Oatman & Sherman v. Barney

The opinion of the court was delivered by Rotcb, J. The first question presented by the report, is upon the ruling of the referee in allowing parol proof of the contents of the deed from David Robinson to Knights, Buck, and Judson. To lay the foundation for the introduction of this proof, it was first necessary to prove the loss of the deed. This must have been made ; for the referee has found that it appeared that the [598] deed was lost. If the deed would have been admissible, the fact of its loss having been established, parol proof of its contents was clearly admissible, as the best evidence which it was in the power of the party to produce. This evidence was admitted to show the extent and character of the possession of the grantees named in the deed and those claiming under them, and for this purpose it was properly admitted. A deed which only gives color of title, is admissible to characterize a possession under it. The possession of the grantors of David Robinson and those claiming under'them, had given them á perfect title to the lot, previous to the conveyance from N. E. Barney to M. D. Barney and E. Can-field, December 8th, 1854. N. E. Barney had acquired all the interest which Knights had in the lot, — so that by the deed from N. E. Barliéy to M. D. Barney and E Canfield, they acquired the title to an undivided third part of the lot. The defendant entered and cut the timber upon the lot for which this suit is brought, under M. D. Barney. The defendant could well justify under M. D. Barney, unless he had become divested of the title, so that his license would be ineffectual for'the defendant’s protection. Eor the purpose of showing that M. D. Barney had been divested of all title to the lot, the defendant introduced a copy of the record of the proceedings in the collection of a land-tax on the town of Sunderland, granted by the legislature of the state in 1856. It appeared from said record that this lot was sold by the collector appointed to collect said tax, to G. B. Bacon, and was not redeemed. Several objections were made in argument to the validity of the proceedings in the collection of said tax, but we have not deemed it important to notice but one, and that is the one taken to the sufficiency of the bond given by the collector. The statute requiring any collector appointed to collect any tax assessed upon the lands in any town in' this state for the purpose of making and repairing roads and building bridges in such town, before he enters upon the duties of his office, to give bonds to the committee appointed to superintend the expenditure of such tax, in a sum not less than double the amount of such tax as he may be appointed to collect, passed in 1807, has been in force ever since. It has been repeatedly held that in the sale of land for [599] taxes, being a mode of transferring title without the agency of the owner, the proceedings required by the statute are as conditions precedent, and must be strictly followed; and that the party claiming title under such proceedings, must show a compliance with all the provisions of the statute. Spear v. Ditty, 9 Vt. 282 ; Bellows v. Elliot & Kilburn, 12 Vt. 567 ; Isaacs, admr. v. Wiley et als. Ib. 674; Brown et al v. Wright, 17 Vt. 97 ; and in Coit v. Wells, 2 Vt. 318, it was decided that the collector must give the bond required by the statute, or his sales would be void. The only question made here, is in relation to the amount for which the bond should have been given. The same question was before the court in Spear v. Ditty, supra; and the rule there laid down is, that the amount of the tax which the collector is appointed to collect, is the amount of the rate-bill committed to him for that purpose, and that the amount of the tax-bill delivered to him, is the proper criterion from which to determine the amount to be named in the bond which he is required to give. The rate or tax-bill delivered to the collector amounted to $1,042.85 ; and the bond given by him was in the penal sum of $2,000. So that the sale by the collector of this lot was void, and the title still remained in M. D. Barney and those claiming under the deed from David Robinson. This is conclusive against the plaintiff’s right of recovery. And if the collector’s sale had been good to convey the legal title to Bacon, it is equally certain upon the facts found by the referee, that the plaintiffs could not recover. In the purchase of the lot, Bacon acted for M. D. Barney, and he held the title as trustee for M. D. Barney. He disclaimed having any interest in the lot. It was a simple or dry trust, and the cestui que trust was entitled to (he actual possession and enjoyment of the properly and control over it, and could call for the légal title ; and if the trustee refused to convey the legal title, a court of equity would decree a conveyance. In suits at law affecting the legal title, the name of the trustee would have to be used as a party; but in equity, the cestui que trust was the owner, and a court of law would protect him in an entry upon and occupation of the property as against a stranger to the title. It has not been claimed [600] in this court, that the plaintiffs acquired any title by their deed from Ira Mattison. The judgment of the county court is reversed, and judgment rendered for the defendant.