Lane v. James

The opinion of the court was delivered by Redfield, Ch. J. The proof in this case, to make out the amount of tax for which the land was sold, viz. 72 cents, seems to us altogether incompetent beyond the amount of 38 cents, which is shown by the tax bills and warrants put into the’ case. The remainder of the tax, being 34 cents, is attempted to be proved by the testimony of the collector. He says it was, or probably was, or might have been, made up by the highway tax of that year, which it appears was doubled, and would thus be 30 cents, all amounting to 21 or 22 cents upon this delinquent list. And the balance, it is suggested, might have arisen from $200, which was required by the vote of the town to be raised, in addition to doubling the highway tax. In the first place, this kind of evidence is quite too loose and indefinite to be submitted to a jury, from which to conjecture that such a tax might have existed, and that if it did, it might have been legal. The title to real estate cannot be thus divested upon mere conjecture, and it is nothing more. The collector should be required to show that a legal tax, to the full amount for which he [486] sold, did exist, which by law he could enforce in the manner attempted. But the case shows affirmatively, that this highway tax could not have been in such a state, as to justify its enforcement, at that time. It was voted in the March preceding, and by consequence, the rate bill could not have been in the lands of the highway surveyor six months previous to the loth day of August of that year, which is expressly required before the highway surveyor can deliver over the rate bill to the constable for collection. And we think this time is given to the non-resident proprietors of land, to enable them to pay their taxes, and save the sale of their lands, and cost, consequent. And we conclude, therefore, that the collector has no power to sell the land, or make costs, until this time has expired. II. It is perhaps not needful to go farther. But it seems to us that the thirty-second section of the act is evidently not complied with, so far as appears in this case. By that section, the constable is required to make out a true list of the lands so sold, designating certain particulars, “ and leave the same for record, in the “ office of the town clerk, &c., within thirty days -from the day of “ sale, and said town clerk shall record the same within ten days “ thereafter.” Now there is nothing in tins case to show when this paper was left, or that it was ever recorded, but the contrary is fairly inferrible from the town clerk’s certificate upon the paper, “ that it is a “ true copy of the list of lands sold,” not record of such list. It is scarcely probable, that if the record showed the time of the paper being lodged, and that it was in fact recorded at length, as the statute seems to require, there should have been so important omissions. And that this portion of the statute should be strictly complied with, in order to perfect the title under the sale, from the course of decisions on this subject, there can be no doubt. The other objections to the proceedings seem to be equally well taken, and the defects, many of them, are no doubt fatal; but we have not examined them, and do not decide them. Judgment affirmed.