French v. Spalding

Smith, J. 1. Proof of the deed from Fox to Barrett was only one of several facts which the defendants had to show to make out their title under the sale for the taxes of 1878. The deed was admissible as one of the steps they were compelled to take. Whether in the end they would be entitled to the verdict, depended upon their success in proving all the facts upon which their title rested. 2. It was sufficient to show that the selectmen who assessed the taxes, and the collector who collected them, were officers de facto. Pierce v. Richardson, 37 N. H. 309; Prescott v. Hayes, 42 N. H. 56, 58; Roberts v. Holmes, 54 N. H. 560; Odiorne v. Rand, 59 N. H. 504; Lucier v. Pierce, 60 N. H. 13. 3. It was also sufficient to show that the chairman of the county convention was such de facto. Jaquith v. Putney, 48 N. H. 138. It is therefore unnecessary to consider whether he is an officer coming within the provisions of Gen. Statutes, c. 17, s. 4 (G. L., c. 18, s. 4). 4. The record book of sales came from, the proper custodian, and was properly received. 1 Gr. Ev., ss. 484, 485. It is evidence of every fact recorded which it was the duty of the collector to return. If the return was incorrect, it could have been amended upon application to the court, supported by evidence. The objections taken to the admissibility of the record do not appear to be true in fact. By an amendment, the record book has been made a part of the *400 reserved case. An inspection of it shows a compliance by the collector of 1878 and 1877 with all the requirements of Gen. Statutes, c. 55, s. 10, and shows that the account of sales returned, advertisement posted, and affidavit of posting were recorded by the town-clerk within ten days after the sale in each year. It also contains a certificate of the town-clerk that the newspapers containing the advertisements were filed with him within the same time. 5. Parol evidence was admissible to show that the sale was made within the hours fixed by statute. Jaquith v. Putney, supra, 141. 6. There was no irregularity in the way the land was put up at auction for the taxes of 1873. The statute requires the sale to be “for so much of the owner’s estate as will pay the taxes and incidental charges.” Gen. Sts., c. 55, s. 9. Although the record shows that the sale was to the highest bidder, it also shows that the land was set up to be sold to the bidder who would pay the costs and taxes for the least amount of land. This was a compliance with •the statute. The highest bidder is in fact the person who will pay the taxes and costs for the smallest quantity or share of the land offered for sale. The parol evidence was not inadmissible (Jaquith v. Putney, supra), although it would seem unnecessary. 7. The record, as amended in Taft v. Barrett, stands as the record unless again amended. The amendment is not conclusive against the plaintiff, he not being a party to that suit; and undoubtedly it was open to him, or to any other person interested, to show that the record as amended is not a true record, and to-obtain a further amendment. If there has not been a full hearing on this question, and if the plaintiff desires to be heard upon the correctness of the amendment, he can be heard at the trial term. 8. The act of 1871, c. 9, s. 1, provides that if the selectmen assess a sum exceeding that which they have a right to assess, the assessment is rendered invalid only as to the excess. The plaintiff offered to show that the selectmen assessed a tax larger by seventy cents than they had authority to assess in 1873. This sum distributed among the tax-payers in town would make no appreciable difference in the tax of each, and the maxim de minimis might well be held to apply. But if this were otherwise, the excess only being invalid, if the excess of the plaintiff’s tax was capable of computation, he would have had the right to redeem by tendering so much of the tax as was valid, with interest and costs. Taft v. Barrett, 58 N. H. 447, 450. 9. Chapter 105, Laws of 1874, requires the collector to advertise property of non-residents on or before the first day of January; and s. 7, g. 55, Gen. Sts., requires the advertisement to be published three weeks successively, commencing at least eight weeks before the sale. Does this require the property to be advertised three weeks successively before the first day of January, or is it sufficient if the first publication is before that day? We are of opin *401 ion this provision of the statute is met if the first publication only takes place before that time. That would enable the collector to complete the collection of his list of non-resident taxes during the financial year ending March 1. It is not probable that the legislature took a circuitous way of expressing their intention that he should advertise three weeks before the second day of January. 10. Whether the railroad depot in Mason was a public place seems to have been treated as a question of fact which the jury have settled. Evidence on that question was introduced by both parties without objection. Neither party seeks to disturb the verdict. Whether the question was partly one of fact and partly one of law (Tidd v. Smith, 3 N. H. 178, Cahoon v. Coe, 57 N. H. 556), or wholly one of fact, was not raised at the trial. 11. If the plaintiff desires a new trial on the question whether the amount of the winter highway tax was correctly stated in the list lodged with the deputy secretary of state, he can have it if the judge at the trial term thinks there is evidence on this point to be submitted to the jury. 12. The plaintiff seems to have taken the position during the trial that the assessment of 1877 was invalid for the reason that the land was taxed as non-resident, “owner unknown,” the name of the owner being known to the selectmen; and he introduced evidence in support of this position. But the case finds that the title was in litigation, and the jury were not required to return a general verdict. There were only three questions which either party desired to have submitted to the jury, neither of which related to the knowledge of the selectmen of 1877 as to the ownership of these premises. As there was no request to submit this question to the jury, it cannot be raised here. When land in the non-resident list is not taxed in the name of an individual, the prima facie presumption is that the names of the owner and original proprietor were unknown. Cardigan v. Page, 6 N. H. 182, 192; Jaquith v. Putney, 48 N. H. 138, 139. 13. Were the instructions to the jury correct? The statute requires “the name of the owner, if known,” to be inserted in the list. Gen. Sts., e. 50, s. 17. A court cannot dispense with this requirement, nor question the wisdom of its enactment. In Cardigan v. Page, supra, the land was taxed as non-resident, owner unknown. Richardson, C. J., said, — “ If it was shown that the names of the original proprietors and of the owner were known to the selectmen, the list must be adjudged insufficient. For the statute expressly requires the names to be inserted if known.” This decision was affirmed under a similar state of facts in Ainsworth v. Dean, 21 N. H. 400. In Bowles v. Clough, 55 N. H. 389, the land was taxed to a non-resident owner as resident without his. consent. It was held that no distraint of personal property could be made to collect the tax. The statute is to have a reasonable interpretation in view of the object which it is intended to accom *402 plish, wbicb is notice of tbe tax. “ The meaning is, that the selectmen shall use their best endeavor to ascertain one and the other” (present owner and original proprietor). “ To say that they are bound at all events to judge right would lead to the greatest injustice. ... In discharging this part of their duty, as every other, selectmen are not bound to judge right at all events, but to act according to their best discretion.” Harris v. Willard, Smith (N. H.) 63, 68. It is often a nice question who the real owner of a tract of land is. Disputes are continually occurring, and much of the time of courts is occupied in determining the ownership of disputed tracts. It was not intended that assessors should be required to decide upon ex parte and imperfect testimony which of two or more claimants is the actual owner of a piece of land upon which they are called to assess a tax. When there is a dispute as to the title, or the assessors have any reasonable doubt as to the name of the owner or of the original proprietor, they may tax it in the name of “ owner unknown” in addition to “ such description as the land may be readily known by.” Some remarks of mine in Thompson v. Gerrish, 57 N. H. 85, may be in opposition to this view. p They were unnecessary, for the decision in that case might have been put upon other grounds, and they were not well considered. Hill and Ewell owned the land at the time of the assessment by an undisputed title, and one of the assessors knew they claimed the ownership of the land. The question whether the assessors knew who the real owners were does not seem to have been submitted to the jury. It cannot be supposed that the court in that case had in mind a case where the facts in regard to the title were in dispute, as the evidence shows they were in this case. It would not be a reasonable construction of the statute to hold that it imposes upon assessors the risk of a correct decision of a disputed or doubtful title, nor any duty which would be impracticable, or would seriously obstruct the collection of taxes. It is not required for the protection of the owner. The presumption is that his land will be taxed, and by a description “ such as it may readily be known by.” He should not be relieved from “ his obligation to contribute to the support of those governmental institutions without which there would be no property and no law” (Jaquith v. Putney, 48 N. H. 138, 141), by a construction of the statute which would be “intolerable in practice, and would seriously hinder the assessment of taxes.” The assessor is not required to act upon presumptions or probabilities, nor upon implied or express notice of the existence of facts in determining the question of the ownership of property which it is his duty to tax. He is not required to determine or to undertake to determine the question of ownership as between different parties or claimants; nor to incur the risk of making the assessment in the name of a party not the holder of the legal title. Himmelmann v. Steiner, 38 Cal. 175; Carpenter v. Dalton, 58 N. H. 615. *403 14. The instructions requested were properly denied. Cardigan v. Page, 6 N. H. 182, 192; Ainsworth v. Dean, 21 N. H. 400, 407; Thompson v. Gerrish, 57 N. H. 85. The plaintiff’s exceptions to the tax of 1877 are overruled. His exceptions to the tax of 1878 are also overruled. There is to be a new trial on the second question submitted to the jury if he desires it, and if the judge at the trial term thinks there is evidence on that point for the jury. The defendant’s exception to the instructions given is sustained. Case discharged. Stanley, J., did not sit: the others concurred.