17 N.H. 420 | Superior Court of New Hampshire | 1845
Numerous exceptions are presented by this case, of which all, from the fourth to the twelfth Inclusive, of those so numbered and exclusive of the ninth, relate to discrepancies in the descriptions which have been necessarily given of the demanded premises in the various written acts relied upon by the parties to sustain their respective titles. The land appears to be perfectly
The statute of July 4, 1829, under which the proceedings were had which constitute the title of the other party, provides that “ the selectmen shall deliver to the collectors a list of all taxes assessed upon the land of non-residents, and therein insert the name of the owner of the land, if known ; otherwise the name of the original proprietor, and the number of acres taxed, and the number of the lot and range,” &c., “and if the name of the owner and the original proprietor of any such land be unknown, the quality of the land, the nupaber of the range and lot, if lotted; otherwise such description of the land taxed as it is usually known by, being inserted in said list, shall be a sufficient description of said land.” A copy of that list is to be delivered to the deputy secretary, and after it has been returned to the collector, he shall advertise in the manner prescribed, that so much of the delinquent’s land as shall suffice to pay the taxes and costs, will be sold at a time and place designated, &c.; and this advertisement is. required to contain the same description of the land taxed as is required to be made in the lists aforesaid.
In the list furnished by the selectmen to the collector, the premises are described: “ The following described non-resident improved real estate, supposed to [be] widow Ann Smith’s dower. One piece of land set off' by IT. Gv Messerve in settlers’ lot No. 18, with one half the pearl ash, one half acre. Also, one piece of land as set off by Edmund Chamberlain, in settlers’ lot No. 5, 128 rods long, 38 wide — 25 acres.”
Now whether that description covers the same land assigned as the plaintiff’s dower by Chamberlain, except so far as regards certain easements in the barn, which, it seems, are not embraced in the description, is a question of
The description of the land contained in the assessment appears to conform to the requirements of the statute. The name of the owner and of the original proprietor being omitted, the presumption is that they were unknown, and the description is such as the land is commonly known by. Cardigan v. Page, 6 N. H. Rep. 182.
In the advertisement it is described as one “ piece of land set off by Edmund Chamberlain on settlers’ lot No. 5, 128 rods long and 88 rods wide — 25 acres.” Is this the same description as is contained in the list? In requiring the same description to be given, we need not suppose that the statute requires the descriptions to be copies of one another. Where that degree of accuracy is intended it is commonly expressed. A similar descrip
The description has more minuteness in the record of the sale, where the words, “ supposed to belong to widow Arm Smith,” are appended, and the deed contains the same description in words.
' No "title can pass by a collector’s deed under the statute, but an estate in fee-simple. The sale is of the land by some description sufficient to fix its location and boundaries, and no attempt on the part of the collector to limit the estate would be of any avail. The matter of the seventh exception, therefore, fails. All interested in the land are delinquent if the taxes are not seasonably paid.
The seventh section of the act referred to (N. H. Laws 566), requires the collector to lodge with the town-clerk the newspapers containing the advertisements of the sales,
The statute prescribes, as to advertising the sales, that the advertisements shall be published, in the papers named, three successive weeks, beginning eight weeks before the day of sale. It is absurd to suppose that this beginning must be exactly eight weeks before the sale. If it is more than that time there is an evident compliance with the requirement.
It sufficiently appears that Hutchinson was de fado collector, exercising the functions of that office under color of an election ; and it was held in Tucker v. Aiken, 7 N. H. Rep. 113, that the acts of an officer de facto are in general valid, so far as the rights of third parties are concerned, and that the regularity of his appointment is not to be collaterally inquired into in proceedings to which he is not a party. The case of Cardigan v. Page, 6 N. H. Rep. 182, is there adverted to, and the doctrine which it seems to establish declared to be untenable. The giving of bonds, or the contrary, undoubtedly rvould have affected the tenure of his office, had proper measures been instituted for the purpose of testing its validity, but has no bearing upon the fact that he was in the open exercise of the functions appertaining to the office, and was collector in fact.
The deputy secretary certifies that the copy of the assessment was lodged by the collector with him as early as the time required by the statute, and this is the usual and proper evidence that it was so lodged. Although not
The warrant was signed by two of the three selectmen, and that is sufficient where the act is one that is done in the discharge of an ordinary official duty.
The statute under which the defendant’s claim is derived comes under the general rule of construction laid down in Birch v. Bellamy, 12 Mod. 540, that “ where the power to do an act was originally granted by a statute, it must be shown in pleading that the act was done according to the direction of that statute.”
And what would be required to appear in pleading must also be shown in evidence. The statute authorizing sales for taxes against non-resident proprietors, requires that the land shall be sold to the person who will pay the amount of the tax, and incidental charges, for the smallest quantity of land so exposed for sale. It must therefore appear, with reasonable certainty, that it was so sold, and the sale is void unless it so appear. Cardigan v. Page,
The regulation that the sale shall take place between the hours of ten in the morning and six in the evening, is contained in the proviso of the statute ; and that circumstance, as well as the peculiar nature of the regulation itself, forcibly suggests a question whether it ought not to be left to the opposite side to prove, in avoidance of the sale, a departure from the law in this particular. Independently of such provision, the selection of a time for the sale, different from that which it allows, would awaken a suspicion of collusion ; and the manifest intention of the legislature -was to institute this safeguard against such unfair practices, by vacating a sale not made within the prescribed hours of the day. We think that it may safely be left to the party deprived of his land by the sale, to furnish the requisite evidence of a deviation of this sort, which would, if detected, undoubtedly avoid the sale. Rex v. Pemberton, 2 Bur. 1036; Hotham v. E. Ind. Co., 1 T. R. 636.
The warrant directed to the collector required him to pay the amounts collected at times therein named; but this direction surely cannot be supposed to vacate the warrant as to all taxes not actually collected at those times. The exception that the sale was after the return day of the warrant therefore fails.
The only remaining question which the case as report
According to the agreement of the parties, therefore, the ease must be sent back for trial.