34 F. 701 | U.S. Cir. Ct. | 1888
This is a proceeding under chapter 28, Mansf. Dig., to confirm a tax title to lot 5, in block 145, and other lots and lands not here in controversy, in the town of Hot Springs. The lot was sold to the state on the 25th dajr of May, 1885, for the taxes of 1884, and at the expiration of two years — the period allowed by law for redemption —it was certified to the commissioner of state lands, and immediately thereafter purchased by the plaintiff from that officer. The bill was filed in the Garland circuit court. The defendants, Prances M. Barbour, a married woman, and her infant children, Howard P. Munger, Grace E. Munger, and Robert P. Munger, by their next friend, Ormand Barbour, entered an appearance to the suit in that court, and removed the cause to this court. It is clear from the proofs that the lot belongs to Mrs. Barbour, or to her and her children, unless the tax sale divested them of title. The defendants allege the tax title is void for numerous reasons.
The act of March 31, 1883, under which the tax title in judgment accrued, provides that the assessor, before entering upon the discharge of the duties of his office, shall take and subscribe the oath of office prescribed by the constitution for all officers, “and, in addition thereto, the following oath or affirmation, which shall be indorsed upon the assessment books prior to their delivery to tho assessor.” [Here follows the oath, which is comprehensive and exacting, and contains the declaration that “a.11 real * * * property * * * will be appraised at its actual cash value.”] Section 5661, Mansf. Dig. Section 5662 declares:
“If any person so elected fails or refuses to take the oath required in the preceding section, and file the same witli the clerk of the county court of his county within the time prescribed, the office shall be declared vacant, and the clerk of the county court shall immediately notify the governor, and such vacancy shall be filled in accordance with the constitution and laws of the state.”
The defendants have shown that the oath here required is not “indorsed upon the assessment books” for the year 1883, nor has it been found elsewhere. This proof rebuts the presumption that it was taken, and imposes upón the plaintiff the burden of proving that it was. This bur
It is the duty of the county clerk to make up the assessment book or roll of real estate in the county, showing each subdivision and the name of the owner. Section 5694, Mansf. Dig. To this assessment book the assessor simply adds his appraisement of each lot and parcel of land. This is the assessment book referred to in section 5661. This book the clerk is required to make up and deliver to the assessor on or before the first Monday in February. But by section 5661, the clerk is forbidden to deliver, and the assessor to receive, this book, until the required oath is taken; and, that there may be no misunderstanding or doubt as to whether the oath has been taken,'the law requires that it shall be indorsed on the book itself. A failure to take this oath within the time prescribed, ipso facto vacates the assessor’s office. Legislative ingenuity has exhausted itself in an effort to compel the assessor to take this oath or vacate his office. These provisions were enacted in the interests of property owners; and when the assessor refused to take the required oath, and the clerk, in violation of law and his duty, delivered to him the assessment book, no assessment on that book can be made the foundation of a valid tax title. If the law were otherwise, no property owner could ever hope to have his property appraised for taxation by an assessor bound by the obligations of an oath to appraise it at its value. But in this forum this question is foreclosed by the judgment of the supreme court of the United States in Parker v. Overman, 18 How. 137. That was a proceeding like the one at bar, and the tax title sought to be confirmed was held invalid because the assessor did not take the oath prescribed by section 8, c. 148, Gould’s Dig., within the required time. The court say:
“The principal objection to the regularity of the sale in this case, and the only one necessary to be noticed, is that the land was not legally assessed. A legal assessment is the foundation of the authority to sell; and, if this objection be sustained, it is fatal to the deed. In order to qualify the sheriff to fulfill the duties of assessor, t-ho statute requires that on or before the 10th day of January in each year the sheriff of each county shall make and file in the office of the clerk of the county an affidavit in the following form, etc., and if any sheriff shall neglect to file such affidavit within the time prescribed in the preceding section, his office shall be deemed vacant, and it shall be the duty of the clerk of the county court without delay to notify the governor of such vacancy. * * * The record shows that Peyton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor on or before the 10th of January, as required by law. He did file an oath on the 15th of March, but this was not a compliance with the law, and conferred no power on him to act*705 as assessor. On the contrary, by liis neglect to comply with the law his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale.”
In Moore v. Turner, 43 Ark. 243, Mr. Justice Eaxin, referring to the case of Parker v. Overman, supra, said:
“Upon an appeal to the United States supreme court it was held that in such a proceeding, expressly provided to give every one interested an opportunity to contest the legality and regularity of every step in the proceedings, it might be shown that the preliminary affidavit was not filed in time. This is regarding the affidavit, not as an oath of office, but asa preliminary step to the assessment proceedings; a part, as it were, of the legal machinery by which the revenue was to he collected, or the citizen deprived of his property; and this is certainly the correct view of the case, as our law then stood.”
The law as it “then stood,” and the law applicable to the caso at bar, are the same, save that the present law, for the better protection of the property owner, amplifies the assessor’s oath, and adds new and stringent provisions intended to .make it impossible for the assessor evento obtain the assessment books, until he has taken the required oath. The word “deemed” in the old law, and “'declared” in the present act, have the same meaning in the connection in which they are used. The failure to take the oath vacates ipso facto the office. The clerk is the maker and custodian of the assessment book, until the assessor’s oath is recorded upon it, and also filed in his office; and when it is not taken within the prescribed time, he is required to “immediately notify the governor, and such vacancy shall be filled.” No proceeding to vacate the office is provided for or contemplated. The exigency of the business will not admit of any such proceeding. It would be inconsistent with the dispatch indispensable to the making of a valid assessment. Falconer v. Shores, 37 Ark. 386; Alston v. Falconer, 42 Ark. 114; Elsey v. Falconer, Id. 117. The doctrine of the supreme court of the United States on this question finds support in the following cases; Pike v. Hanson, 9 N. H. 491; Langdon v. Poor, 20 Vt. 13; Payson v. Hall, 30 Me. 319; Morris v. Tinker, 60 Ga. 466; Railway Co.v. Donnellan, 2 Wy. 479; Coit v. Wells, 2 Vt. 318; Isaacs v. Wiley, 12 Vt. 674; Ayers v. Moulton, 51 Vt. 115; Dresden v. Goud, 75 Me. 298.
The list of delinquent lands and notice of sale were required “to be published weekly for two weeks,” between the fourth Monday in April and the fourth Monday in May, 1885. Act March 5, 1885, § 3, and section 5762, Mansf. Dig. Section 5768, Mansf. Dig., provides that “the clerk of the county court shall record said list and notice in a hook to be kept by him for that purpose, and shall certify at the foot of said record, stating in what newspaper said list was published, and the date of publication, for what length of timo the same was published before the second Monday in April then next ensuing, and such record, so certified, shall be evidence of the facts in said list and certificates contained.” The clause of the section “then next ensuing ” shows that this record is required to be made before the day of sale, but it was not so made, and has never been made. When the notice and proof of publication are required to he perpetuated
“The object of the advertisement is twofold: flrst, to notify the owners of land or persons having an interest in it, or charged with the duty of paying the taxes upon it, that the taxes are unpaid, and that the land will be sold for the taxes unless paid before the sale; and, second, to bring together competing bidders at the sale, etc. The advertisement is a prerequisite to the authority of the officers to sell, and must be made in accordance with the requirements of the law. * *
In Bagley v. Castile, 42 Ark. 77, it was held that an act which authorized the sale of delinquent lands without notice was unconstitutional. Judge Cooley, referring to the notice of sale of delinquent lands says:
“Whatever the provision is, it must be complied with strictly. This is one of the most important of all the safeguards which has been deemed necessary to protect the interests of parties taxed, and nothing can be a substitute for it, or excuse the failure to give it.” Cooley, Tax’n, (2d Ed.) 483, and cases cited. ' ■
Where the notice is for less than the statutory time, it is as fatal as if no notice had been given. Id. 484; Black, Tax Titles, p. 83. Discovering this fatal error in his first effort to supply the unkept record, the plaintiff offers in evidence a certified copy of the affidavit of the publisher of the’paper that the notice was published on the 9th, 16th, and 23d days of May, 1885. This affidavit was sworn to on the 17th day
The plaintiff next seeks to prove by the deposition of the publisher of the paper that the notice was published on the 9th, 16th, and 23d days of May, but no copy of the delinquent list or notice is made an exhibit to his deposition, and he only says: “To the best of my recollection each publication was the same as that filed with the clerk in proof of publication.” If they are the same, it could easily have been shown, and ought to have been. The deputv-clerk, who had the custody of the lax-books, and special charge of matters relating thereto, at the time, testifies that they “made it a point to keep the papers,” and that the notice “was published twice, — once on the 16th day of May, 1885, and the last on the 23d day of May, 1885.” If the notice was published on the 9th of May it is highly probable that that publication was for some reason fatally defective. It is certain that it was disregarded by all parties at the time, and the publication on the 16th and 23d alone counted upon. Why should tho printer publish it on the 23d if it had been properly published twice before? If parol evidence and ex parte affidavits were competent
“ The counsel for the plaintiff conceded that if the defect related to any matter which the statute required should be recorded, then parol evidence would be inadmissible to supply the omission. But we think the same rule should be applied to the affidavits, under the circumstances, that would apply to a statement which the law requires should be recorded; for these affidavits constituted in fact a part of the record of the tax proceedings, and may have been examined by the original owner, who failed to redeem solely for the reason that he discovered there was no record evidence that any proper notice of sale had been given by the county treasurer. ” Iverslie v. Spaulding, 32 Wis. 394.
The rule is the same in this case that it is in cases where it is sought to conclude a party by constructive service by publication. The rule is stated by this court in Cissell v. Pulaski Co., 3 McCreary, 449, in these terms:
“It is a rule without qualification or exception, that when it is sought to conclude a party by constructive service by publication, a strict compliance with the requirements of the statute is required. Slothing can be taken by intendment, and every fact necessary to the exercise of jurisdiction based on this mode of service must affirmatively appear in the .mode prescribed by the statute. Gray v. Larrimore, 4 Sawy. 638-646; Steinbach v. Leese, 27 Cal. 295; Staples v. Fairchild, 3 N. Y. 43; Payne v. Young, 8 N. Y. 158; Hill v. Hoover, 5 Wis. 371; Galpin v. Page, 3 Sawy. 93, 18 Wall. 350; Settlemier v. Sullivan, 97 U. S. 444. It is not competent for this court to receive parol testimony to supply the omission. Gray v. Larrimore, supra; Noyes v. Butler, 6 Barb. 617; Lowry v. Cady, 4 Vt. 506.”
The case of Com’rs v. Morrison, 22 Minn. 178, is in conflict with the current authorities on this question. The doctrine of that case cannot possibly be the rule under a statute like that in this state.
The revenue law provides that, if no person bids the amount of the tax for the delinquent land at the tax sale, the collector shall bid the same off in the name of the state. Section 576, Mansf. Dig. The clerk is required to attend the sale, and record in a “ book to be kept for that purpose each tract of land, town or city lot, sold to the state, together with the taxes, penalty, and cost due thereon.” Section 5769, Mansf. Dig. The clerk is required to “immediately after the sale transfer upon the tax-books all lands sold for taxes to the name of the purchaser,” (section 5771, Mansf. Dig.,) and “all lands and town lots sold for the payment of taxes shall be thereafter assessed in the name of the purchaser,” except that when the state is the purchaser they are no longer assessed or subject to taxation, but are taken off the tax-books, and entered in
As the constitution provides that property shall be taxed by a uniform rule, both as to rato and mode of assessment, and as an assessment is essential to the imposition of a tax, there would seem to be some embarrassment in giving effect to this requirement. How is it to be known what the property would have been assessed at, and what the taxes would have been? But for the purposes of this case it will bo assumed that the provision is valid. If the lot is sold by the commissioner of state lands after the expiration of the redemption, the state gets no taxes for the intervening years between the purchase at the tax sale and the sale by the state, because during that period it is treated as the property of the state, and the officers are forbidden to put it on the assessment book. In some states the purchaser at a tax sale cannot obtain a deed under his purchase until ho has given the former owner notice of his purpose to apply for one. Black, Tax Titles, p. 180. The object of such a law is to give to the former owner, who may be ignorant of the fact that his land has been- sold for taxes, an opportunity to redeem it. The law in this state works out the same result by a different method. “Immediately” after the tax sale, the land is required to be transferred on the tax-books to the name of the ’ purchaser, if an individual, and when bid in by the state it is taken off the tax-books altogether, and entered on the books of non-assessable state lands. When one whose lot has been sold to the state for taxes without his knowledge, goes to pay his taxes the next year, if the dork has done his duty, the owner is confronted with the fact that he has no lot to pay taxes on; that it has been sold to tlie state for the taxes of the previous year. Under the law he has the opportunity two years in succession to be thus advised, for two years’ taxes accrue and are due before the expiration of the right of redemption. The fact that land is delinquent by no means proves that the owner has knowingly been guilty of any neglect or dereliction of his duty to the state. The delinquency may have resulted from fraud, accident, or mistake for which the owner is not to blame. The facts in the case at bar illustrate this truth. The property in controversy isa boarding-house or hotel, valued at $7,000 or $8,000. The owner resided in a distant state, and had a local agent to collect the rents and pay the taxes. That agent was provided with funds to pay the taxes of 1884, as had been done in previous years. The owner supposed the taxes were paid; hut it now turns out that the agent appropriated the money to his own use, and left the state,
“We are of opinion that the court below erred in charging the jury that it was immaterial whether the non-payment of the taxes was owing to the neglect of the agent, or of the treasurer, or both, as we think the determination of the case must depend upon that question. The officer has duties to perform, as well as the owner, when the latter comes to him to pay up the taxes on his unseated lands. "Various acts or omissions of the officer may occur, constituting such neglect on his part that the owner ought not to suffer by it, 'which cannot be detined beforehand, but must depend upon the particular circumstances of each case. ”
“ Tlie owner came in proper time to the proper officer, the county treasurer, and offered to pay all charges that were against the land, aud it was by mistake of the officer that he did not pay all. * * * His redemption is not invalidated .by the mistake of the public officer. It was very natural to trust him, — most people do, — and the law cannot declare such trust wrong. ”
The county clerk makes and keeps the record of the sale of delinquent lands for taxes; he makes and keeps the record showing the lands bid in by the state for taxes; and he makes up the assessment book of real estate, and is enjoined bylaw not to put such lands on it, and certainly, if he does, their previous forfeiture ought to be noted. When he put the lot in controversy on the tax-books for 1885, and again for 188(1, without noting the previous forfeiture, it amounted to a solemn declaration of record, repeated in each of those years that it had not been forfeited for taxes, and that no delinquent taxes were due upon it. Thq owner and her agent had a right to presume that the clerk had done his duty. On these facts the owner is entitled to redeem on paying the amount hid by the state, with interest from that date. Cooley, Tax’ll, 582-540; Black, Tax Titles, p. 52; U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240; Price v. Mott, 52 Pa. St. 315; Corning Town Co. v. Davis, 44 Iowa, 628; Laird, v. Hiester, 24 Pa. St. 452; Dietrich v. Mason, 57 Pa. St. 40; Van Benthuysen v. Sawyer, 36 N. Y. 150. Gage v. Scales, 100 Ill. 218. If this was a case where one of two innocent parties must suffer by the wrongful act of a third, the state would have to bear the loss resulting from the misconduct of her own agent. Conway Co. v. Railway Co., 39 Ark. 50; Jiska v. Ringgold Co., 57 Iowa, 630, 11 N. W. Rep. 618. But this is not that kind of a case. Here the owner and the state both lose by the official misconduct of the officer if it is overlooked, and the sale held valid, — the owner loses the lot, and the state two years’ taxes on it. On the other hand, if the sale is void by reason of the clerk’s error, the state gets all her taxes, the owner keeps her lot, and the purchaser loses nothing, because he gets back his purchase money with interest. The right to redeem may bo rested on another ground. II is obvious that the state has no right lo the two years’ taxes, if she denies the former owner’s right to redeem, and stands on her purchase at the tax sale. The money paid for the taxes of the two years was paid to the same officer, and was distributed in the same way it would have been if it bad been paid on a technical redemption of the property; and, the full amount required to make redemption not having been paid by reason of the mistake or misconduct of the clerk, equity will treat it as so much paid towards redemption, and will permit the owner to perfect the redemption, on discovering the mistake. Id. The rule of caveat empior applies to the purchaser of a tax title. He is not a bona fide purchaser for value without notice. For such titles the commissioner is directed to “execute to the purchaser a quitclaim deed.” Section 4245, Mansf. Dig. The purchaser takes the land in the same plight the state held it, and subject to the same equities and defenses. Cooley, Tax’ll, (2d Ed.) 475-558; 2 Desty, Tax’ll, 850.
■‘Ueitber the validity nor the construction of this statute has been settled by previous decisions of this court, further than it does not operate to deprive the former owner of any meritorious defense. And by ‘ meritorious defense ’ we mean any act or omission of the revenue officers in violation of law, and prejudicial to his rights or interests, as well as those jurisdictional and funda*713 mental defects which affect the power to levy the tax, or sell for its non-payment. But while the act cannot have the free course that its framers intended,, it is still our duty to give it such effect as may be consistent with legal and constitutional principles. And this may be best accomplished by restricting its operation to mere irregularities or informalities on the part of officers .having some duty to perform in relation to the assessment and levy of taxes or sale. Our legislation and previous decisions have always distinguished between this class of defects, which have no tendency to injuriously affect the tax-, payer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax, or of the power of the officer to sell l'or non-payment, or the omission oí any legal duty, which is calculated to prejudice the land-owner.”
It is obvious that the defenses pointed out to the tax title in suit in this case are “meritorious,” as that term is defined by the court in Radcliffe v. Scruggs, and by the weight of authority, and that the legislature cannot deprive the property owner of such defenses without, in the language of Mr. Justice Smith, “transcending the boundaries of its power.” Davis v. Minge, 56 Ala. 121; Stoudemnire v. Brown, 57 Ala. 481; Cooley, Tax’n, (2d Ed.) 298, 299, 521, and cases cited, and notes; Black, Tax Titles, 253; Silsbee v. Stockle, 44 Mich. 561, 7 N. W. Rep. 160, 367.
The question whether Mrs. Barbour, as a married woman, has not a right to redeem without regard to the validity of the sale, and whether her infant children have not an interest in the lot which would entitle them to redeem under the statute, and objections to the validity of the tax sale, other than those passed upon, are not decided.
Let a decree be entered declaring the plaintiff’s deed void, giving him a lien on the lot for the purchase money and interest, and directing the sale of the lot unless the amount is paid into the registry of the court for his use within 20 days, and that the plaintiff pay all costs.