Inhabitants of Monson v. Tripp , 81 Me. 24 ( 1888 )

Peters, C. J.

The defendants are sued upon a note given by them to the town of Monson for a quitclaim deed of a tract of land to which the town claimed title under a tax deed. The title of the town was utterly worthless, and admitted to be so. The proceedings were void by which it was undertaken to create the tax title. It was wild land, and neither the town nor its grantees ever had any possession of it or derived any rents or profits from it. It is also admitted that the deed to the defendants was made by a town treasurer without any vote of the town authorizing a conveyance, and that the town has never by any vote ratified the treasurer’s act.

It is contended that the note is without consideration and not recoverable, for two reasons. First: Because the deed failed to convey any title whatever. We do not concur in this view. It is against our own decisions. Had the deed been authorized by the town, the town selling such title as it had or might have, without any misrepresentation or deceit on its part, the contract would have been a legal one. Emerson v. County of Washington, 9 Maine, 88. Soper v. Stevens, 14 Maine, 133. Butman v. Hussey, 30 Maine, 263. Equity will sometimes relieve parties in such transactions, on the ground of mistake, if the mistake be of a character grave enough to justify its interposition.

Secondly: The defendants claim that the note is without consideration and void because the treasurer possessed no authority to convey the property for the town. On this point the defense can be sustained. An unauthorized deed is not a deed. If a treasurer can, of Iris own volition, convey away the doubtful titles of his town, he may convey all its titles and property in the same way. Fie is not invested with any such privilege, and his act in tins instance was unquestionably void.

The plaintiffs contend that the defendants are estopped to set up this point of defense, because of their after conveyances of some portions of the same land to other persons, the defendants obtaining about twenty-five dollars in all from such persons. That was a matter between the defendants and third persons in no way affecting the town, and the fairness of their after dealings, and the question whether those dealings resulted in losses or profits, we cannot take into consideration. Nor does the bringing of a suit on the note by some town officer without any vote or instruction from the town, establish any liability upon the defendants. Bliss v. Clark, 16 Gray, 60.

Judgment for defendants.

Daneorth, Libbey, Emeiiy, Foster and Haskell, JJ., concurred.