Homer v. Cilley

Parker, C. J. The plaintiff founds his right of action against the defendant upon an alleged title in himself to a part of the land in Dame’s Gore ;—upon a title in the defendant to another portion of laud in the same tract;—upon the assessment of certain taxes in several years upon the Gore;—upon his payment of those taxes in two instances before any sale of the land, and upon his redemption of the land in two instances after sale. He alleges that the defendant is also an owner of land in the Gore, and liable by law to contribution, to obtain which he brings this suit. The plaintiff cannot retain his verdict, for several reasons. He does not make out title in himself. The execution [98] of the deed upon which he relied was not proved, and cannot be presumed. It is the accompanying possession alone which establishes the authenticity of an ancient deed. 4 N. H. Rep. 371, Waldron vs. Tuttle; 3 Johns. R. 292, 298, Jackson vs. Blanshan, and auth. cited. In the case cited 1 Dall. R. 14, there was proof of the hand-writing of a witness. There was no evidence tending to show possession for more than thirteen years. Thirty years has been held to be the lowest period. If twenty might be sufficient by analogy to our statute of limitations, the evidence falls far short of it. He fails also of showing title in the defendant to a portion of the land in the Gore. The copy he offered was inadmissible, because no notice had been given to the defendant to produce the original. The plaintiff claims no title from the defendant, and the office copy was no better than any other copy. 10 N. H. Rep. 554, Pollard vs. Melvin. Either of these matters show that a new trial must be had ; but as the proof in these particulars may probably be supplied, we have examined some of the other questions raised in the case. It is objected that the statute of 1831 provides for the taxation of places having so few inhabitants as to be incapable of choosing town officers, and that it is therefore unconstitutional, because the inhabitants of such places cannot exercise the right of suffrage. The act of July 1, 1831, provides that when any taxes are proportioned to any place unincorporated, having so few inhabitants as to be incapable of choosing town officers, the treasurer shall assess, &c. But the second section provides that the treasurer may always presume that a place is incapable, where no return of a collector is made on or before the last day of December, in each year. Taxes may be assessed by the treasurer under this statute [99] on places actually organized, if no collector is returned, and on places which might organize if they would, but have not. Such cases would not come within the principle on which the objection is founded. In order to raise the question, therefore, it should appear that the place is actually incapable of choosing officers ; and as that is not shown here, it is not necessary to examine this objection. The declaration of the defendant proved in the case seems to imply that the inhabitants might organize and exercise the right of suffrage, if they chose so to do. The treasurer’s warrant seems, therefore, to have been lawfully issued. In the instances in which sales were made under the warrants, they were made after the day on which the warrant was, by the terms of it, to be returned, and an objection is taken to the validity of the proceedings upon this account. But the sheriff is, by the statute of 1831, a collector of taxes in such cases, having the same power and authority which collectors of towns have ; and, by the general law, the powers of collectors of taxes continue until the taxes in their lists are collected. The rule applies to cases where the sheriff has a warrant for the collection; and the direction of the treasurer to make a return of the warrant by a particular day, did not, therefore, terminate the authority to collect the tax. It cannot be considered as having any farther effect than a direction to return the warrant by that time, if it has been executed. It is farther objected, that there is no evidence that the sheriff, left with the deputy secretary a copy of his list of taxes. The answer to this objection, that as the tax was against a single place, and not against divers places and persons, he had no list, and was, therefore, not bound to have any copy, appears to us to be insufficient. The signification thus given to the term, “list of faxes,” is quite too confined. The statute of 1831 provided that the sheriff “ shall have [100] the same power and authority, with respect to the taxes committed to him to collect, which collectors of towns have or may from time to time by law with respect to the taxes of non-residents; and he shall observe the same directions as collectors of towns are, or may from time to time be, bound by law to observe, in collecting taxes of non-residents,” &c. The statute of July 4, 1829, providing for the collection of taxes on the unimproved lands of non-residents, required every collector of taxes, on or before the eighth day of the next session of the general court, in June, after the assessment of such taxes, to deliver to the deputy secretary a copy of his list of all such taxes, made out and signed by the selectmen, &c. And the deputy secretary was to retain it in his hands for a certain period, and receive such taxes as should be paid. This was for the convenience of the owners, who might reside at a distance from their lands; and although the term “ list” ordinarily signifies a roll or catalogue, yet a roll does not always contain a number of names, or several particulars. There can be no doubt that collectors were as much bound to return a copy of the non-resident taxes, where there was only one tract of land taxed as non-resident, as where there were fifty. There was a list of taxes in the first case within the meaning of the statute, as much as in the last, and so in the present case. Although the warrant of the treasurer contains a tax against one place only, his warrant was a list of taxes; and as he was by the statute of 1831 required to observe the same directions that collectors of taxes were required to observe, a copy of it should have been deposited with the deputy secretary, in order that those interested might have had an opportunity to pay their taxes there. Until this was done the sheriff could not legally advertise aizd sell; nor until this was done could any one owner lawfully pay the whole tax and call upon others for a contribution. As this objection will probably dispose of this case, we [101] have not found it expedient to proceed to the consideration of other points raised in the case. Whether persons owning in severalty in such cases can redeem their several shares before sale or after; or whether one who has paid the whole tax, after a sale, in order to redeem his own interest, may have a contribution either under the ISth section of the act of June 28, 1827, or upon general principles of law, we leave for future consideration, if a case should arise involving that question. I am inclined to think that the 18th section must be construed as authorizing contribution, but the question is one of some difficulty. Verdict set aside.