King v. Whitcomb

Dewey, J.

The plaintiff seeks to recover damages for the wrongful conversion of his property, and the inquiry as to his right to maintain his action raises the question whether the proceedings of the defendant as a collector of taxes, in distraining and selling the goods of the plaintiff, were authorized by law.

I. It is objected to the validity of the sale, that the warrant of the assessors to the collector was substantially defective, and not according to the directions of the tax acts. Rev. Sts. c. 7, § 33, and c. 8, § 8. The alleged defect is the omission to specify fully, in the warrant, all the provisions of c. 8, § 8, regulating the distraining of goods for taxes, prescribing the time such goods shall be kept, the mode of advertising, and limiting the time within which they must bé sold.

The assessors undoubtedly used, as their guide in making their warrant, the form in common use before the enacting of the revised statutes, and one conforming to the previous statutes. In the earlier Sts. 1785, c. 70, § 2, and 1791, c. 22, § 2, directing the mode of proceeding in cases where property was distrained by a collector, the provisions were much the same as at present, except that there was no such express limitation of the period of seven days within which goods distrained were to be sold, as is found in the revised statutes ; but it was provided that if the taxes should not be paid within four days after the seizure, then the collector should sell at public auction, first giving forty-eight hours notice, &c. ; which notice, by said statute of 1791, might be given within the four days. The construction given to those statutes, and to the warrants issued in conformity with them, has been, that the sale must take place within six days after the seizure ; that being the most remote period to which the sale could be delayed. The only omission, therefore, in this warrant, which is supposed to be material, is as to the provision requiring the sale to he made in seven days after the seizure.

It is unnecessary to decide what would be the effect of a warrant directing proceedings by the collector contrary to law, and whether, under such a warrant, a collector could justify a seizure and sale of property upon showing that he had, in disregard of his warrant, in fact pursued the provisions of the statute. The warrant in the present case is liable to no such objection. Its defects, if any, are those of omission. But the duties enjoined by the revised statutes were wholly observed in the execution of this warrant, and all the proceedings of the collector wore in entire accordance with them, and they might well be so, and yet conform to the warrant in the discharge of all duties therein prescribed.

We do not perceive any such defect in this warrant as should render the proceedings under it void or illegal. I am aware that it is said, on die part of the plaintiff, that if this warrant might have authorized a seizure, yet, under the construction heretofore given to such warrants, it would not authorize a sale on the seventh day after such seizure. But it seems to us that the construction given to such warrants, under the former statutes, in which there was no direct enactment limiting the number of days within which the sale should be made, does not now apply ; certainly not with the same force. That which was, before the revised statutes, left, to construction, is now made certain and plain by express words. The statute having fixed seven days after the seizure as the time within which the sale must be made, we think that it was competent for the collector, under this warrant, to sell the property within that period. In thus doing, he conforms to the requirements of the statute, and deprives the party of no privilege secured to him by law.

2. It is further objected, that there was no demand of payment of the tax before making the distress. The provisions of the Rev. Sts. c. 8, § 3, are that “ the collector shall, before distraining the goods of any person for his tax, demand payment thereof of such person if to be found within his precinct.” But the case finds that the plaintiff was a non-resident, having no agent or attorney to act for him ; and the collector certifies, in his return, that he demanded the payment of the tax, at the last and usual place of abode of the plaintiff, in Florida, and not being able to find him in his precinct, he afterwards seized the property, &c. This was all the demand the officer could prqperly make, and, as it seems to us, was all that the statute requires in the case of a non-resident.

Judgment for the defendant.