Adams v. Larrabee , 46 Me. 516 ( 1859 )

The opinion of the Court was drawn up by

Davis, J.

Pursuant to a Resolve passed by the Legislature of Massachusetts in 1808, a square tract of land, in the south-west corner of township number 6, in range 4, north of the Bingham purchase, containing 5160 acres, was conveyed to the Duck Trap Bridge Corporation.

In 1831, this State sold the remainder of the township, containing 9992 acres to Waterston & Pray; and the demandant subsequently acquired a title to one-eighth part of it, which was set off to him in severalty by his co-tenants.

In 1856, the whole of the 9992 acres, excepting three public lots reserved, was sold by the State treasurer to the tenant, as having been forfeited to the State on account of the non-payment of the State tax for the year 1854. There were also unpaid taxes for the county of Penobscot; nor had the State tax for 1855 been paid.

But the only question material to the present case is that of the validity of the assessment of the State tax for 1854. For that tax remained unpaid more than “ two years next after the date of the assessment.” If it was legally assessed, the whole tract became forfeited, and the State acquired a title thereto, “ perfect and indefeasible,” on the fifteenth day of April, 1856. Laws of 1849, c. 133, § 6. If so, whether the sale to the tenant was valid, or invalid, the demandant cannot recover. Eor he is not entitled to recover, unless the title and right of entry is in himself.

On the other hand, if the assessment was invalid, there was no forfeiture to the State; the sale to the tenant was illegal; and the demandant is entitled to recover.

Prior to 1841, the township was assessed as follows:—

“ Part of No. 6, range 4, north of the Bingham Purchase, granted to Duck Trap Bridge Corporation, $—.” “Part of No. 6, range 4, north of the Bingham Purchase, other than that granted to Duck Trap Bridge Corporation, $—.”

After 1841, and in 1854 and 1855, the assessment was as follows:—

“ S. W. 1-4, range 4, No. 6, north of the Bingham Purchase, §—.” “3-4, range 4, No. 6, north of the Bingham Purchase, $—."

Is this description sufficient ? If the assessment had been upon the whole township in solido, designating the number and range, it would have been good. In such case each owner could have computed the amount due from him for his part. But one-fourth part was less than that granted to the Duck Trap Bridge Corporation. Was it all embraced in that ? Or was a portion of it included in the other part ? And where was the dividing line ? The two portions were taxed different sums per acre. How could any one owner ascertain whether his part was in the one-fourth, or in the three-fourths ? And, if not, how could he ascertain the amount of his tax ? And, in case of sale, how could the State Treasurer determine what part to sell, or the purchaser ascertain what portion he had bought ?

It is obvious that an assessment so made is uncertain on the face of it; it refers to nothing by which it can be made certain. It leaves the State Treasurer without power to enforce the tax against the several owners, or even to inform them of the amount. Such an assessment, and all the proceedings under it, are invalid. According to the agreement of the parties, the tenant must be defaulted.

Tenney, C. J., and Appleton, Cutting, May, and Kent, J. J., concurred.