Briggs v. Johnson

• Decision Date: 04 June 1880
• Citation: 71 Me. 235
• Parties: MATILDA B. BRIGGS in equity v. ELISHA JOHNSON.
• Court: Maine Supreme Court

71 Me. 235

MATILDA B. BRIGGS in equity v. ELISHA JOHNSON.

Supreme Judicial Court of Maine.

June 4, 1880

BILL IN EQUITY.

The facts sufficiently appear in the opinion.

Thompson & Dunton, for the plaintiff.

The tax deed in this case is a cloud upon the complainant's title and tends to depreciate the value of her property and she is entitled to the relief prayed for. Story's Eq. Jur. 6th ed. § 700. Piersoll v. Elliott, 6 Peters 95.

The deed is in the usual form and the invalidity does not appear on its face. It is not like the cases cited by counsel. Lovejoy v. Lunt, 48 Me. 377; French v Patterson, 61 Me. 203.

Any deed, which, according to the rules of the common law, would be sufficient to transfer the title of the former owner, is sufficient, provided it recites the power under which it was made. Bolster's Tax Collector, 85; Chandler v Spear, 22 Vt. 388; Brown v. Hutchinson, 11 Vt 569; Spear v. Ditty, 8 Vt. 419; stat. 1874, c. 234; stat. 1879, c. 117.

Courts of equity will entertain jurisdiction to set aside an instrument void on its face. Hays v. Hays, 2 Ind. 28. See Allen v. Buffalo, 39 N.Y. 386.

Wm. H. Fogler, for the defendant, cited:

Lovejoy v. Lunt, 48 Me. 377; French v. Patterson, 61 Me. 203; 1 Story's Eq. Jur. 9th ed. § 700, A. p. 664; Cox v. Clift, 2 N. Y. (2 Comst.) 118; Ward v. Dewey, 16 N. Y. (2 Smith) 519; Fleetwood v. City of N. Y. 2 Sand. 475; Hotchkiss v. Elting, 36 Barb. 38; Townsend v. The Mayor of N. Y. " " Reporter," November 12, 1879, p. 626; Piersoll v. Elliott, 6 Peters 95; cases named in U. S. Dig. vol. 8, 1877, p. 145.

APPLETON, C. J.

This is a bill in equity in and by which the complainant seeks to have an alleged cloud resting upon her title to certain real estate removed.

The bill alleges that the complainant was the owner of two hundred and thirty acres of land in Freedom, upon which, for the year 1876, was duly assessed a tax of $21.53; that the tax was paid on the 19th of September, 1877; that on the 28th of February, 1878, the respondent, Johnson, acting as collector of taxes for said town, after duly advertising the land for non payment of taxes, proceeded to sell the entire tract, for twenty-four dollars and seventy-five cents to discharge the tax of $21.53, and the cost and charges of sale; that on the day of said sale, he executed and acknowledged a deed of said land to the defendant Hustus; said entire tract of one hundred and thirty acres being sold to satisfy the taxes assessed thereon and charges, and that he lodged said deed and the certificate required by R. S., c. 6, § 170, with Daniel W. Dodge, treasurer of said town.

The bill further alleges that this tax deed is invalid because neither in said deed nor in the certificate of sale, does it appear that the sale of the entire tract was necessary in order to satisfy and discharge said tax and costs and charges of sale, & c.

The tax deed is annexed and made part of the complainant's bill and it is in accordance with the allegations therein. The deed purports to sell and convey certain tracts of land, in all amounting to two hundred and thirty acres, for the sum of twenty-four dollars and seventy-eight cents, to the defendant Hustus, he being the highest bidder therefor.

By R. S., c. 6, § 169, the collector is directed, whenever one appears to discharge a tax, " to sell at auction to the highest bidder, so much of such real estate or interest, as is necessary to pay the tax then due, with three dollars for advertising, and twenty-five cents for each copy required to be lodged with the town clerk." The deed utterly fails to show a compliance with the statute. It is not enough that the land was sold to the highest bidder. It must appear that it was necessary to sell the whole to pay the tax and charges, and that no person would pay the same for a less quantity of land. Lovejoy v. Lunt, 48 Me. 377; French v. Patterson, 61 Me. 203; Loomis v. Pingree, 43 Me. 311. The deed is void on its face.

The bill alleges, and truly, that the deed of the collector of taxes is void. This fact would appear on its face when it should be offered as an instrument of defence or of offence. Being void and not merely voidable, it is not a case where the intervention of a court of equity is required. When the illegality of the agreement, deed or...