Perley v. Dolloff , 60 N.H. 504 ( 1881 )

In the view we have taken, it has not been found necessary to inquire or determine whether the alleged defects in the assessment of the plaintiff's non-resident taxes rendered the sale of his land invalid, nor, if so, whether a deed thereof from the collector would constitute a cloud on the title of which equity might properly take cognizance; for there is no ground on which this bill can be sustained.

If the assessment was illegal, a plain and adequate remedy at law was afforded the plaintiff by a petition under the statute for an abatement of his tax (Savings Bank v. Portsmouth, 52 N.H. 17), and the bill should be dismissed for this reason. But beyond this no case is made for equitable relief, nor would there be if the bill could be regarded as a petition for abatement, because, in such a case, the court is only authorized to "make such order thereon as justice requires" (G. L., c. 57, s. 12), which plainly is, that a petitioner, in common with all other owners of taxable estate in his town, shall pay a tax on the fair value of his property; and therefore applications for abatement will be granted upon strictly equitable principles only. Edes v. Boardman,58 N.H. 580; Carpenter v. Dalton, 58 N.H. 616, 617, and cases cited. The plaintiff certainly can stand no better in this proceeding, for equity requires that he should not be relieved from his proportionate share of the common burden of taxation at the expense of the other tax-payers in Meredith. That this would be the result of. sustaining the bill is obvious; but irrespective of any such consideration, it must be dismissed upon general principles for a total want of equity. All of the alleged defects being purely technical and in no way injurious to the plaintiff, he has no real ground of complaint whatever; and therefore he must be permitted to take the risk of losing his land, unless he chooses to redeem it by the payment of the taxes allotted to him, and the expense of their collection.

There is also another ground for dismissing the bill, which is that it is practically a proceeding to prevent the payment of a tax by injunction, which courts of equity will not ordinarily assume to do, and never in a case like this. Savings Bank v. Portsmouth, supra; Brown v. Concord,56 N.H. 375; Brooks v. Howland, 58 N.H. 100.

Bill dismissed.

SMITH, J., did not sit: the others concurred.