Bogie v. Town of Barnet

• Decision Date: 07 April 1970
• Docket Number: No. 128-69,128-69
• Citation: 270 A.2d 898,129 Vt. 46
• Parties: Carlot BOGIE v. TOWN OF BARNET, Edward R. Mackay, Joseph Roy, Paul Nelson, Austin Whitehill, R. Douglas Gilmour, Citizens Savings Bank & Trust Co., Franklyn Thompson, Gloria Thompson, and Helena J. Bogie Garlock.
• Court: Vermont Supreme Court

Page 898

270 A.2d 898

129 Vt. 46

Carlot BOGIE v. TOWN OF BARNET, Edward R. Mackay, Joseph Roy, Paul Nelson Austin Whitehill, R. Douglas Gilmour, Citizens Savings Bank & Trust Co., Franklyn Thompson, Gloria Thompson, and Helena J. Bogie Garlock.

No. 128-69.

Supreme Court of Vermont.

April 7, 1970.

Otterman & Allen, Bradford, for plaintiff.

Arthur L. Graves, St. Johnsbury, for defendants Town of Barnet, Joseph Roy, Paul Nelson, Austin Whitehill and Edward R. Mackay.

Davis, Martin & Free, Barre, for defendants R. Douglas Gilmour, Franklyn Thompson and Gloria Thompson.

Witters, Akley & Brown, St. Johnsbury, for defendant Citizens Savings Bank & Trust Co.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

The plaintiff's home premises were sold for delinquent taxes and bid in by the town for the amount due, $848.67. The property consisted of a three family dwelling, barn and lot of land, appraised at the time of last delinquency at $9000., for grand list purposes. After the expiration of the period of redemption without reclamation the tax collector deeded the property to the town. The property was then offered for sale by sealed bids and sold, within three weeks, for $5314.00. A local bank advanced $5000 secured by a first mortgage on the property.

The plaintiff's action in equity seeks to have the property restored to him, together with damages, and to have set aside the levies, deeds and mortgages on the property representing a derogation of the plaintiff's title. The defendant town denies that any title remains in the plaintiff, or that any damages should be recoverable. The purchasers of the property and the financing bank, also defendants, likewise argue strenuously for the legality of the tax sale proceedings and the validity of the present state of the title, and pointed out that work has been done and money spent repairing and restoring the property.

The chancellor made findings and issued a decree dismissing the bill, thus affording the plaintiff no relief. These findings established that the plaintiff, unemployed and receiving a disability pension, made application to three different banks for a mortgage loan sufficient to redeem the property, but was refused in each case. The plaintiff's divorced wife still appeared on the town records as a part owner of the property, and the pleadings acknowledge that a petition for partition, brought by the wife against the plaintiff, is still on record in the land records of the town and is undisposed of in Caledonia County Court. The defendant town's contention that this property was unencumbered was apparently not shared, justifiably, by the lending institutions involved. In these circumstances the litigation cannot be dismissed on the terse claim that the plaintiff's difficulties are his own fault. The original findings contained an expression by the chancellor as to the rightfulness of the retention, by the defendant town, of the proceeds of the sale over and above the costs and taxes due. This finding was, on petition of the town, subsequently stricken by amendment.

There is no doubt that this concern of the chancellor is the central equitable consideration in this case. Insofar as the original tax sale and the subsequent sale upon bid, neither findings nor evidence disclose any legal defect in the proceedings. The statutes have, according to the evidence, been complied with and the transfers of title made thereunder must be honored. On the facts presented defendant Gilmour is confirmed in his ownership of the premises.

The true question in the matter, and the one on which the plaintiff ultimately rests his case, arises from the claimed unconscionable difference between a tax sale bid and sale of $848.67 and the demonstrated far greater value of the property, evidenced by the later sale for $5,314.00. Does the difference rightfully belong to the town?

We think not. 32 V.S.A. 5259 authorizes the city or town assessing the tax to become the purchaser, if no bid equal to the taxes and costs is made. The statute goes on to say that lands so acquired shall be held, leased, sold and conveyed like other real estate belonging to such city or town. The proposition advanced by the town is that this expresses an intention that the town's position be identical to that of any other purchaser at a tax sale.

With respect to the acquisition of title, retention, sale or lease of the property, this is no doubt sound. The policy in support of ready alienability of title to good faity, third party purchasers for value supports this view. The real issue here is the accountability for the acquired value in excess of any bona fide obligation due and owing the town.

Peterson v. Moulton, 120 Vt. 439, 441, 144 A.2d 717 obligates the collector of taxes to sell only so much of the land as is necessary to pay taxes and costs, as the statute requires. This requirement measures the obligation of the taxing authority to its taxpayer. This obligation is not altered or avoided by the exercise of the prerogative of purchase at the tax sale.

The delinquent taxpayer is, in all these proceedings, exposed to the risk of the loss of his property by legitimate sale to a third party purchaser. If the sale meets the test of legal validity, his recourse then operates through his statutory right of redemption.

The relationship of the taxing authority to the taxpayer stands, equitably, on a different footing. The relationship is not truly arms-length, but has fiduciary aspects. The municipality, by appropriate procedures, assesses the tax. In cases of delinquency, it makes the determination to initiate tax sale proceedings. The objective is to recover taxes and costs incurred in the process of collection, not to operate a real estate business for profit.

We construe the authority given to the municipality to bid at a tax sale as an ultimate recourse given to protect the town against any conspired attempts to avoid the sale by discouraging all bidding. 32 V.S.A. Sec. 5259 indicates that the position of the municipality as a bidder is a special case, by denying to it authority to bid at all unless no bid equal to the tax and costs is made at the sale. A policy which encouraged municipal governments to promote situations where it was authorized to acquire the property of its own taxpayers at unconscionable discounts, to the enrichment of the town treasury or enlargement of its land holdings, is fraught with danger and we find not contemplated by the legislative enactment.

The Supreme Court of the United States recognized this in United States v. Lawton, 110 U.S. 146, 3 S.Ct. 545, 28 L.Ed. 100, 101, when it said, in connection with a similar direct bidding-off by the United States in a tax sale:

To withhold the surplus from the owner would be to violate the fifth amendment to the constitution, and deprive him of his property without due process of law or take his property for public use without just compensation. If he affirms the propriety of selling or taking more than enough of his land to pay the tax and penalty and interest and costs, and applies for the surplus money, he must receive at least that.

The corresponding rights under the Vermont Constitution upon a taking by public authority appear in Chapter I, Article 2. Satisfaction of the statutory procedures, although they may meet the test of due process, does not negate the obligation to account for the excess proceeds received from the sale. Unquestionably the taxpayer may release or waive his rights to such excess, or forfeit them by failing to seek recovery within the appropriate time. But since the issue on which this matter turns is not a question of the validity of the assessment of the tax or the procedural steps looking to the collection of the delinquency by the tax collector, the time limitation provision of 32 V.S.A. Sections 5294 and 5295 do not apply and this action is not thereby barred.

The plaintiff has asked for assignment of a share of the costs of these proceedings to any interest that may accrue to his divorced wife. In the present posture of this case, this appears to be an inappropriate proceeding to attempt to make any allocation of rights as between these two parties, and would be better left to separate action where the interest of others would not be compounded or complicated.

Since the facts support the bona fide nature of both of the sales proceedings, all that remains is for an accounting to be had between the taxpayer and the town with respect to the proceeds of the sale to Gilmour. Against this amount the town is entitled to charge the delinquent taxes and cost of collection. This can be accomplished by an accounting below before the chancellor.

Decree reversed and cause remanded for the accounting called for in the opinion, between the plaintiff and the defendant Town of Barnet, to be followed by a decree assigning the proceeds of the sale between those parties according to the accounting, and confirming title to the premises in the defendant Gilmour. All parties to bear their own costs in this Court.

On Reargument

The existence of any fiduciary relationship between the town and its officials and the plaintiff taxpayer is challenged on reargument by the defendant town. Cummings v. Holt, 56 Vt. 384, 387-388, among other cases, points out that sales of land for taxes are modes of transferring land titles by operation of law, without the agency of the owner. They are not 'willing-buyer willing-seller's transfers, but proceedings in invitum. Brush v. Watson, 81 Vt. 43, 47, 69 A. 141. The case of Chandler v. Moulton, 33 Vt. 245, 248, specifically refers to the fiduciary relationship created when a tax collector holds property to be sold for taxes. The taxing authority stands before the law no better than the officer. Smith & Son v. Town of Hartford, 109 Vt. 326, 333, 196 A. 281. Moreover, the Chandler case also points out that the inconsistency in the...