Lyon v. HuntLyon v. Hunt
The interference of courts of equity in restraint of waste was originally confined to cases founded in priority of title; but at present, the jurisdiction has been enlarged to reach cases of adverse claims and rights not founded in priority; as, for instance, to cases of trespass, attended with irreparable mischief. [2 Story’s Eq. 200.] The interposition by way of injunction in cases of waste, may be referred to the broadest principles of social justice. It is exerted where the remedy at law is imperfect, or is wholly denied ; where the nature of the injury is such, that a preventive remedy is indispensable, and should be permanent. [Ib.j Even in cases of tenants in common, courts of equity will interfere where the party committing the waste is insolvent; or where the waste is destructive of the estate, and not within the usual legitimate exercise of the right of enjoying it. [Id. 199.] In some cases, the jurisdiction is maintained in order to prevent multiplicity of suits. [1 Story’s Eq. 82,
In Livingston v. Livingston,
In Hart & Hoyt v. Mayor, &c. of Albany, 3 Paige’s Rep. 213, the chancellor observed that the cases in which his court had interfered to prevent a mere trespass, have been those in which the complainant had been in the previous undisturbed enjoyment of the property under claim of right, or where from the irresponsibility of the defendant, or otherwise, the
In Pettit v. Shepherd, 5 Paige’s Rep. 501, it was held that an injunction will be granted at the suit of the true owner of land to restrain the sale, of it, under .an execution against the lands and tenements of a third person. “ The jurisdiction of this court,” .said the chancellor, “ to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up and canceled, appears to be now fully established. [See Ward v. Ward,
By a comparison of the allegations of the bill with the law as we have stated it, we think it perfectly clear, that the bill states a case proper for equitable interposition. True, it does not charge the defendant, Lyon, with the actual commission of waste, but it affirms, that trespasses and waste are threatened, that preparations are being made for their commission, and that by the acts of Lyon, and others acting avowedly under his authority, the complainants are disturbed and are likely to be still more seriously interrupted in the enjoyment of their property. That the acts charged to have been committed and threatened would most probably produce such a result as the complainants apprehend, we think cannot be seriously questioned. This being the case, and Lyon being insolvent, the preventive interference of chancery may be sustained upon the ground that the injury to the complainants’ property would be otherwise irreparable. To authorize an injunction to issue in such case, it is not necessary that the acts threatened should have been committed— if the party insists upon his right to do them, and especially if he makes advances towards their commission, it is quite sufficient. [2 Atk. R. 183; Casey v. Holmes, Bott & Earle,
. The validity of the deed from Huggins as collector of the taxes for Mobile county, has not been drawn in question, for any defects apparent on its face, and it may therefore be conceded, that it is prima facie valid, if its recitals are sustained. Upon this hypothesis it may be assumed, that if it is not sufficient to divest the complainants’ interest in the property in question, it at least throws a cloud over their title — is calculated to impair the market value of the estate, and will prevent a sale at its fair value. Under such circumstances, no
We are now brought to consider the validity of the sale under which Lyon claims, and the deed consequent thereon. By the act of 1815, in connection with that of 1821, it is enacted, that all lists of taxes shall be considered as having the force and effect of an execution ; and it shall be lawful for all assessors and collectors of taxes, from and after the first day of September, in each year, to proceed to irnake distress and sale of the goods and chattels, lands and tenements of all persons in arrear for taxes. Where the delinquent has no goods and chattels within the county, then his lands and tenements within the same, or so much thereof as will be sufficient to pay the amount of taxes due from him, together with costs and charges, may be sold by the collector; “ Provided, that the collector shall have given in the nearest newspaper published in this state, in the case of residents within the , same, at least three months notice, and in the case of non-residents, at least six months notice of the time and place of sale.” “ Which notice shall contain a particular description of the land for sale; on what water course it is, and by what lands the same is bounded; and to whom the same was granted, or by whom the same is now owned or claimed.” “ There shall not be sold in one lot, more than three hundred and twenty acres of land; but if one lot shall not sell. for the amount of taxes due from the delinquent, together with all costs and charges that shall have accrued thereon, the collector shall sell as many lots, or parts of lots, as shall raise the full amount due ; in no case shall the collector sell any more land than shall be sufficient to raise such sum as shall be due.
The same statute directs that every collector of taxes who shall sell any real estate to satisfy any tax,imposed by law
In Williams v. Peyton’s lessee,
It is easy for the purchaser, said the court, to show that the collector has posted up the notifications as required by the statute, but very difficult to show that he has not. He may readily prove that a personal demand was made on the person liable for the tax, “ but the negative in many cases would not admit of proof. No greater hardship is imposed on the purchaser to require him to prove the publication in a gazette, than to require him to prove that a naked power of attorney, in a case in which his deed has been executed by an attorney, was really given by the principal. “ But to require from the original proprietor proof that these acts were not performed by the collector, would be to impose on him a task always difficult, and sometimes impossible to be performed.” [See also, 4 Cranch’s Rep. 403 ; 9 Id. 64; 1 Scam. R. 335; 1 Bibb’s R. 295;
In an ex parte proceeding, as a sale of land for taxes, under a special authority, great strictness is required. To divest an individual of his property .against his consent, every substantial requisite of the law must be complied with, No presumption can be raised in behalf of a collector who sells real estate for taxes, to cure any radical defect in his proceedings ; and the proof of regularity devolves upon the person who claims under the collector’s sale. [4 Pet. R. 349.] To the same eifect is Avery v. Rose, 4 Dev. Rep, 549, in which it was also held, that the collector’s deed must be made at the time directed by the statute. In the Lessee of Watt v. Gilmore, 2 Yeates’ Rep. 330, lands were assessed and sold for the non-payment of taxes, as the property of A. G. and J. G., but were advertised as the property of C. G. and company: Held, that the variance between the advertisement, assessment and deed, was fatal to the sale and operation of the deed. So it has been decided, that under the eighth section of the act of 1812, to amend the act for the incorporation of the city of Washington, a sale of unimproved squares, or lots in the city, for the payment of taxes is illegal, unless such squares and lots have been assessed to the true and lawful proprietor thereof; and the advertisement of sale must contain a particular statement of the amount of taxes due on each lot separately. [
A statute of New York required a tax list to be made out, “ containing the names of all the taxable inhabitants residing in the district at the time of making out the list, and the amount of tax payable by each inhabitant, set opposite his nameand further directed, that a warrant issue, which “ shall command the collector to collect from every person in such tax list or rate bill named, the sum therein set opposite to his name.”' Held, that where a farm is owned, and actually possessed by the widow and heirs of a person deceased, the designation of such owners in a tax list, and warrant for the collection of the tax, as “ the widow and heirs of A. B. deceased, is a sufficient compliance with the directions of the statute to justify the collector in executing the warrant. [
The earlier legislation of Illinois, in respect to the sale of
We might, perhaps, have saved ourselves the labor of thus multiplying citations on this branch of the case, by merely referring to a decision of our own, in which it was held, that to sustain a sale of real estate for the non-payment of taxes by the marshall and collector of the city of Wetumpka, the purchaser must show that every pre-requisite to the regularity of such sale had been strictly complied with. [5 Ala. R. 433.] But as the opinion, in that case, though clearly and satisfactorily reasoned, did not go into an elaborate examination of the question, we have thought altogether proper on the present occasion, to fortify the conclusion there expressed. It is important to the State, as well as to individuals, that the law upon this point should be understood, and this must be our apology for having thus extended this opinion.
Our statutes do not declare that a sale and conveyance, ■such as we are considering, shall operate proprio vigore, it merely provides that the collector’s “ deed shall be good and effectual, both in law and equity.” By this we understand, that it shall pass the title to the vendee, if the sale was made
The notice we have taken of our statutes, and the adjudications upon kindred enactments elsewhere, very clearly indicate that the proceedings of the collector, Huggins, under whose deed Lyon claims, were eminently irregular. The assessment does not particularize the land, by stating what portion of the Orange Grove tract was assessed. It could not have been ascertained, (if at all,) without reference to deeds and writings, as well as oral testimony, to which access could most probably be obtained only by time and industry. It does not appear whether the assessment was made in the ordinary mode by the proprietors of the estate, or by the collector, upon his neglect or refusal to give it in; nor is it shown that the collector delivered to the proper persons a written statement of the tax assessed. It may be well questioned, whether it is proved that the persons liable to pay the tax had not sufficient property in Mobile county that could be sold for its satisfaction. Is it certain that the lands were assessed to the proper persons ? It is obvious from the proof, that the greater part of the sum assessed was paid by the real proprietors of the property, or their agents, even previous to its having been advertised for sale.
Again: The advertisement by the collector of the time and place of sale, is as general as the assessment, and proposed to sell “ thebalace of the Orange Grove tract remaining unsold,” to pay the entire sum assessed, without noticing the payment of any part of it; nor can the land to which it refers be identified, and located, otherwise than by reference to extraneous written, and perhaps verbal evidence. And to this it may be added, that it not only does not appear that the sale was advertised for three months, but it was proved
We need not consider any other question discussed in this case, as the result cannot be changed by any conclusion we might attain in respect to them. The consequence is, that the chanceller rightly perpetuated the injunction, and set aside the sale and conveyance upon which the defendant, Lyon, rested his claim — the decree is therefore affirmed.