Bussey v. Leavitt , 12 Me. 378 ( 1835 )

Weston C. J.

By the statute of 1831, ch. 501, sec. 2, the law of evidence, before applied to the sale of the lands of nonresident proprietors, for the nonpayment of taxes, was changed. Prior to that time, great strictness of proof, in relation to the preliminary proceedings, had been required of purchasers, to which they were generally strangers, and over which they had no control. It was competent for the legislature, by a general law, to prescribe that, so far as the transfer of the land was in question, proof of the due execution of the collector’s deed, and of certain other of the previous steps required by law, should to that extent, conclusively justify the inference, that every thing had been done necessary to give the purchaser a title. It is founded upon the confidence reposed by law in officers, who are charged with the performance of public duties. That confidence may be abused, and the officer held answerable, while effect is given to his acts, which on their face are legal and regular.

Thus in the levy of an execution upon real estate, when the title thence derived is called in question, the return of the sheriffj specifying the steps taken by him in pursuance of law, cannot be controverted. They may nevertheless be false, and a party thereby be deprived of his land, in a manner not authorised by statute, but the only remedy afforded by law for redress, is by an action against the sheriff, for a false return.

It may be urged, that money may be voted by a town, at a meeting not legally called, without an article justifying it, or ibr a purpose not authorised by law. Such a vote would not justify an assessment made in pursuance of it, and the assessors would be holden personally liable. This responsibility would generally be sufficient to keep them within the path of duty; and where it did not, would afford an adequate remedy to the party injured. Nor would he be under any necessity of losing his land. He has five years, within which to redeem it, holding the authorities of the town, who may have abused their trust, liable to him for an indemnity. There does not appear to us therefore any objection to the plain and obvious terms of the act, which are made to apply to sales thereafter to be made. Nor can we find in the act, or in the policy upon which it is founded, any authority to exclude from its operation lands subsequently sold, upon taxes previously assessed.

But it is contended, that the tenant has failed in the proof required by the act. The statute of 1321, ch. 116, concerning the assessment and collection of taxes, sec. 30, prescribed that the collector should advertise in the public newspapers of the printer to the State, for the time being, three weeks successively, but did not specify how long prior to the sale that should be done. By an additional act of 1826, ch. 337, sec. 8, it is provided, that the notice of sale, “ to be published in the public newspapers three weeks successively, shall be so published, three months prior to the time of such sale.” And it is insisted that weeks are thereby enlarged to months, and that notice should now be published for three successive months. But we understand the provision to mean that the notice, by advertising three weeks successively, shall be completed three months prior to the sale. Upon another ground however we are of opinion, that the law in regard to notice is not proved to have been complied with. The statute of 1831 provides that the party, claiming under a collector’s sale, must prove that he complied with the requisitions of the law, in advertising the real estate, he undertook to sell. Evidence of this fact is essential to the purchaser’s title. On the 12th of January, 1831, as appears by the resolve of the legislature of that day, the “ Portland Advertiser and Gazette of Maine” ceased to be the public newspaper of the printer to the State. The subsequent publication in that paper, necessary to make out the three successive weeks, was not in pursuance of the statute. If the tenant however has any additional proof upon this point, ho is at liberty, as the case is reserved, to offer it at a further trial.