Proprietors of Cardigan v. Page

| Superior Court of New Hampshire | Jul 15, 1833

Richardson, C. J.

delivered the opinion of the court.

The first objection to the tenant’s title, in this case, is, that the town meeting, holden in Alexandria, on the 12th March, 1822, at which the collector was chosen, and a part of the taxes, for which the land was sold, voted to be raised, does not appear to have been legally warned. This objection is well founded. It does not appear that any legal notice of the meeting was given to the inhabitants of the town. The certificate of the selectmen states neither the time when, nor the place where, the copy of the articles was posted up. It is wholly insufficient, When meetings are warned by selectmen, they must make a proper return of their doings. They stand, in that business in the place of constables, and their return must show, not simply that notice has been given, but that such notice as the statute directs has been given. They are public officers, authorized by law to warn town meetings. It is their duty to make a return of their doings. If they make a false return they are liable to an action in favor of him who may be thereby injured. And, in our opinion, their return is, in this instance, the only evidence which can be admitted to prove what they have done.

It has been urged by counsel, in this case, that great mischief must follow a decision that the return of seleet-m mis the only evidence that can be admitted in these cases to r,rove a town meeting legally warned. And we have no dot*tbat tbe Practiee of selectmen, in relation to their returnt"*’ bas been verY l°ose- ^ie time has come when it see* to I1S to be necessary that the practice of selectmen, in Jhis Particular’ should bc corrected ; and in our opinion much í?reater mischiei‘ wil1 rcsult from giving countenance to the*."are*ess ant* perfect returns which have already been made, than from holding a Ic-gal and sufficient return to be essentially necessary in all cases. In most cases, an imperfect return can be amended, and if the facts will warrant it. a good return be made. Rut it has been said, in the argument of this case, that the selectmen may die, and then the return cannot be amended. This is true. It is however to be remembered, on the other hand, that all who have any knowledge of the time when a warrant was posted up, may also die, and then, if there be no return, all evidence of the fact is lost.

It is neither safe, nor expedient, to leave the title (o real estate to depend, in any case, upon the uncertain and fading recollection of mortal men. It is not the policy of this state to do so. All conveyances by one man to another roust be in writing. When an execution is extended upon land, there must be a return in writing, otherwise it is without effect.

VI hen lands are sold for taxes, the former owner ought to be able to learn, from the records of the proceedings, whether his title has been lost. He ought not to be put to the expense of a lawsuit to k-ara whether his land has been legally sold.

It is, in our opinion, much better that a few titles should now fas! for this defect than that all titles of this description should be left in doubt and uncertainty. As soon as the* law. on this subject, is understood, the practice will be corrected. As soon as it is understood to be settled that there must be a mum, statins’ the time when the warrant was posted up. and the place where, which must appear to be a public place, the returns will be at once correct in these particulars.

Another objection to the tenants title, is, that it does not appear that the collector was legally appointed, or duly sworn.

We are of opinion, that the practice of setting up, at auction, the office of collector of taxes, and of choosing him who will serve most cheaply, is incorrect. A proper choice should be made by the town, and the compensation be left to be settled by the selectmen. No person can be compelled to serve as collector. But suitable persons may be found, who will be willing to serve for a reasonable compensation. What effect the circumstance, that the office was set up at auction, in this case, ought ip have upon the appointment, we shall not examine. Aowever that may be, it does not appear that he took the proper oath of office. The record only shows that he was sworn into office. In what manner he was sworn does not appear. In order to render a sale of land, by him, for taxes, valid, it must appear that he took the oath of office, by law prescribed, 3 N. H. Rep. 413.

It is further objected, to the tenants title, that there is no evidence of any grant of the state and county taxes. With respect to the state tax the objection is not well founded. It appears, by the statute of June 27, 1521. which is published among the public acts, that the sum of |30,000 was ordered to be raised for the use of the state, and to be collected and paid into the treasury on, or before, the 1st December, 1822. Of this statute we are bound to take notice.

But [with respect to the county tax the objection is well taken. The representatives in the general court, of the several towns in each county, are, by law, authorized to form a convention and raise county taxes.— A record of the doings of such a convention is the only evidence to show a county tax duly granted. There is no such evidence in this case.

An exception has been taken, in this case, to the vote to raise the highway fax. It has. been argued that the town was authorized only to raise a sum certain for the purpose of making and repairing highways. But it does not seem to us that the statute, authorizing towns to raise money for that purpose, is to be so construed. It ⅛ made the duty of towns to raise money to repair highways, but the amount is left to their discretion. They may vote a sum certain, and we see no reason why they may not vote to raise the money in the manner that was adopted in this case- A proper sum is as likely to be obtained by laying a particular amount on each poll, and on other things that are taxable, in the same proportion, as in any other way. We are therefore of opinion that this exception is not well taken.

it is also objected, that it does not appear that the land was sold at auction, to the highest bidder. This objection is well founded ; and it is very clear that, until this objection can be removed, the title of the tenant cannot be held to be valid.

It has been insisted that the list of assessments is not according to law, because the names of the original proprietor, and the owner are omitted, and it is not stated that they are unknown. But we are of opinion that the list of assessments is well enough. The number of the lot, and division, is stated, and we think it is not to be presumed that the names of the original proprietor, and of the owner were known. If it was shown that the names of the original proprietor, and of the owner, were known to the selectmen, the list must be adjudged insufficient. For the statute expressly requires their names to be inserted, if known.

It does not appear, in this case, that a copy of the in* voice was recorded, or left with the town clerk for that purpose ; and upon this the demandants rely as a fatal objection to the proceedings. The statute requires, that a copy of the invoice be left with the town clerk, in order that the inhabitants may inspect the same. To render a tax legal, this provision, which was introduced for the benefit of those, who may be taxed, must be followed. This objection is well founded.

It is also a fatal objection to the legality of the proceedings, that it was not shown that the collector had the list, on or before the 30ih May, 1822. The statute requirerl that he should have it before that time.

It is further objected that the expenses of the sale arc not, specified. But the statute does not require this.— The expenses are to be apportioned among the lots sold. In this case the amount of the expense, for each lot, is stated, and we are of opinion that the amount must he presumed to be correct until the contrary appears.

Indeed, it is not clear that the sale would be void, if the fees taken exceeded what the law allows, it would subject the collector to an action for the forfeiture which the statute imposes for taking illeeal fees in such a case. He might also be compelled to refund what had been illegally taken. But we are not prepared to hold, that it would render the sale void.

It has been argued that the copy of the sale, which the collector delivered to the town clerk, was not a proper one. The objection is, that it was made by the collector’s clerk instead of the collector. It is without doubt necessary that a copy of the sale be lodged with the town clerk, within ten days after the sale, in order that the owner of the land may have an opportunity to redeem by paying the taxes and expenses. But it is not required that the account of the sales should be made up by the collector. It is enough that he leaves with the clerk of the town a copy of the sales, as stated by the clerk, if the copy be attested by himself. If the account be made by bis clerk, it is well enough if he adopt it. And his filing with the town clerk a copy is a sufficient adoption of it.

It thus appears, that tlie tenant has failed, in various particulars, to show a legal sale of the land, and unless the objections to his title can be removed by further proof, it cannot avail him.