Bowler v. Brown

• Decision Date: 26 March 1892
• Citation: 24 A. 879,84 Me. 376
• Parties: BOWLER v. BROWN.
• Court: Maine Supreme Court

24 A. 879

84 Me. 376

BOWLER

v. BROWN.

Supreme Judicial Court of Maine.

March 26, 1892.

(Official.)

Report from supreme judicial court, Waldo county.

Action by Silas H. Bowler against Weston Brown to recover certain land. On report. Judgment for defendant.

W. H. Fogler, for plaintiff,

H. Bliss, Jr., for defendant.

EMERY, J. This is a real action for the recovery of a parcel of land in Palermo, and is reported to the law court for determination upon so much of the evidence as is competent and legally admissible. The plaintiff's claim of title is under tax deeds and tax sales for nonpayment of taxes assessed in Palermo against the resident occupant of the land in 1882 and 1883.

The proceedings, which are intended to work a forfeiture of lands for nonpayment of taxes, are to be construed strictly in a controversy between the purchaser at a tax sale and the original owner. The title acquired under such a sale is founded solely on the statute provisions, and these must be strictly complied with. Green v. Lunt, 58 Me. 518; Tolman v. Hobbs, 68 Me. 316.

In this case the proceedings for two years, 1882 and 1883, are put in evidence, and in each set we find what seem to us fatal omissions or lack of evidence.

1. (1882.) The statute (Rev. St. c. 6, § 193) requires the collector of taxes, as one step in the procedure, to "lodge with the town clerk a copy [of his notice of intended sale,] with his certificate thereon," that he has given notice of the intended sale as required by law. The plaintiff put in evidence the copy of notice thus lodged with the town clerk in 1882, upon which copy the only certificate is as follows: "I hereby certify the following to be a true copy of the notice of the aforesaid, as required by law." There is a total lack of any "certificate that he has given notice of the intended sale, as required by law, "or that he has given any notice. The paper he lodged with the town clerk is merely certified to be a copy of another paper, which latter may or may not have been posted as required by law. The statute further provides that the "copy and certificate shall be recorded by the clerk, and the record so made shall be open to the inspection of all persons interested." The land owner, by inspecting this record, would not learn that any notice had been posted or otherwise given. The statute plainly requires the certificate above described, and the omission to make it is the omission of a necessary step in the procedure.

2. (1883.) It must appear in evidence that the assessors of taxes were duly sworn. Williamsburg v. Lord, 51 Me. 599. The only evidence of such necessary fact in this case is an extract from the record of the doings of the inhabitants of Palermo in their March meeting, in 1883. By Rev. St. c. 3, § 24, the town clerk is required to record such fact, by recording the name of the officer, and of his office, by whom sworn, and the time of taking the oath. By Rev. St. c. 1, § 6, cl. 20, the word "sworn "used in the record shall refer to the oath required in the particular ease, and imply all the terms of that oath. It seems essential, therefore, either that the words of the oath be recorded, or that it should be expressly alleged in the record that the officer was "sworn." The administration of the qualifying oath is matter of substance, and should appear in the record as a substantive transaction, and not as a mere note to some other transaction.

The extract is as follows:

Palermo, March 12, 1883.

Then met the legal voters of the town of Palermo, and voted as follows, to wit:

Art. 1. Chose Eli Carr, Moderator. Sworn by John Greely.

* * * * * * * * * *

Art. 4. Chose Hollis F. Foy, 1st assessor. " " "

" George W. Carr, 2d " " " "

" Woodbury Tibbetts, 3d " " " "

* * * * * * * * * *

Art. 7. Chose S. B. Jones, collector of...