Winchester v. Stockwell

Bingham, J- On the facts here presented these actions cannot be maintained, either in the name of the town or the collector of taxes. Actions under section 17, chapter 60, of the Public Statutes, should be brought by the collector acting in his public capacity and as the representative of the state. The taxes collectible under the statute are in no sense debts owed to the town as a corporation, but to the public. The controversy there contemplated is one between the state and the taxpayer for the enforcement of a public right. Canaan v. District, 74 N. H. 517, 536. The town in becoming the purchaser of the property at the tax sales acted in its corporate capacity and stands with relation to the purchase the same as an individual would. Cool. Tax. (1st *195 ed.) 353. It paid the taxes “solely as a consideration for a supposed title, taking the risk of its failure.” Perham v. Fibre Co., 64 N. H. 485, 486. And by paying them it extinguished the tax obligations of the defendants to the public in the town of Winchester for the years in question. But notwithstanding these actions cannot be maintained, the town as owner of the tax titles may be permitted by way of amendment to consolidate the suits and file a writ of entry for the lands, in which the validity of the tax titles may be litigated. The fact that when the town became a purchaser the sales had not been adjourned from day to day, not exceeding three days, without a person having appeared on or before the last adjourned day who offered to pay the taxes and incidental charges for a part or the whole of the estate (P. S., c. 61, ss. 5, 6), would not seem to affect their validity. Since 1895, a town or city may become “a purchaser at any sale of lands for the payment of taxes.” Laws 1895, c. 64, s. 2; P. S., c. 61, s. 6. The defendants, however, claim that the plaintiffs’ tax titles are invalid because of irregularities in the assessments. The facts in support of this claim are not found; but if found and they would invalidate the titles, the defendants would not be permitted to have judgment rendered in their favor in the amended suit without reimbursing the town for the taxes which they have paid, unless justice required a different course. Laws 1895, c. 64, s. 1; Greeley v. Beckman, 75 N. H. 413, 415; Glynn v. Maxfield, 75 N. H. 482, 485. And if the town is willing, as it apparently is, to release its claim to the lands upon being reimbursed for the taxes, without putting the defendants to the expense of contesting the title, it would seem that there would be no evidence from which it could be found to be unjust to require the defendants to do so; and that, the amendment being allowed, judgment should be entered in the superior court for the defendants, upon their paying the town the taxes and charges for which the lands were sold. The costs in the present proceeding should follow the usual course. The defendants’ exceptions are sustained, the verdict in the first action is set aside, and the judgments in the second are vacated. Case discharged. All concurred.