56 Vt. 384 | Vt. | 1883
February 17th, 1878, the defendant conveyed to the plaintiff a farm. The conveyance contained the usual covenant, that the premises were free from incumbrances. In this action the plaintiff is seeking to recover damages for the alleged breach of this covenant. To sustain the action it is incumbent upon the plaintiff to show an incumbrance resting upon the premises at the time of the conveyance. Hutchins v. Moody, 30 Vt. 655.
The plaintiff (¿aims that the taxes assessed upon the premises for the years 1876 and 1877 to George O. Adams, who was then the owner of the farm, by the proceedings of the collector of taxes, had become such an incumbrance, when he received his deed from the defendant. Under certain circumstances and after proper proceedings on the part of the collector, taxes duly assessed-upon real estate, become an incumbrance thereon, which a purchaser may yield to, and recover for paying, under the covenant in his deed against incumbrances. Hutchins v. Moody, 34 Vt. 433.
They may become such before the sale of the premises by the collector in satisfaction of the taxes. Hutchins v. Moody, 34 Vt. 433.
If there is an incumbrance resting upon the premises at the time of the conveyance, the purchaser may yield to, and remove it by payment without suit, and recover for a breach of the covenant in his deed against incumbrances. If he pay without suit and a legal determination of whether such .incumbrance existed when he received his deed, and without vouching in his grantor to defend, he takes the burden, in a suit for a breach of the covenant in his deed, of showing the validity of the claimed incumbrance, which he has removed. Turner v. Goodrich, 26 Vt. 707.
If he fails to establish a valid, siibsisting incumbrance, at the tune he received his deed, his payment thereof will be voluntan' and cannot be recovered of the grantor.
Before the conveyance by the defendant to the plaintiff
Thus tested, the sale of December 3, 1877, was fatally defective. Passing the objection that the collector might have satisfied the tax of 1876 from the personal property of Adams, and assuming, without deciding, that such objection is not well taken, the statute required the collector in addition to advertising the land for sale in a newspaper, to put up a notice of the sale in some public place in the town, and at least ten days before the sale. This was not shown to have been done. It is contended by the plaintiff that the court should presume that such notice was posted. But no presumptions are made in favor of proceedings in invilum. The party asserting the title claimed to arise-from such proceedings must show a full and strict compliance with the requirements of the statute. This defect left the sale inoperative to transfer the title. It also appears that the collector sold for a larger sum than he was entitled to, even if the legal costs attending the sale could be lawfully added to the amount of the taxes for the two years. This also rendered the sale fatally defective. Drew v. Davis, 10 Vt. 506.
There could be no redemption of the land sold without the payment of the illegal as well as the legal part of the amount paid by the purchaser.
Without considering the other alleged defects in the collect- or’s proceedings insisted upon by the defendant, these are sufficient to uphold the judgment of the County Court, and that judgment is affirmed.