Gibson v. Mussey

Redeield, J. The only question to be decided in this case is, whether the collector of a particular land tax is liable in an action of covenant broken, upon a deed executed by him in his official capacity, according to the requisitions of the statute, i. e. containing a general covenant of warranty. The court are of opinion that the collector is not liable upon such covenant. He is expressly required to execute such a deed, and for the purpose of “passing the title in law.” It would be much more rational to hold that the deed itself passed the title to the land, without regard to the regularity of the previous proceedings, than to hold the collector liable on a covenant, which he has no option whether to omit or not. If the contract was voluntary, and personal as in the case of executois or administrators who sell land under an order of a probate court, the collector would, no doubt, be liable. But, it is believed, no case can be found, where a public officer is required to execute a contract in a specified form, and does so execute it, that he has been holden liable on any express.promise or covenant therein contained. But if the collector is liable to this action, we see no reason why he is not liable to the full extent of the loss sustained by the failure of title, whether the title fails through any defect in the proceedings of that collector, or a former one, or of the committee, even. A further consesequence of such a rule would be, that the executor or administrator of the collector, who is by statute required to execute a deed in the same form, would be liable to the same extent. This is a consequence which could never have been intended by the legislature to be visited either upon the collector or his personal representative. Such a rule would be totally at variance with the decision of the U. S. supreme court in the case of Hodgson v. Dexter, 1 Cranch’s R. 345, and Pet. Cond. R. 329; and also with the cases cited from 1 Term R. 172, of Macbeath v. Haldimand, and Unwin v. Woolsley, lb. 614. [214] Whether the party would have any redress in a different form of action, it is not necessary now to consider. The judgment of county court was ordered to be affirmed, but on motion of the plaintiff it was reversed, pro forma, and the plaintiff suffered to become nonsuit.