Richter v. Beaumont

Campbell, J., delivered the opinion of the court. The land sued for as part of lot 7, in a certain square in Wood-ville,' was assessed in 1883, and in 1884 lot 7 was sold for taxes. For several years prior to 1883, a map of Woodville was recognized by the citizens and officials of the town, and the county assessors as the map of the town, but this map was never adopted by an order of the board of aldermen until 1887. By the ancient division of the town and designation of lots, lot six embraced the parcel of land sued for in this action, which parcel is, by the modern map, a part of lot seven. The defendant (appellant), was in 1883, and prior and subsequent thereto, in the actual possession of lot six, and ’he gave the description of his land to the assessor as lot six, and it was so assessed, he intending and understanding that lot six extended eastward according to the ancient order, so as to include what by the new map is part of lot seven. He paid the taxes on [287] lot six, and lot seven not being paid on was sold for taxes. It does not appear that the appellant had ever done anything in recognition of the new map, or that he knew that the new map was conformed to by the assessor in assessing lots in Woodville. It may be inferred from the fact of his residence in the town, and the recognition by citizens and officials of the new map, that he was aware of it, and that the assessor was governed by it in assessing. If so, he should not be allowed to defeat the assessment and sale by his secret understanding or purpose. A mental reservation of the owner cannot be permitted to defeat assessment. On the other hand, if, until a recent date, lot six was understood to embrace what by a new map is part of lot seven, and the owner and occupant was governed by the former description in giving it in to the assessor, and did not know, and should not have known, that the assessor would deal with it as designated by the new map, he should not lose his land. The value of the lot, the manner of its enclosure, the description by which it was acquired by the appellant, and his dealing with it might remove all uncertainty as to what would be a legal and just result, but in the absence of such evidence, the question is: should the court have excluded from the jury the evidence for the defendant? We think not, and that it should have left the matter for the jury to determine. A motion to exclude all the evidence of a party should be sustained only where it is plainly and unmistakably insufficient to maintain the issue. The true test here is this : had the case been submitted to a jury, and a verdict been rendered for the defendant, would it be set aside as unwarranted by the evidence ? While we have a strong suspicion that the defendant is seeking to defeat an assessment and sale of the lot by a secret understanding, he now says, he had at the time of assessment, and that he must have known of the practical adoption by the citizens and officials of the new map, we are not prepared to say we would set aside a verdict found.by a jury, properly instructed, in his favor; and with this view the judgment must be reversed, and the cause remanded for a new trial, when we trust all uncertainty will be removed as to the truth of the case. Reversed and rema/nded.