10 Mass. 105 | Mass. | 1813
This action, for two undivided sixth parts of a lot of land in Windham, is in the form of a writ of right. The demandants count upon the seisin of their father, Peter Colman, deceased, and a descent to them of the shares demanded, as an estate in fee simple. The tenant defends fifty acres on the southwesterly half of the lot of land demanded; and as to the residue, she pleads non-tenure and a disclaimer.
At a trial of the issue joined between these parties on the right in the part defended, the tenant, having in aid the title of the heirs at law of Edward Anderson, to whom she is guardian, obtained a verdict against the demandants. The case has since been brought oefore the Court, upon exceptions for the demandants to the decisions and opinions of the justice, before whom the cause was tried.
The evidence, as well for the demandants as for the tenant, is stated very much at large in these exceptions; but the result to which we have been led, after a careful examination of the case, will render unnecessary any observations upon that part of the evidence which relates to the title of the demandants. They are to be considered, in this inquiry, as maintaining their title and demand; unless the tenant has prevailed^ under a title acquired from their ancestor, or against him in his lifetime.
The title under which the tenant has been permitted to succeed, so far as to obtain a verdict in support of it, is of that kind almost proverbially denominated a collector's title, as expressing a case of doubt and "difficulty. And collectors’ titles must continue dubious and difficult, in the proof and evidence required to sup- [ *112] port them, so long as they remain * unassisted by any
The defence in this action is in the right of the widow and children of Edward Anderson; and an estate in fee simple in fifty acres, being the south-westerly end and half part of the lot demanded, is deduced to him, by several mesne conveyances, from one Caleb Graffam. His title was a deed to him, dated the 10th of February, 1780, made by Jonathan Loveitt, as constable of the town of Wind ham, by which he bargained and sold in fee to Graffam forty-six acres and thirty-seven rods, part of the premises defended; and another deed made by Ichabod Hanson, dated the 14th of the same February, by which, as constable of Windham, he bargained and sold to the said Graffam, in fee, forty acres and a half of the same lot of land. The part conveyed by Loveitt is located as next ad joining to a parcel of the same lot, mentioned to be thirteen and a half acres, before purchased by the said Graffam, which is understood to be at the north-easterly end of the lot, and therefore extends from that so far as to include at least nine acres beyond the centre line of the lot towards the south-westerly half part; and Hanson’s conveyance, although expressed to be of lands in common and undivided, yet in effect includes the residue of the lot.
These deeds are to avail, if at all, upon the legal authorities of the constables; and it was thought at the trial incumbent upon the tenant to prove all the circumstances requisite in the due execution of those authorities ; and this, notwithstanding the length of possession under these deeds, and the long acquiescence of the parties, otherwise entitled to the premises thereby conveyed. Nor is it, in fact, for the heirs of the original proprietor that this demand is prosecuted ; but, as appears from a deed introduced at the trial, for the use and benefit of one who has recently obtained a transfer and release of their title, whatever it may be.
The exceptions, which have been argued, suggest these two inquiries upon the evidence stated, each comprising a number of particulars.
* 1st. Whether the evidence admitted to the jury was [ * 113 ] not incompetent, and whether the verdict is not without the requisite evidence, in several particulars essential to the title under which the tenant holds. And,
2dly. Whether the directions to the jury upon the legal result of the evidence were not incorrect upon the facts proved.
Under the first head of inquiry may be comprised what relates to the warrants for calling the town meetings, at which the assessors and constables were elected, their qualifications or oaths ol
And as to all these difficulties and objections, with which the trial was embarrassed, the Court are clear in the opinion that seals were not essential to warrants for town meetings; that town clerks had authority to qualify assessors and constables, the time specified being directory only, or respecting the right of the town to renew the appointment, and sue for the penalty to be recovered on refusal ; and that, having been sworn as constables, they were qualified in that respect to collect the taxes in question;
The case is, in this respect, within the principle of the decision by this Court in the case of Gray vs. Gardner,
As to the legal result of the facts proved, it must be understood, from the copies of the advertisements, upon which the jury were directed to consider the fact of advertising proved, that Loveitt first
[Pruden vs. Allden, 23 Pick. 184. — Whitney vs. Sprague, 23 Pick. 198. — Battles vs. Holley, 6 Greenl. 145. — Green vs. Blake, 1 Fairf. 16. — Purrington, vs. Dunnings 2 Fairf. 174. — Jackson vs. Miller, 6 Wend. 228.---vs. Brooke, 8 Wend. 487 — F. H.]
As to the omission, from both sets of advertisements, of the names of the proprietors, there is no evidence of any communication or knowledge of them. The name of the original proprietor of the right in the township, to whom the lot in question, was drawn, was, at that distance of time from the grant, no indication of the proprietor at the time when the taxes were assessed. And a statement of the sum assessed on the several divisions or lots was a sufficient compliance with the statute in this particular.
The difficulty upon Loveitfs advertisement, if the copy fur
Hanson's advertisement specifies the hour of the day appointed for the sale. In other respects his advertisements are upon a footing with Loveitt's; and the sales by both constables are, we think, warranted by the provisions of the statute, as to all the requisites of notice; that is, so we must understand the fact upon this verdict.
* It is also proved, as to the continental, state, and county taxes, that the assessments committed to Loveitt for 1778, and to Hanson for 1779, exceeded in the amount of each list the sums granted by the General Court, and by the Court of Sessions respectively. For instance, in 1778, of the tax granted in that year by the General Court, the part apportioned to the town of Windham was 2291. Os. Ad.; and, to provide therefor, the assessors made a list of assessments, as for the state tax, the aggregate of which was the sum of 242/. 5s. l$d., and Loveitt was directed by the assessors to pay to the state treasurer the said sum of 229/. Os. Ad-., and to the treasurer of Windham the residue, being 13/. 5s. 3id. Similar overlayings or surpluses are apparent in each assessment of the public taxes; that is, state and county taxes, as distinguished from the assessments for the town of Windham, and for their parish concerns.
It is also to be observed, that the warrant from the state treasurer, at that time necessary to the authority of the collector, directed and authorized, in each instance, the collection of the whole of the respective sums set on each particular person. The question, then, is, as to this objection, whether the legal result of this evidence is not, that these constables proceeded in their collections upon a void authority; because the warrants to them authorized the collection of assessments exceeding the powers of the assessors.
With a diligent inquiry, we have not found any statute provision, which enabled the assessors to enlarge the sum apportioned for the state or for the county, either to suit their convenience in calculating and forming the lists of assessments, or with a view to meet abatements, or defalcations and mistakes, and to insure the sum for the collection of which the assessors, the town, and the collector, became immediately answerable, to be obtained upon a warrant of distress
Failing to find any express provision at that day, we have been led to examine, with some deliberation, whether, upon general principles, this power, exercised by assessors, had not some warrant or authority; for it is hardly supposable that a practice which had obtained so generally, and for such a length of time, had been without any legal principle to justify it. But we are sensible, whatever latitude of presumption may be employed to supply perishable testimony and evidence of facts, the rules of law are to have some other support; and because in the statute of 1785, c. 50, § 11, which is the revised statute, concerning the power and duty of assessors, there is an express provision to the effect required, to answer the convenience of assessors in making their assessments, but with limitation as to the extent of this authority; and, as nothing similar is found in any former statute relative to this subject, it may be argued that none existed, and that former assessments with overlayings were wholly irregular. Yet, upon the whole, we cannot say that there was not necessarily implied, in the general duty and power of assessors, sufficient authority to meet the obvious occasion. We think these overlayings are to be regarded as appropriations by the town, intrusted with the assessors, to meet the particular expenses and liabilities to be incurred in assessing and collecting state and county taxes.
If this power should be thought doubtful, still the general question recurs, Did this error vacate the assessment, to the effect of rendering it null and void? Were constables trespassers in enforcing the warrants of the state treasurer, in collecting the whole of the respective sums assessed on each particular person, according to the words of the warrant, and the duty which the state was by law authorized to exact ?
It is true that the office of an assessor is rather ministerial than judicial; but there are many particulars in which a * sort of judicial discretion is. permitted them. They [*118] are to exercise their judgment in stating the aggregate amount upon which the assessment is to be apportioned, in determining the ratable property, and the value of it, for which each
Poor rates are apportioned and collected in England in a method analogous to that in use with us for direct taxes, whether state, county, or town, enforced by the assessments of the assessors appointed in the several towns.
The general principle adopted in England is, as resulting from me principles of the common law, that a defect in the rate will not avoid the warrant of distress upon it, so as to make those who grant, and those who exercise it, trespassers ab initio; not even where the rate was supposed to have been anticipated in point of [ *119 ] time, or estimated for a * longer period than was authorized ; because objections of this kind are proper subjects and cases of appeal.
Where an-assessment, however, of a poor rate had been charged upon property not taxable by the statute, the justice who granted a warrant of distress, and the collector who executed it, to enforce that particular assessment, were holden liable to an action of trespass.
In the case at bar, the property assessed was subject to the authority of the assessors. With us they have the power of abating, of correcting their lists after an assessment made. They are, as to all over-assessments, a court of special jurisdiction; and the consequence is, that, in every case within their power to decide, their warrant justifies the collector or constable, who is holden to execute it; and he does not incur the peril of their misdoings or wrong adjudications or estimates, in a case within their jurisdiction.
Upon the whole, the opinion of the Court is, that the overlaying, if an irregularity in the assessment, or an error in the judgment of the assessors, the case itself being within their geneval authority, will not vacate the warrant to the collector or constable. He is justified by the warrant; and the remedy, where any injury is sustained, is against the assessors. We think ourselves bound to view this case as within the reason of the decision in the case of Dillingham, vs. Snow,
The assessments in question were lawfully charged upon the town, and for which a warrant or order had been granted, to be exercised at the peril of the assessors, the towrn being liable for all deficiencies. There was no intention of assessing another and different sum ; but, to avoid the uncertainties incident to the assessments ; and because some are comprised in the list whose capacity to pay at all, or to pay the amount assessed upon them, is uncertain ; and because the assessment itself is liable to defalcations and errors, for which the assessment on the town must respond to the state and county treasuries; and because of possible errors in cal culations, — the list is issued, and the warrant executed upon it, notwithstanding the aggregate of al lthe assessments, if collect© 1,
The verdict is confirmed, and judgment is to be entered accordingly.
ADDITIONAL NOTE.
[See Abbot vs. Hermon, 7 Greenl. 118. — Kellar vs. Savage, 5 Shepl. 444.— Tucket vs. Aiken, 7 N. H. 113.— Briggs vs. Murdock, 13 Pick. 305. — F. H.]
а) [Vide The Margate Pier Company vs. Hannam, 3 Barn, Aid. 267.— Ed.]
3 Mass. Rep. 399.
[Blossom vs. Cannon, 14 Mass. Rep. 177. — Pejepscut Proprietors vs. Ranon, 14 Mass. Rep. 145. — Knox AL vs. Jenks, 7 Mass. Rep. 488. — Ed.]
In the copy, which came up in the case, this advertisement was dated 1778.
[Vide Frothingham vs. March, 1 Mass. Rep. 247. — Bachelor vs. Bachelor, 1 Mass Rep. 256 — Welman vs. Lawrence, 15 Mass. Rep. 326. — Ed.]
[Sed vide Iibby vs. Burnham, 15 Mass Rep. 144 —Stetson vs Kempton, 13 Mass. Rep. 272. — Ed.]
1 Burr. 580. —2 D. & E. 560.
2 D. & E. 374,
5 Mass. Rep. 547.
[Vide etiam Little vs. Greenleaf, 7 Mass. Rep. 236. — Sed vide Libby vs. Burnlam. 15 Mass. Rep. 144. — Stetson vs. Kempton, 13 Mass. p. 272. — Ed.]
[Vide Henderson vs. Broxon, 1 Carnes’s Rep. 91. — The general rule of law, as to actions of trespass against persons having a limited judicial authority, is plain and clear. If they do any act beyond the limit of their authority, they thereby subject themselves to an action of trespass; but if the act be done within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such action. — Doswell vs. Impey & Al., 1 Burn. & Cresw. 163.—Ackerley vs. Parkinson, 3 Maule Selw. 411. — Basten vs. Carew, 3 Barn. & Cresw. 652. — Ex parte King, 15 Ves. 126. — The case of the Marshaser, 10 Co. 76 But see Lincoln vs. Hapgood Al., 11 Mass. Rep. 350. — Ed.]