Hutchins v. Moody

Kellogg, J. When this case was before this court on a former occasion, (30 Vt. 655,) it was held that the fact that real estate was set in the grand list, on the first day of April proceeding its conveyance to its then ownér, and that taxes were voted and assessed upon it against him after the conveyance, did not constitute a breach of the covenant against incumbrances in a deed conveying it until such taxes became legally fixed upon it so as to be a definite burden upon the estate which the grantee might properly remove by payment; and that such taxes could not be legally fixed upon the estate until the preliminary remedies against the goods and chattels, or the body, of the person against whom the taxes were assessed had been exhausted; and that when the taxes thus became legally fixed upon the estate, the burden would properly be referred to, and date from, the time of the date of the list. The lien upon real estate for the taxes assessed thereon is created by the statute, (Comp. Stat. p. 452, secs. 10, 12,) and the question now presented is, whether, on the facts stated in the case, the taxes mentioned in the plaintiffs’ declaration became legally fixed upon the land, so as to justify a subsequent owner in treating them as a fixed and definite incumbrance upon it. It appears that, on the 1st April, 1853, Oramel Howe owned and was in possession of the real estate eonveyed by the defendant to the plaintiffs, — the same being situated in the town of Waterbury, — and that it was lawfully set in the list of that town in that year to said Howe ; that a state tax, a state school tax, and a town tax were legally voted and assessed" on that list; that I. C. Brown was the first constable and collector of taxes of that town during the years 1853, 1854 and 1855, and that [437] legal rate bills with the proper .warrants for the collection of the said taxes were duly made and delivered to the said Brown as such collector, but not until after the removal of Howe from the state. On the 22d April, 1853, Howe conveyed the premises to William W. Wells, and broke up housekeeeping in Waterbury, and with his family went to the state of Pennsylvania, and remained there until December following, when he returned to Berkshire in this state, and there remained until April 1856 ; that he left no personal property in Waterbury, and had none in this state after his removal from Waterbury; and that the said Brown, after Howe left this state, did not know that he had returned into the state during that time, but supposed that he had left, and continued permanently out of the state ; and it did not appear that any person in Waterbury, except Mr. Dillingham, one of the counsel for the defendant, knew that Howe had returned from Pennsylvania into this state, and was in Berkshire, as above stated. On the 6th September, 1855, Brown, the first constable, made and deposited in the town clerk’s office fox-record a statement of the lands of the non-x-esident proprietors of the town of Waterbury, and of the unpaid taxes thereon, including therein the land conveyed by the defendant to the plaintiffs and the said taxes assessed against Howe thereon, with certain taxes thereon duly voted and assessed by school district No. 1 in that town on the same list, — the said land being situated in that school district, — and advertised the said lands for sale on the 17th October following, for the payment of the said taxes with costs, by publication in a newspaper as required by the statute; and afterwards, at the time and place appointed for the sale, sold the land so conveyed by the defendant to the plaintiffs to Joel G. Stimpson, one of the plaintiffs, for twenty dollars, which sum was the amount of all of said taxes on said land against Howe as above mentioned, with the officer’s fees for the collection of the same in the manner aforesaid ; and this sum was paid by Stimpson to the constable and duly applied in payment of said taxes and fees. The plaintiffs’ right to recover depends, not upon the fact that the laud was sold by the constable, but upon the fact that the incumbrance of the taxes became so fixed upon the estate that they, as subsequent owners, would be justified in removing it by [438] payment. (^To make the lien for taxes a fixed incumbrance upon the land, we' consider that it is sufficient that the officer should, by some official act, proceed so far as to indicate or manifest his intention to pursue the land for the purpose of enforcing the collection of the taxes agreeably to the provisions of the statute.^ When the officer has thus indicated his intention to pursue the^ land, the owner of the land would be justified in treating the lien for the taxes as a fixed incumbrance, and in discharging it by payment; and though the officer’s subsequent proceedings should be wholly irregular and defective, this would not affeet the right of the owner of the land to discharge the lien after it became a fixed and definite incumbrance upon the estate. When there is no mode of collecting the tax by a resort to the goods and chattels, or the body, of the person to whom the land was assessed in the list, the officer is authorized to enforce the lien of the taxes , on the land by selling the land agreeably to the provisions of the statute,'but neither the assessing or placing of the property in the list, nor the vote laying a tax on the list, are sufficient, without some further proceeding, to charge the land with the incumbrance- of the tax. // The land was properly set in the list to Howe, and the taxes appear to have been legally voted and assessed on the list. Was Howe, at the time when the officer commenced his proceedings for the purpose of selling the land for the payment of the taxes, a “ non-resident proprietor” within the meaning of the statute? He had, shortly after the .making up of the list, and before any of the tax bills for the collection of the taxes on the list were delivered to the collector, removed to a distant state, and though he subsequently returned, and was in fact within this state at the time of the proceedings of the constable for the collection of the taxes by the sale of the land, yet we find nothing in the case tending to show that the officer holding the tax bills would by the exercise of reasonable diligence have obtained any informa tion in respect to his return. In view of the notoriety in the place of Howe’s former risidence of the fact of his removal from the state, we think that the constable would he justified in presuming that his. residence was without this state, and especially when his change of residence had been so recent, in'the absence of any information in respect to his return to the state. A [439] return to the state by Howe, and a residence in another town within it, remote from the place of his former residence in it, would not, as we think, entitle him to be treated by the collector of taxes of the town of his previous residence as a.resident within the jurisdiction of such collector for the collection of taxes, unless the circumstances of the case were such as to' affect the collector with notice or information of such return to the state, so that there would be a reason for making an inquiry in respect to his change of residence. The constable, therefore, was authorized to enforce the collection of the taxes against Howe by proceeding agreeably to the statute provisions, to sell the land on which the same were assessed as the laud of a “ non-resident proprietorand we regard the act of the constable in making out a list of the lands and of the taxes against I-Iowe thereon, and depositing the same in the town clerk’s office for record, as a substantial compliance with those provisions (Comp. Stat. p. 406, sec. 26, et sey.,) so far as such a compliance was necessary to distinctly manifest his intention to pursue the lien upon the land for the collection of the taxes. This, as we think, was all that was requisite to make the lien for the taxes a fixed and definite incumbrance upon the land. But this lien could not be pursued or made available for any other taxes than those which the constable was authorized to collect; and in respect to the school district taxes assessed against Howe on the same list, it is clear, on the facts found by the court, that there was no such compliance by the school district collectors with the provisions of the statute (Comp Stat., p. 466, sec. 24,) as would lay a foundation for, or justify, any proceedings on the part of the constable for the collection of those taxes. The state school, state, and town taxes stand on a different footing, and the constable being authorized to pursue any statute remedy for the purpose of collecting the same, they and this incumbrance, as has been heretofore decided in this case, is to be referred to the time of the date of the list. When the incumbrance became fixed upon the estate, the owner became entitled to discharge it by payment. Judgment of the county court for the defendant reversed, and the case remanded for a new trial.