Annan v. Baker

49 N.H. 161

• Court: Supreme Court of New Hampshire
• Decided: January 15, 1870
• Status: Published

Opinion

Nesmith, J.

We propose to examine but two or three of the questions involved in this case.

Our examination of the case, proceeds under the guidance of the well-established rule of law, that the party, who seeks the benefits of statute law, must adhere closely to its requirements, or must show a substantial compliance with its provisions. Therefore, the burden of proof, is upon him, who claims under a collector’s deed to show his proceedings legal or regular. Harvey v. Mitchell, 31 N. H. 578. Cass v. Bellows, 31 N. H. 506. Waldron v. Tuttle, 3 N. H. 340. The defendant says the collector’s deed, upon -which the plaintiff must rely for his title, was given prematurely, and, for this reason, must fail. The land in dispute, was sold on the 4th day of May, A. D. 1865, and the collector delivered his deed to the purchaser, being the plaintiff in this suit, on the 4th day of May, A. D. 1866. Ch. 49 of the Comp. Laws, sec. 17, provides, that the collector, if living, otherwise his administrator, shall, at the end of one year from the sale, execute, to the purchaser or his heirs, a deed of the land so sold, and not redeemed. The defendant contends that the deed in this case was executed before the year for redemption of the land sold had ended or expired, and that he was entitled to the whole entire civil day of May 4, 1866, in which he might have legally redeemed the land sold, and thereby prevented the delivery of any deed to the plaintiff; and that the deed could not, with any legal propriety, have been delivered prior to the 5th day of May, A. D., 1866. Under the common and well received construction of our law, bearing on the subject, we think the defendant is correct. Sec. 25 of chap. 1, of the Compiled Laws, prescribes, that when time is to be x-eckoned from any day, date, act done, or the time of any act done, either by force of law or by virtue of any contract, hereafter made, such day, date, or the day when such act is done, shall not be included in such computation. The day of sale of the land for taxes being excluded by the aforesaid statute rule, of course it follows by fair legal intendment, that the owner must have one full and entire year for the payment of his taxes, and the l’edemption of his land from and after the fourth day of May, A. D., 1865. The woixl after has been recently introduced into our General Statutes, instead of at. But the intent or meaning of the statute remains unchanged. It appeal’s to us the constraction we give to the law on this subject, upon a just interpi’etation of the several statutes, admits of no other or different construction.

Mr. Fox, in his Town Officer, printed in 1847, gave the following rule to collectoi’s of taxes and others interested in the subject. Rule 16, p. 109: “The owner may redeem any tract, or any interest therein, within one year next after the day of sale; that is, on or before the same day of the same month in the next year; and the collector, within ten days after the day of redemption expires, shall leave a list of all the lands so redeemed with the town clerk, who shall record the same.” Then follows rule 17th: “ After the expiration of one year from the day of sale, the collector shall execute to the purchaser, or his heirs, a deed of so much of the land sold as is not redeemed according to law.” The same rules of construction are adopted by Chief Justice Bell in his edition of the Town Officer, and are sustained by many judicial decisions in this state and others xxpon similar questions, involving the computation of time. Leavitt v. Simes, 3 N. H. 14; Rand v. Rand, 4 N. H. 267 ; Blake v. Crowninshield, 9 N. H. 304. So in Massachusetts : Bigelow v. Wilson, 1 Pick. 485; Wiggin v. Peters & al., 1 Met. 127.

The latter case was debt on bond for the prison limits, under the condition that Peters, who was committed to jail, &c., should, at the expiration of ninety days from the day of his commitment, surrender himself at the jail-house, &c. Shaw, C. J., upon the facts stated in that case, says: The words of the bond are, at the expiration of ninety days from the day of his commitment. The words of the statute are the same in effect, though in different language. Ninety days is a term of time, excluding the day of commitment, and the bond is not forfeited, if he obtain his discharge at any time within that term. The case of his not obtaining his discharge cannot happen until the whole of that time has expired ; and, therefore, there can be no breach of this condition until the whole of that time has expired. In the case before us, excluding the day of commitment, the term of ninety days expired o.n the last moment of the last day of June ; and, therefore, the surrender having been made on the first day of July, it was within the time limited by the law, and the terms of the bond, and thus saved the forfeiture. Judge Shaw remarks that the general rule governing the aforesaid case, was settled in Bigelow v. Wilson, before quoted. The marginal note of the latter case, is in the following language : “In computing the time allowed by the statute of 1815, being ch. 137, sec. 1, for redeeming an equity of redemption, sold on execution, which is within one year, next after the lime of executing by the officer to the purchaser the deed thereof. The day, on which the deed is executed, is to be excluded in the computation.”

No moment of time can be said to be after a given day, until that day has expired. For a day is to be considered as an indivisible point of time ; and there can be no distinction between a computation from an act done, and a computation from the day, in which the act was done. Bagley v. Bayley, 5 Gray, 510; Fuller v. Russell, 6 Gray 128. So the six months after an assignment, which was dated May 16, expired on the following 16th of November of the same, year. 2 Cush. 334.

Under an agreement to convey lands, on the payment of a promissory note, in annual payments, the day of the date is to be excluded. If dated on the 3d of March, A. D., 1847, a payment, or tender of the first installment on March 3, A. D., 1848, is sufficient. 4 Cush. 460. So in New York it is settled, that when after the expiration of a given number of days from one act, another may be done ; the day of the first act must be excluded, and the second act cannot be done till the day after the expiration of the given number of days. Com. Bank v. Ives, 2 Hill, 355 ; Butts v. Edwards, 12 Denio. 164; Cornell v. Moulton, 3 Denio 16: vide, also, Green. Cruise Title 32, ch. 5, sec. 17, & note; Strong v. Birchard, 5 Conn. 361; Young v. Higgon, 6 Meeson & Welsby 53; Streets v. Selden, 2 Wal. 190.

We may remark, generally, when statute law defines the times for the redemption of estates mortgaged, as when the equity of redemption has been sold and conveyed, or when lands have been sold for taxes, and the original owners of such estates are in danger of loss, through forfeiture for failure to redeem seasonably or otherwise, courts are inclined to construe the law liberally in favor of the original owner, and in opposition to the loss of the estate. In Dubois v. Hepburn, 10 Peters, U. S. Court 4, Baldwin, J., says : A law, authorizing the redemption of an estate sold for taxes, ought to receive a liberal and benign construction in favor of those whose estates will be otherwise divested, especially where the time of redemption is short, and the purchaser can obtain indemnity. It would, therefore, seem not to be necessary for the purposes of justice, or to effectuate the objects of the law, that the right to redeem should be narrowed down by a strict construction of the statute on this subject. And when there is any doubt as to the right or power of redemption, the original owner is to have the benefit thereof. 18 Conn. 30.

When personal property is distrained and sold for taxes, the law holds that the collector shall keep the property the whole four days after the seizure, and before the final sale, for the reason that the owner should have all the time allowed by the statute in such cases for the redemption of his property, and to save the sacrifice consequent to a sale; and such sales have been pronounced illegal where the full time has not been given by the collector prior to his sale. Mason v. Thomas, 36 N. H. 302 ; Souhegan Factory v. McConihe, 7 N. H. 309 ; Lefavor v. Bartlett, 42 N. H. 555. Our legal day is the civil day. Shaw v. Dodge, 5 N. H. 462.

With these views, and under the force of the authorities before referred to, we come to the conclusion that the original owner did not have his legal time for the redemption of his land before the collector executed his deed to the plaintiff. And that, consequently, the deed was executed prematurely, and plaintiff’s title for this reason must fail. At the end of the year, means after the expiration of the year, and not at any hour, minute, or instant before the end of the year.

The plaintiff’s counsel contends that the naked sale of the land for non-payment of taxes, could vest in the purchaser a full right of entry as against the original owner. But we understand the rule to be otherwise settled. That the title cannot be regarded as perfected, except by deed fortified by the previous regular proceedings — so settled in the analagous case of an administrator’s sale. Livingston v. Pendergast, 34 N. H. 544.

Supposing our views to be correct so far, we might reasonably close the further discussion of the exceptions made by the defendants to the plaintiff’s recovery in this case; but we, however, propose to discuss briefly the plaintiff’s motion to amend the record of the collector’s return of the land sold, as well as the description of the land in plaintiff’s deed. Plaintiff says these records are both defective, and asked for an amendment of both the sale and deed, at the trial before the jury, in order, as he says, that they should be made to correspond to the true intent of the parties, when the land was sold, and subsequently conveyed. Our courts have generally been inclined to listen favorably to motions for amendments, when found necessary, and when they can be made consistently with the established rules of practice, and with the true original purposes or intents of the interested parties. In this case, two objections present themselves to the plaintiff’s proposition. If, as the plaintiff suggests, an important or material mistake exists in the description of his deed, such mistake cannot be reformed by the court, while sitting as a court of law. Application for relief of this nature must be made to the court under its chancery jurisdiction; where the evidence, bearing on this question, must be collected and presented to the court, under a suitable petition, stating the facts of the case, and where such evidence may be weighed and considered, and a decree be made according to its influence upon the minds and conscience of the court. If, through accident, a mistake actually existed here, such as might materially prejudice the plaintiff in obtaining his expected rights, then we might order this case to be continued so long as might be necessary, to give him an opportunity to have such mistake corrected in the usual and proper manner. Prescott v. Hawkins, 12 N. H. 19.

We are, however, inclined to the opinion, that the deed before us may stand without amendment. This court is bound to carry out the intent of the parties, if it possibly can, by giving a fair and reasonable construction to the language and meaning of the parties, so that res valeat et non per eat. Now, looking at the description of the deed from the collector to the plaintiff, we find that the quantity of land conveyed is definite, viz., seven and three-fourths acres. Next, that it is part of Samuel S. Baker’s homestead farm; hext, bounded west by the highway, leading from Holderness Village to Andrew Baker’s farm; northerly, by land now owned by John B. Carr ; easterly and southerly, by the remaining part of said Baker’s farm. To give all parts of the boundaries of said tract of land due effect, it becomes a certainty that the location of this land must be at the northwest corner of the said Samuel S. Baker’s homestead farm. Because here, and nowhere else, must be the point of intersection of the aforesaid highway with John B. Carr’s farm. Then the tract of land has for its western boundary the aforesaid highway, and the Carr farm for its northern boundary. Starting from the northwestern corner, or point of intersection, and running equi-distant lines on said highway and the Carr farm, so far as to embrace the given quantity of land, and the description of it is reasonably perfected. Id certum est quod reddi certum potest. The figure of, the land hereby conveyed must be determined by the course of its outside boundaries. The angle formed by the external lines maybe a right angle, more or less. It is perfectly immaterial what the precise shape of the land conveyed may assume. The description called for is made complete, when,, from the ends of the first two lines heretofore described, the' easterly and northerly lines, bordering on the said S. S. Baker’s farm, are united, thus embracing the land intended to be conveyed in one compact body. In this ’way, we are enabled to identify the land sold, as being the same land conveyed, and there is no occasion to amend either record.

In Hill v. Mowry, 6 Gray 552, Judge Shaw says : The deed of the collector, taking effect only as the execution of a statute power, should be construed with strictness, so as to enable the grantee to identify the land, aud the owner to redeem it; and if the description in a conveyance be so uncertain, that it cannot be known what estate was intended, the conveyance is void. Worthington v. Hyler, 4 Mass. 205; Tenney v. Beard, 5 N. H. 58; Haven v. Cram, 1 N. H. 93 ; Bean v. Thompson, 19 N. H. 290 ; Harvey v. Mitchell, 31 N. H. 575 ; Wash v. Renger, 2 Hammond, Ohio 327.

We, therefore, reject, the proposed amendments, and stand upon the validity of the original sale ; and the deed, so far as the description ot it is concerned, we pronounce sufficient.

The first exception of the defendant, being found valid and fatal to the plaintiff’s right to recover under his title, the verdict must be, therefore, set aside and

A new trial granted.