56 N.H. 347 | N.H. | 1876
Lead Opinion
FROM CARROLL CIRCUIT COURT. A large number of exceptions were taken by the defendant at the trial, only a few of which are insisted on in the argument. I have looked at such as appear to be of importance, in view of another trial of the case.
(1) I see no reason why the amendments of the town records were not properly allowed. (2) The requirement of the law as to the collector's bond seems to have been answered, and I think there is nothing in this objection. (3) The warrant of the county treasurer was not sufficient evidence of the granting of the county tax. The records of the county convention were necessary, and this exception must be sustained. Cardigan v. Page,
We may as well consider here the further objection, that this land was set down in the list as the "E. G. Linscott pasture, joining the White farm," and not by the number of the lot and range.
In order to ascertain the intention of the legislature on this point, it will be necessary to examine the statutes somewhat carefully. The provisions as to taxing the lands of non-residents are found in Gen. Stats., ch. 50, secs. 17, 18, and are as follows: "Sec. 17. If no person is in possession or occupation of any building deemed by the selectmen to be tenantable, or of any other real estate improved as pasture, mowing, arable, or otherwise, the same shall be taxed as non-resident by such description as it may be readily known by, with the name of the owner, if known. Sec. 18. Unimproved lands of non-residents shall be taxed in the name of the owner, if known; otherwise, in the name of the original proprietor, if known; otherwise, without any name, and by the number of the lot and range, and the quantity thereof, if lotted, or by such other description as it may be readily known by." Now, if the E. G. Linscott pasture was land improved as pasture at the time of the taxing in 1872, it is manifest that it would fall under section 17, and would be rightly taxed by such description as it might be readily known by. The case does not show whether it was so improved or not. Suppose it was not, but is to be regarded as unimproved land, and described in the invoice according the provisions of section 18: looking at the copy of the invoice, as given by the defendant's counsel in their brief, it appears that it was taxed in the name of the owner; — and this, so far as I can see, answers the requirement of this section of the statute. I am unable, therefore, to discover from the case any reason why the taxing was not well enough; but the objection is, that, in the list delivered to the collector with the warrant, which is a copy of the invoice on the book (or, what amounts to the same thing, the original paper from which that record was made), the description is not such as the law requires. The statute relied on to support this position is as follows: "A list of the taxes assessed on the real estate of persons not resident in the town shall be made by the selectmen under their hands, in which shall be inserted the name of the owner, if known; otherwise, the name of the original owner, if known; the number of the lot and range, if lotted; otherwise, such description as the land may be readily known by; the number of acres, and the amount of taxes assessed thereon." Gen. Stats., ch. 55, sec. 1. The town of Eaton was lotted, but the number of the lot and range in which the E. G. Linscott pasture is situated was not inserted in the list *351 given to the collector with the warrant; and this, the plaintiff contends, is a fatal defect. All the other requirements of the statute are met, — the name of the owner, the number of acres, the amount of tax, and (as is to be assumed) a description by which the land may readily be known, namely, the "E. G. Linscott pasture, joining the White farm." The question is, whether the provision as to inserting the number of the lot and range is imperative, or whether, by the use of the word "otherwise," the alternative of inserting such description as the land may readily be known by is allowed. I am, upon the whole, inclined to the opinion that the latter is the true construction. The language used is capable of that interpretation. To hold otherwise would require a description in the list different from that required in the assessment in every case where the lands are improved or when the name of the owner is known.
In a vast number of cases that may be supposed, where the land constitutes only a small part of an original lot, the number of the lot and range would most manifestly be a description entirely imperfect and insufficient: for example, building lots in villages and cities.
I do not find but one case where the matter has been alluded to arising since the statute was put in its present form — Ainsworth v. Dean,
Whether the description, "E. G. Linscott pasture, joining White farm," is one by which the land may readily be known, involves a question of fact which cannot be determined here.
(6) I think the letter of the deputy secretary of state was admissible for the purpose for which it was received. Smith v. Messer,
The statute is silent as to the possession of the land during the year after the sale. The interest which the purchaser acquires by the sale is pointed out by the statute, and is the right to have a deed at the end of the year, provided the land is not in the meantime redeemed. Trespass quare clausum fregit can only be maintained where there has been a disturbance of the plaintiff's possession, either actual or constructive. There is nothing here to show such disturbance or possess; on. Whether the purchaser acquires by the sale such an interest in the land as would entitle him, under any circumstances, to an injunction in equity to prevent waste and destruction of the freehold, we need not inquire. I think the case shows no ground upon which this action can be maintained for acts done on the land before the date of the collector's deed. I do not now see any legal reason why the action may *352 not be maintained for what was done after the deed, except the failure to show a legal assessment of the county tax. Unless that can be supplied on a further hearing, I think the action must fail. If it can be supplied, then, according to the provisions of the case, damages must be assessed for acts done after the collector's deed.
Concurrence Opinion
I have had some difficulty in reaching the conclusion that the record of the invoice and assessment of the non-resident taxes in the selectmen's book was sufficiently authenticated by the signatures of the selectmen, following immediately after the copy of the collector's warrant appended to the copy of the invoice and assessment. It is obviously the duty of the court, in this as in most other matters, to consider rather the substance than the form; and I think that in this case we can so far understand the warrant as referring to the invoice and assessment, that we may justly consider it as amounting to an authentication of that copy. In the view of the judge who delivered the opinion in the case of Perkins v. Langmaid, cited by my brother LADD, some authentication of the record seems clearly to have been required. It would not be enough, according to that opinion, to copy the invoice an assessment into the record-book of the selectmen, and leave it without any authentication. I find myself; however, unable to read the recorded copy of the collector's warrant, without understanding that it refers to the copy of the invoice and assessment immediately preceding it.
On the whole, I agree with the results reached by my brother LADD.
*STANLEY, J., C. C., concurred.
Case discharged.
