Bartlett v. Wilson

The opinion of the court was delivered by Taft, J. I. For a failure by the defendant, in the spring of 1882, to return an inventory of his taxable property satisfactory to the listers, the latter assessed him for money and debts, took his real estate at the appraisal thereof in the preceding year, and made his grand list by doubling both items. The defendant claims that the list was illegal because of the doubling of the real estate appraisal. No question was made upon trial as to the proceedings of the listers save the doubling of the appraised value of the real estate. R. L., sec. 326, required the listers, in a case like that of the defendant then before them, to double the. sum obtained as the appraised [649] value of the taxpayer’s property; and this irrespective of its character, whether real or personal. The doubling process did not render the list illegal, as the listers, in so doing, acted strictly in accordance with their duties under the statute referred to. II. The defendant, upon trial, claimed, and the court held, that it was incumbent upon the plaintiff to prove that, at the date of the writ, 24th February, 1883, the defendant had no known personal property in the Staté sufficient to pay the taxes he was seeking to recover. It was, therefore, not only proper but necessary for the plaintiff to show that the defendant had none in Brownington. To aid in establishing this fact, the plaintiff was permitted to put in evidence an inventory made by the defendant in Brownington on the first day of the preceding April, and sworn to on the 27th of March prior, which did not include any personal estate. To this the defendant objected, for that there was no evidence that at that time he was a resident of that town and so required by law to inventory his personal property in that town. Whether he resided in Brownington or elsewhere, he may have had personal property in that town, subject to taxation there, which it would have been his duty to include in an inventory in that town. E. L. s. 281, sub-div. I. and IV. We think the inventory sworn to an admission, that he had no personal property at that date in that town. And we think the fact that he had none on the first day of April evidence tending to show that he .had none there a few months later. The fact that he had none in April, 1882, rendered it less likely that he had none in February following, than if he had had at the former date vast possessions of personal estate. The more remote in time that such fact exists, the weaker the evidence, but in this ease, it was so near in time that we cannot say there was error. III. Did the court err in excluding the testimony offeréd by the defendant ? It tended to show that he owned property in this State subject to an unexpired lease. If the property [650] could have been distrained for taxes, it was admissible. Could it have been taken by the plaintilf upon his warrant ? In Barnes v. Hall, 55 Vt. 420, it is said : “ That unless personal property is of that character and so situated that actual possession thereof can be taken, or there is some statutory provision for distraining it without taking such possession, it cannot be distrained at all.” The plaintilf could not have taken actual possession of it, as it was then held under a lease. Brigham v. Avery, 48 Vt. 602. We have no statute by which he could have taken it in any other mode; for section 376, R. L., as amended by Act, No. 11, 1882, applies only to such property as may be attached by leaving a copy with the clerk of a town or officer of a corporation; and property held by a lessee cannot be attached in that manner, but only in the way pointed out by R. L. ss. 1189-91. The testimony, therefore, had no tendency to show that the defendant had property which the plaintiff could have distrained; it was, therefore, immaterial, and its exclusion proper. Judgment affirmed.