Wing v. Hall

— 213 — The opinion of the court was delivered by Royce, J. The first exception taken was to the admissibility of the record of the proceedings of the land sale of John Taisey, in 1833. The plaintiff claimed that the record was inadmissible for the following reasons : 1st. That there was no legal proof that the collector was sworn. The warrant recites that the tax was assessed by the legislature at the session held at Montpelier in 1831, and the appointment of John Taisey as collector of said tax. It is in the usual form, and dated December 13th, 1832. The certificate of the oath administered to the collector, immediately follows the record of the warrant, bears the same date, and recites that— “ John Taisey, of Groton, in said county, personally appeared and was duly sworn to perform the duties assigned him as collector of said tax, in and by the above warrant, as the law directs. “ Before me, John Darling, Jr., Justice of the Peace.” No form of oath is prescribed to be administered to the collector, and the statute only requires that before entering upon the duties of his office, he shall be duly sworn. The duties tó be performed by the collector, were defined and described in the warrant, and his being sworn that he would perform those duties, as the law directs, answered the requirement of the statute. 3d. That the committee’s advertisement did not name the town where the legislature set* when-the act assessing the tax was passed. The right of the landowners to work out their respective taxes by applying to the committee, is secured by § 4, ch. 98, of the Gen. Sts., and by the same section, it is made the duty of the committee to notify the landowners, by advertising the same three weeks successively, at any time between the first day of May preceding the time when such work is to be done. No form is given for such advertisement, or directions given as to the manner of making it. It is apparent that the object and purpose in requiring it is, to give public notice to landowners, that they may if they choose, pay their taxes in labor ; and any advertisement that answers this purpose is sufficient. The advertisement of the committee was full and ample for this purpose. The act — 214 — of 1796 prescribed a form for the advertisement to be used by a collector, by which he was required to state the place where the legislature held its session when the tax was granted; and in Culver v. Hayden, 1 Vt 259, the omission to state such place in a collector’s advertisement, was held fatal, for the reason, that the following of the form was a positive requirement of the statute, and must be regarded as a condition precedent to the conveyance of a good title. But those reasons have no application here, because there is no form given to be followed. 4th. That there is no proof of a tax-bill. The statute no where in terms requires that a tax-bill should be made; but it was held in Brown v. Hutchinson, 11 Vt. 568, that inasmuch as the collector was required to give bonds to the committee in double the amount of the tax he was appointed to collect, that some statement of the taxes unpaid was necessary to be furnished to the collector as the basis of his proceedings ; and in Chandler v. Spear, 22 Vt. 388, the court, in speaking of the rate-bill, say, that all that can be required is, that it distinctly and clearly shows the correct sums which each proprietor is to pay, and for the nonpayment of which his right, or a sufficient quantity of it to pay the tax, is to be sold. It appears by the record, that a schedule or list of the lands in Groton, subject to the payment of taxes, must have been furnished to the collector, in which the original grantees’ names, the divisions, numbers, and description of the lots, number of acres in the lots, and tax, appeared, for this immediately precedes, on the record, the record of his return of his proceedings, and in said return he certifies that the foregoing are true records and entries of his proceedings in the collection of the tax therein described. This was sufficient to establish, prima facie at least, that such a tax-bill was furnished to the collector as the law requires. 6th. That there is no proper certificate of the committee’s and collector’s advertisement on record. It has been repeatedly held that the form of the record used here is sufficient; and if any objection can be made to it, it must be to the verification. The town clerk first certifies that these proceedings were all re-received for record, June 14, 1833, and on the 3d of June, 1870, — 215 — he certifies that they are true copies of record. In the absence of proof to explain what appears of record as to the time when the proceedings wore in fact recorded, the legal presumption is that they were recorded when received for record. What has been, said in relation'to the objection last considered, is so far applicable to the 7th, that further consideration of that objection would be useless. The 8th objection is too vague and indefinite to require consideration ; so that as far as any specific objections appear to have been made to the proceedings in the Taisey sale, we discover no error in the court’s overruling them. We have determined these questions upon tfye record evidence; hence there is no necessity of deciding the question as to the admissibility of the original proceedings and tax-bill found among the papers of John Taisey after his decease. We understand from the case as it comes here, that all of the evidence submitted in connection with John Taisey’s sale, was contained in the record referred to from the town clerk’s office ; and the court, upon that evidence, for the purposes of the trial, held that the sale conveyed a valid title to George S. Mason. The statute, by § 1 of ch. 98, provides that no lands within the state which are or may be liable to the payment of taxes for making and repairing roads and building bridges, shall be exposed for sale for the payment of such tax, until the account of the committee shall have been approved by the county court. It has been often held in this state, that when the statute under which the sale is made, directs a thing to be done, or prescribes the form, time, and mauner of doing aiiy thing, such thing must be done, and in the form, time, and manner prescribed, or the title is invalid; and in this respect, the statute must be strictly if not literally complied with. Spear v. Ditty, 9 Vt. 282 ; Bellows v. Elliott, 12 Vt. 574; Sumner v. Sherwin, 13 Vt. 612; Carpenter v. Sawyer, 17 Vt. 124; Chandler v. Spear, supra. The party who sets up a title must furnish the evidence necessary to support it; and if the validity of a deed depends upon the performance of any act, the party claiming under the deed is bound to prove its performance. The approval of the committee’s account was made a condition precedent to the right to expose the lands for sale; — 216 — and no title would pass under a collector’s sale, unless this condition was shown to have been complied with ; so that the court erred in holding that George S. Mason acquired a valid title under the Taisey sale. The exception to the order and ruling of the court in the matter of the deposition of Charles H. Carpenter, was well taken. The same question was before this court in Wait v. Brewster, 31 Vt. 516, and it was there held that when a deposition is taken with notice, the party taking it muy or may hot use it, as he sees fit, and cannot be required by his adversary to produce it; and that, inasmuch as there was no law requiring- it to be filed, filing it was mere supererogation. We see no occasion to modify or alter that rule. The only title which the plaintiff’s intestate claimed to the lot in question, was under the deed from Daniel Coffrin to Samuel R. Hooper, her grantor, dated March 8th, 1853. There was a public sale of the lot by Coffrin, as collector of a special tax, to Hooper, on the 9th day of September, 1851. It was admitted that that sale was invalid to convey the title; and all that was claimed under it was, that it gave color of title. The plaintiff’s evidence tended to show, that in the fall of 1851, Samuel R. Hooper entered upon the lot under a claim of title, and cut some timber, for the purpose of taking possession of the lot. The plaintiff claimed that this entry, being followed by a deed from Coffrin, in March, 1853, gave him a constructive possession of the whole lot. The sale of the lot by Coffrin to Hooper, though in terms absolute, was in fact conditional — the owner having the right to avoid the sale within the time limited by the statute, by the payment of the taxes and cost for which it was sold. The sale gave Hooper no right to enter upon the land, certainly, until the time limited for its redemption had expired, and gave him no color of title which would extend his possession constructively beyond the limits of the land actually occupied. The court were therefore right in holding that his colorable title must be restricted to the time of his obtaining his deed from Coffrin. Admitting the Taisey sale to be invalid to convey the title, both parties were remitted to a possessory title. The plaintiff’s evi — 217 — dence tended to show that his possession was of such a character, and continued for a sufficient length of time, as to acquire a perfect title, unless it had been interrupted. Eor the purpose of showing that it had been interrupted, the defendants relied upon the testimony of Christopher Richardson, as to acts done by him upon the land in connection with the claims made to the same, in 1865. The plaintiff being in possession at that time, could protect his possession as against every one but the real owner; and he had the. right to treat all who entered upon the land as trespassers, unless they entered under the authority of the owner. An entry upon land in the possession of another, in order to work a legal interruption of such possession, must be made under such circumstances as to enable the party in possession, by. the use of reasonable diligence, to ascertain the right and claim of the party making the entry. The claim is, ordinarily, a question of intention, and can only be ascertained by evidence of what the party may have said in connection with his acts. It was admitted that what Richardson said while upon the land, and in the performance of the acts which it was claimed were acts of possession, was proper evidence in chief upon the question of his claim. The plaintiff introduced evidence tending to show that Richardson, in 1866, and while he was claiming to own the lot, upon being inquired of by what title he claimed to own it, replied that he claimed it under the Harris heirs, and claimed that this was evidence in chief upon the question of his claim or right at the time he made the entry in 1865. The court held that it was not evidence in chief, and could only be used to impeach the witness. Richardson acquired no right to the land subsequent to his making the entry and before making this admission, and hence this admission should have been received as evidence upon the question of the claim he made to the lot at the time he entered upon it in 1865. It is to be borne in mind that at the time this admission was made by Richardson, the defendants had no interest in the lot to be affected by it. Their deed, under which they claim to avail themselves of the benefit of the acts done and claims made by Richardson, being dated January 23d, 1869, plainly distinguishes — 218 — the question here presented, from the one made in Halloran v. Whitcomb, 43 Vt. 306, and the cases there cited. The testimony of Goodwin was' properly excluded. . The lot the plaintiff proposed to inquire of him about, had no connection with the lot in controversy ; and the object in the introduction of the evidence was, to impeach Richardson, by contradicting his evidence upon a collateral matter drawn out upon his cross-examination. It becomes important to consider the testimony of Richardson, in connection with the plaintiff’s 8th request. We understand that all that was material in his testimony bearing upon the questions of his acts done upon the lot and claims made to it, is detailed in the exceptions, and that the charge of the court upon this branch of the case, was predicated upon that testimony. The McLane Marshall portion of the lot, was occupied by Marshall and those claiming under him, under a license given by Hooper in 1857, down to 1869 ; and in the deed given by Hooper to the plaintiff’s intestate in 1869, he reserved the right of Marshall to occupy that portion of the lot as long as he kept a hotel on the premises. Those holding possession of this portion of the lot, held it subject to the reserved rights of Hooper, but their possession was adverse to every one else. The court rightfully gave the plaintiff the benefit of their possession, in extending his constructive possession to the entire lot; and before he can be deprived of the benefit of this possession on account of its being interrupted, it must be shown that some act was done on this portion of' the lot that, as before stated, would operate as notice to the party in possession, that the party performing such acts thereby intended to take possession, and of the claim of right that he made to the land. We find nothing in the evidence that tended to show that any such act was done or claim made. The court charged, if the jury found that the acts of Richardson upon the other portion of the lot, were done as acts of possession of the whole lot, and were so understood by those claiming under Marshall, that they would work an interruption of the possession of those claiming under Marshall. And this was error. — 219 — The plaintiff put in evidence a decree obtained at the March term of Washington county court of chancery, 1869, in a suit in which he as administrator of the intestate was orator, and these defendants and others were defendants, and claimed that the defendants were thereby estopped from setting up any claim to the McLane Marshall portion of the lot, under any title that they might have brought in during the litigation, and held prior to the trial in the suit in chancery. The decree was dated April 30, 1869, and the deed from Mason to the defendants, under which they now claim title, was dated January 23d, 1869. It will be seen by reference to the decree, that the Mason title was not presented or litigated in that suit. The defendants might have been permitted, upon application made at any time before a final decree was made, to set up the Mason title. But because they neglected to do so, it is not to be treated as res adjudieata, and they thereby estopped from availing themselves of it now. The effect of verdicts and judgments upon parties, depends upon the question whether the same point was in issue, or whether under the pleadings it might have been controverted. Herman’s Law of Estoppel, 92, 93. The decree, by its language that “ the land, after the removal of the buildings as aforesaid, shall belong to the orator, free of all claim of the defendants to the same under the title of said Marshall,” precludes the belief that any title was adjudicated except the Marshall title. The plaintiff was entitled to the instructions asked for by his 3d request, and this request seems to have been substantially complied with. The court say, that Leverett Page or Samuel Page might have commenced an adverse possession, and have voluntarily abandoned it before it ripened into a perfect title, and if they did thus abandon it, that would be an end of all their possession prior to such abandonment; and that he explained and illustrated the several propositions contained in the charge, to enable the jury better to understand them. From this we understand, that the attention of the jury was called to the evidence bearing upon the question of what would constitute an abandonment of their possession. There is nothing in the case upon which the instructions asked — 220 — for in the 4th request can be predicated ; because the request implies that there was some evidence of an entry upon the lot by Page after the decease of Perkins, that'would or could be treated as an act of possession. The contract between Page and Perkins was made in 1841, and Perkins died in 1856. Page’s possession commenced under his contract long prior to Perkins’s death, and whatever was done by him upon the lot, was a continuation of his possession taken under the contract. The death of Perkins did not put an end to the contract made with Page; and whatever rights Page had under the contract, he could transfer to Richardson. A compliance with the plaintiff’s 5th request, would have excluded those claiming under the Perkins title, from the benefit of the acts done by Richardson, although done under a license from Page, and this would have been error. The acts done by Richardson, if done under a license from Page, are to be considered the same as if they had been done by Page ; and such acts would enure to the benefit of the party holding the title under which Page took possession. The court, in the charge as to the effect of the acts of Richardson, say, that if he did such acts under the Mason or Perkins title, and entered :upon the lot and cut down one half or three fourths of an acre of brush, wood, and timber, and did other acts, such as his testimony tended to show, under this title, under an arrangement with Samuel Page, such as his evidence tended to show, if his conduct was subsequently assented to and ratified by Carpenter, who owned the Mason title, it would be an interruption of the plaintiff’s intestate to all of said lot except what was occupied by those acting under Marshall. Under this ruling, the jury may have found that if these acts of Richardson were done under the title which Mason acquired by the collector’s deed under the Taisey sale, given in 1834, they interrupted the plaintiff’s intestate’s possession. We have already seen that it was not shown that Mason acquired the title by that deed, and whatever right he did acquire, he conveyed to Perkins prior to 1836, so that Mason could not have acquired a possessory title. Hence, an entry upon the land, and doing acts of possession under that title, would not .interrupt the possession of the plaintiff’s intestate. — 221 — The deed from Mason to Perkins was never recorded, and Perkins died in 1856. Perkins devised this lot to Charles H. Carpenter, but the will was never proved in this state, and it was by the procurement of Carpenter that Mason executed the deed to the defendants under which they now claim title. The court held, that although the deed from Mason to Perkins, though unrecorded, conveyed the title to the lot to Perkins, and the same would descend to Carpenter oy Perkins’s will, yet if Carpenter received the defendants’ money, and obtained a deed from Mason to the defendants, rather than place Mason’s deed to Perkins on record, and proceed and settle Perkins’s estate in this state, and convey the lot to the defendants, Carpenter would, probably, be estopped from asserting the title in himself, through the will of Perkins. At least, the defendants stood in such relation to the lot, being in possession, that they could justify under their deed from Mason, if the Mason, Perkins, or Carpenter title, which ever it might be, was valid. Assuming (what is not decided) that the title which Mason acquired by the collector’s deed, could be conveyed in the manner attempted, it becomes important to consider what title he had to convey. It was merely colorable, and only valuable to those claiming under it, in extending a possession constructively to the land described in the deed, and all the title Mason attempted to convey to the defendants by his deed to them, was the same that he conveyed to Perkins prior to 1886. Perkins claimed the lot under his deed from Mason, in his own right, and adversely to Mason; and the possessory title which the defendants’ evidence tended to show was acquired by Perkins and those claiming under him, did not pass by Mason’s deed to the defendants ; it still remains in the estate of Pprkins. As between Carpenter and the defendants, the defendants could, probably, avail themselves of the purchase made by them, as an equitable estoppel, against any claim that Carpenter might assert to the lot. But we have been unable to find that the defendants derived any title under their deed from Mason that they could justify under as against a party having a prior possession. The special findings of the jury are not available to the defendants, because they were upon evidence improperly admitted, and erro — 222 — neous directions as to the use to be made of evidence, and, as we think, upon mistaken views of the law in the particulars pointed out. Judgment reversed, and cause remanded. Footnotes [*] This error in the exceptions was corrected for the press.