Allen v. Morse , 1881 Me. LEXIS 135 ( 1881 )

Walton, J.

The statute of 1874, c. 234, declared that in the trial of any action involving the validity of a sale of real estate for the non-payment of taxes, it should be sufficient for the party claiming under it, in the first instance, to produce in evidence the collector’s deed, duly executed and recorded, and then he should be entitled to judgment in his favor, unless the party contesting such sale should prove to the court that he, or the person under whom he claims, had paid or tendered the amount of all such taxes and the legal charges and interest thereon, and then he might be permitted to prosecute or defend, etc. The question is whether a deed which shows upon its face that the sale was illegal is sufficient for the purposes mentioned in the statute.

We think it is not. It could never have been the intention of the legislature to make a deed, which, upon its very face, shows the sale to have been illegal, evidence of title for any purpose. Such a deed does not prove, it disproves, the demandant’s title, and shows that he is not entitled to prevail. It cannot be nec-essnry for the adverse party to produce evidence to defeat the demandant’s title, when, by his own showing, lie has no title. Such was the decision in Orono v. Veazie, 57 Maine, 517, and the statute then in force differed from the statute of 1874 only in the amount of documentary evidence required to make out a prima facie case of title and cast the burden of paying the taxes upon the party contesting it.

The objection made to the deed on which the plaintiff in this case relies is that, it purports to convey the whole of the real estate taxed, while its recitals show that it was necessary to sell a part only. We think the objection is well taken. The deed does purport to convey the whole of the real estate on which the tax was assessed, while the collector has very carefully stated that it was necessary to sell a part only. Such a sale would be illegal, and would convey no title to the purchaser. And the error cannot he regarded as a mere inadvertence, for the words "in part” are interlined in ink in a printed blank, and the words "the whole,” which were printed in the blank, are erased; and the words "no person offering to pay the taxes and legal charges for a fractional part of said real estate,” which were printed in the blank, and were intended to show a necessity and justification for selling the whole, are also erased. It is clear, therefore, that it was not necessary to sell the whole, while the deed does in fact convey the whole.

It may be, as suggested by the defendants’ counsel, that the tax was assessed upon the whole farm, and that the collector undertook to sell only that portion of the farm which composed the pasture, thinking he had a right so to do. Such is not the meaning of the language used in the deed. But suppose this explanation to be true, and that the language used in the deed would bear this interpretation, it does not relieve the sale of its illegality. To sell a separate and distinct portion of a farm to pay the taxes assessed upon the whole of it, would be as illegal as to soli the whole when It is only necessary to sell a part. The only legal course is to sell an undivided fraction of the whole j as, for instance, one fourth, one third, one half, or three-tenths, four-tenths, seven-tenths, etc. That is what is meant by the statute which authorizes the collector to sell " so much of such real estate, or interest, as is necessary to pay the tax,” etc.

The collector’s deed on which the plaintiff relied, not showing a sale prima facie legal, but a sale prima facie illegal, we think a nonsuit was properly ordered.

Exceptions overruled.

Appleton, C. J., Baullóws, Virgin, Libbey and Symones, JJ., concurred.