Scales v. Alvis

GOLDTHWAITE, J. 1. The revision of the statutes prescribing the manner of selling lands upon which the taxes have not been paid, is greatly to be desired, inasmuch as the numerous alterations at different periods have so perplexed the system, that it is quite difficult to ascertain what course is proper, and the result is, that the purchaser, instead of securing the land, or even a safe investment for the money expended, finds himself involved in an expensive litigation, almost always productive of no other end than that of vexation to himself and to the land owner. It certainly deserves consideration from the proper department of the government, whether it would not be better to facilitate the recovery of the land by the purchaser, and allowing the owner a longer time for redemption. With these preliminary remarks, we proceed to the examination of the questions presented by this record. It may perhaps be stated, as the general rule pertaining to sales of this description, to which no exception has come within our notice, that every prerequisite of the statute directing the sale, must be substantially complied with, or the sale will be illegal. [Lyon, et al. v. Hunt, et al. 11 Ala. Rep. 295; Rackendorf v. Taylor, 4 Peters, 340; Williams v. Payton, 4 Wheat, 77; 5 Hayw. 90; Davis v. Sims, 4 Bibb, 465; Holt v. Hemphill, 3 Ohio, 232; Birch v. Fisher, 13 S. & R. 208; Bush v. Davidson, 16 Wend. 550; Cook v. Sheppard, 7 Cowen, 88; 14 Mass. 177.] Now, when the statute is looked at, it will be seen to contain this provision: “ All lists of taxes shall be considered as having the force and effect of an execution; and it shall be lawful, from and after the first day of September, to proceed and make distress and sale of the goods and chatties, lands and tenements, of all persons in arrear for taxes; provided, that notice of such sale shall have been given, by advertisement at the court house of the pro [620] per county, and at least two other public places within the county, at least ten days previous to the day of sale, where the distress shall be of goods and chattels; and where the delinquent has no goods and chattels within the county, then the lands and tenements of said delinquent may‘be sold by the collector, or so much, &c. Provided, That the collector shall have given, in the nearest newspaper published within the State, at least three months notice, and in case of nonresidents, at least six months notice, of the time and place of sale, which notice shall contain,” &c. [Dig. 566, § 50.] It will thus be seen, the power of the collector to sell lands is limited to those cases where the delinquent has no goods or chattels within the county. There is no provision made for cases where the collector is unable to' find, or the delinquent unwilling to surrender goods. The power exists only where there are no goods, and conforming to the principle of the many cases on this subject, we are constrained to declare, that as there was personal property of the delinquent within his county, the collector had no discretion to sell the land, [Cook v. Sheppard, 7 Cowen, 88.] 2.' The fact that the property then possessed by the delinquent was exempt by law from being sold under ordinary executions, does not, in our opinion, prevent the operation of the general tax law. It is impossible, we think, by any proper construction of the statute which exempts certain property from execution, to consider the exemption as extended to the case of defaults for taxes. Without resting our opinion upon this point, on the principle that the State is not bound by a statute unless named in it, we think it clear the one referred to was not intended to create an exemption, when the revenue of the State is to be collected. 3. .The only other point in the charges given, is covered by the precise terms of the statute. Neither of the advertisements covered the space of three months, and the supposed consent of the delinquent to the amendment, by extending the time after it had received one months’ irregular publication, cannot invest the collector with the authority to sell. That, as will be seen by the cases already referred to, must be derived from a strict compliance with the statute. [See [621] also Haughey v. Harrell, 2 Ohio, 231; Jackson v. Esly, 7 Wend. 146.] The charges which the plaintiff requested are sufficiently considered in what has already been said. Our conclusion is, that the record presents no error. Judgment affirmed.