Barnes v. Doe on the demise of Pelton

4 Ind. 132, 1853 Ind. LEXIS 33

• Court: Indiana Supreme Court
• Decided: May 28, 1853
• Status: Published

Opinion

Stuart, J.

Ejectment by the heirs of Reemer, deceased,--— for a tract of land claimed adversely under a tax-title. The cause was submitted to the Court for trial. Finding and judgment for the lessors of the plaintiff.

It is admitted that in January, 1827, Aaron Reemer, the ancestor, held the legal title, and that at the commencement of this suit the lessors of the plaintiff held the legal title, unless the title of the defendant below, Barnes, be superior.

The origin of Barnes's claim is by tax-title under the law of 1825, for taxes assessed in 1827. It appears that the land in controversy was listed twice for that year, once as land of the first class, and again as land of the second class. The clerk, Curtis Gilbert, in transcribing from the assessment-roll to the duplicate, carried out the tract in question as first-class land. Gilbert himself became the purchaser at the tax-sale, through whom remotely the defendant, Barnes, derives title. The law of 1825, and that to which it was amendatory, made it the duty of the clerk to carry out the assessment into the duplicate, &c. But there is no provision authorizing him to select, in a case like the present, where the land was listed twice, which should be carried out.

This raises the only question in the case, in Williams v. The State, this Court, speaking of the rule of construction applicable to such cases, says, that a strict construction of the law is fully authorized by the nature and consequences of the proceedings. 6 Blackf. 36. Adhering to that rule, the act of the clerk was without authority; and the tax-sale flowing from it cannot be supported.

Per Curiam.

The judgment is affirmed with costs.