22 Vt. 388 | Vt. | 1850
The opinion of the court was delivered by
The plaintiff’s property in the logs depends upon his title to the land. His claim of title under the tax sale will be first considered.
The following principles, or rules, for testing the validity of tax titles, appear to be fairly deducible from the reported cases on that subject.
1. When the statute, under which the sale is made, directs a thing to be done, or prescribes the form, time and manner of doing any thing, such thing must be done, and in the form, time and manner prescribed, or the title is invalid; and in this respect the statute must be strictly, if not literally, complied with. Spear v. Ditty, 9 Vt. 282. Bellows v. Elliott, 12 Vt. 574. Sumner v. Sherman, 13 Vt. 612. Carpenter v. Sawyer, 17 Vt. 124.
2. But in determining what is required to be done the statute must receive a reasonable construction; and when no particular form or manner of doing a thing is pointed out, any mode, which effects the object with reasonable certainty, is sufficient; and in judging of these matters the court is to be governed by such rational rules of construction, as direct them in other cases. Spear v. Ditty, 8 Vt. 421. Bellows v. Elliott, 12 Vt. 574. Isaacs v. Shattuck, 12 Vt. 668.
The sale, by virtue of which the plaintiff claims, was made under the statute of November 11, 1807, assessing a tax of one cent on each acre of land in the state, for the purpose of defraying the expense of erecting a state’s prison. 2 Tol. St. 267. Numerous objections are made to the validity of the plaintiff’s title under this tax sale, which must be examined with reference to the provisions of the statute, under which the sale was made.
We think the fair intendment of the statute is, that the collection of the tax should be superadded to the other duties of the sheriff; otherwise bonds and an oath would have been required of him, as collector. A similar construction was put upon an act, assessing a tax for building a jail, in Bellows v. Elliott, 12 Vt. 569, where the first constable of the town was directed to collect the tax. It was held, that the land tax act, which required the collector to be sworn, did not apply, — the constable being a public officer. This decision could have been made upon no other ground, than that the officer collected the tax as first constable.
2. The second objection is, that the treasurer’s warrant merely named the towns and gores, in which the sheriff is to collect the tax, without stating, that they were within his precincts, or in what county they were, or that they were unorganized towns, and without giving any reason, why the warrant was directed to the sheriff, rather than to the first constable. It is a sufficient answer to these objections to the treasurer’s warrant, that nothing is shown to be wrong in it; and it having been issued by a public officer, under the provisions of the statute, he is to be presumed to have performed his duty, until the contrary appears. Bank of U. S. v. Tucker et al, 7 Vt. 134.
3. It is next objected to the record of the rate hill in the county clerk’s office, that it is not properly designated in its caption, the word prison being omitted in the recital of the title of the tax act, and that some of the rights are designated as three hundred and twenty acres, instead of three hundred and fifty, and that in the date of the sheriff’s certificate of its being a true rate bill the day of the month, February 10th, only, (without stating the year,) is given.
The statute, — 2 Tol. St. 269, sec. 6, — directs the sheriff to assess the tax upon the several proprietors of the town, but does not specify, that he shall make a rate bill. He is, however, directed in section sixteen to leave his tax bill with the county clerk, with his other papers and proceedings, for record, which sufficiently implies,
In this case the sheriff was to make his own tax bill; and the tax bill he caused to be recorded shows, that he assessed the right sums to the proper proprietors. The leaving of it by him for record is sufficient prima facie evidence, that it was the rate bill he acted upon; and that also distinctly appears by the record of his certificate upon it of the paid and unpaid taxes. The omission, therefore, of the word prison in the caption is immaterial, as the identity of the tax assessed in the rate bill with that described in the treasurer’s warrant appears with entire certainty, notwithstanding the omission.
Nor do we conceive the error, in stating the quantity of land in a portion of the rights, to be important. The quantity of land in each right being equal, and the tax upon each right the same sum, the error would at once be discovered to be clerical, and no one could possibly be misled by it. If the quantity of land in the rights could be unequal, the objection might merit a different consideration. If the statute assessing the tax had required the particulars of the basis of the tax to be stated in the rate bill, it must doubtless have been strictly complied with. But the result is all that is necessary, to constitute a tax bill, and such result being, in the present bill, entirely correct, it should, we think, be held sufficient.
The omission of the year in the date of the sheriff’s certificate upon the rate bill is unimportant, as the year is sufficiently certain from other parts of it. The sheriff’s certificate upon the rate bill shows the tax to have been assessed under an act passed November 11, 1807, and that it was assessed previous to the sixth of April, 1808. The “ February 10th” in the certificate could, therefore, have'been no other, than in 1808. In Bellows v. Elliott, 12 Vt.
4. It is objected, that the clerk’s certificate to the record of the rate bill states it to have been recorded April 30, 1807, and that it therefore fails to show, that it was recorded in thirty days from the ending of the sale, — the sale having ended the sixth of April, 1808. Tol. St. 275, § 16.
The statute directs the recording to be'made in thirty days, but does not specify how the fact of recording shall be shown. The ordinary proof, in such cases, is the certificate of the recording officer upon the record; but that has been held to be onl y prima facie evidence of the time of the recording. In Morton v. Elwin, 19 Vt. 77, it was held, that the certificate of a justice of the peace, of the time when an execution, levied upon land, was returned and recorded in his office, was but prima facie evidence of the true time, and that the true time might be shown by parol. And to the same effect is Carpenter v. Sawyer, 17 Vt. 121, in relation to the certificate of a town clerk, of the recording of vendue proceedings. In Richardson v. Dorr, 5 Vt. 9, and Sumner v. Sherman, 13 Vt. 609, parol evidence of the fact of the recording of vendue tax proceedings was admitted and acted upon by the court.
From the evidence in this case a jury could not have found otherwise, than that the record was made April 30, 1808, within thirty days after the ending of the sale; for; — 1. The certificate of the clerk, of April 30, 1807, is an impossible date, being before the passing of the act, and is evidently a clerical mistake. The record was therefore made on some other day. 2. The record of the warrant, which immediately precedes the rate bill on the record book, and of the sheriffs return of sales, which immediately follows it on the same book, are both certified as recorded April 30, 1808, —from which it may be fairly inferred, that the whole was recorded on that day. 3. The original rate bill is produced, upon which is the clerk’s certificate of its being recorded April 30, 1808. From
5. The next objection is, that the advertisement is of a sale to be held at Guildhall, and not in the town where the land is situated.
There is nothing in the statute requiring the land in unorganized towns and gores to be sold in the towns or gores; and to hold that the sheriff must make such sales would be requiring of him an impossibility. The warrant, in this case, embraced eight towns and three gores; and if the sheriff could designate proper places in his advertisement for the sales in towns and gores, in which were probably no inhabitants, or buildings, it would be impossible for him to make the sales, because the act requires the sales to be made on the first Monday of April, at nine o’clock in the forenoon. The legislature could not have contemplated, that the sheriff should make sales in eleven different towns at the same hour of the same day. The court house of the county, where the sale was made, seems to have been the proper place.
6. It is next objected, that the advertisement of the collector is not properly recorded. 2 Tol. St. 268, sec. 5, 6, 16.
The act for the regulation of particular land taxes requires, not only that the advertisement should be recorded, but that the newspapers, in which it was published, should be left with the clerk, and a record made of the advertisement, and also of the title, volume, number and date of the several papers, in which the publication was made. The object of the legislature being, that the record should not only show the form and date of the advertisement, but also the fact of its due publication. The latter object does not seem to have been contemplated by the act in the present case. It merely directs the advertisement to be recorded, and leaves the proof of its having been posted up in the towns by the constable, and of its publication by the sheriff, to be made by other evidence, than that of the record. The certificate of the clerk, iri this case, shows a proper recording of the advertisement, and if it fails to show, that it was properly published, it is immaterial, as the statute did not require that to be done. The due publication of the advertisement was shown, in this case, by the production of the original newspapers.
8. Another objection made to the regularity of the tax proceedings is the absence of proof, that the secretary of state, immediately after the adjournment of the legislature in 1807, published the act in all the -newspapers in -the state, as directed in the seventeenth section.
It could not have been the intention of the legislature, that the act should become wholly inoperative and void, by the failure of a single newspaper to publish it. This provision must have been understood -to be merely directory to the secretary, and not essential to the validity of the tax. In Bellows v. Elliott, in Essex County, in 1841, it appears by the record furnished us to have been held, that the publication of an act assessing a tax on the lands in the county for building a jail, by the treasurer of the county, was riot essential to the validity of the sale, although the act directed such publication. See, also, Bellows v. Elliott, 12 Vt. 569. That being a. local act, its publication would seem to be more necessary than in the present case. It is not shown, that the act was not duly published by the secretary of state ; and if its publication were essential, the presumption would be, that the secretary had performed his duty.
These comprise all the objections'taken to the validity of the tax title, and, being of opinion that neither of them is well founded, we must hold that title to be good. This result in regard to the tax title renders any examination of the plaintiff’s title to a lesser quantity of the land, under the original proprietors of the town, unnecessary.
It is, ho.wever, insisted, in behalf of the defendant, that the plaintiff is precluded from deriving any benefit in this suit from his tax title, for the reason -that he had parted with it by his conveyance to Ward well and others in 1835, and had not regained it at the time of the trespass complained of; that the charge of the county court, in regard to the effect of the defendant’s possession upon the recon
In the view which we have taken of the case, it becomes unnecessary to inquire, whether or not there was any evidence tending to prove a division of the town and an allotment of it marked upon the land, inasmuch as we think, that, conceding there had been no division of the town, the charge was quite as favorable to the defendant, as he was legally entitled to claim.
The question on this part of the case is, whether, giving full effect to the facts shown by the defendant, he was to be considered as having been in adverse possession of the whole township in 1842, so as to render the deed void, by which the land was then reconveyed to the plaintiff.
The term constructive possession, as applicable to real estate, is scarcely to be found in the English books; though the doctrine constitutes an important branch of American law. It is indeed peculiar to the condition of things in a new country, where an important business of the inhabitants is the reduction of forest land to a state of cultivation. When the settler enters upon a lot of wild land, it is impracticable for him at once to inclose it with that unequivocal mark of possession, a substantial and permanent fence. It is of no advantage to the land, and a useless expense for him, to do so. He commences by clearing a part and erecting a dwelling upon it, and gradually extends his improvements, making such inclosures only, as may from time to time he necessary for the protection of his crops. The residue of the lot is suffered to lie open, with either nothing, or at most with but lines of spotted trees, to mark its boundaries. The law of .constructive possession .declares,
This doctrine, when applied to a tract of land of suitable size for purposes of individual cultivation and improvement, seems justified and demanded by the wants and interests of a people in a new country ; and to tracts of such limited dimensions the doctrine has been usually, if not always, applied in this state. This is the first instance, that we are aware of, in which an attempt has been made, by means of clearing a few acres within the limits of an uncultivated township of some twenty thousand acres, to extend the possession, by construction, over the whole territory. It is obvious, that the reason, on which the doctrine of constructive possession is founded, ceases in such a case. Such an application of it is not required for the protection of bona fide settlers. No individual can ever want such an extensive, tract of land for purposes of actual cultivation. The idea of inclosing such a tract with a permanent and substantial fence is too absurd to be gravely stated; and the descriptive boundaries of it, in a deed, could therefore never be a substitute for such an inclosure. It would also be unjust to the real owners of the several rights of land in a township, to allow them to be deprived of their title by an intrusion for a period of fifteen years upon a few acres in an obscure corner of the town, which intrusion might be either unknown to them, or not deemed of sufficient importance to deserve serious attention.
It was held by the supreme court of the state of New York, in Jackson v. Woodruff, 1 Cow. 276, that the doctrine of constructive possession did not apply in a case, where there had been an improvement of only two acres in a tract of seven hundred and eighty three acres, and that it was only applicable to such tracts, as were purchased for the purpose of actual cultivation; and the doctrine of that case has been recognized and acted upon in many subsequent Cases in that state, and is the settled law of the state. See Jackson v. Vermelyea, 6 Cow. 677; Jackson v. Richards, 6 Cow. 617; Jackson v. Oltz, 8 Wend. 440; and Sharp v. Brandon, 15 Ib. 597,
But the claim in the present case is altogether without the boundaries of any reasonable limit. The quantity of the land is not only too extravagantly large, to be the possible subject of individual cultivation, or use, but the defendant’s own evidence tended to prove, not that he had entered upon the land in good faith, for the ordinary purpose of settling upon it, but that all his acts upon the land had been done, in the language of the bill of exceptions, “ for the mere purpose of keeping a possession.” To hold that such acts upon a few acres of land should extend themselves over a whole township, to the exclusion of the title of the true owners, would be giving an effect to the doctrine of constructive possession heretofore unknown in this state, — an effect, which is as unnecessary to the protection of the rights of the actual occupant of land, as it would be unjust to the rightful owners. We have no hesitation in saying, that the defendant, in this case, is not entitled to any benefit from the doctrine of constructive possession, and that his possession must be limited to the boundaries of his actual improvement.
The logs, for which the action was brought, having been taken from other land in the township of Norton than that covered by the defendant’s clearing, it would follow, that, upon the case, as thus far examined, there is no ground for disturbing the verdict.
There are, however, several other exceptions to the ruling of the county court, which remain to be considered.
It is objected, that the charge of the court in regard to that portion of the logs taken by Ruiter was erroneous, for the reason that the defendant’s license should be treated as having been revoked by the death of Rogers. The evidence tended to show, that the logs
The objection taken to the deposition of Thomas Ruiter, that the place of the holding of the court was omitted in the certificate, was, we think, properly overruled. In Keith v. Day, 15 Vt. 658, it was held, that a deposition was admissible, though the time of the session of the court was omitted, the time of the session*>being fixed by a public statute. The place of the session of the court is equally fixed by public statute, and we do not perceive, why that case must not be an authority for the admission of the deposition in this.
It is objected to the deed of reconveyance to the plaintiff of Hale, Brown and Bailey, that it is not sufficiently acknowledged by Bailey, to convey his rights. In the body of the deed one of the grantors is described as Richard G. Bailey, and it is signed and sealed R, G. Bailey. The acknowledgment, after a proper designation of the state, county and town, reads thus, — “ this thirty first day of January, A. D. 1842, Oliver Hale and Daniel Brown, Richard G. personally appeared and acknowledged this instrument, by them sealed and subscribed, to be their free act and deed,” &c. Although the name “ Bailey ” is omitted in the acknowledgment, yet the statement, that Richard G., who executed the instrument, acknowledged it, does, we think, render it sufficiently certain, that it was acknowledged by Richard G. Bailey, the grantor.
The only remaining objection to the verdict is one, which we have been unable to overcome.
The plaintiff’s testimony did not tend to show a sole and exclusive title in himself to the logs sued for, but only an undivided share in them, as tenant in common. The court were requested to charge the jury, that the plaintiff’s damages should be estimated according to the value of his undivided portion. But the court de
It has indeed been long settled in this state, that one tenant in common, as against a stranger to the title, may recover the whole land in ejectment. In that action the thing itself is recovered, and the recovery of the whole is allowed, because it would be unjust to the plaintiff, to be compelled to accept a trespasser upon his rights and upon the rights of all the other owners of the land as his co-tenant. In such case the plaintiff is put in possession and holds both for himself and for the other co-tenants, whoever they may be. Pomroy v. Mills, 8 Vt. 279, 410. Univ. of Vt. v. Reynolds, 3 Vt. 553. Johnson v. Tilden, 5 Vt. 426. House v. Fuller, 12 Vt. 172.
But where the action is for a trespass to persona] property, the remedy being in damages only, there does not appear to be the like reason for allowing a full recovery by a part owner. Indeed, all that a party can with any show of reason claim against one, who has trespassed upon a chattel in which he has an interest, is to be made good for the injury done to that interest. It accordingly appears to be the well settled doctrine of the common law, that although the non-joinder of a part owner of a chattel may, in actions ex delicto, be pleaded in abatement, yet that if the defendant neglects to make such plea, he may still avail himself of a want of title to the whole in the plaintiff, for the purpose of reducing the damages. And when one part owner has recovered for his share of the injury, the other has afterwards been allowed to sustain an action for his. Addison v. Overend, 6 T. R. 766. Sedgworth v. Overend et al., 7 T. R. 279. Bloxam et al., v. Hubbard, 5 East 407. Gould’s Pl. 276. Chit. Pl. 55.
For this reason we think we must hold the judgment of the county court to be erroneous.
We have considered the question whether it is necessary to send the case back to the county court for a new trial and are of opinion that it is not. Whenever a judgment of the county court has been found to be erroneous and it could be ascertained by computation what the judgment ought to have been, it appears to have been the practice of this court to make the correction without sending the case back for a new trial. Thus it was said by Judge Hutchinson in Sutton v. Burnett, 1 Aik. 209, that if the judge should charge
There is no difficulty in ascertaining by computation what the plaintiff’s proportionate share of the whole damages would be, and we think the plaintiff should have judgment for that sum.
The plaintiff’s vendue title, which we have found to be valid, originally embraced fifty seven of the sixty five rights in the township. These rights he conveyed away in 1835; and regained but three undivided fourth parts in each of them, by the re-conveyance to him in 1842. He is therefore entitled to three fourths of fifty seven sixty fifths of the whole damages, the $100 received of Ruiter and Cleveland to be wholly deducted from the plaintiff’s portion of the damages. Upon this computation we find the damages, which are now $289, should be reduced to $155,85, for which judgment is to be entered on the verdict for the plaintiff.
Judgment reversed for the excess above $155,85, and affirmed for that sum.
