Cahoon v. Coe

• Decision Date: 13 August 1876
• Citation: 57 N.H. 556
• Parties: Cahoon v. Coe.
• Court: New Hampshire Supreme Court

57 N.H. 556

Cahoon v. Coe.

Supreme Court of New Hampshire

August 13, 1876

The power to sell land for the non-payment of taxes is a naked power, not coupled with an interest; and in all such cases every prerequisite to the exercise of the power must precede its exercise.

In interpreting statutes authorizing the sale of land for the non-payment of taxes, the title to be acquired must be regarded as stricti juris.

Whoever sets up a tax title must show that all the requirements of the law have been complied with, unless the former owner is the purchaser.

In all judicial or quasi judicial proceedings, affecting the rights of the citizen, it is a fundamental rule that he shall have notice, and an opportunity to be heard, before the rendition of any judgment, order, or decree against him.

The question as to what is a public place, within the meaning of the statute, relating to the sale of land for the non-payment of taxes, is a mixed question of law and fact; but when the facts are not in dispute, it is a question of law.

A sale of land for taxes, in a place where there are six inhabited dwelling-houses, is void, unless notice is posted in the place where the lands to be sold are situated.

In a writ of entry, where the title to the lands sued for is in the wife, the husband need not be joined.

In such case, when the husband has been joined, the court may allow the party to amend by striking out the name of the husband.

The record of a sale of land for the non-payment of taxes may be amended by the sheriff who made the sale, upon a proper case made, though the clerk who made the record be dead

FROM COÖS SUPREME JUDICIAL COURT.

WRIT OF ENTRY, to recover the grant of land called Wentworth's Location. Plea, nul disseizen. The cause was tried at Feb. trial term, 1874. To show title in the plaintiffs their counsel read as evidence,---

1. Deed, Charles Bellows to Mary L. Cahoon, dated January 1 1870, conveying said Location.

2. Deed, John Bellows to Charles Bellows, dated December 27 1852, conveying said Location.

3. Deed, Charles Bellows, sheriff of Co”s county, to John Bellows, dated February 1, 1851, conveying said Location upon a sale thereof for taxes made January 29, 1850.

4. "An act to raise sixty thousand dollars for the use of the state," approved July 3, 1847. See Pamphlet Laws of that year, chapter 524.

5. The apportionment act of 1844. See Pamphlet Laws of that year, chapter 129, showing the proportion of Wentworth's Location for the assessment of public taxes to be five cents for each thousand dollars raised.

6. An advertisement for the sale of said Location for taxes, published in the N. H. Patriot and State Gazette, printed at Concord, N. H., in the numbers issued October 18th, October 25th, and November 1st, 1849.

7. The same advertisement, published in the Co”s County Democrat, printed at Lancaster, N. H., in the numbers issued November 7th, November 14th, and November 21st, 1849.

8. Copy of the account of sale of said Location, duly certified by James M. Rix, clerk of the court of common pleas for the county of Co”s. Said Rix's certificate is dated August 16, 1853, and certifies that the copy "is a true copy of the original record of sale on file in my office, among the records of said court," and bears the seal of the court of common pleas.

9. List of redemption from said sale, duly filed February 1, 1851, from which it appears that said Location was not redeemed.

It was conceded that no notice of the sale was posted in Wentworth's Location. The plaintiffs introduced testimony tending to show that there was no public place in said Location, either before or during the eight weeks preceding January 29th, 1850, the day when it was sold for taxes; that for two or three years prior to and up to the time of said sale there had been six families residing in the easterly part of the Location, in small, ordinary dwelling-houses, some made of logs and some of them framed, two or three upon the easterly side of the Magalloway river, and the rest upon the westerly side; that each of

said settlers occupied a small farm or clearing where his dwelling-house was located; that there was no church, meeting-house, school-house, hotel, office, mechanic shop, store, sign-post, guide-post or board, box by the wayside for depositing newspapers for subscribers or others, no public highway or bridge, nor any other place except dwelling-houses, at which a notice of said sale might have been posted; that no person had ever known a notice or advertisement of any kind to have been posted in the Location before the date of said sale;---and then rested their case.

The defendant's counsel moved for a nonsuit, and made the following objections to the plaintiffs' title:

1. That the deed from Charles Bellows to Mary L. Cahoon does not sustain the joint seizin of the plaintiffs, as alleged in the writ. Leave was granted the plaintiffs to amend their writ upon this point if found necessary, and the defendant excepted.

2. That the deed of Charles Bellows, as sheriff, does not follow the form prescribed by Rev. Stats., ch. 46, p. 114.

3. To the copy of the account of the sale read in evidence by the plaintiffs, the defendant objected that said sale was advertised to be held at the Co”s hotel, in Lancaster, on the 29th of January, 1850, at ten o'clock A. M.; and that after the sale of Low & Burbank's Grant, and before the sale of said Wentworth's Location, said sale was adjourned,---the entry of which adjournment is in the following form: viz., "Said sale was opened by the sheriff aforesaid at ten o'clock in the forenoon, this 29th day of January, A. D. 1850, agreeably to advertisement, and after the sale of the grant or tract of land known as Low and Burbank's Grant, said vendue was adjourned to two o'clock this afternoon. Attest, John W. Lovejoy, clerk." Then follows the account of the sale of Wentworth's Location, beginning as follows: "January 29, 1850, also at the vendue aforesaid, reopened at two o'clock P. M., agreeable to adjournment," &c.

To this it was objected by the defendant,---(a) that it did not appear that said sale was adjourned by proclamation; (b) that it did not appear at what hour the sale was adjourned, nor to what place; (c) that it did not appear at what place the sale was reopened; (d) that ten o'clock "A. M." is not a sufficient indication of the time of day; (e) that said sale closed at three o'clock in the afternoon instead of six: it appeared, however, that all the lands advertised for sale had been sold before the sale closed at three o'clock; (f) that the law does not authorize the collector to adjourn a sale from hour to hour, but only from day to day; (g) that the account of the sale was returned to the clerk of the superior court instead of the clerk of the court of common pleas. The following filing appeared on said account of sale: "Co”s ss., S. C. clerk's office. Received and filed February 2, 1850. Attest, James M. Rix, clerk." (h) That the affidavit of Charles Bellows, to prove the posting of the notice at the Co”s hotel, did not sufficiently show that the advertisement remained posted to the time of the sale.

The plaintiffs introduced in evidence from the clerk's office in Co”s

county the original account of said sale, and the original advertisement posted at the Co”s hotel. Subject to exception, Charles Bellows testified as follows: "I posted this advertisement at the Co”s hotel, in Lancaster, on the 16th day of November, 1849. On the day of sale I found it where I posted it, and took it down. Joseph C. Cady kept the Co”s hotel at that time. I delivered the original account of sale, the advertisement posted at the Co”s hotel, the three New Hampshire Patriots and the three Co”s County Democrats containing the advertisement of the sale, to James M. Rix, then clerk of Co”s court of common pleas, on the 2d day of February, 1850.

The plaintiffs asked leave to amend the original account of sale, in regard to the adjournment, &c., which was granted pro forma, if the whole court should be of the opinion that the amendment is necessary, and that the record can be so amended. The defendant excepted. It was stated in court, and not denied, that John W. Lovejoy, clerk of the sale, is dead.

4. The act raising the tax was approved July 3, 1847, and the treasurer's warrant was issued to the sheriff of Co”s county in April, 1849. It was objected that the treasurer of the state did not seasonably assess the tax, and that the warrant was not seasonably issued.

The court denied the motion for a nonsuit, and overruled all the foregoing objections taken by the defendant's counsel, and the defendant excepted.

The defendant then introduced evidence of a grant of Wentworth's Location from the state to George Wentworth in 1796, and from him in direct line or title of one third in common of said Location in the defendant, to which title the plaintiffs made no objection, only to interpose the title under said tax sale.

Upon the question as to whether there was a public place in the Location where a notice of the sale might have been posted, considerable evidence was introduced on both sides, and various objections were taken to its admissibility, which, in the view taken by the court, are not necessary to be stated.

The defendant requested the court to instruct the jury,---(1) that inasmuch as it appears that there was a settlement in Wentworth's Location, consisting of several families of inhabitants residing in said Location in October, November and December, 1849, and January, 1850, it was necessary that the sheriff of the county of Co”s should have posted a notice of this sale in question at some place in said Location; (2) that on the evidence of the plaintiffs, it...