| Superior Court of New Hampshire | Jul 15, 1833
delivered the opinion of the court.
* The decision of this question depends upon the construction which is to be given to the third section of the statute of February 23,1794, entitled “ an act to establish an equitable method of making rates and taxes,and collecting such as are now due from,or may hereafter be assessed on such towns and places as are, or may be, incapable of choosing town officers.” The words of the said third section, on which the question arises are as follows ; u And every such sheriff shallthave the same power and authority respecting the taxes committed to him to collect, which collectors of towns have with respect to the taxes of non residents.” If in this clause the legislature intended to give sheriffs only 1he powers, which collectors then had, it is clear that the sheriff', in this case, was bound to follow the directions of the statute of 1791. But if the legislature intended, that after the passing of the act, the sheriff’ should have the same powers as collectors might from time to time by law have, then it is equally clear that he was bound to pursue the directions of the statute of 1796.
We find, upon examination, that this question arose, and was decided, in this court in the case of Sayles v. Batchelder, in the couty of Grafton, May term, 1827.
That was an action of covenant broken, upon a deed, by which the defendant conveyed to the plaintiff certain lands in Coventry, and the question was, whether the defendant at the time he made the conveyance, was the owner of the lands.
David Webster, the sheriff of the county of Grafton,
It appeared that Coventry never had any town officers until the year 1801, and that sundry state taxes had been apportioned to Coventry between the years 1779 and 1791, which had never been paid. The treasurer of the state on the 2d March, 1798, issued his warrant to David Webster, sheriff as aforesaid, to collect the said taxes, amounting in the whole to $580,78.
This was done under the sixth section of the said statute of February 22, 1794, which authorised the selectmen, where taxes remained unpaid to make out in one sum the several years taxes that were due, and appoint a collector, and return his name to the treasurer of the state ; and in case no collector was thus returned, the treasurer was to have the same power of assessing in one sum such arrearages as the selectmen had. And it was provided that the respective treasurers and sheriffs should be thereby as fully empowered with respect to assessing and collecting said arrears, as in other cases. And the powers which the treasurers and sheriffs had in other cases were given by the said third section of the same statute on which the question now to be decided arises.
Webster, the sheriff, proceeded to advertise and sell the land according to the directions of the statute of February 11, 1791, and the question was, whether he was bound to pursue the directions of that statute, or the directions of the statute of December 10, 1796, which is the very question which we are now to decide in this case.
The question was ably argued by Mr. Woodbury, for the defendant, and Mr. Bell, for the plaintiff, and it was finally decided, upon mature consideration, that the sheriff was bound to proceed according to the directions of the statute of February 11, 1791, and judgment was rendered for the defendant.
The taxes in Sayles v. Batchelder were clearly within the sixth section of the statute of 1794, having been all apportioned before that statute was passed. But that section expressly provides that sheriffs shall be “ as fully empowered with respect to collecting said arrears as by this act are given in other cases.”
To ascertain the powers of the sheriff in that case it was necessary to go to, the third and fourth sections of the same statute as in this case. The taxes in that case ■were not committed to the sheriff until 1798. Now if the third section was intended to give the sheriff the same powers as collectors might from time to time have, the sheriff, in 1798, was bound to proceed according to the statute of 1796. The circumstance that the taxes had been apportioned before 1794 was immaterial The same powers were given in relation to those as in relation to other taxes. No distinction was made. If the third section gave to sheriffs the powers which collectors might from time to time have, the sheriffs in 1798 had, with respect to arrears, the same powers as collectors had in relation to other taxes, and ought to have proceeded accordingly. That section applies with equal force, and in direct terms, both to past and future taxes, and tiie decision in Sayles v. Batchelder must be considered as directly in point in this case.
The sale in this case was at Lancaster, while the land was in another town, and it has been suggested that if the defendant’s construction of the third section of the statute of 1794 is correct, the sale was void because the statute of 1790 requires that it should be in the place where the land is. But the answer, which has been given to this argument, is conclusive ; the statute of 1794
We have carefully reconsidered the question settled in Sayles v. Batchelder, and find it one that is not without doubt and difficulty. It is a question upon which much may be said on either side. And as we are by no means satisfied that the question was incorrectly settled in Sayles v. Batchelder, we feel ourselves bound by the decision.
In this case the validity of the defendant’s title must then be settled by the statute of 1791 ; and as the pa>-ceedings of the sheriff were not conformable to the direction of that statute the sale must be adjudged void, and the plaintiffs are entitled to have
Judgment on the verdict,
Parker, J. having been of counsel did not sit in the ease,