Curtis v. Potter
Decision Date | 11 March 1916 |
Citation | 114 Me. 487,96 A. 786 |
Parties | CURTIS, Tax Collector, v. POTTER. |
Court | Maine Supreme Court |
On Motion and Exceptions from Supreme Judicial Court, Piscataquis County, at Law.
Action of debt by Frank B. Curtis, Tax Collector, against Paul Potter. There was a verdict for plaintiff, and defendant moved for new trial and excepted. Motion and exceptions overruled.
Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, and HANSON, JJ.
Charles W. Hayes, of Foxcroft, for plaintiff. J. H. Haley, of Hartland, and J. S. Williams, of Guilford, for defendant.
CORNISH, J. Action of debt, brought by the collector to recover a tax assessed in 1914 by the town of Wellington upon certain lumber alleged to be the property of the defendant, a resident of Worcester, Mass.
The case is before this court on motion and exceptions by the defendant.
1. Motion.
The motion raises the question of ownership; the defendant contending that the verdict of the jury on this point was clearly wrong.
It appears from the evidence that the defendant, the then owner of the Lawrence lot, so called, in Brighton, on January 1, 1914, conveyed the same to his father, Burton W. Potter. Immediately following this conveyance a logging operation was begun, and it continued during the winter season. The timber cut was sawn by portable mills on the premises, and hauled to the Ward field, so called, in the town of Wellington as long as the snow permitted. The balance near the end of the season was delivered at the Decker field in the plantation of Brighton. The hauling to Wellington began early in January, and continued to the last of March, and the hauling to the Decker lot was a matter of only a week or ten days. It was all a part of one and the same operation, and in round numbers about nine-tenths of the lumber was delivered in Wellington, where it remained on April 1st.
This designation of the location was evidently an error, because the portion of the lumber in the Decker field was very small. The quantity called for in the mortgage, 700,000 feet, could only be satisfied by including the Wellington lumber. Moreover, there is no evidence of any lumber in the Decker field belonging to the defendant other than that which came from this winter's operation; and, as it was a single operation, if the defendant owned the portion in Brighton, he also owned the portion in Wellington. Moreover, in that mortgage the defendant avouches himself to be the true and lawful owner of the mortgaged property, and covenants to warrant and defend the title against the lawful claims and demands of all persons. This mortgage, with its declarations and covenants on the part of the defendant, stands for its full bigness, and it is significant that the defendant did not take the stand to explain it. This instrument of itself, unexplained, was sufficient warrant for the verdict, it being admitted that there was no change of ownership between April 1st, the date of the assessment, and May 20th, the date of the mortgage. Obviously the owner of the mortgaged property was the party liable for its taxation.
The defendant relies upon the deed from himself to his father, dated January 1, 1914, conveying the title to this lot. But it is common knowledge that landowners frequently permit, even verbally, lumber to be cut from their land, and the title to such lumber, when cut, vests in the permittee. It is reasonable to suppose, in view of the mortgage, that such an arrangement was made here between father and son. If not, then it would have been natural and quite necessary for either the defendant to deny such an arrangement and to explain the mortgage, or for the father to also deny it and claim the lumber as his. Neither testified in the case, and their silence or absence carriers weight. Nor did Everett and Stanhope testify, the parties who carried on the operation and received the mortgage from the defendant as security for a debt of $2,500. It is safe to assume that they must have satisfied themselves on the point of ownership before they consented to take this security.
The verdict on the evidence was clearly right.
Exceptions.
Three exceptions were urged in argument, and involve certain points which were raised by the defendant in requests for instructions refused by the Presiding Justice.
This tax was assessed under R. S. c. 9, § 13, par. 1, as amended by chapter 30 of the Public Laws of 1913. This amendment provides that:
"Portable mills, logs in any town to be manufactured therein, and all manufactured lumber excepting lumber in the possession of a transportation company and in transit, shall be taxed in the town where situated on the first day of April in each year."
Prior to 1909 there was no provision for taxing personal property of this class to an owner residing outside the state. It was taxed "to the person having the same in possession," etc. R. S. c. 9, § 13, par. 2. But chapter 80 of the Public Laws of 1909 amended paragraph 2, so that now:
"Personal property * * * which on the first day of April is within the state, and owned by persons residing out of the state or by persons unknown; * * * shall be taxed either to the owner, if known, or to the person having the same in possession."
This tax was assessed against the defendant as the owner under this act of 1909.
The authority under which this suit was brought by the collector is found in R. S. c. 10, § 27, viz.:
"Any collector of taxes * * * may, after demand for payment, sue in his own name for any tax, in an action of debt."
The defendant construes this to mean a personal demand by the collector upon the taxpayer, and contends that no other notice will, under any circumstances, meet the requirement. This court has held that in case of a resident taxpayer a special demand was intended by the Legislature; a demand so formal and explicit that a taxpayer should realize that a suit would follow his noncompliance with the demand. Parks v. Cressey, 77 Me. 54. The gist of the court's construction of the statutory requirement is plain. The demand should be commensurate with the object to be attained, and should be of such a character as to fully inform the delinquent of the collector's purpose.
It is on this principle that in Clark v. Gray, 113 Me. 443, 94 Atl. 881, the court held that the demand preliminary to an arrest, under another section (R. S. c. 10, § 20), should be a personal demand, and that the sending of a mere tax bill in the ordinary form, such as is sent to every taxpayer immediately after the commitment, was insufficient The...
To continue reading
Request your trial