Jaquith v. Putney

Smith, J.

I. It has already been decided that if, in the list of non-resident taxes, land is not taxed in the name of an individual, the prima facie presumption is that the name of the owner, or original proprietor, was unknown ; Cardigan v. Page, 6 N. H. 182; Smith v. Messer, 17 N. H. 420; and we think that if land is taxed in the name of an individual, it is to be presumed, till the contrary appears, that the name thus inserted in the list is that of the owner, or original proprietor; see as to presumptions in favor of the validity of the acts of selectmen, Gordon v. Norris, 29 N. H. 198; Blake v. Sturtevant, 12 N. H. 567, p. 572; Shackford v. Newington, 46 N. H. 415, pp. 420-422; Fletcher v. Drew, Coos, July Term, 1868; also, Perry v. Buss, 15 N. H. 222, p. 224; Proctor v. Andover, 42 N. H. 348, pp. 357—9; Smith v. Conway, 17 N. H. 587, p. 592. In the present case the land was taxed in the name of James Boutwell, and, if the plaintiffs alleged that the taxation was not according to ch. 40, sec. 10, or ch. 46, sec. 1, Rev. Stats., the burden was upon them to show that Boutwell was neither the owner nor original proprietor. In the absence of exceptions to the charge of the court, it may be pre *140 sumed that whatever evidence the plaintiffs offered on this point was submitted to the jury with proper instructions; and the verdict for the defendant negatives the ground of the plaintiffs’ objection.

II. We understand from the case that the records of the county convention were introduced to prove the grant of the county tax, and that these records purported to be signed by Joseph Copeland as clerk, but that it did not sppear by the record that Copeland was sworn as is required in ch. 28, sec. 2, Revised Statutes. From the necessity of the case, it must be competent for the clerk of the county convention to make a record of his own election and qualification; see Briggs v. Murdock, 13 Pick. 305 , p. 316; but the record in this case does not show Copeland to have been a clerk de jure, because it contains no statement that he took the oath of office.

It is said that it would have been sufficient for the purposes of the present case to have proved Copeland a clerk de facto, but this was not done at the trial. There was no proof that Copeland ever acted as clerk upon any other occasion than that which is the subject of the controversy ; see State v. Wilson, 7 N. H. 543; Goulding v. Clark, 34 N. H. 148; Hall v. Manchester, 39 N. H. 295; and there was no proof except his own certificate that he acted as clerk even upon that occasion. The act itself cannot prove the authority to act. To hold that it does, would be "begging the whole question.”

It follows that the doings of the county convention were not legally proved at the trial.

But the evidence furnished to the court since the trial puts a different complexion on the matter. As the plaintiffs did not, at the caption, object to the answers, Lisbon v. Bath, 23 N. H. 1, pp. 9, 10, nor cross-examine the witness as to the meaning attached by him to the word "impression,” Willis v. Quimby, 31 N. H. 485, pp. 489, 490, they cannot now say that the witness did not testify to his recollection, but merely stated an opinion or inference; and upon the testimony we find as matter of fact that the clerk was duly sworn.

Can the record be amended so as to show that the clerk took the oath of office ? The plaintiffs do not occupy the position of subsequent purchasers or attaching creditors, and the case therefore differs from Whittier v. Varney, 10 N. H. 291, and Gibson v. Bailey, 9 N. H. 168; and the observations of Barker, C. J., in Whittier v. Varney, p. 301, cited by plaintiffs, are expressly limited, on page 302, to cases where interests of third persons have intervened. As the rights of third persons have not intervened here, the amendment, being shown to be conformable to the truth, may be allowed, although there is nothing in the record as originally made indicating the probability that the facts stated in the amendment took place. See Bean v. Thompson, 19 N. H. 290; Bishop v. Cone, 3 N. H. 513; Avery v. Bowman, 39 N. H. 393; Parker, C. J., in Whittier v. Varney, 10 N. H. 291, pp. 298, 299.

The plaintiffs have cited the following extract from the opinion of Richardson, C. J., in Cardigan v. Page, 6 N. H. 182, p. 190: *141 “ When lands are sold for taxes, the former owner ought to be able to learn from the records of the proceedings whether his title has been lost. He ought not to be put to the expense of a lawsuit to learn whether his land has been legally sold.” But an examination of that case renders it most probable that this language was used to enforce the idea that the record was the only proper evidence of certain official acts, and that it was not meant that the record could not be amended. On the very same page, Richardson, Q. J., said : "In most cases, an imperfect return can be amended, and if the facts will warrant it, a good return be made.” If, however, the language of the court in Cardigan v. Page should receive the construction that the plaintiffs contend for, it must be regarded as overruled by the subsequent decision in Bean v. Thompson, 19 N. H. 290. In Cardigans. Page, Richardson, C. J., was speaking of an imperfect return on a town meeting warrant. In Bean v. Thompson , there was originally no return on the warrant, but the selectmen were permitted during the trial to make a return, and the town clerk to amend the record accordingly, against the objection of a purchaser. In Bishop v. Cone, 3 N. H. 513, in which the opinion was delivered by Richardson, C. J., an amendment was allowed, which did not, as in the present instance, merely supply an omission, but corrected a positive mis-statement in the record as originally made.

If the court considered a tax-title claim as unmeritorious, it would not follow that we should deny to the claimant the same privileges in relation to making amendments that are ordinarily allowed in other cases; see Parker, C. J., in Williams v. Little, 11 N. H. p. 576; N. H. Savings Bank v. Webster, Merrimack, June Term, 1868.

But it may perhaps be found upon examination that the right of the land-owner to insist that his property shall not be taken from him without a compliance with all statute provisions is of no higher nature than his obligation to contribute to the support of those governmental institutions without which there would be no property and no law.

III. It would seem that the record shows that the collector put up the whole lot for sale. This would constitute a defect in the tax title ; Ainsworth v. Dean, 21 N. H. 400; Lyford v. Dunn, 32 N. H. 81, pp. 86—7; D avis v. Handy, 37 N. H. 65, p. 69; and the record could not be contradicted or explained by parol evidence. But the testimony seems to show that in fact the collector offered for sale only so much of the lot as was necessary to pay the tax and charges, and a majority of the court are of opinion that the record may be amended so as to conform to the truth in this respect. The decision in Bishop v. Cone, before cited, tends to sustain this ruling.

The amendments in this case are of such a nature that they may be made after verdict. Whittier v. Varney, 10 N. H. 291. When they have been made, there should be Judgment on the verdict.