Joy v. Inhabitants of the County of Oxford , 3 Me. 131 ( 1824 )

Mellen, C. J.

delivered the opinion of the Court.

By an examination of the statute of Massachusetts of 1796, ch. 58, under the supposed authority of which the assessment was made by the Court of General Sessions of the Peace of the county of Oxford, we are satisfied that the construction given to it by the counsel for the defendants, cannot be correct. The act is entitled “ An Act in addition to the several Acts now in force rcspect- “ ing Highways.” The authority given in the third section, to the Courts of General Sessions of the Peace to make assessments for the purpose of defraying the expenses of making and mending highways in tracts of land not comprehended within the bounds of any incorporated town or plantation, has an evident relation to highways laid out by such. Courts, and to such only. The introductory part of the section plainly shews this. The language is, “ that the Court of General Sessions of the Peace in the several counties of this Commonwealth, whenever application shall be made to them to lay out any new highway through any such tract, &c. ■or for an order thereof to amend or repair any highway already laid out in the same,” &c. The section proceeds to give power in such cases to the Court to make an assessment on such tracts of land, &c. for making or amending such highway, &c. In fact, the provisions of this statute cannot be considered as having reference to any. highways, except such as had been or should be laid out by the Court of General Sessions of the Peace ; the act being intended as an extension of the power of such Courts as to highways in unincorporated tracts of land.

Hence it follows that, as that Court in the county of Oxford undertook to assess and did assess the lands of Mr. Joy, to defray the expense of amending and repairing the road made by Mr. Abbot, according to his stipulation with the Commonwealth of Massachusetts,— a road never laid out by that*Court,'bnt merely by an individual under contract, or the condition of his grant; we are very clear that the tax was illegal; and that the Court had no kind of jurisdiction in the case, any more than though the lands had been situated in the county of Cumberland. The Court having no jurisdiction, tlíe assessment was a perfect nullity; not merely voidable, but absolutely void. It is equally clear that when the lands were sold by the county treasurer to Stevens, and the money arising from the sale was paid into the county treasury, the sale being void, Stevens or his grantee might have recovered back from the county the money thus paid by him without any valuable consideration. The case finds that while the right of redemption existed, Joy paid into the county treasury the amount of the taxes assessed and incidental expenses, being $415 28, which sum he was compelled to pay to prevent a sacrifice of his property. The sum thus paid has, put an end to all pretence of title in Stevens or his grantee; and has also relieved the county from all liability on account of their treasurer’s sale, by thus furnishing them with funds equal to the purchase money which Stevens paid. The above sum is thus paid by the plaintiff to the use of the county, and is now recoverable by him in the present action. Though the tax was assessed without any authority, the county have received its amount into their treasury; and the Court of Sessions, who defend this action as the authorized and legal agents of the county, have thus sanctioned the appropriation of the plaintiff’s money as the act of the county. Hence the county is responsible, a legal demand having been made for the amount above mentioned. It is no answer to this action that the monies thus collected and paid into the treasury, have since been expended in repairing the road made by Jlbbot. Such an appropriation of it, without the consent of the plaintiff, was unlawful. As to the money, which he has paid for certain expenses in endeavoring to obtain a repayment of the money sued for, it cannot be allowed. But we are clearly of opinion that the plaintiffis entitled to recover the above sum of $415 28, and interest from the first day of July 1822.

A default must be entered and judgment rendered accordingly.