Hall v. Collins

| Vt. | Jan 15, 1832

Baylies, J.,

delivered the opinion of the Court. — We are called upon to consider the effect of a vendue deed, executed by Isaac Burton, collector of taxes, to Daniel Douglass, on the 4th ofJune, A. D.1819, whichdeedis made part ofthe case, and is marked A.

The power of Isaac Burton, as collector, to convey the land in question,to satisfy the taxes,may be learned in the opinions of the Supreme Court of the United States, expressed in the cases refer-rec* t0 ^ defendant’s council. In the case of Stead’s Executors vs. Course, 4 Cranch, 403, the court say, “ It would be go-mg too far to say that a collector, selling land with or without authority, would, by his conveyance, transfer the title of the rightful proprietor: He must act in conformity with the law from which his power is derived, and the purchaser is bound t'o Inquire whether he has so acted. It is true that full evidence of every minute circumstance ought not, especially at a distant day, to be required. From the establisment of some facts, it is possible' that others may be presumed, and less than positive testimony may establish facts. In this ease, as in all others depending tía testimony, a sound discretion, regulated by the law of evidence, will be exercised. But it is incumbent on the vendee to prove the authority to sell; and the question respecting the fairness of the sale will then Stand on the same principles with any other transaction in which fraud is charged.”

In the case of Parker vs. Rule’s Lessee, in 9 Crunch 64, the court decide, that under the act of Congress to lay and collect a direct tax, (passed July 14, 1798,) before the collector can sell the land of an unknown proprietor, for the non-payment of taxes,, it is necessary, that he should advertise the lists of lands on which taxes have not been paid, and the statement of the amount due for the tax, and the notification to' pay, for 60 days, hr four gazettes of the state, if there he so many.

In the case of Williams et al. vs. Peyton’s Lessee, 4 Wheat. 77, the court in their opinion say, “ This is an action of ejectment brought in the circuit court for the District of Kentucky, by the original patentee, against a purchaser, at a sale made lor nonpayment of the direct tax, imposed by the act of Congress of the 14th of July, 1798, c. 92. As the collector has no general authority to sell lands at hi'S discretion for the non-payment of the direct tax, biit á special power to sell in the particular cases described in the act, those cases must exist, or his power does not arise, it is a naked power, not coupled with an interest; and in all such cases, the law requires that every pre-requisite to the exercise of that power must precede its exercise ; that the agent must pursue the [tower, or his act will not be sustained by it.”

“ This general proposition has not been controverted ; but the plaintiffs in error contend, that a deed executed by>a public officer is prima facie evidence that every act which ought to precede that deed had preceded it ; that this eoveyance is good, un-legs the party contesting it can show that the officer failed to per-» form his duty.”

“ It is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performance ofthe act, as he would be bound to prove any matter of recbrd on which its validity might depend. It forms a part of his title ; it is a link in the chain, which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he becomes a purchaser, and the evidence of them should be preserved as a necessary muniment of title. If this be true in the general, is there any thing, which will render the principle inapplicable to the case oflandssold for the nonpayment of taxes? In the act of Congress, there is no declaration that these conveyances shall be deemed prima facie evidence of the validity of the sale. Is the nature of the transaction such, that a court ought to presume in its favour any thing, which does not appear, or ought to relieve the party claiming under it from the burthen of proving its correctness ?

“The duties ofthe public officer are prescribed in the 9th, 10th, and 3 3th sections of the act ofthe 14th of July, 1798, c. 92. If theses duties be examined, they will be found to be susceptible of complete proof on the part of the officer, and consequently on the part ofthe purchaser, who ought to preserve the evidence of them, at least, fora reasonable time. It is the peculiar province of this Court to expound the acts of Congress, and to give the rule by which they are to be construed.”

The above reasoning will apply to the case at bar, which arises under the act of Congress laying a direct tax upon the United States of six millions of dollars, for the year one thousand eight hundred and sixteen, and for succeeding years, passed Jan. 9, 1815; and the act to reduce said tax to three millions of dollars, passed, March 5, 1810.

Before the collector could give a valid deed under the act of 1815, there were several essential things to be done by the secretary of the treasury, principal assessors, assistant assessors, and .the collector. To make out a title in the plaintiff under the cob lector’s deed, it must be proved that “ the several essential things to be done,” were done previous to the execution ofthe deed. And the question is as to the mode of proof.

Can the plaintiff prove by a written'certificate of the collector, that these prerequisites were performed P The collector is not by any law made a certifying officer for the purpose ; therefore, his certificate of the facts would be no better evidence of them, than the'certificate of any other credible person not upon, oath : such certificate, whether inserted in the collector’s deed-, or not, is not evidence to prove that the prerequisites have been performed.

In the deed (marked A) Isaac Burton, the collector, has recited several essential things to have been done- Now, are these re■dials legal evidence of the facts, so as to make the’ deed* prima facie evidence of title in Daniel Douglass, the- grantee ? “ The rule of law is, that a deed containing a recital of another deed is evidence of the recited deed against the grantor, and all persons claiming by title derived from him. subsequently : but such recital is not evidence against a stranger,- nor against one, who claims by title derived from the grantor before the deed, which contains the recital.” — (See 1 Stark. Ev. 369 n. 1, and the cases there re* fered to.) Moreover, “a recital will not operate as an estoppel,or as evidence, against one, who was neither a party to the deed, nor claims under a party.” — (See 2 Stark. Ev. 23, and the cases there referred to.) According to these principles, the recitals in the deed (marked A) cannot affect the title of John Colhns, who is no party to the deed, and was the owner of the land in question, when it was sold for taxes. I state this as my opinion. But the Court in deciding the case, did not decide, that the.recitals in the deed were, or were not, evidence of the doings of the collector, who gave the deed ; but they decided, that the recitals were not evidence of the doings of other officers concerned, and the deed was not prima facie evidence, that the title to the land in question had been conveyed to Daniel Douglass, the grantee. Upon this ground, a new trial is granted in this action. The defendant is to recover his costs at this court; his other costs to wait the event of the suit.