Farnum v. Buffum

Wilde, J. The demandant’s title in this case is derived from one Henry S. Mansfield by this deed of mortgage to Richmond Bullock, and by his deed of assignment to the demandant. To this title, it was objected, at the trial, that the deed of assignment was inoperative, because Henry Martin, a notary public in the state of Rhode Island, taking the acknowledgment of it, did not authenticate his act by a notarial seal. This objection was overruled. And the first question is, whether it was rightly overruled. By the Rev. Sts. c. 59, § 13, it is provided, that deeds of real estate may be acknowledged “ before any justice of the peace in this state, or before any justice of the peace, magistrate, or notary public, within the United States, or in any foreign country.” The statute requires no notarial seal to the notary’s certificate of the acknowledgment, and none, we think was necessary. The notary derived his authority from the statute, and it is no good objection to the validity of the certifi* [265] cate, that by the common law or the law merchant, notaries public are required to certify their acts and doings under their notarial seals. Hinckley v. O'Farrell, 4 Blackf. 185; Dumont v. McCracken, 6 Blackf. 355. But the principal questions, which have been discussed, depend on the validity of the tenant’s title, which is derived from a sale and conveyance of the demanded premises by a deputy collector of the town of Hendon for the payment of taxes. To this title several objections have been made, as to the assessment of the taxes, and as to the proceedings of the deputy collector in making the sale. But as to the objections to the assessment of the taxes we have not found it necessary to express an opinion; as we are satisfied, that the proceedings of the deputy collector, in making the sale, were not conformable to some of the requisites of the statute. Rev. Sts. c. 8, §§ 18, 24,25. By the eighteenth section, it is provided, that sales for the non-payment of taxes assessed on the real estates of resident proprietors shall be conducted in the same manner as that provided for the sale of lands of nonresident proprietors; and by the twenty-fourth and twenty-fifth sections it is provided that the collector, in such cases, shall give notice of the time and place of sale, by an advertisement thereof in some newspaper, which shall state among other things the names of the owners, if known to the collector; and where the owners are not so known, the advertisement is to state the amount of the taxes on “the several rights, lots, or divisions of the real estate to be sold.” In the present case, the name of the owner was not stated in the advertisement. Before the sale, Mansfield, the mortgagee, had taken possession and was' to be considered as the owner. Rev. Sts. c. 7, § 7. But it has been argued for the tenant, that it does not appear that the collector had notice of the entry of the mortgagee, and that it is to be presumed that he had not; that the description of the lots sold was not required by the Rev. Sts. c. 8, § 25; and that no such description was required until the statute of 1848, c. 166, § 3. But we consider the third section of the latter statute as expían atory of the former provision, in order to remove doubts, i» [266] any existed ; and if it were not so intended, and the legislature supposed that no such description was required by the twenty-fifth section of the Rev. Sts., c. 8, we cannot concur in that opinion. Some description of the lots to be sold was required, or the notice would be of no use whatever. So as to rights and divisions, the question would be, What rights and divisions 1 and it must be answered by a full and satisfactory description, so that the owner might know what rights, lots, or divisions were to be sold. It was also argued, that if a description were necessary, a sufficient description was contained in the notice. The only description, if so it may be called, is, “ Moses Buffum, house and land, and Loring Emerson, house, barn, and one hundred fifteen acres of land.” This we consider a very uncertain description, and altogether insufficient. The owner’s name not appearing in the notice, a full and clear description of the property to be sold should have been given. Another objection to the validity of the sale is, that it does not appear that a similar notice was posted in some convenient and public place, as required by the twenty-seventh section. This objection, also, appears to the court well founded. William H. Aldrich, the witness who testified as to the time when a notice of the sale was posted, could not with certainty recollect the time. He thought it was in August. He was positive it was in warm weather, and in the summer. Taking this evidence together, it is manifest that the witness was only positive that it was in warm weather; for although he adds that it was in the summer, this must be understood as an inference from the fact that it was in warm weather; for he could not be positive that it was in August; and it is clear, that if it was not, it was not, in the summer; for he refers to his affidavit, in which it was stated, that the notice was posted in August; but that affidavit was not admitted in evidence, but the witness no doubt had seen the affidavit, and he certainly had a right to examine it to refresh his recollection ; yet he would not. be certain, that the notice was posted in August. Another defect in the evidence on this point is, that [267] although the witness testified that the notice set forth the time and place of sale, yet he would not state the time and place from his recollection; and this defect is not supplied by the testimony of Stephen Taft, who wrote, as he testified, three notices for Aldrich, for it does not appear that any one of them was the one Aldrich put up at the post office. Aldrich did not testify that it was. It may be probable that it was; but probability is not sufficient. But it has been argued for the tenant, that although the evidence as to the notice was weak, it should have been submitted to the jury; but, we think, if it had been so submitted, and a verdict had been found for the tenant, we should be bound to set it aside as a verdict against evidence. There was no such description of the property sold as the law requires in the notice published in the newspaper; and the evidence of posting a notice is insufficient, both as to the time when it was posted, and as to the contents of the notice. In a sale like this, where a large and valuable property has been sold for a mere trifle, a compliance with all the provisions of the statute should be proved with great certainty in every particular; and one of the most important particulars is the notice to the owner, when he is á nonresident, or, as in the present case, where the tax was not assessed to the owner at the time of the sale. These objections, therefore, to the tenant’s title fully sustain the rulings of the court at the trial. Exceptions overruled.