van Woudenberg v. Valentine

• Decision Date: 20 July 1939
• Citation: 7 A.2d 623
• Parties: VAN WOUDENBERG v. VALENTINE.
• Court: Maine Supreme Court

7 A.2d 623

VAN WOUDENBERG

v. VALENTINE.

Supreme Judicial Court of Maine.

July 20, 1939.

Exceptions from Superior Court, Lincoln County.

Real action by Lina Van Woudenberg against Dorothy Louise Valentine involving question of best title to land. Judgment for plaintiff. On defendant's exceptions.

Exceptions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Alan L. Bird, of Rockland, for plaintiff.

Abraham Breitbard and Wilfred E. Diamond, both of Portland, for defendant.

DUNN, Chief Justice.

In this real action, the plea was the general issue. A hearing in vacation before a judge, no jury participating, R.S. Chap. 96, Sec. 39, as amended by P.L. 1933, Chap. 14, involved the question of the highest right or best title to the land. Plaintiff predicated her claim to the legal title. Judgment went for her.

The first question on exceptions by defendant is whether a sale, and an eventually delivered deed purporting to evidence the conveyance of certain real estate for unpaid delinquent taxes, effected a divestment of the original title to the property.

The levy and assessment was of April 1, 1932, in Bremen, against owners nonresident in the town. The collector, in selling and deeding, proceeded under Revised Statutes, Chapter 14, Section 72, et seq.

The auction was on February 6, 1933. The bid of the town, $20.77, a sum exactly totalling the amount of the taxes and accrued costs, for the whole estate, was successful. The premises were struck off, accordingly.

Tax sales are subject to defeasance by redemption of the property within two years. R.S. Chap. 14, supra, Sec. 80, as amended by P.L. 1933, Chap. 205. This privilege, conferred by, and not existing independently of, statute, was not here asserted.

The town quitclaimed its title. Intermediate deed, dated June 23, 1937, and duly recorded, brought that title to defendant.

Plaintiff's title is derived from the true owners. Her deed is subsequent, as respects both the time of its execution and of its record, to defendant's deed.

Sales for default in taxes must rightly adhere to statutory requirements. Those requirements, being designed for the security of property owners, or for their benefit, are mandatory and not directory, Whitmore v. Learned, 70 Me. 276, 278; United Copper Min. & Smelting Company v. Franks, 85 Me. 321, 322, 27 A. 185; Roberts v. Moulton, 106 Me. 174, 176, 76 A. 283. A conveyance of real estate for nonpayment of taxes is, in general, for an inadequate consideration, on ex parte proceeding, and against the will of the land owner. French v. Patterson, 61 Me. 203, 210; Whitmore v. Learned, supra.

Of controlling importance in the present inquiry is a statute provision that, before offering nonresident owned real estate for sale for tax delinquency, tax collectors shall, additionally to previous newspaper notice of the time and place of (except the taxes be sooner paid), the intended selling and other details, "lodge with the town clerk a copy of each such notice, with his [i. e., the collector's] certificate thereon that he has given notice of the intended sale as required by law." The statute continues: "Such copy and certificate shall be recorded by said clerk and the record so made shall be open to the inspection of all persons interested". R.S. Chap. 14, Sec. 72.

There is, on the record, no dispute that the tax collector, in his effort to enforce collection of a valid tax, punctiliously followed statute prescription. The town clerk, although he indorsed on the copy and certificate the words: "received and recorded", never did register the copy and the certificate in the sense of actually spreading them of record. At the trial below, the registering official produced the copy and the certificate, neither of which had been recorded.

The clerk's failure to record the copy and the certificate must be held fatal to validity of the tax collector's deed. See, as affording a rule for guidance in the present instance, Stafford v. Morse, 97 Me. 222, 54 A. 397. There, a statute required, on foreclosure of a real estate mortgage by publication, that a copy of the printed notice and the name and date of the newspaper in which it was last published be recorded in the office of the register of deeds, within thirty days after the last publication. A certificate of a register as to such record was not dated, and there was no record evidence that the printed notice was seasonably recorded. The foreclosure was held ineffectual. Nor was the record amendable after the thirty days had elapsed. Stafford...