O'Grady v. Barnhisel

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring. This is an action of ejectment, in which the plaintiff recovered upon a tax deed purporting to have been executed on a sale for taxes under the Revenue Act of 1857. The deed was admitted in evidence against the objection of the defendants, and various grounds are now urged in support of the objection thus taken. These grounds involve the construction of certain provisions of the act referred to, and attack the validity of the deed on account of a supposed non-compliance with these provisions. It is contended that the matters, a statement of which is required by the act in order to render the deed effectual, are insufficiently set forth, and that the deed is therefore inoperative. Sec. 18 of the act provides that “ after receiving the taxes and costs for any property sold, the Tax Collector shall, as soon as practicable, issue to the purchaser a certificate in duplicate, stating substantially that the property was assessed,” etc.; specifying particularly the matters to be stated. Sec. 22 provides that |$ie deed shall state the same matters substantially as stated in the certificate; and Sec. 23 provides that a deed conforming to the requirements of the act shall be prima facie evidence of title in the grantee. The deed in this case states that the property was duly assessed, and that the taxes were levied upon it according to law; and states in the same manner other matters required by the act. The defendants claim that this mode of statement is not sufficient, and that there is no authority in the act for a deed setting forth the matters necessary to be stated 'in the forms of legal conclusions. Their position is that the deed must state the facts, and that the existence of these matters must appear from the facts stated; and that a statement amounting merely to a conclusion of law is not within the meaning of the act. This view is urged with much earnestness and force of argument; biit a careful consideration of the act leads us to a construction different from that adopted by the learned counsel. The act must be construed with reference to the — 292 — objects intended, to be accomplished by it, and it will hardly be claimed that an interpretation which defeats this object is admissible. Of course, the primary object was to provide revenue for the support of the Government, and the provisions in question constitute a part of the machinery devised for that purpose. The stringency of these provisions was intended to facilitate the collection, and to overcome as far as possible the difficulties which had always been experienced in enforcing payment. It had become proverbial, that a tax title was no title at all; and a sale for taxes was as near a mockery as any proceeding having the appearance of legal sanction could be. The principal cause was the difficulty in proving the various steps essential to the validity of such a sale; and the intention was to change the rule of evidence upon that subject, and throw the burden of proof upon the party asserting the invalidity. The view contended for would entirely defeat this intention; for if the facts are to be stated in the deed, the effect is precisely the same as to require them to be shown aliunde. The only difference is in the mode of proof, and the embarrassment is rather increased than diminished; for if any material fact be omitted, the deed is invalid, and cannot be given in evidence. The purchaser is subjected to the double risk of an err.or in the ^previous proceedings, and a mistake in setting these proceedings forth in the deed, either of which would be fatal. These results are plainly in contravention of the purpose intended, and the language of the act is ho less conclusive. The general provision is, that the matter specified shall be stated ; but in respect to the publication of the notice of sale, it is provided that the manner of publication shall be described. If it were intended that the same particularity should be observed in other respects, that intention would doubtless have been expressed; and the maxim expressio unius est exolusio alterius applies. We regard the deed as conforming substantially to the requirements of the act; and our conclusion is, that no error was • committed in allowing it to be given in evidence. It is true, some of the matters set forth are stated by way of recital; but as they distinctly appear, there is nothing in the manner of stating them, for which the deed could properly have been rejected. The point in regard to publication is more of a criticism" than an objection, for the deed — 293 — ■undoubtedly shows that the publication was made as provided in the act. This disposes of the questions arising upon the face of the deed, and brings us to the consideration of certain matters relied upon as invalidating the sale. The property was assessed to Joaquin Castro and wife, “ and all claimants and owners known or unknown,” and it is objected that Castro and wife were not the owners, and that the assessment was insufficient and void. The evidence shows that the property had belonged to the wife, and that she, together with her husband, had conveyed it to an infant daughter, who held it at the time of the assessment. The defendants, however, were in possession of it, and they contend that it was necessary to assess it either to them or to the owner, and that assessing it to Castro and wife was a fatal error. The act provides that property shall be assessed to the “ person, firm, corporation, association, or company owning it, or having the possession, charge, or control.of it, and to all owners and claimants known or unknown.” The position taken ignores that portion of the assessment relating to “ claimants and owners known or unknown,” and counsel regards it as superfluous and nugatory in determining the effect of the assessment. As the defendants were in possession, he considers the assessment a mere nullity, and contends that an assessment to “ owners and claimants known or unknown ” is of no validity, unless the possession is vacant. This view is in conflict with what we understand to be the meaning of the act, and we think that counsel has mistaken the purport and object of the provision referred to. The words “ and to all owners and claimants known or unknown,” were intended to be incorporated in every assessment ; and their effect is to bind the property, irrespective of the ownership or possession. The assessment is required to be made to the owner or possessor, and as against the person assessed it operates as a judgment, and has the force and effect of an execution upon all property owned by him in the county. It is also to be made to “ owners and claimants known or unknown,” and the intention was that it should be effectual as against the property regardless of the person, placing it in this respect upon the footing of a proceeding in rem. The counsel reads the act as requiring — 294 — the assessment to be made to the owner, if known; if the owner is unknown, to the person in possession; or if the possession is vacant, to the owner as unknown. This clearly is not the proper reading, for the provision is that it shall be made to the owner or person in possession, “ and to all owners and claimants known or unknown.” Whether made to the owner himself, or to the person in possession, it is also to be made to “ owners and claimants, known or unknown,” and the provision as understood by counsel is inconsistent with itself. It may be claimed as resulting from this view, that the omission of these words would invalidate an assessment, though correctly made as to the person, and that a compliance with both conditions is necessary to render the assessment effectual. This, however, can hardly be considered a reasonable construction, for the additional clause was evidently intended as a precautionary requirement, the object being to avoid the consequences of an error in regard to the person. The language used is inconsistent with any other interpretation, for it includes owners and claimants that are known, as well as those that are unknown, and the effect upon them was intended to be the same. If the proper person is assessed, no advantage could be derived from assessing him again in a different form, and the assessment would not be affected by a failure to do so. It is only where a mistake is made in this respect that the general words of the provision are important; and the object in requiring them could only have been to provide a cure for the mistake, so far as to give validity to the assessment as against the property. We regard the act as creating two remedies; one against the person and the other against the property, each having a distinct and separate existence, and the efficiency of the one not depending upon that of the other. The object was to compel a prompt observance of the duty devolving upon the citizen to pay his taxes, and an assessment binding at once the person and the property was resorted to as the means best calculated to accomplish that object. It is no answer to say that the owner may be taken by surprise, and lose his property without any fault or negligence on his part, for he has an. easy method of obtaining information, and nothing to do but to pay his taxes. He is as likely to be surprised by an assessment to the person in possession, as by an assessment to “ owners and — 295 — claimants known or unknown,” and the argument applies with equal force to the .two modes of assessment. It it our duty to construe the act in accordance with the intention of its framers, and the rule of strict construction so earnestly invoked would he grossly misapplied if used to defeat that intention. In the view taken by us, it is imm&terial to whom the property is assessed; for an assessment, in the form required, binds the property itself, and is not vitiated by a mistake as to the person. It is true, the act provides that the Assessor shall make diligent inquiry to ascertain the owner; but a mere mistake as to the fact of ownership is not sufficient to invalidate the assessment. It is possible that a willful omission, or even negligence in the performance of the duty enjoined, would render the assessment invalid; but where the assessment is made upon due inquiry and in good faith, a mistake of this character wE not affect it. In the present case, it is evident that the error committed was not the result of negligence or degign, and it is not pretended that any person was misled by the manner m which the assessment was made. There is no evidence that the Assessor was aware of the conveyance, and the presumption is that he did his duty, and used reasonable diligence to ascertain who the owner was. It is true, the records of the county would have furmshed the necessary information, but these records were only notice to purchasers and mcumhrancers, and no inference of actual notice can be drawn from them. Admitting, however, that he had full knowledge of the fact, it by no means follows that thé error arose from neglect of duty or any improper conduct. The daughter receiving the conveyance was a minor, and attained her majority oEy a few months prior to the assessment, up to which time her father had the control and management of her property. Durmg her nonage he was the proper person to assess it to, and no advantage would have resulted from the use of her name, nor the assessment have been more or less effectual on that account. The assessment to him three or four months after she became of age was a mistake, requiring unusual care in the Assessor to be avoided, and there is no doubt that it was innocently made. A pomt is taken m regard to the figures in the assessment roll, but we are unable to discover anything amounting to a non-compli — 296 — anee with the law. It is claimed that the figures are not intelligible, and that the items of the tax are so stated as to render explanation necessary to ascertain the amount. It appears, however, that these items are set down in columns, and that each column is appropriately ruled for dollars and cents, and its meaning indicated by the proper heading. The proof upon this subject is derived from the testimony of the collector, but the record shows that he testified from the roE itself. The counsel is mistaken in asserting that the property was sold for more than the amount due. He states that the items in the assessment roE foot up at fifty-one doEars, but the sfightest care would have shown him that they are correctly footed up at fifty-two doEars and fifty cents. The only error disclosed by the record is in the award of damages, the amount awarded being greater than the amount claimed. Eor this error it would be necessary to reverse the judgment, but the plaintiff offers to remit the excess, and we shall order a modification to that extent. The judgment thus modified is correct, and must be affirmed. Ordered accordingly. After the foregoing opinion had been delivered, a rehearing was granted.