| Mich. | Jan 15, 1853
An action of ejectment was commenced in the Circuit Court for the county of Calhoun, to recover the possession of the east half of the. south west quarter of section twenty-four, township three south, of range seven west. •
At the term at which the canse was to have been tried, the parties agreed upon a case, which was to be reserved for the opinion of this Court, and which was done by the Circuit Judge.
The case supposes the plaintiff to have.offered in evidence, the record of a deed, in the register’s office in the county of Calhoun, of the lands described in the declaration, executed by the Auditor General to the grantor of the plaintiff.
1. A proper foundation for this evidence has not been laid — the plaintiff should prove all the prior proceedings-up to, and including the sale; without which, the deed|s not evidence;
2. The deed does not recite any such proceedings;
3. The deed on its face, shows that the sale was void, as no mom than forty acres could be sold, to satisfy the tax.
It appears from the proceedings and deed, that the taxes, for the nonpayment of which, the land described in the deed was sold, were assessed -in the year 1841, under the provisions of title five of the R. S. of 1838, and the amendments thereto, enacted in 1839, 1840, and 1841. The tax was returned to the Auditor General’s office, as delinquent, between the months of February and April, of 1842.
On the 16th of April, 1842, an act was passed, which changed the previously existing system for the assessment and collection of taxes. The 66 th section of that act repeals chapters two, three, four, and five of part first, title five of the R. S. of 1838, leaving chapter six of that title to remain in force; but tbenew law, (Seel 67, page 101,) expressly provides that the same proceedings shall be had on taxes then returned to the Auditor General, and which should remain unpaid, as though the chapters above named had not been repealed. The repealing clause provides that it shall not affect any act done, or right accrued, &c., before the act takes effect.
On the 18th of March, 1843, a new system, similar in some respects to that contained in the revised statutes of 1838, was enacted by the Legislature, and took effect, providing for the assessment, collection, return, advertisement, and sale of delinquent taxes.
By the 74th section of that act, provision is made for returns to the Auditor General by the county treasurers, of taxes for the year 1841 remaining unpaid, and which had not been returned in 1842, but that provision is not applicable to taxes of 1841 which were returned in 1842. The 70fch section provides that '“lands which have been or shall be returned as above provided, for taxes of 1841 and 1842, and those now.in tbe office of the Auditor General for taxes of 1841, on which the taxes, interest, and charges shall remain unpaid, or not to he charged back to the proper county, by the first day of June
This law of 1848, with the exception of the four last sections, including those noticed above, is prospective in its terms; it was manifestly designed to creato a new system of taxation, and to cover the whole ground occupied by former statutes. The sections cited take up the tees returned for 1841, (among which are those for Calhoun County,) as they were found in the office of the Auditor General; no further act was required to be done, to enable the Auditor General to proceed to sell under the provisions of section 76, and the sections to which reference is therein made. He was not directed to any former act as his rule of action, but was required to conform to the provisions of that act.
But it is insistod that section seventy-six, though it prescribes the proceedings to he had up to and including the sale, does not grant to any officer the power to deed, and unless the provisions of chapter six, section nineteen, of the revised statutes of 1838 are held to he operativo for such purpose, in eouuectiou with the law of 1843, no deed can be given by the Auditor General for lands sold for taxes of 1841.
By the eighty-third section of the act of 1848, it is enacted that “all acts and parts of acts inconsistent or concurrent with the provisions of this act are hereby repealed, hut this repeal shall not affect any suit or proceeding,” &c., “nor shall it affect any act done or right accrued before this act shall take effect.” By comparing chapter six, of title five,, of the revised statutes of 1838, with the provisions of this act, it will he seen that this act incorporates (with some few alterations,) all its provisions-; that it was intended to embrace all the law upon the subject, and that chapter six is either inconsistent or concurrent with it,, operating upon the same objects, and contributing to the same event ox effect. But for the provisions of section seventy-four or section seventy-nine, the taxes of 1841 would have remained subject to be disposed of
If this construction of the law of 1843 is not obviously correct, it will, J think, appear to be so, if it can be shown (as I think it can be,) that power is given to the Auditor General, by section seventy-six, to • execute deeds to purchaser’s at tax sales of land for delinquent taxes of 1841. That section, as we have seen, provides that the land shall be '■ sold at the same time and in the same manner as is herein provided • for the taxes of 1843, and it was urged by the counsel of the plaintiff that the word sold, as used in that section, imported a power in the offi•cer selling, to give a deed, but in this we think he was incorrect.
It is claimed that this power is derived from the well established principle of law, that every grant of power, necessarily carries with it all the usual and necessary means for the exercise of that power, and that, consequently, the power to convey is implied in the authority to sell. (10 Pet. R., 161; 18 John. R., 418; 2 Cow. 199, 233—5.)
But this principle is not admitted in the construction of statutes similar to this; such statutes, being in derogation of the common law, and authorizing proceedings, the effect of which is to divest a citizen of 'his title to real estate, though it may be for the good of the public, ■ must be construed strictly, ( Van Horn's Lessees vs. Darrow, 2 Dal. 216; 4 Hill R., 99;) and their piro visions can be enforced no farther than they are clearly expressed. The Auditor General can take no power that is not expressly granted to him; he can assume no power by implication, and when his acts are not clothed with the authority of the statute, they are of no validity.
In the case of Doe, on the demise of Lemon vs. Chunn, (1 Blackf., 336,) the plaintiff in ejectment claimed title under a sale, by the collector of a borough tax; the act incorporating the borough of Charlton, authorized the collector to sell lots for the non-payment of taxes, "but was silent as to the making of conveyances. It was held, that though the previous proceedings were regular, the deed pf the collector vested no title in the purchaser. '
It will, I think, be conceded, that the word sale, or sold, embraces the bidding at the public sale — the payment of the money by the purchaser, and the giving of the certificate by the county treasurer, to the bidder or purchaser. This seems tq be contemplated by section sixty-four of the act of 1843, which provides that “at the sale aforesaid, the respective county treasurers shall give to the purchasers, on the payment of their bids,' a certificate in writing, describing the land purchased, and the amount paid therefor, '^nd shall endorse thereon the kinds of funds received, &c., and a copy thereof shall be forwarded to the Auditor General,” &c. Without the addition of any other provision, the sale contemplated by sections sixty-one and sixty-two, would embrace all that is specified in those sections, without which the sale could not be made. The bare bidding off the land, would not constitute a sale;the money must be paid, and a certificate given, to perfect the lights of the parties, as intended by those sections. If this is true, then the words following the directions, as to the time and manner of sale, viz: in all res2>ects with the like effect,” were unnecessary to enable the purchaser to obtain his certificate. That clause seems obviously to have been intended to embrace matters not included in the language before used. If this clause does not necessarily import that the acts required to be done by section, sixty-four, are to be the effect of the sale, (rather than the sale itself,) to what can it refer 2 It appears to us to refer to the matter which is stated in immediate connection with the sale, and in the very next section, which provides that “on the presentation of ■ such certificate of sale, to the Auditor General, after the expiration of-the time therein provided for the redemption of lands sold as aforesaid, ' he shall execute to the purchaser, his heirs or assigns, a deed of the
It will be noticed that the words we arc considering, are not simply, with the like effect — they are, in all respects with the like effect;” and to oiu- minds, they mean what we have supposed them to mean; they are not susceptible of any other interpretation; they are very broad, and appear to have been intended to include diverse matters, resulting from the sale, though not stated in immediate connection with the section providing for the sale, and though they may not be certain, but contingent. We think this is not a forced construction, nor is it a mere implication; the words used seem naturally to point directly to the objects and purposes we have indicated, as plainly as if those objects or purposes were expressly stated. The directions given in section seventy-six, are expressed in concise terms, and by way of reference to greater details expressed in other sections.
■ But if it be still urged that the words are not explicit — that it is doubtful whether they refer to the proceedings required in section sixty-four, or to the other sections we have named, then we are authorized to collect the intention of the Legislature from the occasion and necessity of the law — from the mischief felt, and the object and the remedy in view; and the intention is to bo taken or presumed, according to what is consonant to reason and good discretion. (1 Kent's Com., 46; Dwarris on Stat., 702; 9 Wheat. R., 189; Smiths Com. on Stat., Sec. 844; 5 Barb. S. C. R., 159.)
An examination of the legislation of this Stat% will throw light upon the intention of the Legislature, as manifested by the clause in question.
The statute of 1838, page 98, section 20, provided that such deed should be conclusive evidence of title, “ provided such assessment, and all other proceedings in the premises were regular, according to the provisions of that law.” v .
The construction put upon the law of 1827, and ’33, was, that a treasurers deed on a sale was “conclusive evidence” only, of the fact that the sale by him was regular, according to the provisions of the act. (Harrington’s Ch. R., 3; Rowland vs. Doty; Scott vs. The Young Men’s Society’s Lessees, 1 Doug., 119; Latimer vs. Lovet, 2 Ib., 204.) The statute of 1838, embodied the previous decisions, thus holding the purchaser to great strictness, in proving the regularity of the proceedings antecedent to. the deed.
We have seen that the tax in question was assessed in the year 1841, and returned under the provisions of the law of 1838. That was a period of great depression in the money market; many men had become -bankrupt, and there was very little confidence either in the integrity or ability of town and county officers, or in the laws relating to taxation; the treasury of the State was empty, and the State owed a very large debt; the counties were new, and the town officers were not generally well qualified to transact public business, and particularly such business as making assessment rolls, &c. There existed in the minds of the residents in some counties, a strong prejudice against non-residents, whose ■lands in this State were enhanced in value by the labor of the residents. Eastern men were unwilling to hazard their money in the purchase of tax titles, where the resident had so little interest in aiding them to perpetuate the evidence of their titles. Added to this, the Courts of this State, as well as of other States, had been exceedingly astute in searching out errors in tax sales, and if any, even the most minute, error could be found in the whole corase of proceedings, the sale was declared void. This course of proceeding had prevailed to such an extent, that at length it was pretty generally believed that no valid title could be acquired under a tax sale.
The seventy-ninth section of this last mentioned act provided, that all notices of applications to the Courts for rendition of judgments, and all other notices in relation to the taxes of 1841, and 1842, except such as were required in other cases by that act, should be considered wholly unnecessary and should be discontinued, and no judgments should be entered or deemed necessary on any such delinquent taxes. Take this section in connection with the repealing clause, and it is abundantly manifest that it was intended to get rid of the provisions of the act of 1842, so far as it related to the sale of tax lands by virtue of its provisions, and but for sections 74, 75, and 76, of the act of 1843, the taxes for 1842 could not be levied or sold, for they rested solely upon the provisions of the law of 1842. To sell the lands upon which these taxes as well as those of 1841, were delinquent, under the general provisions of the act of 1843, was the object of section 7 6. That it was also the intention of the Legislature that the law should provide a complete remedy, we think is manifest, without a special reference to the clause in question. Then let us apply the principle of construction we have cited from Kent’s Commentaries, and we think there can be no doubt that the construction we have put upon the clause in section 76 is the true one. It consists with what is said to be the duty of a judge, viz: to make such a construction as shall repress the mischief and advance the remedy, (1 Kent's Com., 466;^) and this is held to be the case, in an especial manner, in respect to statutes of public utility. (11 Co., 71 b,, Magdalene College case.)
It is urged in view of the great technical nicety which has prevailed in the construction of tax laws, that this provision was not intended to-relieve the purchaser having a deed, from proving as facts, the various proceedings required by the statute before the sale,"and that the deed would be prima facia evidence of the regularity of acts proven to have been done. This wo^i lead to singular results. Either the act proven to have been done, must be shewn to have been in all respects conformable to law, and, therefore, would need no presumption in its favor, and would derive no support from the law, or the act done, however defective, if it in some degree conformed to the law, but not sufficiently so to confer jurisdiction, must be held to be prima facia evidence: but under what circumstances ? The moment it is brought to light, and is to be examined, and where only it needs any presumption in its favor, it is overthrown with all the presumptions in its favor.
It seems to be taken for granted, that the long course of decisions-requiring strict proof of the regularity of the proceedings antecedent to the deed, should induce this Court to give to this clause (which in its-ordinary meaning seems quite plain) a judicial sense, which will elude the apparent object of the Legislature. We prefer to act upon the rule laid down by Mr. Justice Bronson, (20 Wend., 561,) where he says: “The current of authorities is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either-limiting or extending their operation.” (See 1 Kent Com., 462, 6th Ed.)
In the case of Sharpe vs. Spier, (4 Hill R., 86,) Mr. Justice Bronson, in remarking upon a statute of New York, says, “ as the statute has . not made the conveyance prima facia evidence of the regularity of the proceedings, Has, fact that they were regular must be proved, and .the onus rests upon the purchaser.” This clearly implies that the- . Judge thought if the statute before him contained the words in our statute, the production of the deed would have cast the onus on the other party; and see (2 Barb., 115; Gorick vs. Tollman, per Gridley, Judge.)
It was competent for the Legislature to cast tho burthen of proof upon either party, and it is not our duty to resijfr the manifest intent of the Legislature, because the statute is in derogation of the common law, or because tbe rule established by it is supposed to operate oppressively upon land owners; they can escapo from its effects by paying their taxes. This Court feels bound, (in the language of Burchard, J., 14 Ohio R., 216,) to sustain tax titles which are legal, as well for the interest of the State as for land holders — as well to enable the former to compel each individual to bear his just proportion of the expenses of the government, as to prevent the property of the other from being sacrificed by a sale of many acres to pay a small tax, for want of competition, and on the supposition that the title would he worthless.
According to tho view wo have taken of this ease, by the production of the record of the deed of the Auditor General, the plaintiff made out a prima facia case, under the provisions of section sixty-five of tho act of 1843, unless tho objections founded upon tho deed itself, are valid, and we will now proceed to examine them.
The first objection which it is necessary to notice, is, that the deed ■did not recite the prior proceedings.
The statute under which tho deed was given, does not prescribe tho form of the deed, nor that it shall contain any recitals; it provides that on the presentation of such certificate of sale to. the Auditor General, after the expiration of the timo provided for the redemption of lands-sold, he shall execute to the purchaser, his heirs or assigns, a deed of the lands therein described.
The recitals in the deed, in evidence in this case, are abundantly sufficient; they are enough to show jurisdiction; they aver that the tax of 1841 had remained unpaid a sufficient length of time to subject the land to sale; that the land was sold by the county treasurer, and that
But it is objected that the deed itself shows that the sale was void. This objection is predicated upon the assumption that the sale and deed were made under the provisions of chapter six of the R. S. of 1838, section 12, which limits a tax sale to tracts not containing more than 40 acres; but that act was repealed by section 49, page 9?, of the laws of 1842; also section 61, page 9?, of the laws of 1843, and section 11, page 162, of the laws of 1844; after the law of 1838 was repealed, there was no specific limitation as to quantity; the land was left “ subject to sale;" this objection, therefore, is not well taken.
It is also objected that it does not appear from the town records that the assessors were sworn. The R. S. of 1838, part 1st, title 4, chapter 1, section 43, page 64, provide that each assessor shall take an oath of office, in the form prescribed in that section; but it is not provided that the town clerk shall keep a record of the oath or of the fact that the assessor's were sworn; he may be sworn before any one competent to administer an oath, and the fact may be proved like any other act in pais. (21 Pick., 82; 5 Cow., 267; 14 Mass. R., 20; 24 Pick., 12.) Therefore, the absence of any record in the town books, of the fact that the assessors were sworn, does not furnish prima facia evidence that they were not sworn, and the defendant must make a prima facia case; he is not required to make plenary proof of a negative averment; it is enough that he introduces such evidence as in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is trae,' and when this is done, the onus próbandi will be thrown
The defendant then offered in evidence, an assessment roll found in the office of the town clefk, and which was admitted to be the only assessment roll made up for that year, to which a certificate was attached, purporting to be signed by the 'assessors; to which the defendant raised sundry objections; and
1. He insisted that the assessment roll should have been signed by the assessors, and this was not done.
Sections seven, eight, nine and ten, of the R. S. of 1838, pages 81 and 82, prescribe the mode in which the assessment roll shall be made. Section eleven provides that when the assessors have completed their assessment they shall sign the same. It also prescribes the form of the certificate which is to be added thereto. Section 12 provides that the roll, being thus certified, shall within a time specified, be delivered by the assessors of each township, to the township clerk, to be retained in the township for the use of the commissioners of highways, until it is delivered to the county commissioners.
The counsel for the plaintiff insist that this provision of the statute .that the roll shall be signed by the assessors is directory — that if the roll was made up by the assessors, and this fact appears from the roll, the omission to sign is not fatal, as it sufficiently appears by the certificate that the roll was made by the assessors.
But it does not appear that the assessors ever signed the roll, nor that their signatures to the certificate attached to the roll, were admitted. This last suggestion in reference to the certificate is not stated in .the reeord, though it is taken in the brief of defendant.
The distinction between such irregularities as affect the validity of an assessment, and those which do not, is considered in the case of Tony vs. Millburry, (21 Pick. 64.) It was an action of assumpsit to recover back the amount of a town tax alleged to have been illegally assessed, the list of valuation and of assessment of polls and estates, did not exhibit, in distinct columns, the “ true value of the real estate,” and the “reduced value” as required by law, but contained a column of value. It was held that the irregularity did not render the valuation and assessment void. Chief Justice Shaw, in delivering the opinion
This subject is again considered (7 Barb. S. C. R, 133;) in the case of Yan Rensselaer vs. McCulloch & Shook, and it has a bearing upon this case in another respect, because it defines the character of the certificate which was attached to the roll in this case, and which, alone, seemed to be signed. It was- an action of trespass for taking and disposing of personal property. The action was brought against the collector, and also the supervisor who had signed the collection warrant. The defendants gave in evidence, the assessment roll, and the warrant of the board of supervisors to the collector for the collection of the taxes mentioned in the roll; to the warrant was annexed a copy of the assessment roll; annexed to the assessment roll was the certificate signed by the assessors; the assessment roll was also signed. Yarious objections were made to the assessment roll, and among others, that the certificate of .the assessors attached to the assessment roll was not either in form or substance such a certificate-as was required by law. In delivering the opinion of the Court, Harris, Justice, after stating the provisions of the law of New York, from which our revised statutes of1838, upon the subject of taxation were taken; and after stating various-pro
In the case of Taylor vs. French, (19 Verm. R., 49,) the action was ejectment. The statute of Vermont-required that the return of the proceedings of the collector should be signed by him. The record showed a return of the sale, then a minute of the adjournment of the vendue, and then a minute that, it being found at the time to which the vendue was adjourned, that all the land was so Id and no mistake made, the vendue was dissolved, and the collector signed the minutes of the adjournment and dissolution only. It was held, that this could not be considered a signing of the anterior proceedings, and that the defect was fatal.
A private statute of the State of Maine required the assessors of a corporation to make perfect lists of assessments, under their hands, and commit the same to a collector, with a warrant under their hands and seeds. It was held in the case of Colby vs Russel et al., (3 Green., 227,) that the signing of the warrant, though it were on a leaf of the same book which contained the assessment, was no signing of the assessment, and that
Tn a case in (4 Green. R., 72,) a collector received an assessment roll, with no signatures of the assessors, but there was a good warrant attached to it — he collected money upon it. In a suit against his bondsmen for the money collected by him, it was'held they were not responsible, for he coidd not enforce the warrant, and therefore, it was not legal.
Chapter 2, title 5, part 1st, R. S., 1838, points out the duties of the assessors. Section 5 requires that as soon as an assessment roll is completed, the assessors are to give notice to the inhabitants of the town, that they may have an opportunity of having the assessment roll corrected; subsequent sections prescribe the mode of making the roll; but the statute does not suppose the roll to be perfect until the corrections are made; and then (in section 11) the assessors are required to sign the roll. In making the roll, the essential thing to be done by the assessors is, to determine who is to be taxed, and what property is taxable. This isa matter within.their jurisdiction — and in making their determination, they act judicially. They may err — the roll may not be perfect in all respects, as directed by the statute. But if the substantial object of the statute is attained, the assessment would not be void. Many matters are deemed directory, because the substantia] rights of the tax-payer [are not affected by them; but we cannot look upon the provision requiring the roll to be signed, as direetoiy. How-can it be said to be a roll if it has not the sanction of the signatures of the assessors ? The signatures are the evidence required by the statute of the completion of the roll by the assessors — of its being their official act — they are essential and component parts of a complete roll, without, which an assessment roll would have no more validity and effect than a deed would have if drawn up in due form, with a certificate of acknowledgment thereunder written, but the deed itself not executed. It mnw
The date in the caption of the roll, is sufficient to show that the assessment roll was made for the year 1841,
It is further objected that it does not appear by the roll that it has ever been corrected. This would not appear if the roll was not corrected; and this would not be done unless it became necessary to do so; but the objection may have a more extensive bearing, and may point to corrections by equalization. It is provided in section 14 that the county commissioners shall examine the assessment roll, for the propose of ascertaining whether the relative valuations of the real estate in the townships respectively, have been equally and uniformly estimated; and it further provides, that if on such examination they shall deem such valuation relatively disproportionate, they shall equalize the same by adding to or deducting from the assessor’s valuations, &c., such per centum as shall produce equality. Section 15 provides that the commissioners may make alterations in the descriptions of non-residents, &c.; and if the alterations cannot be made, they shall strike out the faulty description. ■ Section 4 of chapter S, requires the commissioners to cause the assessment roll of each town, as corrected by them, to be delivered to the clerk of each township respectively. It is manifest, the alterations, if any, in the description of the lands, must be made in the original roll, after the rolls are equalized, which is not required to appear on-the original roll given to the town clerk; a copy is made, to which
It is further objected that the description of the land and mode of assessment is defective. The name of Clark Lewis is written in the margin, and then the description of the land is given opposite to it in the same line, as follows: E. \ S. W. \ section 24, town 3 south of range 7 west, 80 acres, &c. This mode of describing lands in tax rolls and other documents, has prevailed for many years in this State; it is perfectly intelligible and can leave no doubt what is meant; the figures are to be read in connection with the captions. Mr. Webster, in his unabridged, dictionary, page 275, says E as an abbreviation, stands for east, and W for west; (page 1243,) and S stands for south. When used in a proper connection, these abbreviations are plain, and valid in law. The act of 1844, page 161, section 8, provides that it shall be sufficient to describe lands assessed or sold for taxes in the manner heretofore in use, by initial letters, abbreviations, and figures; this shows that the usage had prevailed and that it was perfectly understood; it is a legislativo recognition of the correctness of this mode of describing land. We think this objection untenable.
This case was made upon the assumption that the plaintiff was bound to prove the regularity of all the proceedings prior to the deed, and it was presented in this light by the defendants’ counsel, whilst the counsel for the plaintiff insisted that the burthen of proof was thrown upon the defendants after the deed was proved. In the view we took of the case, it became necessary to assume that the defendants were bound to show some illegality in the proceedings to rebut the evidence produced by the plaintiff, and therefore, that all the proof subsequent to the deed, was offered by them as bearing upon the deed; otherwise, vre would have been compelled to assume that the defendants introduced the assessment roll to overcome the plaintiff’s proof, and rested their case there; and that the plaintiff, not conceding to the defendants the effect
Let it he certified to the Circuit Court, as the opinion of this Court, that the assessment roll, offered in evidence in this case, is void, and consequently, as the subsequent proceedings were predicated upon it,, they are also void, and cannot entitle the plaintiff to a judgment.