Payson v. Hall , 30 Me. 319 ( 1849 )

Shepley, C. J.

— By ibis writ of entry the demandant claims to recover a dwellinghouse and lot situated in the town of Oldtown.

In proof of her title she produced a deed from Lore Alford, made by him in his capacity of collector of taxes for that town, for the year 1841, and purporting to convey the premises to her. The taxes for that year, having been assessed, before the Revised Statutes were in force, were to be collected according to the provisions of former statutes. It was provided by the act of March 12, 1831, that it should be sufficient for a party claiming under such a title, to produce in evidence the collector’s deed duly executed and recorded; the assessment signed by the assessors, and their warrants directed to the collector; and to prove, that such collector complied with the requisitions of law in advertising and selling such real estate. Although this statute was repealed, it was continued in force by the Revised Statutes for the collection of such taxes. Shimmin v. Inman, 26 Maine, 228. The assessment and warrant were produced, signed by the assessors.

In defence, objection is made, that Alford was not legally qualified to act as collector. There is no evidence that he was sworn as a collector. Two answers are made by the counsel for the demandant to this objection. The first is, that it is sufficient that he was acting as collector. The second is, that he was chosen and sworn as a constable, and that his oath as such included the oath of a collector.

With reference to the first answer it may be observed, that when constables or sheriffs perform acts by virtue of judicial precepts, it is usually sufficient to show, that they were officers de facto, without producing proof, that they were legally qualified to do so. A person injured by such acts has a remedy by action against the officer, and his rights are secured by a final resort to the official bond. But one injured by the misconduct of a collector of taxes cannot be protected by a resort to his official bond for redress, that having been made for the security of the town alone. He must be permitted to avoid the acts of one assuming without lawful authority to be a collector, or be in many cases without remedy. If a person without election and legal qualification could act as a collector of taxes and as such make sale of an estate, and t.he production of a deed made by him in that capacity were to be considered as effectual without proof of his election and qualification, there would be no effectual security for the faithful discharge of his duties. Such was not the intention of the Legislature. The party is required to produce the collector’s deed, not the deed of a person assuming without right to act in that capacity. The tax payer is entitled to have his interests protected in the sale of his property by the obligations imposed by the official oath.

With reference to the second answer made to the objection, it may be observed, that the collector does not appear to have been legally sworn as a constable. The oath which was administered to him and other constables, is presented by a copy of the certificate made by the justice. It states, that they “severally made oath to the true and faithful performance of their duties as constables of Oldtown.” It neither states, that the oath prescribed by the statute of 1821, c. 116, § 25, was administered, nor that they were “ duly sworn,” or were “ sworn according to .law,” which have been considered as sufficient evidence, that the oath prescribed by the statute had been administered. R. S. c. 1, § 2, art. 21. There is nothing indicative, that the certificate of the justice does not present the oath, and the only oath administered to them.

The demandant is also required to prove, that the collector complied with the requisitions of the law in advertising and selling the estate. The collector is required to sell to the best bidder, c, 116, § 30. A collector cannot faithfully and legally perform his duties, who is both seller and purchaser. Pierce v. Benjamin, 14 Pick. 356. In this case the collector was not the purchaser, but he acted as the bidder and purchaser for the demandant, who was not present when he made the sale. An auctioneer is by the law regarded as the agent of both seller and purchaser. A collector of taxes cannot consistently with a faithful and legal discharge of his official duties become the agent of a purchaser, whose interest it is to acquire the whole estate or as much of it as possible, by payment of the laxes and costs, and whose agent, to be faithful, must have the same interests, while a faithful discharge of official duty would require him to sell as little as possible of the estate, to obtain such payment. His official duties and those of his private agency would come into direct conflict. The performance of one duty is inconsistent with the faithful performance of the other. A sale made under the circumstances presented in this case cannot be considered as made by a collector of taxes in compliance with the requisitions of the law.

Demandant nonsuit.