Brush v. Watson

• Decision Date: 04 March 1908
• Citation: 69 A. 141,81 Vt. 43
• Parties: BRUSH v. WATSON.
• Court: Vermont Supreme Court

69 A. 141

81 Vt. 43

BRUSH

v. WATSON.

Supreme Court of Vermont. Caledonia.

March 4, 1908.

Appeal in Chancery, Caledonia County; John H. Watson, Chancellor.

Suit by Emerson Brush against Charles Watson. From a decree for the orator, defendant appeals. Affirmed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, HASELTON, and MILES, JJ.

J. P. Lamson and Geo. W. Wing, for appellant. B. E. Bullard and T. C. Cheney, for appellee.

MILES, J. This is a bill in chancery to remove a cloud from the title of about 108 acres of land, part of lot No. 96 and the whole of lot No. 101, In the Second and Third divisions in Woodbury, Vt. The alleged cloud consists of a collector's deed bearing date April 6, 1899. The deed is based upon an alleged vendue sale to the defendant on the 26th day of March, A. D. 1898, to satisfy a tax assessed against the orator for the sum of $18.50 and $1.71 costs of collection. It is not disputed but that the orator's title to the land in question is perfect, if the defendant's is void. The defendant claims that his title is valid, and therefore is not a cloud upon the orator's title, but is the title itself, and is superior to and destructive of the orator's claimed title.

The law is well settled in this state teat one who claims under a collector's (teed based upon a sale to satisfy a tax assessed upon the real estate sold sustains the burden of proving the regularity of every (antecedent act necessary to the validity of the tax, the levy, and sale. Hall v. Collins, 4 Vt. 316; Spear v. Ditty, 9 Vt. 282; Bellows v. Elliot, 12 Vt. 574; Sumner v. Sherman, 13 Vt. 612; Carpenter v. Sawyer, 17 Vt. 121; May v. Wright, 17 Vt. 97, 42 Am. Dec. 481; Langdon v. Poor, 20 Vt. 13; Chandler v. Spear, 22 Vt. 388; Townsend v. Downer, 32 Vt. 183; Cummings v. Holt, 56 Vt. 384; Downer v. Tarbell, 6l Vt. 530, 17 Atl. 482.

Numerous objections are raised by the orator to the validity of the defendant's title, among which is the objection that no notice is shown to have been given by the collector to the orator of the time and place when and where he would be to receive the tax before making the levy and sale; and the further objection that it does not appear in the master's report that the collector sold no more real estate than was necessary to satisfy the tax and legal charges. The orator was a nonresident at the time of the assessment, levy, and sale. The master reports that he is unable to find that the collector ever gave the orator any notice of the time and place when and where he would be to receive the tax; nor did he find that there was any demand made by the collector upon the orator for its payment. The defendant's solicitors claim that the law does not require a collector to notify an absent taxpayer, but simply permits him to do so, because the statute relating to notice to an absent taxpayer (V. S. 504) is permissive, and not mandatory; that the section says "he may notify such person thereof by letter," and not that he must; that, if the Legislature had intended to make it mandatory upon the collector to notify him, it would have used the word "must" instead of "may." The defendant, however, does not contend but that a failure to give such notice to a resident taxpayer, as required by V. S. 472, would render such levy and sale void; but it is urged that in this section the word "shall" is used instead of "may." All the cases in this state hold that the notice to resident taxpayers of the time and place when and where the collector will be to receive the tax is an essential part of the duty of the collector, and that no valid sale can be made without it, unless excused by a demand and unequivocal refusal to pay. Downer v. Woodbury, 19 Vt. 329; Wheelock v. Archer, 26 Vt. 380; Hurlbut v. Green, 42 Vt. 316; Brock v. Bruce, 58 Vt. 261, 2 Atl. 598. We are unable to adopt the claim and reasons of the defendant respecting the construction of V. S. 504, as we see no reason why the notice to a resident taxpayer should be so strictly required, and none required in the case of a nonresident. The importance of such a notice in all cases is readily seen when we remember that this method of transferring title is a proceeding in invitum, which takes the taxpayer's property and sells it in a summary manner without his agency. Before his property is thus taken, the taxpayer ought to have fair notice that the collector has a tax against him, the amount and when and where he can pay it, and no question is made but that in case of resident taxpayers such notice is required by statute. The importance which the court has placed upon such a notice to a resident taxpayer is well shown in the case of ...