Bellows v. Elliot

The opinion of the court was delivered by Williams, Ch. J. The plaintiff claims title to the premises under a vendue sale. In all cases, where the owner of property is to be divested of his title, against his consent, by a proceeding under a statute, whether public or private, the person claiming under such proceedings must show a compliance with the provisions of the statute. Even in cases of execution, when it is beneficial to the debtor, and when his property is transferred at its full value, as well as in sales for taxes, this principle is rigidly adhered to, and it is not peculiar to this state, or confined to vendue sales. It is recognized and acted on in the other states, as well as in the supreme court of the United States. We are not at liberty to lose sight of this principle, out of regard to .the peculiar situation of titles in any particular section. Questions in relation to lands should not be left unsettled, and when a decision is once made, it should be adhered to. When there has been an adjudication on the subject in the supreme court, lands are bought and sold, on the supposition that the adjudication was right. If it establishes a vendue, or sets it aside, it operates equally through the state, and although it may seem to have proceeded upon too limited views, and appear hypercritical, I should be disposed to adhere to it. The rule which should govern in the investigation of all vendue titles, is this, — not that the court should be too refined and critical in endeavoring to hunt up objections, nor give effect tp such as are frivolous and unnecessary, but to see whether all the provisions of the statute, however unimportant they may uppear, have been complied with. The legislature may declare what proceedings shall be had to pass a title, and it is not for us to say, that it might have been dispensed with, or that it is unimportant. The purchaser must prove that all these requisites have been com [575] plied with, and when he shows this, he is to be protected in his purchase, whether he gave much or little, or whether it is a hard case or not, as it respects the owner. There ought to be a difference when the previous owner contests such proceedings, and where they are objected to by a mere stranger or trespasser, but whether there is, or is not, such a difference, we are not called on to decide. In investigating the proceedings under a statute, the statute itself should receive a rational, and not a forced construction, to effect any particular purpose, and we should not be too astute either in finding defects or surmounting them. Keeping these general principles in view, we will examine the proceedings in the vendue now before us. The plaintiff, to establish his title, offered in evidence a law of this state assessing a tax on the county of Essex, and the proceedings under that act, including a sale and deed to him by the collector. The court decided the evidence to be insufficient, and excluded it, and this was fatal to the plaintiff’s title. The question, therefore, in relation to the advertisement of the tax by the treasurer, is not before us. If the county court had, in the first instance, decided that it was necessary to show such advertisement, the plaintiff might have given evidence relating to it. Whether, therefore, it was essential to give validity to the sale, that this act should have been published in the newspapers directed by the act, we do not decide, but will proceed to the objections which have been taken, and notice them in their order. This tax was granted in 1831, and assessed directly on the land. First constables were appointed collectors, and in collecting, accounting, advertising, recording of proceedings, &c., they were to be governed by the general statute in relation to taxes granted by the legislature for making and repairing roads, &c. It is objected, first, that the treasurer did not publish the tax. This is not before us, as has been already said, for, perhaps it might have been shown that he did publish the tax, if the court had decided it to be necessary. Second, that the collector did not cause a certificate of his oath to be recorded in the town clerk’s office. As to this, the provisions of the general statute, in this particular, do not apply. No committee is appointed to receive bonds. The [576] collector is a public officer, and it was not necessary to show his appointment, or that he was sworn. This point was de'cided in the case of Adams v. Jackson, 2 Aik. R. 145. As to the third objection, it is sufficient to say that the advertisement was returned to the town clerk, and recorded with the other proceedings. The advertisement was dated at Brunswick, for the sale of lands in Brunswick, and the vendue was to be holden in Brunswick. From this, it sufficiently appears that the sale was at Brunswick, and of lands in the town of Brunswick, and to express any doubt as to it, would be indulging in a spirit of criticism altogether beyond that, which, as judges and rational men, we should be authorized to do. The fourth objection is, that the town clerk has omitted to certify the place where the several papers were printed. The certificate, however, appears to be in the words used in the statute. We are to take notice that Danville, Rut-land, and Windsor, are in this state, and are not to notice that there are, or may be, other towns of the same name in another state. The fifth objection is, that the collector did not cause a list of the unredeemed lands to be recorded within thirty days after the redemption had expired. This may be answered by denying the fact. The mistake of inserting 1833, as the year of sale, is too obvious to require any explanation. The heading of the- list was a sale of 1832. The date of the certificate of the return was June 20, 1833, and was received for record in July, 1833, and stated to be a return of lands remaining unredeemed for one year. No parol testimony was necessary to show the mistake in inserting 1833, as the time of sale, instead of 1832, at which time, it appears by the other records, the vendue was held. As to the sixth objection, it has never been considered necessary that, in the return of the sales by the collector, he should state, that the proprietors had neglected to pay the tax. If they had not neglected, the sale would not affect them. As to the seventh objection, it may be remarked that the statute prescribes no form in which the return should be made. If in the sixth column, next before the bidder’s name, the word sold had been inserted, it would have appeared [577] that the whole lot was sold, and we think the inference is equally clear that the whole lot was sold unless a less quantity had been put in the last column, and that, in the return, it sufficiently appears that the collector sold the whole lot. This disposes of all the objections taken to this vendue, and the conclusion is that the judgment of the county court, in which they rejected these proceedings as insufficient, must be reversed.