Millett v. Mullen

Emery, J. The demanded land is two specific parcels of two hundred acres, each outside of any organized municipality of any kind, but within a definite, surveyed and recognized sub-division of the territory of the state officially designated as “Township No. Three, Indian ■ Purchase, Penobscot county.” The action was begun December 21, 1897. The defendant deraigns title solely from a deed from the State land agent to William H. McCrillis, dated April 80, 1849, and' purporting to effectuate a sale made according to the statute 1848, ch. 65, of land in that township forfeited to the State for the non-payment of certain State taxes theretofore assessed and remaining unpaid. In the recitals of the proceedings under that statute, and in the deed itself, the only description of the subject matter thus sold and to be conveyed is, “ all the right, title and interest which the State of Maine has by virtue of such forfeiture in and to six thousand five hundred acres of land in Township Three, Indian Purchase in the County of Penobscot.” There were at that time, and now are, over twenty-three thousand acres in the township. It has been repeatedly and uniformly held that such a sale or deed with such a description is utterly ineffectual to designate, or to pass any title to, any specific tract or acre in the township. Larrabee v. Hodgkins, 58 Maine, 412; Griffin v. Creppin, 60 Maine, 270; Moulton v. Egery, 75 Maine, 485; Skowhegan Savings Bank v. Parsons, 86 Maine, 514. The act of 1852, ch. 272, providing that the deed should “vest in the grantee all the interest of the state in the lands therein described and no more,” does not help the matter, for no lands are described in the deed or the notice of sale. It is still impossible to determine that the demanded lot is part of the 6500 acres said to have been sold, rather than of the 16,500 acres which were not sold. The defend — 413 — ant, therefore, has no title with which to resist even the least title which the plaintiff may prove. . The defendant contends, however, that the plaintiff has not even the least title, since all the title under which he claims passed from his predecessors in title to the state more than twenty years before the date of his writ for non-payment of state taxes. This contention should be next considered, since, if it be sustained, the plaintiff fails even though the defendant has no title. Hewes v. Coombs, 84 Maine, 434. It is claimed that the title was wholly forfeited to the State for the non-payment of the State tax of 1844 assessed March 21, 1844. The statute then in force is contained in R. S., 1841, ch. 14, §§ 1-9. It provided, — (1) that when a state tax was assessed by the legislature upon any township or tract of land not taxable by the assessors of any municipality,- the state treasurer should cause the assessment to be published in the State paper three weeks successively, the last publication to be within three months from the day the assessment was laid,— (2} that the land so taxed should be held liable to the State for the payment of the tax,— (3) that the owner might at any time within four years from the time of publishing the assessment redeem the land by paying into the treasury of the State the amount of the tax, etc. —and (4) that if the State tax so assessed and advertised was not so paid within the time named, then in such case, “the said township or tract shall be wholly forfeited and the title thereof shall vest in the State free and quit from, all claims by any former owner, and the same shall be held and owned by the State by a title which is hereby declared to be perfect and indefeasible.” A state tax was assessed upon this township by the legislature by Act dated March 21,1844. Notice of this assessment was published by the state treasurer in accordance with the statute. The plaintiff and his predecessors in title have never paid any of that tax, nor have any persons for them. A large amount of the entire tax remained unpaid at the end of the four years from the time of the publishing. The land was then “ wholly forfeited” to the State. — 414 — But on August 10, 1848, the legislature passed an act (ch. 65) providing: — (1) that the State Treasurer should within thirty days from that date publish a list of all tracts of land then forfeited to the State, and should thereafter annually on the first Monday of September publish a similar list of all tracts of land which may at that date have become forfeited,— (2) that any person having a legal interest in such tract so forfeited might discharge his interest from the tax and forfeiture by paying his proportion of the tax, interest and costs at any time before such list is published, or on or before the first day of March next after such publication,— (8) that immediately after said first day of March (viz, the March next after the publication) the Land Agent should advertise and sell the lands upon which taxes had not by that time been paid,— (4) that the Land Agent at any time before the land was thus sold should accept all taxes, interest and costs due on the land so advertised,— (5) in terms that “ tbe owner or owners of any township or tract of land sold under the provisions of this act shall have a right to redeem the same by paying the purchaser or his assigns the amount for which said township or tract was sold, with interest thei’eon at the rate of twenty per cent per annum, and the cost of reconveying the same at any time within one year from the time of sale,”' — -and (6) that the owner could collect of the State his share of the surplus proceeds of the sale, within three years after the sale. In 1852 was passed the Act already noted (ch. 272) providing that the State’s title in land described in the deed should pass to the grantee “ notwithstanding any irregularities in the notices, or failure to comply with the provision of the Act under which the sales were made.” The contention of the defendant is, that the title at the end of the four years from the notice of the assessment of 1844, viz., in May, 1848, some months before the passage of the Act of 1848, was by operation of the statute completely transferred from the plaintiff’s predecessors to the State and became vested in the State by a “perfect and indefeasible title,” “free and quit from all claims of the former owners;” or if their entire title was not extinguished by the lapse of time under the statute of 1841, it was, — 415 — nevertheless, extinguished even under the Act of 1848, by the action of the State in undertaking to sell and convey its title, whether effectually or not. The plaintiff contends that the Act of 1848, ch. 65, amended the Act of 1841, and expressly covered lands already forfeited under that Act, and conferred upon the original owners a further right to redeem until the lapse of one year after a sale of the land had been effectually made under the amending statute, — that is, within one year after the State parted with its title. His argument is, that this right of redemption with which the former owner was thus endowed is a title to the land good against all the world except the State and its grantees, and that such title continues heritable and conveyable until the State cuts it off by such a sale and conveyance as will vest the State’s title in a purchaser. It is a familiar principle that when a statute imposing or enforcing a tax or other burden on the citizen even in behalf of the State is fairly susceptible of more than one interpretation, the court will incline to the interpretation most favorable to the citizen. Partington v. Att’y Genl. L. R. 4 H. L. Cas. 122; United States v. Wigglesworth, 2 Story 369, 373; Tolman v. Hobbs, 68 Maine, 316. If the statute imposes a penalty it is, to that extent, a penal statute to be construed strictly against the party claiming the penalty. Hubbard v. Johnstone, 3 Taunt. 177; Dwarris on St. 641. If a statute is penal even though it is also remedial it must be strictly construed, Abbott v. Wood, 22 Maine, 541-546 ; and a statute providing for the total forfeiture of property for the non-payment of one tax is certainly highly penal. On the other hand, statutes enacted to relieve the citizen from a forfeiture incurred should be construed liberally. Alter v. Shepherd, 27 La. An. 207 ; Perley v. Jewell, 26 Maine, 101. Applying these principles to the question here raised, assuming it to be an open question, the court can hardly doubt that it was the intention of the legislature in the Act of 1848 to recede from the drastic legislation of 1841 absolutely appropriating the land of the citizen without even the usual inquest of office, — and to remit to him some interest in the land of which he .should be wholly — 416 — deprived only when the State, upon due proceedings, sold and conveyed its interest to some grantee. This intention is made more evident by some intermediate legislation. In 1842 (ch. 11) the legislature opened all forfeitures then incurred, and conferred a right to redeem for one year thereafter. In 1845 (ch. 135) was another opening of forfeitures and an extension of the time of redemption till May 1, 1846. In 1848 (ch. 65 above cited) the legislature again opened all forfeitures, but this time, instead of fixing a particular day when the forfeiture should again become absolute by mere lapse of time, it provided that the forfeiture should not again become absolute until one year after the land had been advertised, sold and conveyed by the State officials as prescribed in the act. This later act must prevail over any inconsistent provisions in the earlier act of 1841, even though such provisions are not in terms repealed. The defendants, however, claim that there is a distinction between those cases in which the land had been already wholly forfeited as in this case, and those in which the owner had an existing right of redemption at the time of the passage of the act of 1848, August 10, — that in the latter cases the right of redemption was continued, leaving a title in the former owner until he failed to pay after one year from sale, while in the former cases in which the former owner’s title had been wholly divested, such owner had no title and could only acquire a title by making the payment. The argument is, — that the State by the act of 1848, while it continued a title not then wholly divested, did not ex vi termini restore a title which had then been wholly divested, but only offered to do so on condition the former owner should pay the taxes, etc., — and that no such payment having been made in this case, the predecessors of the plaintiff never obtained even the least title under that act. We cannot find any such distinction expressed or implied in the statute of 1848. It expressly names lands “ forfeited” and also lands that “may become forfeited” as those to be affected by its provisions. Both classes were to be treated alike, — both to be listed, advertised and sold. Both could be redeemed from the Land Agent before sale. The “right to redeem the same” from the — 417 — purchaser was extended to both. This was not a mere right to purchase, giving no present title. It was expressly “a right to redeem.” That phrase in law implies more than a right to acquire. It implies a right to disencumber, to liberate from a lien or claim. Cent. Diet. We are convinced that the legislature in the Act of 1848, intended to, and did, reduce its once absolute title to a lien to again become absolute only in the State’s grantee after one year of sale, — intended to and did take off the forfeiture already accrued, and as to such lands recognized a title still existing in the former owners, subject only to the superior title of the State. This legislative action and intent were sufficient to revive in the former owners, the plaintiff’s predecessors, a title as good as before against all parties but the State and its grantees. This title, until extinguished by proper proceedings under the statute, is as heritable and conveyable as that of the owner of any equity of redemption. But we think the question is not now an open one. In Griffin v. Creppin, 60 Maine, 270, (1872) the defendant claimed that the land had been forfeited to the State. The court said, “ assuming there had been such forfeiture, the evidence fails to show any title in the defendants by which they can justify as against the plaintiff,”— and rendered judgment for the plaintiff. The clear import of the decision is that, since the statute of 1848 at least, the forfeiture to the State is not so complete and absolute as to deprive the the former owners of rights of action against strangers. Later the question was again expressly raised, considered and decided in a real action, Chandler v. Wilson, 77 Maine, 76. The defendant in that case deraigned from a tax sale and deed with the same want of description as in this case, as appears by the papers in the case though not in the published report. The defendant conceded, as the court adjudged, that he had no title, but he set up the same defense as here, — that the plaintiff’s predecessors in title had utterly lost title through absolute and complete forfeiture to tbe State for non-payment of State taxes, so that the State had the absolute title and the plaintiff’s predecessors had no title or interest whatever.- The plaintiff admitted that the tax proceedings — 418 — were regular enough to create a forfeiture to the State, but contended that there remained such a right to redeem from forfeiture as gave his predecessors and himself a title good against all persons except the State and its grantees under effectual conveyances. In rendering judgment for the plaintiff the court necessarily sustained this contention, and overruled that of the defendant. In the opinion the court said (Peters, C. J.): “In such case, the State has the land, not to keep, — not to use, — but to sell for the taxes. The State, in view of all the statutory requirements, has but a lien upon the land.” The tax proceedings in that case were for the tax of 1866, but there has been no legislation since 1848-impairing the effect of that statute upon the question here involved. The same provisions are practically embodied in R. S., ch. 6, §§ 71 to 76. The defendant, however, invokes the case of Hodgdon v. Wight, 36 Maine, 326 (1853) as equally decisive the other way, and claims that it has so long remained a rule of property unquestioned in this State, and so many investments have been made and obligations incurred upon the credit properly given it as an authoritative exposition of the law, it should now be upheld even against the later decisions (1872-1885), and even though erroneous in principle. We fully recognize the principle of stare decisis, but we do not understand the case of Hodgdon v. Wight, as explicitly and necessarily involving a decision of the question contrary to the decision in Chandler v. Wilson, whatever the language of the court may indicate were its views upon the question. It is the necessary decision, not the reasoning nor the assumptions, that should be taken as the rule established. Hodgdon v. Wight was a proceeding by petition for partition originally against persons unknown, the plaintiff claiming 2593 acres in the township. The defendants Wight and Brown came in and by brief statement alleged title in themselves to 6244 acres in common and undivided with others in the same township. The plaintiff by counter brief statement alleged that out of the 6244 acres claimed by the defendants, he was entitled to his 2593 under a sale and conveyance to one Stanley by the State for non-payment of the State Tax of 1842. The only question considered was whether the State had acquired — 419 — any title to the land from the failure of the owners to pay the State tax of 1842. The contentions of the defendants in that case were, (1) that the tax had been paid, — (2) that the state had waived its title by afterward assessing the land as owned by their predecessors,— (8) that the state was bound by the statement of its treasurer or his clerk to their predecessors that the tax had been paid. These contentions were overruled, and it was decided by the court that the state had acquired a title for the non-payment of the tax. The defendants also made the point that the land agent had no authority to sell, and that his proceedings were not in conformity to law. The court turned this point aside by saying that it was destructive of the defendant’s own right to appear and contest. The question whether the former owner or his successors in title had a right to redeem the land from the State’s title was not considered, and does not appear to have been presented, or even mooted. The court, after disposing of the various objections to the State’s title, concluded its opinion as follows: — “If the State had acquired a title, that of the purchaser from it has been admitted, and all defects in the proceedings cured by the Act approved on April 23, 1852, which provides, that any deeds given by the land agent, for lands sold for alleged forfeitures to the State, shall vest in the grantee all the interest of the State, notwithstanding any irregularities in the notices or failure to comply with the provisions of the Acts under which said sales were made.” For some reason, perhaps because necessary to their own title to these and the remaining acres, the defendants admitted that the plaintiffs were grantees of whatever title the state had acquired, and thus prevented a decision of the question whether there remained to the defendants a right to redeem which would have been a title good against strangers to the State’s title. We think it clear the cases are widely different. Griffin v. Creppin, Chandler v. Wilson, and the case at bar are all cases where one party represented the original title, and without denying the state’s superior title, did deny that the other party had acquired that title, and insisted that there still remained to him enough of — 420 — the original title to maintain the action against strangers. In Hodgdon v. Wight there were no such contentions. There was no decision against them. There was no occasion for such a decision since, so far as the report of the case shows, the defendants did not invoke as a title a right to redeem under the statute of 1848. They contested the original forfeiture only. But, whatever be the view now taken of that case, it is now declared after full and deliberate re-consideration, that the decisions in Griffin v. Creppin, 60 Maine, 270, and in Chandler v. Wilson, 77 Maine, 76, are affirmed, and that so far as the opinion in Hodgdon v. Wight, 36 Maine, 326, and the dicta in Adams v. Larrabee, 46 Maine, on page 518, also cited by the defendants, conflict with those decisions and the one now made, they are overruled. We may add that we think the defendants must be mistaken in their belief that in reliance upon Hodgdon v. Wight many and large investments have been made in tax titles based upon sales and deeds like those in this case. We do not see how the case of Hodgdon v. Wight should lead such investors to believe that it was not necessary for them to take care that the sale and deed from the State to themselves and their predecessors were effectual to convey to them the State’s title. It is a familiar and long-known legal principle that if the description in a conveyance be so uncertain that it cannot be known what land was intended to be conveyed, the conveyance is void. If such investors did not acquire even the State’s title, they are not injured in the least by any decision of this court holding that the original owner, notwithstanding his default, still bad a heritable and conveyable interest in the land which continues in him, and his successors, until the State sees fit to effectually convey its own title. What claims such investors may have upon the State by reason of the inefficacy of the sales and conveyances to pass its title, are matters solely between them and the State. However much we may regret the losses sustained by reliance upon such sales and deeds we cannot consider them here. This court has never decided that such sales and deeds were effectual to pass the State’s title in any case where thejquestion was raised. — 421 — An argument ab inconvenienti is also urged, — viz., that sucb a construction of the statutes will cripple the State’s revenues by-encouraging the owners of wild land in unincorporated places to allow the taxes upon their land to remain unpaid. We have given this argument full consideration and have scanned the statutes the more carefully by reason of it, but we think it is overborne by the language of the statutes as interpreted by previous decisions. The inconvenience must be left to the legislature to remedy. Some comment was made, in argument, upon the fact that since the State deed to McCrillis in 1849, he and his successors have paid the successive annual taxes upon the demanded land. The defendant, however, does not, and could not successfully, claim that under the law of this State such payment of taxes gives him any title against the record owner. The land is wild, land and the evidence does not show such an actual, visible, exclusive and continuous occupation as is necessary to work a disseizin of the record owner. Slater v. Jepherson, 6 Cush. 129; Parker v. Parker, 1 Allen, 245; Chandler v. Wilson, 77 Maine, 76; Hudson v. Coe, 79 Maine, 83. The payment of taxes under such circumstances is no evidence of disseizin and gives no color of title. Little v. Megquier, 2 Maine, 176. It was also suggested in some cases, argued at the same time, that the equities of the case are with the defendants, since they and their predecessors have paid the taxes for so many years, and the plaintiff and his predecessors have paid no taxes since 1844, and that the court should find a way to give effect to those equities. On the other hand, it was suggested that the defendants and their predecessors have probably taken from the land far more in value than all the sums paid out by them. Of course, all such suggestions are unavailing. Whatever our sympathies, we must ascertain and declare the law as we find it to be, however harshly it may seem to operate. The questions raised in this case are not questions of equity, but purely questions of what is the fixed legal rule of property, established by positive enactment and by apposite judicial decisions, as to the rights of a land owner to redeem land forfeited for non-payment of taxes. We have stated and discussed at some length the contentions — 422 — and arguments advanced, in the hope of making an exposition of the law that will solve some of the questions mooted. In doing so we may have written more or less dicta, but our decision so far is only this: — that under the cited statutes of 1841 and 1848 the original owner of land in an unincorporated place, forfeited to the State for non-payment of state taxes, still has a heritable and conveyable interest in such land, good against strangers and continuing as against strangers until the State cuts it off by an effectual sale and conveyance of its own title; — and that the alleged sale and conveyance set up in this case, as made by the State, are not effectual and do not extinguish such interest of the original owner. What rights in the demanded land the State may still have, or how it may, under present or future legislative enactments, enforce those rights, — or how the defendants can acquire those rights, or what other relief they can obtain, — are not decided nor considered. The only remaining question is, what of the title of the former owners the plaintiff deraigns from them. The two parcels demanded are Lots Four and Sixteen in the Township named. The evidence shows a complete chain of title, prima facie at least, from the State to the plaintiff of one-undivided half of each lot and no more. That the evidence does show so much is not seriously denied. According to the terms of the report, the mandate must be, Judgment for the plaintiff for one-undivided half of each of the demanded lots. Damages to be assessed at nisi prius by the presiding justice.