Spear v. Ditty

| Vt. | Mar 15, 1837

The opinion of the court was delivered by

Collamer, J.

It has long and repeatedly been holden, both by the Supreme Court of this and the United States, that sales for land taxes are proceedings in invitum. It is a mode of transferring title by operation of law, without the agency of the owner, and is also in the nature of a forfeiture, and, therefore, the proceedings are, as conditions precedent, to be strictly, perhaps literally, followed.

The statute requires that the committee, appointed by the particular act, assessing-the tax, should advertise and give notice, in a certain manner, to the owners of the lands, of the time when the tax may be paid by labor on the roads, which it was assessed to build or repair. Those, who are delinquent of payment, in this manner, are to have notice, by advertisement in certain papers, of the time when they must pay the collector, and that, on default thereof, the land will be sold. For this latter advertisement a form is prescribed by statute, which, it has been -decided, must be strictly followed; as the owners of the land are generally non-residents, and are wholly dependent on this publication for notice. This it requires the Collector to do, and in the form it is required to be signed “ collector.” Clearly, this is an official act, and it is difficult to see how any one can act officially on paper, and not so state on the paper. The act, assess’ing this tax, was a private act. The advertisement, in this case; was not signed by Spaulding, as collector, nor did it any way so import, and the land holders were, therefore, no way informed that the signer of that advertisement had any more right, than any other man, to give such notice, nor that, if he had such power, he undertook to exercise it. It is not true that every man is to be presumed to be clothed with and to be exercising an official capacity, because it .-seems to be needed for what he is attempting. Such a principle would sweep away all official signatures and designations. „

It is said the record of the town clerk shows that Spaulding acted officially, and that his adversements were headed “ Collector’s advertisements.” It must appear on the publication, by what power and in what capacity the person acts, and this cannot be supplied by the town -records. It does, indeed, appear that the town clerk, in recording the advertisement, headed his record thus — “ Collector’s advertisements,” but nothing of that kind was on the publication-

judgment Reversed,

And, agreeably .to the rule, and by consent of the parties, Judgment rendered for the plaintiff.