Crahan v. Town of Chittenden

• Decision Date: 06 October 1909
• Citation: 82 Vt. 410,74 A. 86
• Court: Vermont Supreme Court
• Parties: CRAHAN v. TOWN OF CHITTENDEN et al.

74 A. 86

82 Vt. 410

CRAHAN

v. TOWN OF CHITTENDEN et al.

Supreme Court of Vermont. Rutland.

Oct. 6, 1909.

Exceptions from Rutland County Court; W. H. Taylor, Judge.

Action by James Crahan against the Town of Chittenden and another. There was a plea of the general issue, trial by the court, and judgment for plaintiff. Defendants excepted. Affirmed.

Argued before HOWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Marvelle C. Webber and Thomas B. Browne, for plaintiff. Charles L. Howe, for defendants.

WATSON, J. This is an action of ejectment to recover certain lands in the town of Chittenden. The plaintiff claims title through a quitclaim deed from A. S. Ager and wife, dated the 29th of June, 1905. Ager purchased the property February 28, 1870, from William Creed, taking title thereto by warranty deed conditioned for the payment of certain promissory notes. From that time Ager and his wife occupied the premises continuously as a homestead without interruption until possession was taken by the defendants in this action prior to the date of the writ, since which time defendants have held possession thereof. The defendants claim title under a tax deed from Charles H. Churchill, collector of taxes for defendant town, to Nelson D. Parker, dated May 29, 1905, and by quitclaim deed from Parker to the town, dated July 17, 1905. The town also claims an interest in the premises as assignee of a certain mortgage thereon to Parker, and as the holder of one of the promissory notes mentioned in the conditional deed from Creed to Ager. The land in question consists of, 22 1/2 acres sold May 28, 1904, for taxes as follows: Five acres for the tax of 1899, 6 1/2 acres for the tax of 1900, 6 acres for the tax of 1902, and 5 acres for the tax of 1903. The trial court found that the quadrennial appraisal for the year 1902 was not seasonably filed, and that this appraisal entered into the grand lists of the years 1903 and 1904. For which reason the quadrennial list of 1902, and the grand lists of 1903 and 1904, were held to be invalid, as were also the assessment and collection of taxes for those years. No exception was taken to this holding. It follows that the sale of the 5 acres of the land in question for the taxes of 1903 was invalid.

The 17 1/2 acres sold for the taxes of 1899, 1900, and 1902 were knocked down to Charles H. Churchill as purchaser, on his bid for Nelson D. Parker, Churchill having been requested by Parker to purchase the land in case he (Parker) was not present at the time of the sale. It was not announced at the time that the bid was made for Parker, but it is found that Churchill did not bid on his own account, and that there were other and lower bids made. Churchill was at the time the tax collector conducting the sale, but the actual selling was done by an auctioneer employed by Churchill, he being hard of hearing, and for that reason it was impracticable for him to sell the land himself. It is urged that the sale of the 17 1/2 acres was invalid because the land was bid off by the tax collector who was conducting the sale. That this would be so had he made the purchases for himself the case of Chandler v. Moulton, 33 Vt. 245, is full authority. There the land sold for taxes was bid off by and in the name of another person, but in fact by the procurement, as the servant, and in behalf, of the tax collector by whom the sale was made. The sale was held to be void, as against the policy of the law. Nor does it make the sale any the less void that the bidding by the tax collector was in fact for another. In Payson v. Hall, 30 Me. 319, the collector of taxes, at his own sale bid off the property in question at the request of and for the demandant, who was not at the sale. It was held that his official duties and those of his private agency came into direct conflict, that the performance of one duty was inconsistent with the faithful performance of the other, and that the sale was void. Therefore, without considering the other questions raised touching the validity of taxes for the years named, and of the tax deed, we hold that none of the tax sales mentioned affected the title to the property, and that the tax deed under which defendants claim to hold is void.

The indebtedness secured by the conditional deed from Creed to Ager, hereinbefore mentioned, subsequently passed to Nelson D. Parker. On the 1st day of November, 1877, Ager and wife mortgaged...