Cass v. Bellows

Eastman, J. This case has been transferred to us, to obtain the opinion of this court upon two questions; first, whether the collector’s advertisement, in the New Hampshire Patriot, of the sale of the lot for taxes, was legal; and, second, whether there was competent evidence, to be submitted to the jury, as tending to show that the collector of the town of Northumberland was duly sworn into office in the year 1816, the year in which the lot was sold. These questions we will consider in their order. It has been settled by several decisions, in this State, that a party, relying upon a title to land acquired under a collector’s sale for taxes, must show a substantial compliance with the statute under which the sale was made. Waldron v. Tuttle, 3 N. H. Rep. 340; Cardigan v. Paige, 6 N. H. Rep. 182. Was the publication of this advertisement a substantial compliance with the law ? The statute of 1796, under which the advertisement of this lot was published, required the publication to be “ three weeks successively,” in the New Hampshire Patriot. The publications were made on the 2d, 12th and 19th of November the2dbeingonSaturday,andthe 12th andl9th onTuesdayof the respective weeks. All the publications were made within three weeks, but more than a week elapsed between the first and second publication. This was occasioned by a ■change in the publication day of the paper from Saturday ■to Tuesday. Had there been no change in this respect, the second and third publications would have been on the 9th .and 16th, instead of the 12th and 19th. Now it is contended that by this change in the day of issuing the paper, and, — 507 — consequently, of the publication of the notice, the statute has not been complied with. It does not appear, nor is it contended that there was any fault on the part of the collector, nor, indeed, on the part of any one. The publishers of the paper deemed it for their interest or convenience to change their day of publication, and, in consequence, this advertisement was changed for three days. But we cannot suppose that the notice of the sale was not equally as extensive and general as if the paper had been published on Saturday, instead of Tuesday. It was published in three successive issues of the paper, and all who took it or were in the habit of resorting to it for information, must have had equally as effective notice of all it contained as if it had been published on Saturday, as formerly. Was there not, then, a substantial compliance with the statute, in the publication of this advertisement? We think there was, and that it should be so held. In Bachelor v. Bachelor, 1 Mass. Rep. 256, an order was directed to be published in a newspaper three weeks successively. It so happened that the paper, in which the notice was ordered to be published, was issued semi-weekly. The notice was published first on Saturday, June 30th; second, on Saturday, July 7th; and third, on Wednesday, July 11th; and the court held the order substantially complied with, notwithstanding only three days intervened between the second and third publications. In that case, the public might very easily have been misled. Seeing the first two publications in the issues of Saturday, they would naturally look for the third in the issue of the following Saturday, and not finding it there, might conclude that it was not published. In this case, there was no chance for any such misapprehension. As soon as the paper appeared, the advertisement would also appear, and inasmuch as the publication was in the three successive issues of the paper, and those all within three weeks, we think it would be holding — 508 — the doctrine too strictly to say that this statute was not substantially complied with. But we pass to the consideration of the second question. In Cardigan v. Paige, 6 N. H. Rep. 182, it was held that when a title to real estate is derived from a collector’s sale, it must appear by record that he took the oath of office by law prescribed, otherwise the sale is void. The form of making up the record of the town clerk, in that case, was precisely the same as in the present, viz : “ sworn into office.” That record was decided to be insufficient to show that the collector took the oath of office by law prescribed. In regard to this decision, Bell, J., in Scammon v. Scammon, 8 Foster’s Rep. 430, remarks that it appears to go to the very verge of the law, and that it would not have been a forced or unnatural construction to have held that the words “ sworn into office ” imported the same thing as “ took the oath of office as by law prescribed.” It will be observed, also, that the collector was chosen in 1822, and sold the lands in controversy in that year, and the decision of the case was made in 1833, so that the records were comparatively recent. The case does not find whether the town clerk who made the record was living at the time of the suit or not. And no attempt was made to amend the records. That decision was made upon the naked record as it stood, and which could not be termed an ancient record. In Gibson v. Bailey & a., 9 N. H. Rep. 168, the general rule was laid down that amendments of the records of towns may be made on evidence showing the truth of the facts alleged, where the record is used as evidence in a suit pending in court. Such amendments must be made by the person who was in office at the time when the proceedings were had j but it is not necessary that he should hold the office at the time of making the amendment. In that case, the controversy related to a tax title, and one of the questions was, whether the collector had taken the oath of office. The entry on the town records, in regard to the oath, was “ qualified — 509 — by Francis Chase, Esq.” This was held insufficient, but the town clerk who was in office when the collector was chosen, was permitted to amend the record so as to show that he had taken the oath bylaw prescribed. The collector was chosen in 1823, and the case was decided in 1838. From some statements in the case, we judge that the trial was had and the amendment made in 1837, so that the amendment was permitted twelve or fifteen years after the record was made. In the course of the opinion delivered by the chief justice in that case, he remarks that it has already been settled that the records of towns may be amended, to conform to the truth of the fact. That the general rule is, that amendments of records are made with the saving of the rights of third persons, acquired since the existence of the defect. To apply this rule, however, he says, to all cases of defects in sales of land taxes, would, in effect, be very nearly denying a right to amend, as the owner of the land sold would attempt to defeat any amendment, by conveying to some friend, who would bring a suit in his behalf. It would, at least, be necessary to confine the application of the principle to cases where the land had been actually conveyed bona fide. But instances might exist where the purchaser, although he might not have found upon the records all that was necessary to make a formal and valid record, might have been well assured, from what he did find, that all that was necessary had, in fact, been done. And then, speaking of the record, in regard to the oath of the collector, he says, further, that although not sufficient in point of law, it would lead the mind of any one to the belief that what was requisite was probably done. And the point was decided in that case, that, where what is necessary, in the proceedings of a town, although not formally entered of record, is so far stated as to lead to the belief that a correct record might have been made, a subsequent purchaser of land sold for taxes, takes his title from the former owner, subject to the right to have the record put in form, if the truth will warrant it — 510 — Upon the authority of this case, the records of the town of Northumberland could have been amended, so as to show that the collector took the oath of office prescribed by law, had the town clerk who was in office at the time the defective record was made, been living. But not only he, but the moderator, had both deceased before the present suit was instituted. In Cavis v. Robertson, 9 N. H. Rep. 524, it was held that there are cases in which it may be submitted to a jury to presume from a defective record of the election of a town officer, and, from his having acted under the appointment, that the meeting was duly held, the proceedings of the town regular, and the officer duly sworn; but that this cannot be done where the proceedings are recent, and no cause is shown why the defective record cannot be amended, if the truth will warrant it. Upon this point, the same distinguished jurist who delivered the opinion in Gibson v. Bailey & a., says we have no doubt that cases may exist in which such evidence is admissible, forming an exception to the general rule. It is well known that the earlier records of towns were very imperfect, and even at the present day, there is not that care which is desirable, in making up such records. It is settled that such records may be amended. And where, from lapse of time, it may be presumed that the officers who made the records are no longer living, or have lost a recollection of the facts, so that no amendment can be made; or where it is proved, in point of fact, that such officers have deceased, so that the records cannot be corrected, we have no doubt sound principles, as well as the necessity of the case, require that such evidence should be submitted to the jury, with instructions that they are authorized, under such circumstances, to presume that the officer was duly elected and qualified. Such was the case in Northwood v. Barrington, 9 N. H. Rep. 369, where the records were more than forty years old. We know, in point of — 511 — fact, that the elections were duly and legally made much oftener than the records were formally made up. In the case before us, the town clerk had deceased before the suit was brought. The record was defective, but showed that the collector was evidently sworn in some way, Nearly forty years had elapsed from the making of the record to the commencement of the suit, and upon the authority of the cases cited, and the principles therein stated, we think, the evidence was competent to be submitted to a jury, as tending to show the collector to have been duly elected and duly sworn. It can make no difference whether the demandant was the proprietor of the lot at the time it was sold, or a subsequent purchaser. The record that the collector was “ sworn into office,” was open to all; and if he purchased with that before him, he took the title, subject to the same rights, in regard to the record, as had existed with respect to former owners. Gibson v. Bailey & a., 9 N. H. Rep. 168. If he holds by virtue of a warrantee deed, it will be a matter between him and his grantor to settle. The opinion of the court will be certified to the common pleas, in accordance with these views.