Sumner v. Sherman

The opinion of the court was delivered by Williams, Ch. J. The inquiry in this case is, whether the plaintiff acquired any title to the premises sued for, under the deed to James Whitelaw from David Hibbard as sheriff and collector of the tax of one cent on each acre of land in this state, granted in the year 1812. This is the only inquiry in this case, as the deed from William Hughes to Whitelaw, under another tax, was not in evidence, but rejected by the court. The grounds upon which the court proceed, in deciding [612] upon the validity of vendue sales, by collectors of taxes, have been too often stated to be again repeated. We do not feel at liberty to assume other grounds, although it may appear that courts have heretofore been extremely and critically nice in the views they have taken. To shake any of the established principles, or to proceed upon more liberal, or even on such as may appear more correct views, might disturb many titles which have been considered as settled, and revive many an antiquated claim which has been considered as at rest. The principal object in view has been to ascertain what the statute has required; whether all has been done which was required, and, if it has, the title of the purchaser has been treated as perfected. If it has not been done, it has been considered that no title has been acquired. I believe that this principle has always governed the court in the decisions on vendue sales, and, although there have, at times, been different views entertained as to who were to take the burden of proof, yet, it has never been doubted that a failure to comply with what is enacted must be fatal to any title attempted to be acquired. Thus it has been considered that a neglect of the collector to record his proceedings, to leave a copy of his warrant and the advertisements, although subsequent to the sale, or to take the oath and give bonds when required so to do, was a defect which prevented any title passing by his sale. It is enough for us to inquire what the legislature have said, supposing that their intentions were made known by the terms they have used, and not to indulge in any fanciful conjectures as to their meaning, or to substitute something else in lieu of what they have enacted. The statute, laying this tax in 1812, appears to have been copied from a previous one in 1807. Having had experience in this state, at that time, that vendues, even by sheriffs, were not always conducted fairly, that the written proceedings, or records, by them kept, were mutilated, altered and suppressed, and it being, at that time, considered that a sheriff’s deed was prima facie evidence of the previous proceedings, and the regularity thereof, the legislature provided, in the act in question, as well as the previous one, not only that the sheriff and the several collectors should keep a record of their proceedings, but, within thirty days next after the ending of their vendues, should lodge a true and attested copy of [613] their sales, together with their warrant and tax bill and advertisement, with the town clerk in any organized town, and with the county clerk where the towns were unorganized, whose duty it was to record such proceedings. This was calculated to protect the purchaser, as well as the owner whose lands were sold, by preserving the evidence of the proceedings and authority of the collector, and by preventing any frauds to be apprehended from the mutilating or falsifying of these records by the collector, or deeding when he had not sold, or when he had no authority to sell. By a resort to these records, the purchaser could ascertain whether his title was complete, and the owner, whether his title had been devested by a public sale. It may be sufficient for us to say that the legislature have required this to be done, and by all the previous decisions in this state it has been considered that a failure so to do was fatal to the purchaser’s title ; that, although the purchaser has no control over the sheriff to compel him to leave this copy, or over the clerk to compel him to record it, yet, unless it is done, he can acquire no title; and if he has any remedy, it must be against the officer who neglects- his duty. In the case before us, the sheriff left no true and attested copy of his sales with the clerk, and even if it should be considered that leaving the original sales, attested by him, could be considered as leaving an attested copy of his sales, which, however, is not admitted, yet, it is evident they never were recorded, but were taken back by him, before the county clerk for the county of Essex had ever recorded them, as required by the statute. The proceedings were never enrolled and transcribed into the public records of the county by, or under the direction of, the county clerk, and we are without any evidence, at this day, that either French, the then county clerk, or his successors, have ever examined the books, and compared the record, so as to be able to certify that they were truly transcribed. It appears that the county clerk, soon after receiving from Hibbard his original sales, went into the army and died. The deputy jailer, and a prisoner in jail, did all that ever was done towards transcribing these sales into the public records ; they were never examined, compared, nor certified by any competent authority, and the originals were handed back to Hibbard, at the jail. To [614] this proceeding we cannot give the name of a record. If they had been compared and certified either by French, or his successor in office, before they were delivered back to J Hibbard, it might have merited a different consideration. p0,. these reasons, we think a just regard to the previous decisions of this court requires us to say that this sale was inoperative, and that the deed from Hibbard conveyed no title. These views were entertained by the court at the last term. We omitted to make the decision, on an intimation that the circuit court for this district had decided differently, and a just regard to the opinions of that able and enlightened court induced us to hold the case under consideration. But we cannot learn distinctly that this question has been decided by them. In the case of Tucker v. Sherman, before that court, the plaintiff made title under four vendues. If either were good, it was sufficient for his purpose in that case. Which of the several vendues were decided to be sufficient to establish his title, does not appear by the case, nor have we been able to ascertain whether this sale by Hibbard was considered as valid or not. We, therefore, do not think it important to retain this case any longer, as we are convinced that it would conflict with all'our decisions previously made, and set up titles which have not been considered as of any avail. The judgment of the county court is reversed.