Baker v. Webber

• Decision Date: 18 February 1907
• Citation: 67 A. 144,102 Me. 414
• Parties: BAKER v. WEBBER et al.
• Court: Maine Supreme Court

67 A. 144

102 Me. 414

BAKER

v. WEBBER et al.

Supreme Judicial Court of Maine.

Feb. 18, 1907.

Report from Supreme Judicial Court, Washington County.

Action by John W. Baker against John P. Webber and others. Case reported. Judgment for defendants.

Real action to recover possession of certain real estate situate in the plantation of Grand Bake Stream, otherwise known as "Hinckley township," Washington county. The plaintiff's alleged title to the premises in dispute was based upon a quitclaim deed given to him by Dexter A. Hall, who acquired his supposed interest in the premises by a deed given to him by the inhabitants of said plantation, to whom the premises were sold for nonpayment of taxes by Arthur Fleming, who acted as collector of taxes in said plantation for the year 1897. At the conclusion of the evidence, it was agreed that the case should be reported to the law court for determination; "that court to draw such inferences from the evidence as a jury might do, and render such decision as the law and evidence requires."

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, TOWERS, PEABODY, and SPEAR, JJ.

Curran & Outran, for plaintiff. C. B. & E. C. Donworth, for defendants.

WHITEHOUSE, J. This is a writ of entry to recover possession of certain real estate situated in the plantation of Grand Lake Stream, otherwise known as "Hinckley township," in the county of Washington. The premises demanded comprise the whole of the plantation, but the defendants claimed to be seised in fee of only a part of it and disclaimed as to the residue.

The plaintiff claimed title by virtue of a quitclaim deed from Dexter A. Hall, who acquired his interest by deed from the inhabitants of the plantation above named, to whom the land was sold for nonpayment of taxes by Arthur Fleming, who acted as collector of taxes in the plantation for the year 1897.

It is admitted that when this action was commenced the defendants held and still hold title to the premises in dispute, unless it has devolved upon the plaintiff by virtue of the proceedings upon which the tax deed was based and subsequent conveyances. The defendants claim that the proceedings for the assessment and collection of the tax and for the sale of the land are fatally defective in several particulars and that the evidence reported to the court fails to show that the requisite legal steps were taken to obtain a forfeiture of the lands for nonpayment of taxes. They contend in the first place that no person was legally elected collector of taxes in that plantation for the year 1897, the year of the attempted assessment of the tax in question.

The only action taken by the inhabitants that year with reference to the choice of collector of taxes was at their annual March meeting, and so much of the record of this meeting as relates to the election and qualification of collector is as follows:

"Voted that the collection of taxes be given to lowest bidder, if he gives the required bond; otherwise, to be given to the next lowest bidder.

"List of bids as follows:

Cts.

Mills.

Geo. G. Elsemore.....................

4

4

A. J. Fleming........................

4

Chas. Fleming........................

3

6

Wm. Elsemore.........................

3

5

"After which all of the officers elected appeared before me and were duly sworn.

"After which the meeting was duly adjourned.

"A true statement of proceedings.

"March 31st, 1897.

"Attest: C. C. Hoar, Clerk."

This record purports to have been subsequently amended by C. C. Hoar, who acted as clerk in 1897; but it is admitted that he was not clerk at the time of the alleged amendment, and had ceased to hold the office long before that time, and was then residing in the state of Virginia. The amendment bears date June 28, 1897, but was in fact made in Virginia in February, 1905. It is as follows:

"June 28, 1897.

"This is to certify that Chas. Fleming and Wm. Elsemore, two lowest bidders for collection of taxes, failed to give the required bond, and that A. J. Fleming, the next lowest bidder, has qualified by giving required bond and has been duly sworn by me.

"Attest: C. C. Hoar, Clerk."

It is admitted that Arthur Fleming is the same person as A. J. Fleming, whose name appears in the list of bidders.

Whether the inhabitants at that meeting understood that by operation of the vote above recorded the lowest bidder would be legally elected tax collector, or whether they intended that the assessors should make an appointment of collector under the instructions and limitations imposed by their vote respecting the lowest bidder, is not made entirely clear by the terms of the vote. But inasmuch as no action appears to have been taken by the assessors in regard to the matter, except to issue their warrant to Arthur J. Fleming as a collector of taxes already chosen, it is manifest that they intended and expected to make a final choice of tax collector by force of the vote passed at that meeting.

It appears, however, from the original record, that Arthur Fleming, who acted as collector for that year, was not the lowest bidder, and without further evidence he would not appear to have been elected by operation of the vote at the March meeting. There is no other evidence bearing upon this question, except the alleged amendment of the record made by Hoar in a distant state nearly nine years after he had ceased to be clerk. It is obviously no part of the record of the doings of the annual meeting of March 31, 1897, because it purports to relate to transactions occurring June 28th of that year; and, unless it can be accepted as a legitimate record of matters which it was the duty of a town clerk to record, it is not competent evidence of the facts to which it...