Digest of the law of tax titles, and form book, embracing all practical tax forms in all departments of law for the use of town, county and state officers, adapted to the New England states, also containing (with notes, directions and citations,) forms of proceedings, for town officers, school committees, trial justices, coroners, sheriffs, constables and county commissioners, adapted to the revised statutes of Maine, with an appendix, containing legal forms for business men
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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020025387 OF THE LAW OF TAX TITLES, AND FORM BOOK, KMBRAOINft ALL PRACTICAL TAX POBMS IN ALL DEPARTMENTS OF LAW FOE THE USB OP TOWN, COUNTY AND STATE OFFICERS, ADAPTED TO THE NEW ENGLAND STATES, ALSO OOKTAININa (With Notes, Dire^ions and Citations,) FORMS OF PROCEEDINGS, FOR TOWN OFFICERS, SCHOOL COMMITTEES, TRLA.L JUSTICES, CORONIIRS, SHERIFFS, CONSTABLES AND COUNTY COMMISSIONERS, ADAPTBD TO THE REVISED STATUTES OF MAINE, WITH AN "^ coNTAmma legal forms for business men. K^ X^* v:^ BY WM. W. BOLSTER. POETLAND, ME. : PUBLISHED BY DRESSER & AYER. 18T1. 'i , //^i7 Entered according tothe Act of Congress, in the year 1871, by W. W. BOLSTER, In the office of the Librarian of Congress at ■Washington, Daily Press Printing Hoiise, Exchange St., Portland, Me. WM. M. MAKES, PRINTER. ERRATA. Page 16, last word of section 16, for Const, read Comst. Page 17, In second line, for Yates read Teates. Page 160, in third line of page, read their for\tMs- Page 237, in seventh line oinjtthe word not. '^ Page 243, in last line for seventy read eighty-four. Page 251, in first and third line under diagram, for give read gave ; at the end of the sixth line under diagram insert the word of. Page 280, for chapter 55 read 65. Page 342, in sixth line from the bottom, for announce read answer. Page 379, first line, for same read some. Page 415, in first line of remarks after bearer add or order. Page 434, in twenty-first line after legal read costs. Page 436, in twenty-fifth line after the word return omit the, word to. Page 437, in sixth line for unrepresented read unpresented. Page 438, in third line omit the letters C. D. CONTENTS. CHAPTER I. THE TAXING POWER 9™n CHAPTER II. OF THE NATURE OF THE POWER TO SELL LAND FOR THE NON-PAYMENT OF TAXES, AND OF THE STRICTNESS REQUIRED' IN SUCH SALES 12—18 CHAPTER III. OF THE ONUS PROBANDI. (The Burden of Proof.) 19—22 CHAPTER IV. OF THE ELECTION AND QUALIFICATION OF THE SEV- ERAL OFFICERS WHO HAVE ANYTHING TO DO WITH THE EXECUTION OF THE POWER 23-26 CHAPTER V. OF THE LISTING AND VALUATION OF THE LAND 27—37 CHAPTER VI. OF THE LEVY OP THE TAX 38_il CHAPTER VII. OF THE AUTHORITY TO COLLECT THE TAX 42—43 CHAPTER VIII. OF THE DEMAND OF THE TAX 44_45 CHAPTER IX. OF THE SEIZURE OF THE BODY, OR GOODS AND CHAT- TELS OF THE DELINQUENT, TO SATISFY THE TAX. 43 VI CONTENTS. Pages. CHAPTER X. OF THE RETURN OF THE DELDTQUENT LIST 47 CHAPTER XI. OF THE ADVERTISEMENT OF THE TIME AND PLACE OF SALE 48—58 CHAPTER XII. OF THE AUTHORITY OF THE OFFICER TO SELL 59—61 CHAPTER XIII. OF THE DISTINCTION BETWEEN CONDITIONS PRECE- DENT AND DIRECTORY REQUIREMENTS 62—64 CHAPTER XIV. OF THE SALE OF THE LAND 65—70 CHAPTER XV. OF THE CERTIFICATE OF SALE 71—72 CHAPTER XVI. OF CONDITIONS SUBSEQUENT TO THE SALE 73—76 CHAPTER XVII. OF THE AUTHENTICATION OF THE DIFFERENT DOCU- MENTS 77—79 CHAPTER XVIII. OF THE LOCATION OF THE LAND SOLD 80 CHAPTER XIX. OF THE AMENDMENT OF THE PROCEEDINGS 81—83 CHAPTER XX. OF THE TAX DEED ... 84—87 CHAPTER XXI. OF VARIANCES BETWEEN DIFFERENT DOCUMENTS AND RECORDS RELATING TO THE PROCEEDINGS 88 CHAPTER XXII. OF SALES ACTUALLY AND CONSTRUCTIVELY FRAUD- ULENT 90—92 CONTENTS. VII Pages. CHAPTER XXIII. OF THE EFFECT OF THE SALE AJSTD DEED, WHEN THE LAKD SOLD WA8 EXEMPT FROM, OR NOT SUBJECT TO TAXATION ^ 93—94 CHAPTER XXIV. OF THE EFFECT OF THE SALE AND DEED, WHEN THE TAXES HAVE BEEN PAID BEFORE THE SALE 95 CHAPTER XXV. OF THE EFFECT OF THE SALE AND DEED, WHEN A REDEMPTION PROM THE SALE HAS BEEN MADE... 96—97 CHAPTER XXVI. OF THE EFFECT OF THE SALE AND DEED, WHEN THE OFFCER HAS ABUSED OR EXCEEDED HIS AUTHOR- ITY 98 CHAPTER XXVII. OF THE COVENANTS OF THE OFFICER, CONTAINED IN THE TAX DEED :... 99—100 CHAPTER XXVin. OF THE CONSENT OF THE OWNER TO IRREGULARITIES IN THE PROCEEDINGS 100 CHAPTER XXIX. OF SALES OF LANDS FOR TAXES, UNDER THE CHAR- TERS AND ORDINANCES OF MUNICIPAL AND OTHER CORPORATIONS 101 CHAPTER XXX. OF THE FORFEITURE OF LANDS TO THE STATE WHERE THE TAXES HAVE NOT BEEN PAID 102 CHAPTER XXXI. OF THE EFFECT OF THE REPEAL OF THE LAW UNDER WHICH THE PROCEEDINGS TOOK PLACE 103— lOi CHAPTER XXXII. OF- THE JURISDICTION OP THE COURTS IN CAUSES IN- VOLVING THE VALIDITY OF TAX SALES, AND OF THE REMEDIES OF PARTIES INTERESTED THEREIN 105—107 VIII CONTENTS. CHAPTER XXXIII. OF THE MODE OF PLEADING A TAX TITLE 108—110 CHAPTER XXXIV. OF THE RULES OF EVIDENCE RELATIVE TO MAINTEN- ANCE AND OVERTHROW OF A TAX TITLE ..111—118 CHAPTER XXXV. OF THE TITLE WHICH PASSES TO THE PURCHASER AT A TAX SALE 119—122 CHAPTER XXXVI. OF THE PRINCIPLE OF STARE DECISIS CONCERNING TAXTITLES 123—124 CHAPTER XXXVII. OF TAX TITLES AS THE FOUNDATION OF AN ADVERSE POSSESSION UNDER THE STATUTES OF LIMITA- TIONS 125—129 CHAPTER XXXVIII. OF COMPENSATION FOR IMPROVEMENTS MADE BY PER- SONS IN POSSESSION UNDER TAX TITLES 130—132 CHAPTER XXXIX. OF FORMS FOR CALLING TOWN MEETINGS AND OP RECORDS 133—138 CHAPTER XL. OF THE NOTICE TO BRING EST LISTS OF TAXABLE PRO- PERTY 139—153 CHAPTER XLI. OF THE FORM AND METHOD OF ASSESSMENT 154—157 CHAPTER XLII. FORMS OF WARRANTS, LISTS AND COMMITMENT 158—161 CHAPTER XLIII. COLLECTION OF TAXES IN INCORPORATED PLACES ON REAL ESTATE OF RESIDENT OWNERS 162—170 CONTENTS. IX Pages. CHAPTER XLIV. EEPOKT OF TAX CASE, GREEN vs. LUNT, AKD DECISION OF SUPREME JUDICIAL COURT THEREIN" 171—189 CHAPTER XLV. COLLECTION" OF TAXES IN INCORPORATED PLACES ON LANDS OF NON-RESIDENT OWNERS 189—196 CHAPTER XLVI. OF ASSESSMENT AND COLLECTION OF TAXES IN PLAN- TATIONS, AND SALE OP LAND FOE TAXES ASSESSED THEREIN 197 CHAPTER XLVII. OF LAND NOT LIABLE TO BE ASSESSED IN ANT TOWN .. 197— 206 CHAPTER XLVIII. OF THE COLLECTION OP TAXES TO BUILD AND REPAIR ROADS IN PLACES NOT INCORPORATED ...206—220 CHAPTER XLIX. OF DISTRESS AND COMMITMENT FOR NON-PAYMENT OF TAXES 221—225. CHAPTER L. OF COLLECTOR OF TAXES AND CONSTABLES 226-240 CHAPTER LI. OF TOWN TREASURERS WHEN APPOINTED COLLEC- TORS ' 241—244 CHAPTER LII. OF WARRANTS FOR TOWN MEETINGS AND OATHS OF OFFICERS 244—247 CHAPTER LIII. ABATEMENT OF TAXES 247—248 CHAPTER LIV. HIGHWAY SURVEYORS 249—251 CHAPTER LV. TOWN LINES 251—253 X CONTENTS. Pages. CHAPTER LVI. TOWN WATS AND BRIDGES 254—256 CHAPTER LVII. SCHOOL MEETINGS AND AGENTS 257—263 CHAPTER LVm. PARISHES AND RELIGIOUS SOCIETIES 263—264 CHAPTER LIX. PAUPERS 264—270 CHAPTER LX. BASTARD CHILDREN AND THEIR MAINTENANCE 270—274 CHAPTER LXI. TOWN HOUSES OF CORRECTION , 275 CHAPTER LXn. PREVENTION OF FIKES 276 CHAPTER LXIII. INNHOLDERS AND VICTUALERS 277—278 CHAPTER LXIV. PUBLIC EXHIBITIONS 279—280 CHAPTER LXV. WOLVES AND BEARS 280—281 CHAPTER LXVI. POUNDSl, and IMPOUNDING BEASTS 282—288 CHAPTER LXVn. DIVISION FEN€ES 289—293 CHAPTER LXVIII. LOST GOODS ,'. 294 CHAPTER LXIX. AUCTIONS AND AUCTIONEERS 295 CONTENTS. XI _. Pages. CHAPTER LXX. PAWNBEOKERS AND INTELLIGENCE OFFICES 295 CHAPTER LXXI. SELECTION AND SERVICE OF JURORS 296—297 CHAPTER LXXII. CORONER'S INQUEST 297—300 CHAPTER LXXIII. MARRIAGE AND ITS SOLEMNIZATION 300—302 CHAPTER LXXIV. INQUEST IN CASES OF SUSPECTED INCENDIARISM 302—304 CHAPTER LXXV. FORMS AND PROCEEDINGS OF TRIAL JUSTICES IN THE TPvIAL AND DISPOSITION OF CRIMINAL CASES... 304—337 CHAPTER LXXVI. JURISDICTION OF TRIAL JUSTICES IN CIVIL CASES... 337—875 CHAPTER LXXVn. MISCELLANEOUS FO RMS 377—443 APPENDIX 377 AMERICAN EEPORTS CITED. Name of Eepoktee. Abbbbviation. State. Aikehs Vermont. Alabama Ala ^ Alabama. Allen , Massachusetts. Arkansas Ark Arkansas. Barbour Barb New York. Beasley, Ch New Jersey. Bibb Kentucky. Blackford Blackf. & Black Indiana. Bland Maryland. Brockenbrough Brock IT. S. Circuit. California Cal '..California. Casey Pennsylvania. Cheves South Carolina. Comstock., Comst New York. Connecticut Conn Connecticut. Cranch XJ. S. Sup. Court. Cowen Cow New York. Cushing Cush Massachusetts. Cushman Ciush Mississippi. Denio New York. Douglass Dougl Michigan. English ' Eng Arkansas. Pairfleld Fairf Maine. Foster New Hampshire. Florida Florida. Gribbs Michigan. Gilman Gilm .Illinois. Gill & Johnson Gilm & J Maryland. Gilmer Gilm Virginia. Gill .' Maryland. Gray Massachusetts. Grattan Gratt Virginia. Greenleaf Green. Greenlf Maine. Greene G Iowa. Harrington Harring Delaware. XIV AMERICAN REPORTS CITED. Name of Reporter. ABBREyiATioif. State. Harris Har Pennsylvania. Hammond _. Ham Ohio. Henning & Munford Hen. & Munf. Virginia. Hill New York. Hill South Carolina. Howard How U. S. Sup. Court. Illinois. Ill Illinois. Indiana Ind Indiana. Iowa Iowa. Iredell Ired North Carolina. Johnson John,i New York. Johnson's Chancey Johns. Ch .New York. Kelley Georgia. Leigh Virginia. Louisiana Annual R La. Ajin Louisiana. Louisiana La Louisiana. Marshall (A. E.) A. E. Marsh Kentucky. Maine Me Maine. Maryland Md Maryland. Mason U. S. 1st Cii-cuit Court. Metcalf Met Massachusetts. M'Lean McL U.S. 7th Circuit Court. Minnesota Minn Minnesota. Minor Min Alabama. Michigan Mich Michigan. Missouri Mis Missouri. Mississippi Miss Mississippi. • Monroe Mon Kentucky. Monroe, Benjamin B. Mon ; Kentucky. Nevada Nev Nevada. New Hampshire N. H New Hampshire. Ohio Ohio. Paige New York. Peters Pet U. S. Sup. Court. Pickering I'ick Massachusetts. Eandolph Rand Virginia. Rhode Island E. I Rhode Island. Scammon Scam , Illinois. Sergeant & Eaule Serg. & Raule — S. & R . . . . Pennsylvania. Smedes & Marshall. ..... .Smedes & M Mississippi. Texas Texas. Vermont Vt Vermont. Vroom New Jersey. Washington Wash Virginia. Wheaton .Wheat U. S. Sup. Court. AMERICAN EEPOKTS CITED. XV Name of Heporteb. Abbreviation. State. Watts Pennsylvania. Watts & Sergeant. .' Watts & Serg. — W. S Pennsylvania. Wendell Wend New York. Wisconsin Wise Wisconsin. Wright Ohio. Teates Pennsylvania. Zabriskie Zabr New Jersey. BRITISH REPORTS CITED. Reporters. Burrow. East. Term Reports. MISCELLANEOUS WORKS CITED. Name of Work. Abbbeviatiok. Blackstone's Commentaries Bl. Com. Blackwell on Tax Titles Black, on Tax Titles. Brown's Legal Maxims Brown's Max. Bavis's Criminal Justice Davis' Crim. Jus. Chitty's Pleadings Chitty PI. Cruise's Digest Crn. Dig. Greenleafs Evidence Green. Ev. Kent's Commentaries Kent Com. Revised Statutes of Maine .R. S. of Me. Russell on Crimes Rus. on Crimes. Starkie's Evidence Stark Ev. Story's Equity Jurisprudence Story Eq. DIGEST AND SUMMARY. CHAPTER I. THE TAXING POWEE. 1. Taxes are defined to be burdens or charges imposed by the legislative power of a State, upon persons or property, to raise money for public purposes. 6 Johns. 92 ; 1 1 id. 77 ; Bleecker V. Ballou, 3 Wend. 263. 2. In a narrower sense, and as opposed to "excise," a tax is " a charge apportioned either among the whole people of the State, or those residing within certain districts, municipalities or sections." Oliver v. Wash. Mills, 11 Allen. 3. There is a manifest distinction between the taxing power and that of the eminent domain. Both, in effect, appropriate private property to public uses. They differ only in degree. — But taxation exacts money from individuals, as their share of a public burden ; and the tax-payers, according to the theory of our system, receives a just compensation in the benefits conferred by the government, in the proper application of the tax. Booth v. Woodbury, 32 Conn. 118. 4. When, however, property is appropriated by virtue of the right of eminent domain, it is taken, not as the owner's share of a public burden, but as so much more than his share. Special compensation is, therefore, to be made. The taxing power has no existence in a state of nature. It is the creature of civil socety. Government begets its necessity. "There must be inter- woven in the frame of every government a general power of tax- ation. Money is, with propriety, considered as the vital principle of the body politic ; as that which sustains its" life and motion, and 10 DIGEST AND SUMMARY. enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will pernfit, may be regarded as an indispensable ingredient in every constitu- tion. Blackwell on Tax Titles, page 2. 5. It may, therefore, be laid down as a principle of universal constitutional law, that the power to levy and collect taxes is an incident of sovereignty, without which no government could exer- cise'the powers expressly delegated to it. lb. 6. In the Federal Constitution there is an express grant to Congress, of the power to "levy and collect taxes." The State Constitutions do not confer this power upon the Legislature by any specific clause : (this statement does not apply to all the States, Massachusetts contains an express grant to the Legislature of the power). It passes under the general designation of "legislative power." It is implied, upon the principle, that a grant of legis- lative, judicial, and executive powers, carries with it, by con- struction, all the means necessary for their execution. It is also implied from the limitations to be found in the several State con- stitutions, as to the manner of levying taxes. lb. 7. The power of taxation operates upon all persons and prop- erty within the territorial jurisdiction of a State. There is no limitation upon the power of the Legislature, as to the amount or objects of taxation. The interest, wisdom, and justice of the representative body, and its relation with its constituents, furnish the only securityagainst unjust and excessive taxation. These principles are fully sustained by the authorities. Such is the nature, necessity, and extent of the taxing power. Providence Bank v. Billings, 4 Pet. 514; Brewster v. Hough, 10 N. H. 138 ; Mack v. Jones, 1 Foster, 393. See Lowell v. Oliver, '8 Allen, 247 ; People v. Hawes, 34 Barb. 69 ; Blanding v. Burr, 13 Cal. 343 ; Soens v. Racine, 10 Wise. 271 ; Oliver v. Wash. Mills, 11 Allen, 268. 8. The power to levy a tax properly belongs to the legislative power. The collection of it involves the exercise of judicial and executive functions. The legislature levy the tax — direct that a THE TAXING POWER. 11 demand shall be made on the owner of the land for the tax charged against it, and if payment is refused, authorize the collec- tor to seize the body or goods of the delinquent, and in case satisfaction is not had in one or the other of these modes, power is conferred upon the collector to sell and convey the land itself. Now before ,the power to sell the land can exist under the law, the fact of the levy and non-payment of the tax, the demand, and return of no goods, or that the body cannot be found, must exist. These facts must be ascertained to exist before the power of sale attaches. Whether the power to decide the question of delin- quency is vested by law in the regularly constituted judicial tribunals, or in those specially instituted for that purpose, or in the collector himself, can make no kind of difference ; it is the exercise of judicial power, and the officer who sells performs an executive function ; as that, in point of fact, the legislative, judicial, and executive departments of the government, all aid in the execution of the taxing power. Blackwell on Tax Titles, page 26. 9. It is undoubtedly a principle of natural justice, that every person shall have an opportunity of being heard before he is con- demned ; and to a hearing every tax-payer is entitled — but not before the ministerial officers of the law. They act at their peril in selling the land of the person assessed, where the taxes have been paid, or where they have not strictly complied with the law of the land ; and he acts at his peril in determining the question whether he will redeem or contest the validity of the sale. If he adopts the latter course, then, and not till then, is he entitled to be fully heard in his defence, in the judicial tribunals of the country. "Willard v. Wetherbee, 4 N. H. 118. CHAPTER II. OF THE NATURE OF THE POWER TO SELL LAND FOR THE NON-PAYMENT OF TAXES, AND OP THE STRICTNESS REQUIRED m SUCH SALES. 1. The power to impose a tax upon real estate, and sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised in doubtful cases. It is a naked power, which', in this instance may be defined to be a power operating upon an estate, in which the officer who executes it, has no manner of interest, and over which he has no control other than that which the law has expres.sly delegated to him. Sharp v. Speir, 4 Hill, 76 ; Williams v. Peyton, 4 Wheat. 77 ; Varick v. Tallman, 2 Barb. 113 ; Clarke v. Courtney, 5 Pet. 319. 2. It is a statutory power, depending alone upon the will of the sovereign, and not upon the consent of the owner. The statute creates the power, selects the agent to execute it, and prescribes the formalities which shall attend its execution. Doughty v. Hope, 3 Denis, 595 ; Varick v. Tallman, 2 Barb. 113. Judge Sharkey thus defines a statutory power-: "A power derived exclusively and directly from a statute, without any other agency, or the action of any judicial tribunal," Natchez v. Minor, 10 Smedes & M. 246. 3. It is special as contradistinguished from a general authority. The officer to whom it is delegated has no general power to sell land for the taxes charged against it, but simply a special one, to sell in the particular case mentioned in the statute creating the power. Williams v. Peyton, 4 Wheat. 77 ; Striker v. Kelley, 2 Denio, 330. 4. It will, therefore, be perceived, that the officer intrusted with the power of sale exercises a naked, statutory, and special NATURE OF POWER TO SELL LAND. 13 authority, depending alone upon the high prerogative of the State, and the letter of the law, for its support. Blackwell on Tax Titles, page 33. 5. The validity of a tax sale depends upon the authority of the officer to sell, and upon the fairness of the transaction. It would be going too far to say, that the officer, selling land with or with- out authority, could by his mere conveyance transfer the title of the rightful proprietor. He must act in conformity with the law, from whence his power is derived, and the purchaser is bound to inquire whether he has so acted. It is, therefore, held to be a condition precedent to the passing of the title at such sales, that all of the proceedings of the officers who have anything to do with the listing and valuation of the land, the levy and collection of the tax, the advertisement and sale of the property, the return, filing, or record of the proceedings, whether the acts are to be performed before or after the sale, must be in strict compliance with the statute authorizing the sale. Stead's Executor v. Course 4 Cranch, 403 ; Judevine v. Jackson, 18 Vt. 470 ; Early v. Doe, 16 How. (U. S.) 610; Sumner v. Sherman, 13 Vt. 609; Isaacs V. Wiley, 12 Vt. 677 ; Shimmin v. Inman, 26 Me. 228 ; Smith V. Bodfish, 27 Me. 295 ; Brown v. Veazie, 25 Me. 362 ; i'arnum v. Buflfum, 4 Gush. 267 ; Keene v. Houghton,' 19 Me, 368 ; Gushing v. Longfellow, 26 Me. 306 ; Hobbs v. Glements, 32 Me. 67 ; Matthews v. Light, 32 Me. 305 ; Brown v. Smith, 1 N. H. 36 ; Brown v. Dinsmoor, 3 N. H. 108 ; Alvord v. Gollin, 20 Pick. 418. 6. So strict, indeed, are the decisions in reference to this class of sales, that it has been said that a tax deed is prima facie void-. 4 Smedes & M. 628. 7. In this class of powers, the government, by its agents, acts in hostility to, and with the view of subverting the title of the citizen, for an alleged breach of its revenue regulations. Under such circumstances the presumption is, that the owner has violated no law — neglected no duty enjoined upon him, which shall have the efiect of working a forfeiture of his estate. He waives nothing by silence, stands upon all of his rights, and is permitted 14 DIGEST AND SUMMARY. to insist upon a strict compliance -with all of those conditions which the law has imposed upon its own agents, for their guide in the execution of the power. Varick v. Tallman, 2 Barb. 113. 8. The power of the officer to sell land for the non-payment of taxes by the owner, is a naked one, not coupled with an interest ; and in all such cases, whether the power is general or special, the ■ common law requires that every prerequisite to the exercise of the power, must precede it ; that the agent must pursue the power, or his acts will not be sustained by it. Judge Scates, in Hinman V. Pope, 1 Gilm. 131, well remarks, that "this vigilance of the law upon naked powers, is a substitute for that vigilance which INTEREST always prompts in those who execute a power coupled with an interest." 9. The evident intention of the legislature in the enactment of this class of laws, is to coerce the payment of taxes from the un- willing, and at the same time to protect the rights of private ownership as guaranteed by the fundamental principles of our institutions. The former object is accomplished by the sale of the delinquent's lands ; the latter by those conditions and forms, with which the officer is bridled and restrained in the execution of the power of the sale. A double — a general and particular — intent is thus manifested in all such laws, both of which should be sacredly respected, and carried out by the courts in construing them ; the true principle applicable in all such cases being, that the private interest of the citizen is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance ; nor should the power be exercised in any other mode than that specially pointed out by the statute. — Broom's Maxims, Second London Edition, 1848, pp. 8, 4. 10. Where a statute creates a new power, and at the same time provides the means and mode of executing it, those to whom the power is entrusted can execute it only in the mode prescribed. 6 Mass. 44; 14 Mass. 289. This rule requires a rigid adherence to the directions and forms which the legislature have seen proper to lay down for the government of its agents. The power is purely arbitrary, and this furnishes a strong reason why it should NATURE OF POWER TO SELL LAND. 15 not be exercised in an arbitrary manner. If the forms required to be observed are once departed from, there is an end of all legal restraint, and the discretion of the officer is bounded by his will alone. This would be intolerable to a free people. No court would venture to sanction a doctrine which would operate to vest such an unbounded discretion in any officer. Discretionary power is contrary to the genius of our laws and institutions. To sustain a tax sale, where the officer, in the exercise of his discretion, has disobeyed the rule laid down by the statute for his government, is to transfer the legislative power of the State to the collector, and thus allow him to sell land for taxes, not in the manner prescribed by the written law, but according to his private notions of what is right, and would place at his discretion the property of every citizen of the State. Register v. Bryan, 2 Hanks, 17. 11. When a party claims title under a public law, he is not only bound to know the law, and give it a fair and reasonable con- struction, but he is bound to see that all of its substantial require- ments have been complied with. Denning v. Smith, 3 Johns, Chap. 344. The law has a two-fold object. It was not designed simply for the purposes of prescribing the authority of the officer to sell, "but also to give to purchasers full information of the terms upon which a title could be acquired to land sold for the non-payment of taxes." It was meant to put bidders at a tax sale upon inquiry, whether or not the land was oflPered for sale according to law. If they do not examine, and shall buy land exposed to sale for taxes against the law, they do so at their own risk; and it will be presumed against them, that they know that the deeds given under such circumstances, are made in violation of official duty and of the law. Moore v. Brown, 11 How (II. S.) 414. 12. Every person claiming title to real estate, is chargeable with notice of all defects apparent upon the face of his muni- ments of title. Baltemore v. White, 2 Gill & J. 444. 13. In tax titles, the constitutional provisions regulating the taxing power, the statute levying the tax, and prescribing the manner of enforcing its collection, and the acts of those to 16 DIGEST AND SUMMARY. whom the execution of the power is intrusted, are all essential links in the chain of title, — all of them are matters of record, — and the purchaser is bound to take notice of all omissions or irregularities, which have taken place in the proceedings under ■which he claims the estate. He is, therefore, to look to it at his peril. The maxim caveat emptor applies to him with great force.. Black, on Tax Titles, page 50. 14. When a person claims an estate, purporting to be derived under a power, he must prove the existence of the power, and a compliance with all its requisitions. This rule pervades all classes of powers, and is universal in its application. Black, on Tax Titles, 53. ' 15. The act of every executive ofiBcer, from the president down to a town constable, is void where he has no authority, or proceeds contrary to the mode prescribed by the constitution and laws. Black, on Tax Titles, 53. 16. The officer is the agent of the law, the statute is his warrant of attorney, and he is bound to conform strictly to it. — It is a familiar rule of law, that a ■ special authority must be strictly pursued. When such authority is prescribed by statute, and when in its exercise it operates to divest the citizen of his property, courts cannot be too sedulous in confining it within the boundaries which the legislature have thought fit to prescribe. — Bowell v. Tuttle, 3 Const. 401. 17. One judge remarks that the proceedings must be "strictly regular." Hughey v. Horrell, 2 Ham. 231. Another, that "a strict compliance with all the prerequisites of the statute is con- sidered necessary." Isaacs v. Wiley, 12 Vt. 667; Smith v. Bodfish, 27 Me. 295. Another, that "great strictness is required and every substantial requisite of the law must be shown to have been complied with. Blakeney v. Ferguson, 3 Eng. 277 ; Ron- kendorff v. Taylor, 4 Pet. 349. Another, that "it must appear that the provisions of law preparatory to, and authorizing such sale, have been punctiliously complied with." Brown v. Veazie, 25 Me. 362 ; Phillips v. Phillips, 40 Me. 160. Another, that "a minute conformity to every particular of the several acts of the NATURE OF POWER TO SELL LAND. 17 assembly, is necessary to pass, the title." Young v. Martin, 2 Yates, 312. Another, that without a "literal performance" of the requirements of the law, the deed is "mere waste paper." — Bush V. Davison, 16 Wend. 654. Another, that "the authority must be strictly pursued from the beginning to the end. If any material link in the chain be wanting, the whole proceeding will fall to the ground." Doughty v. Hope, 3 Denio, 599. A clear and strict compliance has always been held indispensable, even in regard to matters which, but for the statute, would appear to be of no importance. Langdon v. Poor, 20 Vt. 15. Another, that the person invested with the power to sell, "must pursue with pre- cision the course prescribed by law, or his act is invalid." Again, the course prescribed "ought to be exactly observed." Thatcher V. Powell, 6 Wheat. 119. Another, that "a tax deed cannot be read in evidence, without proof that the substantial requirements of the law have been complied with." Games v. Stiles, 14 Pet. 322. Another, that "it is a condition precedent to the passing of any title, that the proceedings of the officer should be in strict and literal compliance with the requirements . of the statute." Jude- vine V. Jackson, 18 Vt. 472. And another, that every require- ment of the law, "having the semblance of benefit to the owner, must be strictly complied with." Sharp v. Johnson, 4 Hill, 99. 19. The principle fairly deducible from the entire field of discussion upon this class of powers, is, that every requirement of the law, whether substantial or merely formal in its character, and having the semblance of benefit to the owner, which the leg- slature have said shall attend the execution of the power, ought to be strictly observed by the officers intrusted with its execution, or no title will pass by the sale. . Blackwell on Tax Titles, 61. 20. In Isaacs v. Wiley, 12 Vt. 677, the collector failed to give a bond as required by law, and for this defect in the proceedings, the sale was held void; the court remarking, "We hold the giving of a bond, and such a bond as the statute requires, to be indispen- sable to pass the title, not because we consider that the public or the landholders have any indirect interest even in the security which it affi)rds, but because a strict compliance with all the 18 'DIGEST AND SUMMARY. prerequisites of the statutes is considered necessary in this class of cases, in order to pass the title." 21. In Brown v. Dinsraoor, 3 N. H. 103, the question ■was whether, in listing the land for taxation, the name of the owner, or the description of the land, or both, should be inserted in the list. Such was the language of the statutes, that it was suscep- tible of either construction, and the court held, that the insertion of both the name and description was necessary. CHAPTER III. OF THE ONUS PROBAMJI. (The Bcjeden of Proof.) 1. In tax sales, a series of acts, preliminary in their character, are required by law to precede the execution of the power. — Each and every step, from the listing of the land for taxation, to the consummation of the title by the delivery of a deed to the purchaser, is a separate and independent fact. All of these facts, from the beginning to the end of the proceeding, must exist ; and if any material link in the chain of title be wanting, the whole falls to the ground for .want of sufficient authority to support it. Blakeney v. Ferguson, 3 Eng. 277; Brown v. Veazie, 25 Me. 362 ; Games v. Stiles, 14 Pet. 322 ; Wright, 53 ; Moore v. Brown, 11 How (U. S.) 414 ; Allen v. Smith, 1 Leigh, 231. 2. It is a general principle that the party who sets up a title must furnish the evidence to support it. Williams v. Peyton's Lessee, 4 Wheat. 77 ; Brown v. Wright, 17 Vt. 97. 3. The recitals in a tax deed are not evidence against the owner of the property, but the facts recited must be established by proof aliunde. The fact that they were regular must be proved, and the onus proband! rests, in all cases, upon the pur- chaser, or those claiming under him. He must show affirmatively, step by step, that every thing has been done which the statute makes essential to the due execution of the power conferred upon the officers. Hall v. Collins, 4 "Vt. 316 ; Brown v. Wright, 17 Vt. 97 ; Mussey v. White, 3 Greenl. 302 ; Worthing v. Webster, 45 Me. 270; Wescott v. McDonald, 22 Me. 402; Phillips v. Phillips, 40 Me. 160 ; Waldron v. Tuttle, 3 N. H. 340 ; Lessee of Dunn v. Games et al., 1 Me. L. 319 ; Alvord v. Collin, 20 20 DIGEST AND SUMMARY. Pick. 418 ; Howe v. Russell, 36 Me. 115 ; Stevens v. McNam- ara, 36 Me. 176. 4. Where the purchaser seeks to rescind his contract of pur- chase, and recover back the amount of his bid from the tax col- lector, the burden of proof is cast upon him to prove that the sale was void, and he could acquire no title to the land under it. Treat v. Orono, 26 Me. 217. 5. The rule of the common law is, that he who affirms the existence of a material fact must prove it, and the opposite party is seldom, if ever, required to prove a negative. Hinman v. Pope, I Gilm. 181. All essential links in every chain of title, whether they are evidenced by records or deeds, or rest merely in parol, must be affirmatively proved by the party who sets up the title. The rule imposed upon the tax purchaser is, therefore, no departure from the general principles of jurisprudence. It is his business to col- lect and preserve all of the facts and muniments upon which the validity of his title depends. The very nature of such titles ought to warn the purchasers to see that all the prerequsities of the law are complied with ad unguein (to a nicety). They often buy large and valuable tracts of land for a mere trifle, and they ought always to expect that the owner will attempt to recover them. This is notice, intrinsic in the transaction, that they must be ready for defence, and they ought, at once, to collect the proper evidences of compliance with the law; these documents, being written or printed, can be just as easily preserved as their deed. Blackwell on Tax Titles, page 75 ; Jackson v. Roberts » II Wend. 425 ; Tolman v. Emerson, 4 Pick. 160. 6. Thus much for the common law, which devolves upon the party claiming under the tax sale the burden of proving ; that, in all essentials, the officers have performed the duty enjoined upon them by the law under which the proceeding took place. That the legislature possesses competent power to change the common law rules of evidence, and declare that the tax deed itself shall be received in all courts as prima facie evidence that all of the pre- requisites of the law have been complied with, and thus shift the OF THE ONUS PEOBANDI. 21 onus probandi from the shoulders of the purchaser to those of the owner, is conceded. (And such deed has been held to have the same effect in the courts of another State than where the law is enacted.) Pillow v. Roberts, 13 How (U. S.) 472 ; Bussey v. Leavitt, 3 Fairf. 378 ; Turner v. Leomans, 14 Ohio, 207. 7. A tax deed under Iowa Stat, of Jan. 15, 1841, loses its character as prima facie evidence, when it is shown that in any essential particular the proceedings were irregular. Rayburn v. Kuhl, 10 Iowa, 92. 8. The fact that a tax deed isprima facie evidence of certain facts makes it none the less obligatory to comply strictly with the law. The deed simply shifts the burden of proof. Kelsey v. Abbot, 18 Cal. 609. 9. That the legislature has the further power to declare the deed conclusive evidence of title, is denied. Blackwell on Tax Titles, page 79. 10. The. power of taxation, so far as it relates to the collection of taxes, was designed to operate upon those only who should wilfully or negligently omit the payment of taxes to which they might be subject, and which should be legally assessed upon their estates, and not upon those -who should promptly perform all of their con- stitutional obligations. The obligation is reciprocal ; if the citi- zen performs his duties to the government, that government should perform its duties to the citizen. Among the first of these, is protection in his property — not only from private force, cupidity, and fraud, but from governmental plunder — and it should not be taken by the State, or its agents, without any fault or omission of duty on his part. If the land was not liable to "taxation by reason of an exemption, if no taxes had been assessed upon it, or if the taxes had been paid, the power of sale never attached to it. To hold that the owner, under such circumstances, is precluded from showing the fact, would be a "monstrous doctrine." Jack- son V. Morse, 18 Johns. 441. This "the legislature cannot constitutionally do." This is not the lex terrae meant by the Constitution. 16 Mase. 330 ; 2 22 DIGEST AND STJMMABY. Kent's Com. 340; Corbin v. Hill, 21 Iowa, 70; Moulton v. Blaisdell, 24 Me. 283. But there is no constitutional objection to making a tax-deed conclusive to non-essentials. Abbott v. Lindenbower, 42 Mis. 162. 11. A tax deed ia prima facie evidence, that the land was tax- able. Eaton V. North, 20 Wise. 449. 12. When a paper is not found in the proper office or place of deposit, it is presumed that no such paper ever existed. Hall V. Kellogg, 16 Mich. 135. CHAPTER IV. OF THE ELECTION AND QUALIFICATION OF THE SEVERAL OFFICERS WHO HAVE ANYTHING TO DO WITH THE EXECUTION OF THE POWER. 1. It is a general principle of law, that whenever a right is claimed under the proceedings of one who purports to have acted in an official capacity, the fact that he who did the act upon which the right is based, was a public officer, must appear. This is espec- ially applicable to a case where a title to real estate is to be divested under the authority of a statute, and through the inter- vention of a public officer. It may, therefore, be safely affirmed as a general rule, that the party claiming title under a tax sale must show that the acts required to be done under the statute, in order to divest the title of the former owner, were performed by the officers of the law, and not simply by persons, who assumed to act in an official capacity. The citizen is entitled to all the pro- tection against fraud, rapacity, and abuse of authority in the sale of his property, which official responsibility can secure. It, therefore, becomes an important question to ascertain who is an officer, within the meaning of this rule. Payson v. Hall, 30 Me. 319 ; Blackwell on Tax Titles, page 92. 2. An office is defined to be a public charge, or employment ; and he who performs the duties of that office is an officer. — United States v. Maurice, 2 Brock. 102. 3. The mere claim to be a pubhc officer, or the performance of a single, or even a number ot acts, in that character, will not con- stitute an officer de facto: there must be some color to the claim, under an election or appointment, or an exercise of official func- tions, and an acquiescence on the part of the public for a length of time, which would afford a strong presumption of a colorable 24 DIGEST AND SUMMARY. right. McGregor v. Balch, 14 Vt. 428 ; Tucker v. Aiken, 7 N. H. 140 ; Wilcox v. Smith, 5 Wend. 234. 4. The consequences naturally arising from the distinction between an officer dejure and one de facto are -rcell settled. An officer de jure is clothed with all the power and authority apper- taining to the office, and his acts, within the limits of his author- ity, cannot be questioned anywhere ; while the acts of an officer de facto are valid so far only as the rights of the public or third persons, having an interest in such acts, are concerned. Neither the title of such an officer, nor the valdity of his acts as such, can be indirectly called in question in a proceeding to which he is not a party. The effect of this rule is, to render the acts of an officer de facto as valid and effectual as though he was an officer dejure. Blackwell on Tax Titles, page 93. 5. An individual coming into office by color of an election or appointment, is an officer de facto, and his acts in relation to the public or third persons are valid, until he is ousted by quo war- ranto, although it is clearly made to appear that his appointment or election was illegal. His title shall not be inquired into collater- ally. Plymouth v. Painter, 17 Conn. 585 ; McGregor v. Balch, 14 Vt. 428 ; Gilmore v. Holt, 4 Pick. 257 ; Wilcox, v. Smith, 5 Wend. 234. 6. The rule, it will be perceived, is designed simply to protect the put)lic, by preventing a failure of justice, and the great public mischief which might otherwise be justly apprehended. It gives to the officer de facto no immunities whatever, confers upon him no rights, and shields him from no responsibility. Blackwell on Tax Titles, page 95. 7. Upon a review of the authorities, it will be seen, that while the general rule is conceded, that the acts of an officer de facto are valid, whenever third persons are interested in the act, yet many of the authorities affirm that the great strictness uniformly exacted in the divestiture of estates, under the taxing power of the government, demands an exception to the rule, and requires proof that those who purport to act in an official capacity in the conduct of the sales, were officers de jure ; in other words, that ELECTION AND QUALIFICATION OF OFFICEKS. 25 a regular election or appointment, and a compliance with all the conditions precedent, which must be shown by the officer himself when his title is questioned in a quo warranto — such as the taking of the oath of office, the execution of an official bond, &c., must be clearly proven by the party claiming title under the tax sales ; and that the usual presumptions cannot be indulged in by the courts when the proof of official character is wanting. — Pike V. Hanson, 9 N. H. 491 ; Proprietors of Cardigan v. Page, 6 ISr. H. 182 ; Payson v. Hall, 30 Me. 319 ; Coit v. Wells, 2 Vt. 318 ; Isaacs v. Wiley, 12 Vt. 674 ; Alvord v. Collin, 20 Pick. 418. 8. The general principle undoubtedly is, that the acts of an officer de facto are valid, so far as the public or the rights of third persons are concerned ; and that the title of such an officer cannot be inquired into in any proceeding to which he is not a party. 7 N, H. 181 ; Smith v. Messer, 17 N. H. 420. 9. It must be confessed, that the reason of the rule giving effect to the acts of an officer de facto, and the weight of authori- ties, do not sanction a departure from the general principle which controls in all other cases ; and the better opinion is, that where a tax is assessed, and the proceedings are conducted by officers de facto, the sale will be maintained. Sheldon v. Coates, 10 Ohio, 278 ; Downer v. Woodbury, 19 Vt. 329 ; Hale v. Cushing, 2 Greeulf. 218 ; Spear v. Ditty, 8 Vt. 419. 10. It was held in Payson v. Hall, 30 Me. 319, that in order to maintain title under a tax sale, it is not sufficient to show, that the person making the sale had been chosen collector, and acted in that capacity, but to render the sale valid, it is indispensable that he take the oath of office prescribed by law. - 11. If a person without election or legal qualification could act as a collector of taxes, and as such make sale of an estate, and the production of a deed made by him in that capacity were to be considered as effectual without proof of his election and qualifi- cation, there would be no effectual security for the faithful dis- charge of his duties. Such was not the intention of the legisla- ture. The party is required to produce the collector's deed, not 3 26 DIGEST AND SUMMARY. the deed of a person assuming, without right, to act in that capacity. The tax-payer is entitled to have his interests protected in the sale of his property by the obligations imposed by the_ official oath. Payson v. Hall, 30 Me. 319. 12. The same doctrine was maintained in New Hampshire. 