Perham v. Haverhill Fibre Co.

• Decision Date: 16 March 1888
• Citation: 64 N.H. 485,14 A. 462
• Parties: PERHAM v. HAVERHILL FIBRE CO. et al.
• Court: New Hampshire Supreme Court

14 A. 462

64 N.H. 485

PERHAM

v. HAVERHILL FIBRE CO. et al.¹

Supreme Court of New Hampshire. Grafton.

March 16, 1888.

Motion by the defendant Pike, in Perham v. Fibre Co., 64 N. H. 2, 3 Atl. Rep. 312, that the plaintiff pay him the amount of the tax and expense of the sale, which he paid as the consideration of the collector's deed to him.

Chase & Streeter, for plaintiff. Bingham, Mitchells & Batchelor, for Pike, defendant.

ALLEN, J. The decision in this case in favor of the plaintiff upon a bill in equity for relief against the sale of land for taxes, and for a reconveyance by the defendant Pike, the purchaser at the tax sale, made at the December term, 1885, (64 N. H. 2, 3 Atl. Rep. 312,) was upon the ground that illegality in the assessment of the property defeated the tax title. At a subsequent trial term the defendant moved that, as a condition of the reconveyance, the plaintiff be decreed to pay him the amount of taxes and expenses of sale, which he paid as a consideration for his deed. This motion was denied, and the defendant excepted. The requirements of the statute relating to the assessment of the tax, and the sale of the land, not having been, in substance, complied with, the collector's deed gave the defendant no title against the prior owner showing title. Thompson v. Carr, 5 N. H. 510. The sale by the collector was an official sale, and the power to sell was derived from the statute; and the validity of the defendant's title, except as against a stranger, depended upon the due execution of the power according to the terms of the statute. The prior owner of the land had no connection with the sale, and did nothing to countenance the proceedings which led to it. The purchase was not made at his request, nor did the defendant make the purchase as agent, servant, or tenant of the owner or of the plaintiff, pursuing the owner's rights as creditor, nor was he acting in any fiduciary capacity. The owner was in no way in privity with the defendant's grantor, and was not bound by any covenants or recitals in the defendant's deed. The defendant, in making the purchase, had no covenants of warranty to rely upon. He had notice of the defects in the proceedings in assessment of the tax and the sale of the land, for they were of record. He paid but a trifling consideration, $112, for a deed of property valued for assessment at $5,500. He was not paying off a lien or an incumbrance upon the land, having an interest to protect, nor did he acquire by subrogation any rights or claims against the owner. Taking a deed under these circumstances, he must be held to have taken it at his own risk, and the risk of a failure in the proper execution of the power of assessment and sale. Taking it at his own risk, the doctrine of caveat emptor applies in its full force, and he has no claim, legal or equitable, against the former owner, for refunding the purchase money. Lynde v. Melrose, 10 Allen, 49; Hamilton v. Valiant, 30 Md. 139; Jenks v. Wright, 61 Pa. St. 410; Cooley, Tax'n, 328, 329. If, as is urged by the defendant, the owner of the land, whose interest the plaintiff is pursuing as creditor, owed the duty of contributing his...