Dolloff v. Gardiner

• Decision Date: 09 September 1952
• Citation: 91 A.2d 320,148 Me. 176
• Parties: DOLLOFF v. GARDINER.
• Court: Maine Supreme Court

Page 320

91 A.2d 320

148 Me. 176

DOLLOFF v. GARDINER.

Supreme Judicial Court of Maine.

Sept. 9, 1952.

Dubord & Dubord, Waterville, for plaintiff.

McLean, Southard & Hunt, Augusta, Clyde R. Chapman, Belfast, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

NULTY, Justice.

On exceptions to decision of a single justice who found for the defendant in a jury waived case heard at the April 1951 Term of the Waldo County Superior Court.

By writ of entry the plaintiff seeks to recover certain property in the town of Knox in said Waldo County claimed by the defendant under conveyance from the Inhabitants of the town of Knox. From the record it appears that the plaintiff acquired her title as the sole heir of her mother who died June 16, 1950, intestate, seized and possessed of the property in question unless it has been lost to the town of Knox by proceedings under the Tax Lien Law, so-called, R.S.1944, Chap. 81, Secs. 97 and 98, as amended. Defendant's claim of title to the property is based upon a quit-claim deed from the Inhabitants of the town of Knox dated July 26, 1950, and it appears from the record and bill of exceptions that the town of Knox instituted and carried to a conclusion the proceedings under the provisions of the above mentioned statutes to enforce liens for taxes assessed by said town for the years 1938, 1939, 1941, 1943, 1944, 1945, 1946, 1947 and 1948, the result of which the defendant claims vested title in said town which title said town conveyed to the defendant as above stated.

The exceptions only raise two questions, although in passing it may be stated that while the plaintiff makes many general claims and assertions which might have been the subject of exceptions, the instant bill of exceptions, other than the two exceptions to which we will hereinafter refer, is not in such form as is required by the rules governing the sufficiency of bills of exceptions generally and those attacking the decision of a single justice in a jury waived case which have been set forth so many times by us that it seems unnecessary to again set them forth at length. A great many of the cases governing the sufficiency of the rules relating to bills of exception can be found cited in the recent case of Public Loan Corporation v. Bodwell-Leighton Co., 148 Me. 93, 89 A.2d 739.

We said in Tozier, Coll. v. Woodworth and Land, 136 Me. 364, 365, 10 A.2d 454:

'The proper way to review errors of law in a case heard and determined by the Court without the aid of jury is, if at all, by exceptions.'

In the instant case we hold that the bill of exceptions, other than the two exceptions hereinafter considered, does not properly present any other alleged erroneous rulings of law in the manner prescribed by statute. R.S.1944, Chap. 94, Sec. 14.

The basic issue in the instant case is the title of the plaintiff to the property described in the writ of entry. According to our decisions defendant will defeat plaintiff's action if title is shown either in defendant or another. We said in Bowman v. Geyer, 127 Me. 351, 355, 143 A. 272, 274:

'The defendant in a real action may show title in another person. Rowell v. Mitchell, 68 Me. 21. The plaintiff having failed to show title in himself, and the defendant having shown title in another, under whom he had possession, warranted judgment for defendant.'

In other words, defendant urges plaintiff must recover upon the strength of her own title and not upon the weakness of defendant's title. See Wyman v. Porter, 108 Me. 110, 111, 79 A. 371, and cases cited therein.

This brings us to the consideration of the first exception. This exception concerns the admission in evidence by the court of the deed from the Inhabitants of the town of Knox to defendant. Plaintiff objected to its introduction stating that it was not admissible until there was proof of authority of the signers of the deed to issue it on behalf of the town. However, a stipulation in the record indicates that the town of Knox at its 1950 annual meeting passed the following vote with reference to the transfer of property acquired through tax proceedings, said vote reading as follows:

'Upon motion, voted to authorize the selectmen, on behalf of the town, to sell and dispose of any real estate acquired by the Town for nonpayment of taxes thereon on such terms as they deem advisable and to execute quitclaim deeds for such property.'

It is our opinion that the quit-claim deed from the Inhabitants of the town of Knox to the defendant, in view of the stipulation, was properly admitted and that plaintiff's objection to its admittance was properly overruled and that the plaintiff suffered no damage thereby.

The second exception of the plaintiff reads as follows 'The defendant also offered in evidence her exhibits 3, 4, 5, 6, 7, 8, 9 and 10, being tax lien certificates recorded by the town of Knox for taxes for the years 1947, 1946, 1945, 1944, 1943, 1938, 1939 and 1941. Plaintiff objected seasonably to the admission of each of these exhibits. Plaintiff's objections were overruled and the exhibits admitted. Plaintiff's exceptions were seasonably noted. Plaintiff's grounds for objection to the admission of these exhibits was that all tax lien certificates prior to the year 1948 were inadmissible, because in filing and recording liens in successive years the town waived its rights under said certificates.'

It may be noted that the plaintiff, by her exceptions, does not attack the validity of the several tax lien proceedings herein mentioned prior to 1948 in any particular other than setting up the claim that in filing and recording said tax liens in successive years the town waived its rights under said lien certificates and it also is noted that the lien certificate for the year 1948 was duly admitted without objection. We, therefore, hold under the authority of Town of Warren v. Norwood, 138 Me. 180, 186, 24 A.2d 229, 232, and cases cited therein:

'that in the absence of evidence to show the contrary, it will be presumed that a town has proceeded in the usual and legal manner. * * *'

The record shows factually that the conduct of the town of Knox in many respects was inconsistent with a waiver. For instance, it sold the hay on the premises in question in the year 1948 to the husband of the plaintiff who paid the town for it and, in addition, either during the year 1948 or 1949 it shingled the house situated on the premises with the knowledge of the plaintiff and the plaintiff admits that the town would not agree to release the property to the plaintiff on plaintiff's offer to repair the buildings.

An examination of the statutes governing the filing of tax liens in statutory tax proceedings discloses that the filing of each tax lien certificate in the Registry of Deeds creates a mortgage in favor of the town. The statute then goes on to state, among other things, that if the mortgage, together with interest and costs, shall not be paid within eighteen months after the date of the filing of said certificate, the said mortgage shall be deemed to have been foreclosed and the right of redemption to have expired. We said in Inhabitants of Canton v. Livermore Falls Trust Company, 136 Me. 103, 106, 3 A.2d 429, 430, speaking of the expiration of the eighteen months period:

'* * * any right to redeem could not have been asserted; the time had gone. On the theory of the statute, the town was now owner, absolutely.'

Assuming, as we must from the record, that some, if not all, of the tax liens were good in the absence of evidence to the contrary, it appears to us that we reach the same conclusion as was reached by our court in Inhabitants of Orono v. Veazie, 57 Me. 517, 519, when we recognized that there might be under the then existing law numerous tax sales and numerous tax deeds. In that opinion we said:

'There may be numerous sales and tax deeds. One deed may be valid and the others convey no title.'

It should also be noted that each tax lien certificate, when recorded, constitutes a new mortgage based on a new tax assessment and inasmuch as the statutory language found in the act which extends the time beyond one year before title would vest if the mortgage was not paid, it mus be assumed that the Legislature, when it enacted the legislation, had in contemplation that the foreclosure of the lien or mortgage could not vest title before the time of assessment of taxes for the following year. We come to this conclusion in part because it is substantially the same under the old tax sale procedure which has been on the statute books for many years and we are further strengthened in our belief because if upon filing of the tax lien certificate a mortgage is created, we see no reason why successive mortgages could not be created in a like manner. It should also be borne in mind that until the mortgage matured and the right of redemption was lost, in any event, it is the duty of the assessors to assess the property. The reason for this statement is because we held in Inhabitants of the Town of Milo v. Milo Water Co., 131 Me. 372, 377, 163 A. 163, 166:

'Assessors are not subject to the direction and control of the municipality; their duties and authority are imposed by law.'

The plaintiff claims that the town waived its rights under the tax lien certificates by filing and recording tax liens in successive years. This flatly raises the question as to whether or not the town is in such a position that the rules of law governing waiver are applicable to it. The claim arises out of matters not in the control of the town; it concerns the collection of public taxes. We said in Thorndike v. Inhabitants of Camden, 82 Me. 39, 44, 19 A. 95, 96, in speaking of the powers and duties of towns with respect to taxes:

'The claim in suit, however, arises out of matters which are not intrusted to the control of town meetings. It concerns the collection of public taxes. The statute (Rev.St., c....