Hill v. Mason

Tenney, J. — The covenant of warranty against incumi brances, contained in the deed to the plaintiff from the defendant, dated July 1, 1851, of the east part of No. 14, on Herrick’s plan, in the town of Clifton, it is insisted has [463] been broken, by reason of the non-payment of taxes assessed thereon, which has been followed by a forfeiture of title to the town. If it should appear, that no forfeiture has taken effect or can take effect by means of the taxes, shown by, the agreed statement, to have been assessed upon the land described in the deed, the suit cannot be maintained. By R. S., c. 14, § 76, when no person shall appear to discharge the taxes duly assessed upon real estate, within six months from the date of the assessment, the collector shall make a true copy of so much of the assessment, as relates to the taxes due on such real estate, and certify the same to the treasurer of the town. By § 77, the treasurer is required to record the same, &c., and advertise in the newspaper, &c. By § 82, if any taxes on lands shall remain unpaid, &c., the treasurer shall publish notice of the same, &c., therein stating the amount of tax, which have remained due for the space, &c., and the date of the assessment thereof, &c. By § 87, in any trial, &c., involving the validity of the title of the town, to any land forfeited for the non-payment of taxes, it shall be sufficient for the town to produce the assessment signed by the assessors, and prove that notice of such assessment was advertised by the treasurer, as provided in sections 87 and 82. By statute of 1844, c. 123, sections 2 and 3, the former statute was modified, the treasurer being required to cause advertisements to be published three weeks successively, within three months from the time the collector shall have certified to him, the delinquencies, &c., and shall also lodge with the clerk of the town, &c., where said lands lie, a copy of said advertisement; and by § 21, of the same statute, all Acts and parts of Acts inconsistent therewith are repealed. Section 87 of c. 14 of R. S. not being inconsistent with any part of the provision of the statute of 1844, excepting so far as the latter, is a modification of the former, must be regarded as in force; and proof of proceedings, not [464] dispensed with in the statute of 1844, essential to the validity of a title in the town, is required. The statement of facts fails to show certain things, which are indispensable to work a forfeiture of the land in the former owner, which are applicable to all the taxes referred to in the statement. It does not appear, that the collector ever certified to the treasurer, delinquencies of payment of taxes upon real estate in the town of Clifton; consequently the proof is wanting, that advertisements were published within three months thereof. There is nothing showing that a copy of the delinquencies was lodged with the town clerk, as is required by the statute. Other errors in the assessment of the taxes upon the land conveyed by the defendant, and subsequent proceedings, are relied upon in defence of the action. These may perhaps avail, but their consideration is not required for a decision of the case. By the facts presented, no absolute title adverse to that of the plaintiff, and nothing which can ripen into such title, or become an incumbrance upon the land, is shown. By the agreement of the parties, the plaintiff must become Nonsuit. Shepley, C. J., and Rice, Hathaway and Appleton, J. J., concurred.