Bennett v. Davis

• Decision Date: 08 March 1897
• Citation: 37 A. 864,90 Me. 102
• Parties: BENNETT v. DAVIS.
• Court: Maine Supreme Court

37 A. 864

90 Me. 102

BENNETT

v. DAVIS.

Supreme Judicial Court of Maine.

March 8, 1897.

(Official.)

Appeal from supreme judicial court, Cumberland county.

Action by Elbridge G. Bennett against Charles C. Davis.

This was a petition for partition of real estate situated in Cape Elizabeth, brought under Rev. St. c. 88; the petitioner claiming one-half interest therein, and admitting that the respondent was the owner of the remaining one-half interest.

The respondent pleaded that he was the owner and seised of the whole of the real estate described in the petition, and that the petitioner had no interest therein.

Under these pleadings the presiding justice ordered, under section 9 of said chapter, that there first be a separate trial of the claim of title of the respondent to the whole property as pleaded by him.

In support of his claim of title to the whole of said real estate, the respondent introduced in evidence certain tax deeds of said real estate from the treasurer of the town of Cape Elizabeth for taxes assessed in 1883, 1884, and 1891; also, certain quitclaim deeds,— claiming by said tax deeds and quitclaims to him to make a prima facie case of title to said real estate sufficient to require the petitioner to make the deposit required by section 205, c. 6, Rev. St.

The petitioner claimed that the tax deeds were defective and void, making specific objections thereto, and that the same, together with the quitclaims, did not make a prima facie case of title requiring him to make said deposit.

The presiding judge overruled, pro forma, the objections of the petitioner, and ruled, pro forma, that the tax deeds and quitclaims made a prima facie case of title.

To all these rulings the petitioner excepted. Exceptions sustained.

M. P. Frank and P. J. Larrabee, for plaintiff.

Carroll W. Morrill and Geo. Libby, for defendant.

EMERY, J. The petitioner at one time owned in fee one undivided half of the land sought to be divided. The respondent undertakes to show that the petitioner's estate has been transferred to him. To show this transfer, he introduces deeds of the petitioner's interest in the land from the treasurer of the town of Cape Elizabeth, in which the land is situated, to the town, and then traces title by mesne conveyances from the town to himself. These deeds from the treasurer of the town purport to be official deeds of the land as sold for nonpayment of taxes thereon, and are regularly executed and recorded. The respondent offered no other evidence of any transfer of the petitioner's title.

The court has repeatedly held, however, and consonant with reason as well as authority, that such deeds alone are not even prima facie evidence of a lawful assessment of a tax upon the land, nor of legal proceedings for a sale of the land for nonpayment of such tax, and hence are no evidence that a landowner has been deprived of his property according to "the law of the land." Phillips v. Sherman, 61 Me. 548; Rackliff v. Look, 69 Me. 516; Libby v. Mayberry, 80 Me. 137, 13 Atl. 577; Ladd v. Dickey, 84 Me. 190, 24 Atl. 813; Bank v. Parsons, 86 Me. 514, 30 Atl. 110; Maddocks v. Stevens, 89 Me. 336, 36 Atl. 398.

The respondent cites against these decisions the statute (Rev. St. c. 6, § 205), as amended by section 11 of chapter 70 of the Laws of 1895, which declares, in effect, that such a deed shall be sufficient and conclusive evidence of the lawful alienation of the original owner's property, though against his will, unless he shall have deposited with the clerk of the court the amount of all taxes, interest, and costs accrued up to the time. The petitioner did not make this required deposit, and the respondent contends that, by force of the statute cited, the deeds are now to be taken as conclusive evidence of his own title.

The form of the pro forma ruling was that the treasurer's deeds were sufficient in form and execution to make them prima facie evidence under the statute. In effect, however, the ruling was that the petitioner must make the deposit named before he could be heard to question the prima facie evidence; or, in other words, that the deeds were conclusive evidence of title if the petitioner did not make the deposit. The question, therefore, is whether the petitioner can be lawfully required to make the deposit named in the statute, before contesting the validity of the assessment and sale of his land for taxes.

In Dunn v. Snell, 74 Me. 22, the court strongly suggested, though without expressly deciding, that the owner of property is protected by the constitution against the statute cited. Finding the statute again invoked, and this time in such a way that it cannot fairly be avoided, we have again carefully considered the question of its constitutionality. In our consideration we have given, as we should, great weight to the legislative opinion, and have kept in view the rule that no statute is to be declared unconstitutional unless it appears to be unmistakably so. In this case, however, we are constrained to declare it our unhesitating opinion that this statute is against the plain letter and spirit of the constitution of this state and that of the United States.

Among the rights constitutionally guarantied to the citizen against governmental action are (1) to have remedy by due course of law for any injury done his property; (2) to have right and justice administered to him freely and without sale (Maine Declaration of Rights, § 19); (3) not to be deprived of his property but by the judgment of his peers, or by the law of the land (Id. § 6). This last-named guaranty is enforced by section 1 of article 14 of the constitution of the United States, which declares that no state shall deprive any person of life, liberty, or property without due process of law.

While the legislature may regulate the use of legal remedies, may require the payment of various fees, and may require security to be given for fees and costs, the requirement of this statute is not within either category. This requirement, practically, is that, before he "begins" his action or his defense, he shall pay into court the whole sum claimed against him, including interest and costs. With such an obstacle placed in his way by the...