County of Hillsborough v. Londonderry

46 N.H. 11

Opinion

Sargent, J.

It appeared that the settlement of Parker G. Melvin which was in dispute", was derived from his father, Gilman Melvin, said Parker G. having gained no settlement for himself after becoming of age. Gilman Melvin had a settlementin Londonderry prior to 1845, and the question was whether he had gained a settlement in Litchfield since that time and before said Parker G. became of age, which was on the 13th day of August, 1858. It was claimed by .the defendant that such settlement was gained by the father in said Litchfield during the four years next preceding said 13th of August, 1858. It appeared that the father, from Sept. 6, 1853 to August 13, 1858, and since, owned real estate in said Litchfield of sufficient value to entitle him to a settlement there, provided he paid all taxes legally assessed upon him and his estate for four years in succession according to the fourth mode of gaining settlements provided in Chap. 65, Sec. 1, Rev. Stats.

The question as to when the four years must begin and end was settled in Andover v. Merrimack Co., 37 N. H. 437, and the first instructions were therefore correct in this respect. Does the fact that the son, Parker G., while a minor was supported at the Insane Asylum a portion of this term of four years, prevent the father from gaining a settlement ? The statute makes no such exception, but provides that whoever owns real estate of the requisite value in any town and pays all taxes, &c., for four years in succession, shall gain a settlement.

Under the statute, complaint was made to the judge of probate who ordered the said Parker G. committed to the Insane Asylum, and in such cases it is provided that such insane person shall be supported by the county from which he was committed, and any sum so paid may be recovered by the county of any county, town or person chargeable with his support. Rev. Stats. Chap. 9, Secs. 11 & 15. The expenses sought to be recovered in this suit have all accrued since said Parker G. became of age, but the case states that the evidence tended to show that the expenses of his first confinement in the Asylum while a minor were paid by the town of Litchfield. For aught that appears in the case, these expenses may have been voluntarily paid by that town, without making any claim upon the father of the minor to repay them. It does not necessarily follow that the father was a pauper because the town voluntarily paid these expenses. In fact it was settled in Litchfield v. Londonderry, 39 N. H. 247, in which it seems that the town of Litchfield sought to recover these identical expenses of the son in the Asylum while a minor, of the town of Londonderry, that the father, Gilman Melvin had the ability to pay these expenses at the time, and therefore was not a pauper.

We think that the mere fact, as shown by the town of Litchfield, that they paid these expenses without showing or offering to show something further, was entirely immaterial, and that the jury were properly told that they might disregard that circumstance and decide the case upon the other circumstances and proofs submitted to them.

So, the ruling in regard to the school house tax, assessed in Feb. 1859, was correct, because this assessment was made after the expiration of the four years during which it was claimed that Gilman Melvin gained a residence in Litchfield, and which terminated August 13, 1858.

The jury have found that the taxes of 1855 and 1856 were paid, and there was no evidence that any were assessed in 1854 after August 18th ; none were assessed in 1858. In 1857, after the tax against Melvin had been duly assessed with the other taxes of that year, had been inserted in the collector’s warrant, and duly committed to the collector for collection, and he had notified Melvin of the amount of the tax against him, Melvin had the right to pay the same at any time before it was abated. And when the money was offered, the collector had no right to refuse to take it. While the tax stood against Melvin unabated he had the right to pay it when he pleased, provided he paid it seasonably, otherwise the collector might enforce the collection.

Nor could any verbal directions of the selectmen or any of them justify him in refusing to receive it. He had their official order and warrant in writing, directing him to collect this tax. This was his only legal authority on that subject, until the tax should be legally abated and he properly notified of that fact. And as the assessment of the tax was a matter of record so should the abatement be an act of the selectmen acting in their official capacity, and the same should be a matter of record.

Where a man owes a sum of money which he has a right forthwith to pay, he may tender the same, and if he keeps his tender good, and the same be refused, it operates as a payment. In this case the money was not only tendered to the man whose duty it was-to receive it, but the amount tendered was left in his house and has never come, to the use of Melvin since. It was where the collector might have used it if he would. What occurred between Melvin and the collector was clearly sufficient to have made the collector chargeable to the town for this money if the selectmen had not subsequently abated it. But an abatement of the tax after it is legally paid cannot avail to deprive a man of a settlement -which depends solely upon that act of payment. We think the tender must be held equivalent to a payment both for the purpose of charging the collector with the money, and of enabling Melvin to acquire a settlement by the payment of that tax, and that the ruling on that point was correct.

The instructions given to the jury were as a whole sufficiently favorable to the plaintiff, and though not given in the terms in which they were asked, yet perhaps they were even more favorable to the plaintiff. Under the instructions as given, the jury muse have found first that there was no fraud on the part of Londonderry or its agents, in procuring or inducing Melvin to pay the tax, and further that said town or its agents did nothing to induce or procure Melvin to act in this matter differently from what he would have acted if no inducements had been held out to him on either side.

All fraud on the part of Londonderry being negatived the jury must have found either that no efforts were made to influence Melvin to pay the tax on either side, and no inducements offered by either, or if there were, then that Londonderry only used such fair means as they might properly do, to offset and neutralize the efforts made on the other side and thus leave Melvin’s mind free-to choose just as he would have done liad he been left entirely to himself. We think the plaintiff cannot complain of these instructions.

Judgment on the verdict.