Inhabitants of Oldtown v. Blake

| Me. | Jan 5, 1883

SvMONDS, J.

This is an action of debt, brought for the collection of taxes under the act of 1874, c. 232. The defendant was a resident of Bangor, owning real estate in Oldtown. Whether such real estate was improved or not, it was subject to assessment for taxes. R. S., c. 6, § § 2, 3, 9, 28,159. The provisions of the statutes of 1821, § 30, (Mass. Stat. March 16,1786, § 7,) in regard to the unimproved lands of non-resident proprietors, under which it was held in Rising v. Granger, 1 Mass. 48" court="Mass." date_filed="1804-09-15" href="https://app.midpage.ai/document/commonwealth-v-bailey-6402676?utm_source=webapp" opinion_id="6402676">1 Mass. 48, and in Alvord v. Collin, 20 Pick. 426, that the tax was a lien upon the land itself and not a personal charge against the owner, are not a part of our present statutes relating to taxation. Unimproved lands may be taxed to an owner residing in another town in the state. Pie is liable to taxation for them, and is therefore precisely within the terms of the act of 1874, c. 232, providing this further method for the collection of taxes. If the lands were improved, this act of 1874 affords a method of collecting the taxes upon them, additional to that given by R. S., c. 6, § 115. It .is a new mode provided generally "for the collection of taxes legally assessed in towns, against the inhabitants thereof or parties liable to taxation therein.” It does not repeal the old methods, nor is it limited by them. The question, whether these lands were improved or not, therefore, is of no importance in deciding the case.

In French v. Patterson, 61 Maine, 209, it is said, "The statute does not require, nor is it often practicable that the assessors of taxes should give a minute description of the non-resident lands assessed by them. It is sufficient if they so describe them in their assessment that they can be identified with reasonable certainty.” The rule given in Orono v. Veazie, 61 Maine, 433, is that, " the description of the real estate assessed, in this class of cases, must be certain or refer to something by which it can be made certain.”

In the present case, we think the description was such that the owner could know with certainty for what lands he was assessed. So much of two contiguous lots, numbered nineteen and twenty, on a plan known and mentioned, as lies east of a certain road, is a good description. There appears to have been but one road across the lots, and the evidence was, that what was called the Grass Island road by the assessors, was the same as the Orson Island road mentioned in the deed to the defendant.

The whole tract Avas sufficiently described, and the exceptions from it seem to be clear enough to be intelligible.

The assessors in their description of the premises except from the Avhole tract just mentioned, "that part occupied by Theodore Jellison, Lucy Gihnan, George Ballard and II. M. Woodman;” while the deed to the defendant excepts from the tract conveyed to him, "the lot occupied by li. M. Woodman and the three lots adjoining, and north of said lot, each of which is four rods wide on said Orson Island road, and extending eight rods east according to the plan of said Wadleigh.”

These exceptions are the same, and sufficiently stated in the assessment. The fact was, —and it must have been reasonably-certain to the defendant, — that the parts excepted, were those to which his deed gave him no title.

The other exception in the description of the land.taxed is of "that part taxed to N Godfrey’s heirs.” This maybe more doubtful. But it is to be noticed that this last exception is not in terms contained in the deed of these premises to the defendant. The whole tract is conveyed to him with the four exceptions previously stated. Whatever title or occupation the Godfrey heirs had, must have been out of the estate which the deed conveyed to him, or upon the lots excepted from the operation of the deed. This fact, we think, aids the last exception somewhat, and that the description, taken as a whole, was intelligible and reasonably definite.

It was one tract which was described in the deed and by the assessors, although consisting of parts of two contiguous lots on the Holland plan; and when to a sufficient description of such a tract, the words, " and boom”, were added by the assessors, they seem to the court to identify with reasonable certainty the boom which is shown by the evidence and diagram to extend along the front of those lots, constituting the chief value of the premises. For purposes of taxation, the boom affixed to the land was real estate. R. S., c. 6, § 3. The assessment was in effect one upon a single parcel of real estate with the erections upon it, as if a lot of land were described and the words, " and buildings,” wore added.

Supposing the collector to have been duly qualified to act, the demand made by him in December, 1880, was a sufficient one. It was a personal demand upon the defendant for the taxes due, the amount of them having been previously stated to Mm in writing: and be " declined to pay and found fault with the valuation and with the description.”

The collector was duly chosen and had given bond but had not taken the oath of office. It may be true that a collector who has not been sworn has not that full authority required to enable him to make a legal sale of lands for non-payment of taxes. Payson v. Hall, 30 Maine, 319. But if he is acting under his warrant, with no other defect in his authority than that, he is at least an officer defacto, having certain powers. Payment to him would discharge the tax. The fact that the collector to whom the tax had once been paid was not sworn, would not enable the town to collect the tax a second time.' Under the act of 1874, the defendant is not liable to costs, unless the tax was demanded before the action was brought. But when, prior to the suit, tlie demand had been made by an acting collector, having authority to discharge it, and when the refusal to pay was put- upon other grounds than any want of qualification on' his part, the court correctly awarded costs in favor of the plaintiffs. See Greene v. Walker, 63 Maine, 313; Belfast v. Morrill 65 Maine, 580.

■ Exceptions overruled. Judgment on the verdict.

Memorandum. It is understood by the parties that the plaintiffs are to remit the sum of $1.55 and interest thereon, from the amount of the verdict, before the above entries are made.

AppletoN, C. J., WaltoN, Dakfoeth, Virg-IN and Peters, JJ., concurred.