French v. Patterson , 61 Me. 203 ( 1870 )

DicKekson, J.

Writ of entry. The plaintiff claims title under a warrantee deed from Elias Craig to Louisa Emerson, dated Nov. 4, 1861, the will of Louisa Emerson, probated in May, 1866, and a deed signed by Orrin Emerson, jr., executor of Louisa Emerson and Orrin Emerson, dated Sept. 28, 1867.

Louisa Emerson acquired a valid title to the demanded premises by the Craig- deed, and held that title at the time of her death. Did the deed of Orrin Emerson, jr., her executor, signed also bjr Orrin Emerson, her husband, convey her title to the plaintiff? Orrin Emerson, jr., gave that deed in his capacity as executor of the will of Louisa Emerson. An executor, as such, has no right to sell real estate of the testator. The estate was not rendered insolvent, nor was the requisite license to sell granted by the probate court. His deed, therefore, as an executor’s deed, conveyed no title to the plaintiff.

By the provisions of the will the residue of the property, not otherwise disposed of, was bequeathed to Orrin Emerson, jr., the executor, in trust for Orrin Emerson, during bis life time, remainder to the testatrix’s children. By accepting this trust Orrin Emerson, jr., became a testamentary trustee. The statute requires such trustees to give a bond for the faithful execution of their trust, except in certain specified cases, of which the case at bar is not one. The trustee, not having given such bond, could not convey a valid title to the demanded premises as trustee, if he had undertaken to do so. If, therefore, ihe deed of Orrin Emerson, jr., to the plaintiff could properly be construed as a deed given in his capacity as trustee, as the counsel for the plaintiff contends, it would not be effectual to pass the title. But we think that deed will not bear such construction. It purports to have been given in the grantor’s capacity as executor, and there is nothing in its phraseology to indicate a different intention.

But the deed in question was also signed by Orrin Emerson, the cestui que trust. The will imposed no active duties npon the trustee, hut made him the simple depositary of the title. It provided that the cestui que trust should have the management and control of the property while he lived, for his benefit and the benefit of the testatrix’s children. Power was also given to the trustee to sell the estate, when the cestui que trust should think best. The trust was clearly a passive trust. In such a case this court has held that the trustee cannot maintain a writ of entry against the cestui que trust. Besides, the trustee sanctioned the conveyance by joining in the deed. Skowhegan v. Sawyer, 57 Maine, 506.

The plaintiff having acquired a valid title to the demanded premises by the deed of Sept. 28, 1867, is entitled to maintain this action, unless the defendant acquired title thereto by virtue of his tax deed from the city of Augusta, dated Aug. 7, 1867.

As the plaintiff contests the validity of the tax sale he is not bound to pay or tender payment of “ the taxes, charges, and interest,” under R. S. of 1857, c. 6, § 145 until the defendant has produced the treasurer’s deed, duly executed and recorded, the assessment signed by the assessors, and their warrants to the collector, and shown that the taxes were advertised according to lawand the plaintiff may also contest the validity of these proceedings at every stage of the proof without such payment or tender. Inhabitants of Orono v. Veazie, 57 Maine, 518.

In order to establish his title under his tax-deed the defendant introduced evidence that these preliminaries of the statute had been complied with. No objection is made to the form or execution of the deed, but the counsel for the plaintiff contends that the assessment is void for uncertainty in the description of the premises. The description is as follows: “ Orrin Emerson or unknown, about 175 acres, 4th range, 17 school district, part of Craig lot, value $875, amount of tax $15.93.” It is not questioned but the range and school district are given correctly, or that the premises were known as a part of the Craig lot, but as the evidence shows that the “ Craig lot” at the time of the assessment consisted of more than one parcel, it is argued that it is uncertain which parcel was intended to be assessed. The tax was assessed to “ Orrin Emerson,” who was the husband of Louisa Emerson, the o-wner of tlxe Craig lot, “ or unknown.” Orrin Emerson owned no land, and the parcel intended by the designation, “ Orrin Emerson or unknown,” . . . “ part of Craig lot ” was undoubtedly that part of the Craig lot which his wife continued to own at the time of the assessment. The deeds and other evidence show that that was the part of “ the Craig lot ” south of the Thomaston road, exclusive of the fifteen acres conveyed to Henry K. Chadwick. That was the parcel sold by the treasurer, as more fully appears by his return of the sale; and the description in . the deed to the defendant substantially corresponds with that return.

The statute does not require, nor is it often practicable that the assessors of taxes should give a minute description of the non-resident lands assessed by them. It is sufficient if they so describe them in their assessment that they can be identified with reasonable certainty. We think that this was done in the case at bar.

The assessment appears to have been duly signed by the assessors, and the warrant duly issued. The reasoning in support of the sufficiency of the description in the assessment applies also to the description in the advertisement. The taxes, moreover, appear to have been advertised according to law.

The record of the sale shows that the whole tract was sold. In order to authorize this, it should distinctly appear of record that the sale of the whole tract “ wras required to pay the tax, interest, and charges.” The treasurer has no authority to sell a foot of land more than is required for this purpose. It may or may not be necessary to sell the whole tract. This is to be determined by ascertaining whether or not any person at the sale will pay the required amount for a part of the land. In order to do this the statute provides as follows: “At the time and place appointed for the sale, the treasurer shall offer for sale so much of the estate taxed as shall be required to pay the tax with interest, . . . and the costs of advertising. ... If the bidding is for less than the whole, it shall be for a fractional part of the estate, and the bidder who will pay the sum due for the least fractional part shall be the purchaser.” R. S. of 1857, c. 6, § 148.

The record shows that the treasurer sold the whole tract, but it does not show that he “ offered for sale ” a fractional part of it, or that no person would pay the amount due for a less quantity than the whole land. Indeed, it does not appear that the purchaser was the highest bidder, or the one who would pay the sum required for the least quantity of the land; or that the statute requirement for ascertaining whether or not any person present at the sale would pay “ the tax, interest, and charges ” for a part of the land was complied with. If the reference,.in the return of the treasurer’s doings at the sale, to the advertisement may be regarded as making that a part of the return, it would then only appear that he “ sold so much of the estate as was sufficient to pay the amount due.” He may. have sold what was “ sufficient ” for this purpose, and yet more than “ was required ” therefor. He had authority to sell only so much land “ as should be required ” to pay the tax, interest, and charges. The defect in the record consists in its failure to show that the treasurer pursued the mode provided by the statute, for ascertaining whether' or not the sale of the whole tract “was required” to pay the assessment due. We regard, this omission as fatal to the defendant’s title. The sale of land for taxes is a proceedure in invitum, and the provisions of the statute authorizing such sale must be strictly complied with or the sale will be invalid. Blackw. Tax Titles, 47, 67, 93, 94, 104; Loomis v. Pingree, 43 Maine, 311; Lovejoy v. Lunt, 48 Maine, 378.

The defendant having failed to show a compliance with one of the requirements of the statute, preliminary to his right to require the plaintiff to prove payment or tender of payment of the amount due, it becomes unnecessary to determine the sufficiency of the alleged tender. Judgment for the demandant.

AppletoN, C. J. ; CuttiNG, Barrows, and Tapley, JJ., concurred.

Mr. Chief Justice Appleton added the following opinion.

Appleton, C. J.

The tax-title under which alone the defendant claims is void for the reasons assigned in the opinion of Mr. Justice Dickerson.

The plaintiff claims title under a deed of warranty from a party in the possession and occupation of the premises conveyed. This makes out a prima facie case. Blithen v. Dwinel, 34 Maine, 133.

Judgment for the demandant.