Hathaway v. Elsbree

The opinion of the court was delivered, by Thompson, J.

The plaintiff below claimed the lands in controversy by virtue of a sale for taxes under the 41st section of the Act of 29th April 1844. Previously to the passage of this act, it is well known that property on which there was either residence or cultivation, or both, was not the subject of a sale for taxes. The provisions of the section are new, and up to this time but few sales have been had under it. We must regard the act as sui generis to some extent at least, a distinct system, operating *503 on a different class of property from the Act of 1815, for the sale of unseated lands, and hold sales under it as we have held those made under the Act of 1815, only efficient to pass title when the property is in fact what the sale professes it to be when it takes place. In other words, as the sale of seated lands sold as unseated passes no title, so unseated lands sold as seated should give none. It is undoubtedly the actual character of unseated which gives jurisdiction to sell unseated lands for taxes, and why shall not the same rule hold in the ease of seated, namely, that it is the character which it actually possesses which gives jurisdiction to sell under the Act of 1844 ? I admit that it might be difficult to point out an evil in selling unseated lands under the provisions of this act, beyond the inconvenience of giving the required notice that a sale has taken place; but this would no doubt be developed if practised. A more conclusive answer, however, to- such an argument is, ita lex seripta est. We think we are bound, and that it is the wisest course, also, to adhere to what was evidently intended by each of these enactments, viz. that under the one only unseated lands were to be sold, and the other seated. This I believe to be the professional idea throughout the Commonwealth. In Arthurs v. Smithers, 2 Wright 411 , the supposed defect in the sale insisted on there was, that the land was unseated; but the defence failed only because the fact was not so, there being a dereliction of possession for but about a year before the tax was assessed for which it was sold. I cite that case now, only to show to some extent the professional sense in regard to the point, viz. that if it had been unseated, the sale as seated would not have been good.

In the case in hand, it was conceded by court and counsel, and so found by the jury, that the land in question was unseated in fact when the taxes were assessed. The offer and reception of the evidence to show that in 1852 the land was returned by a part owner as seated, and therefore to be treated as seated, was itself a concession that it was unseated, else why offer the testimony ? Although at that time it was not improper to return the land as seated, because the owners wrnre actually in possession, occupying it in lumbering, and had a house or two, and barn on it, and a family occupied the houses for the accommodation of the lumbermen, yet the occupation was only temporary, was soon abandoned, and what little improvement had been made was suffered to grow up into brush, and the houses and barn became dilapidated and partly, if not entirely destroyed, and the property had resumed its native or wild state, long before the taxes were assessed upon which it was sold. Hence the necessity of establishing a seated character constructively, if not actually, and for this the act of Dunham, with the assent of his co-tenant in returning it as seated, was given in evidence. The *504 testimony was to establish the position, that if the land had been once placed on the seated list, and the taxes so paid for several years, it must so remain until they, or the subsequent owners should choose to return it as unseated, and if sold before such change, the owners would be estopped from denying that it was seated. Here, we think, was an error, and which pervaded the whole case.

In the first place the land was never returned as seated, but in 1852, when it was not improper so to consider it. After this the occupancy ceased in that year or perhaps the next; no instructions were afterwards given by anybody, and certainly not by the present owners, in what character to assess it. It was left thereafter to the assessors to deal with it as required by law. Accordingly it was returned by them some years as “ timber lands,” sometimes as “ unimproved,” and was so returned at the triennial assessment of 1858, and so assessed in 1859-60, with the taxes for which it was sold, but never returned as seated, excepting about the years 1852-53. If the fact even was, that the defendants or those under whom they claim as heirs or otherwise, had verbally directed it to be placed on the seated list, I see not how the plaintiff could claim this as an estoppel against showing that it was unseated, without showing, what he did not, that he was misled by the act, and was induced thereby to part with his money in the purchase of the land, and that it would be a fraud upon him, if they were permitted now to allege the contrary. This would be essential to raise an equitable estoppel. The act of so returning the land could not operate as an estoppel on any other ground. It was not a contract, nor a representation that could so operate, on independent principles. It did not express the fact that for the years 1859-60 it was seated. It amounted to nothing if not an estoppel. But if a return could so conclude the owner, and might be set up to sustain a sale made contrary to the intent of the statute, then the tax-title could be made to rest on parol testimony for its validity — upon frail memory of mere deductions, growing more frail and uncertain every day. Titles by public sales cannot be made to stand on any such grounds.'

This testimony was predicated of certain exceptional cases, such as Larimer v. McCall, 4 W. & S. 133 ; The Commercial Bank v. Woodside, 2 Harris 404; and Milliken v. Benedict, 8 Barr 169; in which it was held, I think much against the spirit of the tax laws, that where an arrangement existed between the county commissioners1 and owners of unseated lands that they should be placed upon the seated list for the convenience of the latter in paying their taxes to the collector instead of the county treasurer, they could not be transferred to the unseated list without notice to him. The reasoning was, that the owner, relying on the assessment, might lose his land if not notified of the *505 charge by a sale for taxes, when he had no reason to apprehend any danger of its being sold as unseated. A liberal support was acceded to such arrangements, as is shown by the cases referred to, in order to save titles from being divested for non-payment of taxes. In this case, the rule was made, by the application of the same principle, to operate the other way, and to destroy title. But this was not all, for in order to give it that effect, it is shown to be necessary to such titles to rest them on oral evidence of what took place when the land was returned to the assessor, to bring it within the jurisdiction of the act — constructively even then; while the actual condition was such as to exclude it. Titles must rest on something more substantial than that. The law intends them to have their basis, at least so far as the tax is concerned, on the records in the office of the county commissioners: McCall v. Larimer, supra. We think there was no ground for an estoppel in the case, and 'the land being in fact unseated when assessed for the taxes for which it was sold, the sale was void as seated.

But do the assessment books show that these lands stood on them as seated in 1859-60 ? I think they do not. The triennial assessor of 1858 went to the land to ascertain its character and found it vacant; neither cultivation nor residence on it. The temporary buildings were in ruins, fences gone, and improvements grown up. This describes unseated land — land subject to be sold as such, as many decisions show. He returned it “ unimproved,” and the court would not let him interpret his meaning in the use of the word. That was all right. But the word defined what he had seen and described, and. that was unseated land. It was returned as “ unimproved” for 1859-60. To say this was a return of seated, is a mistake of the meaning of words. If land be not improved in any way, and the term used is just that general, it is equivalent to saying there is neither cultivation nor residence on it. There is no law requiring any particular word or words to be used in describing the character of seated or unseated— whatever shows it to be the one or the other is sufficient. To return a tract as having so many acres cleared or improved, or so many acres unimproved, describes seated land; “ cleared” and “ unimproved,” express opposite conditions in the same tract. The former conveys the idea of cultivation, while the latter the absence of that; a state of nature. When the last term alone is employed in describing the entire tract, it has the same meaning of course as it has when describing the condition of a portion of a tract. It means uncultivated and unseated. Thus, in the case in hand, the evidence in the office was that the land was unseated. The sale had nothing in fact to sustain it, in or out of the record. Following the idea of the court to its logical results, that the land was to be regarded as constructively seated, produced a most *506 anomalous result in this case. One part owner was not visited with notice that it had ever been returned as seated by an owner; and the other was. Consequently there was a verdict for the plaintiff for an undivided half of the land as seated, and for the defendants, of an undivided half as unseated. It is quite certain that there is something, wrong in the administration of a law when such inconsistent results are the consequence.

We think the court erred in all it said or did on the aspects of the case we have noticed, and hence the judgment must be reversed. The other points are not material in this view of the case; but we may say we think the notice of the sale was well enough established to have been a compliance with the act, if there had been a proper case for it to have operated on. If the plaintiff have any reason to think he can do better in another action, we give him the opportunity by granting a venire de novo.

Judgment reversed, and venire de novo awarded.