted to raise a question of law upon which the case may be decided. It is admitted that, at the time of the tax sale, six families resided in Wentworth's Location, in small, ordinary dwelling-houses, and that each head of a family occupied a small farm or clearing where his dwelling-house was located. I maintain that these admitted facts are sufficient to authorize the court to hold that there must have been a public place in Wentworth's Location on the day of the sale. What is a "public place"? What is the meaning of that expression in the statute? It is contended that, ex vi termini, a man's private house cannot be a public place. But surely no force is added to the argument by calling a dwelling-house a private house, in order to make a contrast between the two expressions. The question still remains the same, May not an ordinary dwelling-house be a public place, according to the meaning of those words in the statute? *601
If any one thing in this controversy can be regarded as settled by authority, it is that the expression "public place" is a relative and not an absolute expression; that what is a public place in one locality may not be in another. This being conceded, there is an almost irresistible force in the argument that the court should so interpret the statute, if possible, as to give publicity to tax sales.
But it is urged that the doctrine established by the court is revolutionary. If so, it is perfectly clear that the turning-point in the case must have made its appearance in some previous case, and been disposed of by a contradictory decision. Where can that decision be found? We should not expect to find it anywhere in our reports before Wells v. Burbank, which was decided in 1845, and in which Judge PARKER declares, in emphatic language, already quoted, that the court intended to leave the precise question involved in this case open and undecided.
I am not aware that the point makes its appearance again until we get to Russell v. Dyer, decided in 1861. In this case, Judge SARGENT observes that "it is hardly possible to conceive any inhabited place which would not have more than one public place." The plaintiffs may, in their brief, that this observation is "of the loosest kind of obiter dicta." Admit that it is an obiter dictum, I cannot discover that it is any looser than obiter dicta usually are. On the contrary, it seems to me to be the cautious and deliberate statement, by a learned and able judge, of doctrine regarded as unquestionably sound. It ought at least to be sufficient to notify purchasers at tax sales that there may be some risk in bidding on property located in places where there are several inhabited dwelling-houses, and when no notice has been posted. It is most unquestionably true that New Hampshire courts have repeatedly held that "public place" is a relative term, and have never held, in a single case, that at tax sale of property situated in an inhabited place, notice could be dispensed with. What precedent, then, stands in the way of deciding this case, as it ought to be decided, upon principle? I cannot see that there is any. As to now it should be decided upon principle, I will merely refer to the argument of Judge DOE, which was quoted by me in my former opinion. I think the argument is unanswerable.
Verdict set aside and new trial granted, and motion for rehearing denied. *602