7 Conn. 505 | Conn. | 1829
The plaintiff brought an action of trespass quare clausum fregit against the defendant, and at the trial, made aprima facie case. The defence is title, by a deed from a collector of state taxes, on sale of the property in question ; and the validity of such defence will appear, by attention, to the-objections made to it, on the part of the plaintiff.
1. It was first objected, that personal notice or other reasonable and sufficient warning to the plaintiff to pay the tax, was not given ; nor was demand made of him for payment.
By the 19th section of the act providing for the collection of taxes, (p. 455. s. 19. revis. 1821.) it is enacted, that the collectors of taxes shall appoint a time and place for receiving them, and shall give to every person reasonable warning for paying such taxes ; and in failure of payment, that they shall make distress.
The notice given in this case, was not personal, but was by a publication on the sign-post in Durham, where the land lies, and in the Middlesex Gazette. Such notification was all that the law requires. Personal notice and demand are not prescribed by the statute ; and the inconvenience of them would be intolerable. The law, by contemporaneous and uniform construction, has been long settled, and the notice in this case, sanctioned, by universal usage.
2. It was next objected, that personal demand was not made of the plaintiff, by the collector, or at his usual abode in Wal-
The statute concerning the collection of taxes, is complete in itself; and it is sufficient if the prescriptions have been complied with. It requires three weeks advertisement of the time and place, at least six weeks before the time of sale, in some public newspaper printed in the county where the land lies, or an adjoining county, and then directs the sale of the land at public auction, Stat. 455. tit. IOO.c. 2. ,v. 20. The return of the collector shews, that these requisitions were observed. The persona] notice and demand, constituting the objection made, are not by law required.
3. It was next objected, that it does not appear, by the return of the officer, or the deed in question, that the sale of all the land disposed of, was necessary to raise the sum for which it was sold ; or that a part of the land was first offered for sale, and found to be insufficient. The validity of this objection depends on the collector’s return. From that and the deed just mentioned, it appears, that the collector sold to Samuel Lynn the land in question, (he having offered to také no less quantity,) for the amount of the tax and lawful charges ; and that he sold sufficient to pay the tax and costs ; Lynn being the highest bidder.
It is a presumption of law, that the collector did his duty; and if he did not, it rests on the objector to prove the obliquity of his conduct. No proof has been offered to establish the fact alluded to.
It is required of the collector, that he act with fairness, and sell no more property than is requisite to pay the tax and charges. But the specific mode in which he is to act, the law does not prescribe. When he says, as he does in his return, that he sold the whole of the land in question, the purchaser having offered to take no less quantity, the legal presumption is, that he sold what was necessary, and no more ; and when he affirms, as he does, that he sold sufficient to pay the tax and charges, the inference is equally clear, that he disposed of no more than was sufficient. A different construction can alone be founded on a new principle ; that is, that returns are to be expounded most strictly against the officer, on the unheard of presumption, that he did not do his duty. On the contrary, the inference is legal, that the auction was fairly and properly conducted ; and the presumption of fact derived from the defend
^ The last objection requiring notice, is, that the deed to the defendant was not executed within a year after the tax fell due, nor lodged pursuant to law, for twelve months, in the town-clerk’s office, without being recorded.
As to the first branch of the objection, the law of May 1821, under which the sale was made, does not require, that a deed shall be executed within twelve months after the tax falls due. There is, however, a point of view arising on the facts displayed, that clearly shews the defendant’s deed to be invalid.
The land in question was sold at public auction, by the collector, on the 29th day of July 1822 ; and the deed exhibited in evidence, founded on that sale, was not executed until the 1st day of April 1826. This was not in conformity with the requisitions of the statute. By this act, the collector is to sell the estate of the tax-debtor at auction, and “to give to the purchaser a deed of warranty thereof, to be lodged in the office of the town-clerk where the land lies, to remain unrecorded twelve months : and if the owner, from whom the tax was due, or any purchaser, mortgagee, creditor of such owner, or person claiming any interest in the land, shall, within twelve months from the time of sale, pay or tender to the purchaser from the collector, the purchase money, with twelve per cent. interest, such deed shall be void, and shall be delivered up to the person paying or tendering the money ; who shall hold such land or estate as a security, in nature of a mortgage, for the money paid and twelve per cent, interest.” Stat. 456. tit. 100. c. 2. s. 20. This systematic provision must be so construed, that all its parts may take effect according to the intent of the law.
The first subject in the natural order of events, is the execution of the deed. The law is not explicit as to the period of its execution, but the nature of the subject indicates it, with sufficient clearness. The estate sold is redeemable at any time within twelve months from the sale; and to give constructive notice of the facts requisite to be known, by those who have a legal right to redeem, the collector’s deed is to be filed with the town-clerk, to remain twelve months unrecorded. In order to carry the whole law into effect, the deed must be executed with all-convenient speed after the sale, and lodged with the town-clerk ; otherwise, the right of redemption cannot, or at least may not, be exercised, for deficiency of
The determination at the circuit, was incorrect ; and a new trial is advised.
New trial to be granted.
