Wiggin v. Temple

• Decision Date: 24 March 1882
• Citation: 73 Me. 380
• Parties: HOWARD P. WIGGIN v. LEVI TEMPLE.
• Court: Maine Supreme Court

73 Me. 380

HOWARD P. WIGGIN v. LEVI TEMPLE.

Supreme Judicial Court of Maine.

March 24, 1882

ON REPORT.

Writ of entry to recover possession of certain real estate in Bath. Writ dated July 28, 1880. Plea, nul disseizin.

The title of plaintiff's grantor to the premises rested upon the following deed.

" To all persons to whom these presents shall come, I, Howard P. Wiggin, a collector of taxes for the city of Bath, in the county of Sagadahoc, and State of Maine, for the year one thousand eight hundred and sixty-seven, send greeting Whereas, the assessors of the city of Bath aforesaid, have assessed Levi Temple the sum of twenty-two and fifty hundredths dollars for a tax as a resident proprietor or occupant of real estate in said Bath, in the lists of assessments they have committed to me to collect; and whereas no person has appeared to discharge the said tax, although I have advertised the same, and also the time and place of sale, by posting up advertisements six weeks prior to the time of sale; and I have lodged a copy of said advertisement with the clerk of said Bath, and given personal notice in writing as required by law.

Therefore know ye, that I, the said H. P. Wiggin, collector of taxes aforesaid, in consideration of the sum of twenty-six dollars and seventy-six cents, to me paid, for discharging the said taxes and necessary intervening charges by Joseph M Hayes of Bath, in the county of Sagadahoc and State of Maine, do hereby give, grant, sell and convey to the said J. M. Hayes his heirs and assigns forever, all of the following described real estate, taxed as aforesaid, viz: four houses and lots on Winslow street, ward three, and bounded as follows: North, by Winslow street; east, by land of Henry Donnell and William Winslow; south, by land of David W. Standish, and west, by land occupied by Henry Varney, the same having been struck off to the said J. M. Hayes, the highest bidder therefor, at a public auction, notified and held at the city treasurer's office, in said Bath, on the twenty-sixth day of May, eighteen hundred and sixty-eight in pursuance of the aforesaid notice.

To have and to hold the same to the said J. M. Hayes his heirs and assigns to his and their own use forever; subject however, to the right of redemption of the owner thereof, or his heirs or assigns, at any time within the time specified by law, from the time of sale as aforesaid.

In witness whereof, I have hereunto set my hand and seal this twenty-sixth day of May, eighteen hundred and sixty-eight.

H. P. Wiggin, city collector. [Seal.]

Signed, sealed and delivered in presence of H. M. Bovey."

Duly acknowledged and recorded.

Henry Tallman, for the plaintiff.

W. Gilbert, for the defendant.

DANFORTH J.

In the report of this case it is provided that if the collector's deed to Hayes under whom the plaintiff claims, " is not efficacious to pass the title, the plaintiff is to become nonsuit."

There are several errors in the deed either one of which must be deemed fatal to its efficacy. In the recitals it does not appear that the tax assessed upon the defendant and committed to the collector " had remained unpaid for the term of nine months from the date of the assessment" before giving notice of the sale, or that the notices thereof were posted " in the same manner and at the same places that warrants for town meetings are therein required to be posted," or the length of time or manner of giving the personal notice to the owner or occupant, all of which seem to be required by R. S. c. 6, § § 167, 168, as amended by c. 238 of the acts of 1874.

But especially is there not only an omission to show that there was an offer to sell such fractional part as might be necessary to pay the tax and charges, but it appears affirmatively that it was sold as a whole, " the same having been struck off to the said J. M. Hayes, the highest bidder therefor." French v. Patterson, 61 Me. 209; Whitmore v. Learned, 70 Me. 279; Allen v. Morse, 72 Me. 502.

But the plaintiff contends that if the deed is not efficacious to pass the title it is sufficient to require the defendant to deposit with the clerk the taxes and charges before he can be permitted to defend the action or contest the validity of the deed. In other words that he must make this deposit or submit to a default before a prima facie case is made against him.

But if the deed is insufficient to pass the title, it can have no other effect than simply to give the defendant notice that the plaintiff claims under a tax title, the validity of which is involved in the trial. Still no proof is given...