Cahoon v. Coe

FROM COOS SUPREME JUDICIAL COURT. This case, though coming before us on a motion to set aside the verdict of the jury, on the trial on review, is really to be considered and decided as if the original case, reported in 52 N.H. 518, were before us on a motion for a rehearing; and in the examination of the questions raised I have considered them in that light. In the view I have taken, I have only deemed it necessary to consider the questions raised by the refusal of the court to give the instructions requested by the defendant, and by the instructions actually given, to which exceptions were taken. The case finds that no notice of the sale of the land in question was posted in the Location; that for two or three years *Page 569 prior and up to the time of the sale there had been six families residing in the easterly part of the Location, in small, ordinary dwelling-houses; that each of said settlers occupied a small farm or clearing where his dwelling-house was located; and that there was no place except dwelling-houses at which a notice of sale might have been posted. The defendant requested the court to instruct the jury that inasmuch as it appears that there was a settlement in Wentworth's Location, consisting of several families of inhabitants residing in the Location in October, November, and December, 1849, and January, 1850, it was necessary that the sheriff of the county of Coos should have posted a notice of the sale in question in some public place in the Location. The defendant also claimed that on the evidence of the plaintiffs it appeared that in 1849 there were several places in Wentworth's Location so public that an advertisement, if posted in any one of them, would have been seen by many persons, and especially by the residents of the place; he therefore requested the court to order a verdict for the defendants. Both of these requests should have been granted. The plaintiffs claim under a tax-title derived from Charles Bellows, father of the female plaintiff, who was the sheriff of the county of Coos, and acting collector of taxes in Wentworth's Location. The sale was made in January, 1850. The statute then in force required the collector to "post an advertisement or notice of the sale in some public place in the town or place where the lands to be sold were situated, for eight weeks before the sale." Comp. Stats. 128, 131. This, the case finds, was not done. It is well settled, by repeated decisions of all the courts of this country, that the power of a collector to sell lands for the non-payment of taxes is a naked power, not coupled with an interest; and in all such cases the law requires that every prerequisite to the exercise of the power must precede its exercise; — that the agent must pursue the power, or his act will not be sustained. Parker v. Rules, Lessee, 4 Wheat. 77; Lyon v. Hunt, 11 Ala. 295, 312; 2 Ohio 378; 4 Dev. 38; 1 Scam. 335; 10 Sm. Marsh. 246, 251, 264; 2 Ham. (Ohio) 231; 6 Wheat. 119; 2 Yeates 100; 13 Serg. Rawle 208; 7 Cowen 88; 13 Peters 32; 5 Ham. 458; 8 Wheat. 681, 688. In Spear v. Ditty, 8 Vt. 423, the court say, — "In interpreting these statutes, — i. e., statutes relating to the assessment and collection of taxes, — we should consider the title to be acquired under them as stricti juris, and should require a full and complete compliance with the requisitions of the statute. Before the title of the owner is divested by such a proceeding, we should insist upon everything tending to the security of the owner which is either prescribed in the terms of the act, brought within it by reasonable and strict construction, or which in the nature of the transaction is necessary to give ample effect to every safeguard which the legislature have endeavored to throw around the subject." To the same effect is Bellows v. Elliot, 12 Vt. 569. "When the statute, under which the sale is made, directs a thing to be done, or prescribes the form, time, and manner of doing anything, such thing must be done in the form, time, and *Page 570 manner prescribed, or the title is invalid; and in this respect the statute must be strictly, if not literally, complied with. Chandler v. Spear,22 Vt. 388; Sumner v. Sherman, 13 Vt. 12; Carpenter v. Sawyer, 17 Vt. 124;1 Vt. 359; Kenney v. Beverly, 2 Hen. Mum. 318, 336; 1 Carter (Ind.) 649; 2 Carter (Ind.) 542; Brady v. Offutt, 19 La. Ann. 184; Polk v. Rose,25 Md. 153, 159, 160; 10 Gill Johns. 374; 11 Gill Johns. 56; Lagroe v. Rains, 48 Mo. 536, 538; Abbott v. Doling, 49 Mo. 302, 304; Large v. Fisher, 49 Mo. 307; Williams v. Underhill, 58 Ill. 137; Rule v. Parker, 1 Cooke 365; Bush v. Williams, 1 Cooke 360. "Trace it ever so far, and through ever so many hands, whoever sets up a tax title must show that he has complied with all the requirements of the statute, unless, indeed, the former owner were the purchaser. It is a cardinal principle, that a man shall not be divested of his interest in his property but by his own acts, or the operation of law, and where proceedings are instituted to change the title to real estate by operation of law, the requirements of the law, under which the proceedings are had, must be strictly complied with." Jackson v. Estey, 7 Wend. 148, 151; Cook v. Shepard, 7 Cow. 88. In Russell v. Dyer, 43 N.H. 396, the court, SARGENT, J., say that "It is an old maxim of the law, that every statute authority, to divest the title of one without his consent and transfer it to another, must be strictly pursued, or the title will not pass;" — and he cites, in support of this position, Grosvenor v. Little, 7 Greenl. 376, Mather v. Chapman, 6 Conn. 54, Mead v. Harvey, 2 N.H. 498, and Libbey v. Copp, 3 N.H. 46. Many more authorities in support of this position might be cited, but it is not necessary. It is founded so firmly upon principles of equity and natural justice, as not to admit of reasonable doubt. Again: it is a maxim of the law, that notice is of the essence of things to be done. It is a fundamental rule, that in judicial or quasi judicial proceedings, affecting the rights of the citizen, he shall have notice and an opportunity to be heard before the rendition of any judgment, decree, or order against him; — in other words, he must be warned, and have his day in court. If such is the law of notice in judicial proceedings, it applies with much greater force to the exercise of ministerial power, where the act is not only summary but the notice is merely constructive, where the proceeding is in the nature of a judgment, and terminates in the divestiture of the title to real estate. Blackwell on Tax Titles 214. In Russell v. Dyer, 40 N.H. 173, BELL, C. J., in delivering the opinion of the court, says that in a matter so essential to the regularity and fairness of a sale at public auction, as proper notice of it, any construction which would dispense in any case with the statutory provision requiring it is clearly inadmissible. In Neale v. Fenwick, 4 Rand. 585, 591, the court quote with approbation from the opinion of MARSHALL, C. J., in Williams v. Peyton, 4 Wheat. 77, and say it was contended in the argument *Page 571 that no advertisement of the sale was required by the law; that the law should direct a public sale of property without notice to be given, would be a perfect anomaly, and would lead to consequences so mischievous that we could not without the strongest reason be justified in imputing such a course to the legislature, especially where a man's highest estate — his land — was to be forfeited and lost to him by the summary process of distress and sale for the non-payment of taxes." In that case, the law of 1782, amending and reducing into one the several acts for ascertaining taxes, c., did not contain the provision for notice contained in the act of 1781. In DeLogney v. Smith, 3 La. 418, PORTER, J., in delivering the opinion of the court, says, — "The citizen can only be deprived of his property in two ways, — by his own consent, or by forced alienation under the authority of law. The latter mode of transferring property derives all its efficacy from a strict pursuance of the formalities which the law prescribes. Where, then, these are wanting, there is not the alienation by law which can alone supply the want of consent by the owner. In Reaves v. Kershaw, 4 Martin 513, the court held, that, although there is no law prescribing the way in which constables shall give notice of sales, or whether they are bound to give any notice, they are nevertheless bound to give the same notice as sheriffs upon the sale of property. Again: it is said that collectors have no power to sell land except in pursuance of the provisions contained in the statute, and can only sell in the precise cases in which it has been so authorized. Brown v. Veazie,25 Me. 359. It would seem, then, upon general principles and upon authority, that a sale of land by a collector of taxes, without notice and without a strict and literal compliance with all those provisions of the statute for the protection of the citizen, is invalid. How is it attempted to excuse this want of the notice, which the statute peremptorily requires? By asserting that the jury, under proper instructions, have found that there was no public place in the Location, consequently the law could not be complied with and the notice required by law could not be given, and the maxim "Lex non cogit ad impossibilia" is invoked to sustain this position. It is further said, that this is not now an open question in this state, however it may be elsewhere; that this court have decided many times, that where there is no public place, notice is not necessary, and need not be posted in the town or place where the lands to be sold are situated. Let us examine these positions. There was, on the trial, no dispute about the following facts: There were six hours occupied by settlers, each having a small farm which he occupied. It is the province of the jury to balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from facts proved. *Page 572 Here there was no evidence to be weighed, no probabilities to be balanced, the credibility of witnesses was not to be passed upon, and there was no occasion to call in a jury to draw inferences and conclusions from facts proved. Here the facts, so far as they related to the question of notice, were not in dispute. In Tidd v. Smith, 3 N.H. 178, it is said that the question what is a public place, is a question partly of law and partly of fact; but when the facts are not in dispute whether a place is to be considered a public place within the meaning of the law, then it is purely a question of law, and ought not to be submitted to the jury. To hold that it is a question of fact for the jury would lead to uncertainty and serious confusion. This, then, being a question of law, upon the facts stated in the case I have no hesitation in saying that there was a public place in the Location, within the meaning and intent of the statute. In my view, in the absence of any place more public, a dwelling-house must be regarded a public place for the purpose of posting a notice of a sale of land for taxes. But it may be asked which of these six dwelling-houses was the public place where the notice should have been posted. My answer is, that for this purpose they were all public places. The law does not require the notice to be posted at the most public place; — it simply and only requires it to be posted at a public place, and for this purpose a notice posted at either of them would have been sufficient. The term public place, as used in the statute, is relative. What might be a public place in a crowded and populous city, and what would be a public place in a small town, sparsely inhabited, are entirely different questions. When, as we have seen, the object of the law is to give notice so that the delinquent tax-payer may have opportunity to pay his taxes and save his land, any construction which will tend to accomplish such a result is the true one. That the posting of a notice on one of these six dwelling-houses would have tended to give notice to the owner that his land was to be forfeited for the non-payment of his taxes, on the facts stated in the case, is not an open question. The occupants of these houses, some of them, were in possession under a contract with the owner to purchase. The former agent of the owner lived about six miles northerly of the Location, and in going to Errol, or to the settlements in Maine, he frequently crossed the Location; and had a notice been posted on one of these six dwelling-houses this fact would have been known to all the others as well as to the former agent, and through them would have come to the knowledge of the owner. The occupants of these houses would undoubtedly have communicated to the owner the fact that his land, in which they had an interest, was advertised to be sold for non-payment of taxes. If either notice was to be dispensed with, that at the hotel in Lancaster could have been best omitted, if the real purpose was, as we must presume it was, to give notice so that the tax might have been paid without the sale of the land. Again, it is said that this is not now an open question, but I am not prepared to admit this proposition. Let us examine and see how it stands upon authority. *Page 573 The first reported case, where the question of what is a public place for the purposes of posting a notice is considered is Tidd v. Smith, supra, but upon this question that case is no authority. That case only decides that in the town of Deerfield, a town containing nearly two thousand inhabitants, situated in a comparatively densely populated part of the state, and which in 1823 contained two meeting-houses, eight taverns, six stores, and two post-offices, a shoemaker's shop was not, as a matter of law, a public place, for the reason that there were other places in that town that were so much more public. The next case is Wells v. Burbank, 17 N.H. 393. In that case the title to the township of Success was involved, the plaintiff claiming under a tax title. It appeared that it was wholly uninhabited. There was no house or building upon it. The only indications of occupation were a small piece of pasture-land and a dam across a small stream. It was not necessary to determine whether a notice ought to have been posted, for there were other and more serious objections to the validity of the tax title; but in the course of the opinion, PARKER, C. J., remarks, — "It is not necessary to settle at this time what may be a public place within the meaning of the statute. Practically, it is generally understood to mean a tavern, store, or other place where people are in the habit of resorting for the transaction of business. Perhaps a meeting-house, open from week to week for public worship may come within the description. How we might hold in this case if there had been a dwelling-house, but no place more public, we have no occasion to inquire. As there was no inhabitant, there could be no public place." It will be observed that the court expressly refrain from giving any opinion upon the question whether, in the absence of any place more public, a dwelling-house may not then be a public place within the meaning of the statute; so that, instead of this case being an authority for the plaintiff, from the form of expression used it must be regarded as sustaining the view of the defendants. The next case wherein the question is considered is Wells v. Company,47 N.H. 24, and that is similar to Wells v. Burbank. There was in Wells v. Company no dwelling-house, and the place was unorganized; and the court, citing Tidd v. Smith and Wells v. Burbank, hold that it was not necessary to post a notice of the sale in the place where the lands lie. When this case was previously before the court, upon the authority of the cases above referred to, without considering the marked difference between those cases and the case then under consideration, the court said that the jury having found that there was no public place, it was not necessary that any notice should have been posted. The court there treat the question as not an open one but there is a very strong intimation that there is doubt about the correctness of those decisions, and they say if the question were a new one their decision might be different. Now when, as we have seen, the authorities upon which that decision is based do not support it, and when, upon general principles and upon the great weight of authority in other *Page 574 jurisdictions, it cannot be sustained, that decision ought not to be conclusive in the decision of the questions now before us. It is further said, that to reverse the former decision in this case would unsettle many titles, and therefore, though it may not be correct, it should not now be changed. An examination, however, of the records, shows that but very few, if any, titles depend on this question, — so few that this position is entitled to but little consideration. Entertaining these views, I am of opinion that The verdict should be set aside, and a new trial granted.