Lyon v. Hunt

11 Ala. 295

Opinion

COLLIER, C. J.

The interference of courts of equity in restraint of waste was originally confined to cases founded in priority of title; but at present, the jurisdiction has been enlarged to reach cases of adverse claims and rights not founded in priority; as, for instance, to cases of trespass, attended with irreparable mischief. [2 Story’s Eq. 200.] The interposition by way of injunction in cases of waste, may be referred to the broadest principles of social justice. It is exerted where the remedy at law is imperfect, or is wholly denied ; where the nature of the injury is such, that a preventive remedy is indispensable, and should be permanent. [Ib.j Even in cases of tenants in common, courts of equity will interfere where the party committing the waste is insolvent; or where the waste is destructive of the estate, and not within the usual legitimate exercise of the right of enjoying it. [Id. 199.] In some cases, the jurisdiction is maintained in order to prevent multiplicity of suits. [1 Story’s Eq. 82, 491 to 493. See further as to the remedy in equity, 1 Hen. & M. Rep. 18; 1 Monr. Rep. 65.] An injunction to stay waste, it has been decided, will be granted, though there be no suit pending in a court of law, and though no action can be maintained at law against the tenant. [1 Johns. Chancery Rep. 11.]

In Livingston v. Livingston, 6 Johns. Ch. Rep. 497, it was said, that “Lord Eldon suggested the propriety, of extending the injunction to trespasses as well as waste, on the ground of preventing irreparable mischief, and the destruction of the substance of the inheritance. The distinction on this point, which was carefully kept up by Lord Hardwiclce, was shaken by Lord Thurlow, in Flamany’s case respecting a mine, and seems to be almost broken down and disregarded by Lord Eldon. This protection is now granted in the case of timber, coals, lead ore, quarries, &c.; and £the present established course,’ as he observed in Thomas v. Oakley, 18 Ves. 184, ‘ was to sustain the bill for the purpose of an injunction, connecting it with the account in both cases, and not to put the plaintiff to come here for an injunction, and to go to law for damages.” So in Field v. Beaumont, 1 Swa. Rep. 208, the Lord Chancellor remarked that his “court was now in the habit of granting injunctions in cases of trespass, as well as of waste.” But is said not to be the general rule that an injunction will lie in a marked case of trespass, where there is no legal remedy for the intrusion. There must be something particular in the case, so as to bring the injury under the head of quieting the possession, or to make out a case of irreparable mischief, or where the value of the inheritance is put in jeopardy. [1 Madd. Ch. Rep. 150.] Where this appears, the jurisdiction of equity is defensible. [6 Joh. Ch. Rep. 497; 1 Paige’s Rep. 99; 6 Ves. Rep. 147; 7 Id. 305; 10 Id. 290; 15 Id. 138; 16 Id. 128; 17 Id. 110, 128, 281.]

In Hart & Hoyt v. Mayor, &c. of Albany, 3 Paige’s Rep. 213, the chancellor observed that the cases in which his court had interfered to prevent a mere trespass, have been those in which the complainant had been in the previous undisturbed enjoyment of the property under claim of right, or where from the irresponsibility of the defendant, or otherwise, the complainant could not obtain relief at law. And in the M. & H. Railroad Co. v. Artcher, 6 Paige’s Rep. 88, it was asserted that chancery has an undoubted right to interfere by injunction where public officers are proceeding illegally and improperly under a claim of right, or where the exercise of such a jurisdiction is necessary to prevent a multiplicity of suits at, law; and this, although the complainants might have lain by and permitted the defendants to proceed, and then have sued them at law to recover satisfaction for the injury. This principle is re-affirmed in Oakley v. Trustees of Williamsburgh, Id. 264-5. In that case, assessments were made upon certain town lots of the complainant for the expenses of the proceedings to alter the gradations of the streets, and the court was of opinion, that although they might be so far void as not to affect their legal title to the lots, yet as they would of themselves be a cloud upon that title, and must necessarily diminish the value, an injunction should be granted to restrain the defendants from proceeding with the proposed alteration of the former gradation of the street as originally established. It was added, that as chancery sometimes exercises its jurisdiction for the purpose of removing a cloud from the complainant’s title to real estate, it may also in a proper case, interpose its authority to prevent the illegal act from which such a cloud must necessarily arise.

In Pettit v. Shepherd, 5 Paige’s Rep. 501, it was held that an injunction will be granted at the suit of the true owner of land to restrain the sale, of it, under .an execution against the lands and tenements of a third person. “ The jurisdiction of this court,” .said the chancellor, “ to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up and canceled, appears to be now fully established. [See Ward v. Ward, 2 Hayw. Rep. 226; Leigh v. Everhart’s Ex’rs, 4 Mon. Rep. 380; Hamilton v. Cummins, 1 Johns. Ch. Rep. 517; Apthorp v. Comstock, 2 Paige’s Rep. 482; Grover v. Hugell, 3 Russ. Ch. Rep. 432.] And if a court of chancery would, have jurisdiction to set aside the sheriff’s deed which might be given on a sale, and to order the same to be delivered up and canceled, as forming an improper cloud upon the complainant’s title to his fprm, it seems to follow as a necessary consequence, that the court may interpose its aid to prevent such a shade from being cast upon the title, when the defendant evinces a fixed determination to proceed with the sale.” Lord Eldon, in Hayward v. Dimsdale, 17 Ves. Rep. 111, declared his opinion that there is a jurisdiction in equity to order a deed forming a cloud upon the title to be delivered up, though that deed is void at law; but he admitted that the contrary had been held by Lord Thurlow, and Lord Loughborough had held the contrary in 3 Brown’s Chan. Rep. 12, and in 1 Ves. Jr. Rep. 50. The same doctrine is maintained in Jackman v. Mitchell, 13 Ves. Rep. 581, and Carroll v. Safford, 3 How. Rep. U. S. 463. The jurisdiction exercised in such cases, says Mr. Justice Story, is founded upon the administration of a protective or preventive justice. The party is relieved upon the principle, as it is technically called, quia timet; that is, for fear that such agreements, securities, deeds or other instruments may be vexatiously or injuriously used against him, when the evidence to impeach them may be lost; or that they may throw a cloud or suspicion over his title or interest. “ If an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it; since he can only retain it for some sinister purpose. If it is a deed, purporting to convey lands or other hereditaments, its existence in an uncanceled state necessarily has a tendency to throw a cloud over the title.” This jurisdiction, continues the same learned author, is not confined to cases, where the instrument having been executed, is void upon grounds of law and equity — “ it is applied even in cases of forged instruments, which may be decreed to be given up, without any prior trial at law on the point of forgery.” The old course used to be, if the validity of the instrument was contested, to direct an issue or a trial at law to ascertain the fact: but this, though the common practice was a matter in the sound discretion of the court; as the determination of a jury upon the point was not indispensable. At present, a more convenient course, it is said, seems to prevail, for the court itself to decide the point, without sending the matter to be ascertained at law by a jury; unless the contradictory character of the evidence, or the want of clearness in the proofs make it advisable to direct an issue. [2 Story’s Bq. 4-13.] The same author remarks, that where the illegality of the deed or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be canceled or delivered up, would not seem to apply; for in such case lapse of time cannot deprive the party of his full defence; nor can such a paper throw a cloud over his title, or diminish its security; nor can it be used as a means of vexatious litigation, or serious injury. [Id. 11.]

By a comparison of the allegations of the bill with the law as we have stated it, we think it perfectly clear, that the bill states a case proper for equitable interposition. True, it does not charge the defendant, Lyon, with the actual commission of waste, but it affirms, that trespasses and waste are threatened, that preparations are being made for their commission, and that by the acts of Lyon, and others acting avowedly under his authority, the complainants are disturbed and are likely to be still more seriously interrupted in the enjoyment of their property. That the acts charged to have been committed and threatened would most probably produce such a result as the complainants apprehend, we think cannot be seriously questioned. This being the case, and Lyon being insolvent, the preventive interference of chancery may be sustained upon the ground that the injury to the complainants’ property would be otherwise irreparable. To authorize an injunction to issue in such case, it is not necessary that the acts threatened should have been committed— if the party insists upon his right to do them, and especially if he makes advances towards their commission, it is quite sufficient. [2 Atk. R. 183; Casey v. Holmes, Bott & Earle, 10 Ala. Rep. 776.]

. The validity of the deed from Huggins as collector of the taxes for Mobile county, has not been drawn in question, for any defects apparent on its face, and it may therefore be conceded, that it is prima facie valid, if its recitals are sustained. Upon this hypothesis it may be assumed, that if it is not sufficient to divest the complainants’ interest in the property in question, it at least throws a cloud over their title — is calculated to impair the market value of the estate, and will prevent a sale at its fair value. Under such circumstances, no prudent man would be inclined to purchase. The bill al-ledpes that complainants are in possession,'and upon an objection of the want of equity, this allegation must be taken to be true. This being the case, the defendants cannot maintain an action at law to test the validity of the title of Lyon, and the citations we have made, very satisfactorily establish the jurisdiction of a court of chancery to remove the cloud, and cancel his deed. [Bacon v. Conn, 1 S. & Marsh. Ch. R. 348.]

We are now brought to consider the validity of the sale under which Lyon claims, and the deed consequent thereon. By the act of 1815, in connection with that of 1821, it is enacted, that all lists of taxes shall be considered as having the force and effect of an execution ; and it shall be lawful for all assessors and collectors of taxes, from and after the first day of September, in each year, to proceed to irnake distress and sale of the goods and chattels, lands and tenements of all persons in arrear for taxes. Where the delinquent has no goods and chattels within the county, then his lands and tenements within the same, or so much thereof as will be sufficient to pay the amount of taxes due from him, together with costs and charges, may be sold by the collector; “ Provided, that the collector shall have given in the nearest newspaper published in this state, in the case of residents within the , same, at least three months notice, and in the case of non-residents, at least six months notice of the time and place of sale.” “ Which notice shall contain a particular description of the land for sale; on what water course it is, and by what lands the same is bounded; and to whom the same was granted, or by whom the same is now owned or claimed.” “ There shall not be sold in one lot, more than three hundred and twenty acres of land; but if one lot shall not sell. for the amount of taxes due from the delinquent, together with all costs and charges that shall have accrued thereon, the collector shall sell as many lots, or parts of lots, as shall raise the full amount due ; in no case shall the collector sell any more land than shall be sufficient to raise such sum as shall be due.

The same statute directs that every collector of taxes who shall sell any real estate to satisfy any tax,imposed by law ful authority, shall execute to the purchaser thereof, a deed of conveyance immediately; “ which deed shall be good and effectual, both in law and equity,” and shall recite, “ that the real estate thereby conveyed was sold for taxes, and the consideration but such deed, though it may be proved, shall not be recorded, until the expiration of one year from its date ; within which time the person whose estate has been sold, may redeem the same. [Clay’s Dig. 566-7, § 50, 53.] It is provided by the act of 1821, that “ the assessor shall deliver to each individual whose property he assesses, a concise statement of the property assessed, and the amount; which he shall date and sign.” [Id. 554, § 36.] The act of 1827, makes it the duty of the assessor to value town property in case of the neglect or refusal of the proprietor to list the same, and of the collector to collect the amount of tax due thereon, in the same manner as if the tax had been given in by the owner. It is also provided by the same statute, “ that the collectors of taxes in the several counties shall, at the time, and in the manner prescribed by law, make distress and sale of the goods and chattels, lands and tenements of all delinquents in making returns of taxable property, or in payment of taxes.” In cases of taxes assessed, as directed by the act, on lands or town lots, to which a complete title has not been made, (if no other property can be found to satisfy it,) the collector is directed to offer the same for rent, having first given thirty days notice, by advertisement at the court house door, and at two other places in the county. [See the act, § 3, 9, 12 ; Clay’s Dig. 564, §, 38; 567, § 55.] This enactment does not modify the act of 1815, as if respects the proceedings essential to the sale of real estate for the sale of taxes. The ninth section, except so far as it is declaratory of the act of 1815, relates expressly to lands or town lots “sold under the authority of the United States, previous to the first day of September, 1819.” This is conclusively indicated, not only by the section referred to, but by the eighth and eleventh sections, and upon this hypothesis we will consider the case.

In Williams v. Peyton’s lessee, 4 Wheat. Rep. 77, it was said that the authority conferred upon a collector to sell lands for the non-payment of the direct tax, “ is a naked power, not coupled with an interest; and in all such cases, the law requires, that every pre-requisite to the exercise of that power, must precede its exercise • that the agent must pursue the power, or his act will not be sustained by it,” The deed of the collector is not even prima facie evidence, that the prerequisites prescribed by law have been -complied with; but the party claiming under it must show positively, that they have been complied with.

It is easy for the purchaser, said the court, to show that the collector has posted up the notifications as required by the statute, but very difficult to show that he has not. He may readily prove that a personal demand was made on the person liable for the tax, “ but the negative in many cases would not admit of proof. No greater hardship is imposed on the purchaser to require him to prove the publication in a gazette, than to require him to prove that a naked power of attorney, in a case in which his deed has been executed by an attorney, was really given by the principal. “ But to require from the original proprietor proof that these acts were not performed by the collector, would be to impose on him a task always difficult, and sometimes impossible to be performed.” [See also, 4 Cranch’s Rep. 403 ; 9 Id. 64; 1 Scam. R. 335; 1 Bibb’s R. 295; 5 Mass. Rep. 403; 4 Dev. & Bat. R. 363.] A purchaseer of lands which have been sold for the non-payment of taxes cannot defend his possesion by the production of the collector’s deed, and proof of its execution, but he must also show that the lands were listed; that taxes were due and unpaid, and that the lands were regularly advertised for sale. ’ “ In deciding on tax titles, great strictness has always been observed, and less latitude given than in proceedings on judgment and execution. A collector who sells lands for taxes, must act in conformity with the law from which he derives his power, and the purchaser is bound to inquire whether he has done so, or not. He buys at his peril, and cannot sustain his title, without showing the authority of the collector, and the regularity of the proceedings. In these cases the maxim caveat emptor applies.” [3 Ohio Rep. 232; see also, 2 Ohio, 378; 3 Yeates’ Rep. 284; 2 Id. 100; 13 Sergt. & R. Rep. 208; 4 Dev. & Bat. Rep. 386; 5 Wheat. ; 6 Id. 119; 1 Yeates’ Rep. 300; 3 Monr. Rep. 271.]

In an ex parte proceeding, as a sale of land for taxes, under a special authority, great strictness is required. To divest an individual of his property .against his consent, every substantial requisite of the law must be complied with, No presumption can be raised in behalf of a collector who sells real estate for taxes, to cure any radical defect in his proceedings ; and the proof of regularity devolves upon the person who claims under the collector’s sale. [4 Pet. R. 349.] To the same eifect is Avery v. Rose, 4 Dev. Rep, 549, in which it was also held, that the collector’s deed must be made at the time directed by the statute. In the Lessee of Watt v. Gilmore, 2 Yeates’ Rep. 330, lands were assessed and sold for the non-payment of taxes, as the property of A. G. and J. G., but were advertised as the property of C. G. and company: Held, that the variance between the advertisement, assessment and deed, was fatal to the sale and operation of the deed. So it has been decided, that under the eighth section of the act of 1812, to amend the act for the incorporation of the city of Washington, a sale of unimproved squares, or lots in the city, for the payment of taxes is illegal, unless such squares and lots have been assessed to the true and lawful proprietor thereof; and the advertisement of sale must contain a particular statement of the amount of taxes due on each lot separately. [8 Wheat. Rep. 681.] And if land is assessed in the name of A. when in fact it belonged to B., a sale for the non-payment of taxes will not, though a deed has been executed, and legal forms have in other respects been adhered to, convey a title to the purchaser. [1 Bibb’s Rep. 295.] In fact it is indispensable to the regularity.of a sale, in such case, that the assessment of the tax should have been made strictly in conformity to law. [1 Tyler’s Rep. 305; 14 Mass. Rep. 177; 1 Pick. Rep. 482.] Where the statute requires the notice shall be given to the occupant, or proprietor of the land, previous to the sale for the non-payment of the tax, unless such notice is given, the deed of the collector passes no title to the purchaser. [7 Wend. R. 148; 15 Id. 348; 16 Id. 550.]

If laud is sold for the non-payment of divers taxes, one of which is illegal, and the rest legal, the sale is void in toto [1 Greenl. Rep. 339; see also, 15 Mass. Rep. 144.] So where a sheriff sells land for the taxes of two years, when he had a right to collect only those due for the last year, the sale is void, and his deed vests no title in the purchaser. [3 Dev. Rep. 432.] And in Jones v. Gibson, Taylor’s N. C. Term Rep. 480, the sheriff sold an entire tract of land, for the payment of the taxes assessed thereon, although the taxes for pne third of the tract had been paid by a person who claimed to be the proprietor of that portion of it, and it was held that the sale was void. So where a sale of land was made for taxes, after a legal tender to the collector, by a part owner, of all that was due, no title passed to the purchaser. [3 Hawks. Rep. 283.]

A statute of New York required a tax list to be made out, “ containing the names of all the taxable inhabitants residing in the district at the time of making out the list, and the amount of tax payable by each inhabitant, set opposite his nameand further directed, that a warrant issue, which “ shall command the collector to collect from every person in such tax list or rate bill named, the sum therein set opposite to his name.”' Held, that where a farm is owned, and actually possessed by the widow and heirs of a person deceased, the designation of such owners in a tax list, and warrant for the collection of the tax, as “ the widow and heirs of A. B. deceased, is a sufficient compliance with the directions of the statute to justify the collector in executing the warrant. [10 Wend. Rep. 346.] And in the Lessee of Massie’s Heirs v. Long and others, 1 and 2 Ohio Rep. 412, it was held that the assessment of a tax upon a “part of a lot, or one acre of a lot,” without quantity or location, in the one case, or without location in the other, is too vague and indefinite to authorize a sale of any part, or in any place. It has been decided under the tax laws of Illinois, that a deed to the purchaser of land sold for taxes, must show that the land was sold for the taxes of a particular year, and if it is ambiguous in this respect, it cannot be explained by parol testimony. [1 Gilm. Rep. 26.]

The earlier legislation of Illinois, in respect to the sale of lands for a default in the payment of taxes, seems to have been modified, so as to make the deed of the auditor, (the officer authorised to convey,) evidence of the regularity, and legality of the' sale, until the contrary shall be made to appear. [1 Gilm. Rep. 631; see also, Id. 131.] And although by a statute of New York, it is declared, that where lands are sold in consequence of the non-payment of taxes, and a deed is regularly executed, such deed “shall be conclusive evidence that the sale was regular,” it has been held, the conveyance may be defeated by proof of the fact, that the tax for which the land was sold, was paid before the sale. It was said, that “the statute declares that'the conveyance shall vest an absolute estate in fee simple in the purchaser,,- which it does not, if the tax had not been paid ; but if it has been paid, then no estate passes by the sale, for the statute intended to divest the title of the former owner, for non-payment of the tax, and for that only; and it must be so construed.” The purchaser buys subject to being defeated if the .tax has been paid, and if his title is invalidated for that cause, he must look to the state for the relief which such a case requires. [18 Johns. R. 441.]

We might, perhaps, have saved ourselves the labor of thus multiplying citations on this branch of the case, by merely referring to a decision of our own, in which it was held, that to sustain a sale of real estate for the non-payment of taxes by the marshall and collector of the city of Wetumpka, the purchaser must show that every pre-requisite to the regularity of such sale had been strictly complied with. [5 Ala. R. 433.] But as the opinion, in that case, though clearly and satisfactorily reasoned, did not go into an elaborate examination of the question, we have thought altogether proper on the present occasion, to fortify the conclusion there expressed. It is important to the State, as well as to individuals, that the law upon this point should be understood, and this must be our apology for having thus extended this opinion.

Our statutes do not declare that a sale and conveyance, ■such as we are considering, shall operate proprio vigore, it merely provides that the collector’s “ deed shall be good and effectual, both in law and equity.” By this we understand, that it shall pass the title to the vendee, if the sale was made in obedience to the directions of the law, and was authoris-ed by it — not that the vendee shall be released from the onus of proving every pre-requisite to the regularity of the sale. This being the case, the citations from 4 Wheaton’s Reports, 3 Ohio Reports, and others of a kindred character, are directly in point. By these we have seen, that a tax collector’s deed is not even prima facie evidence in favor of the purchaser’s title, but must be sustained by proof of extraneous facts.

The notice we have taken of our statutes, and the adjudications upon kindred enactments elsewhere, very clearly indicate that the proceedings of the collector, Huggins, under whose deed Lyon claims, were eminently irregular. The assessment does not particularize the land, by stating what portion of the Orange Grove tract was assessed. It could not have been ascertained, (if at all,) without reference to deeds and writings, as well as oral testimony, to which access could most probably be obtained only by time and industry. It does not appear whether the assessment was made in the ordinary mode by the proprietors of the estate, or by the collector, upon his neglect or refusal to give it in; nor is it shown that the collector delivered to the proper persons a written statement of the tax assessed. It may be well questioned, whether it is proved that the persons liable to pay the tax had not sufficient property in Mobile county that could be sold for its satisfaction. Is it certain that the lands were assessed to the proper persons ? It is obvious from the proof, that the greater part of the sum assessed was paid by the real proprietors of the property, or their agents, even previous to its having been advertised for sale.

Again: The advertisement by the collector of the time and place of sale, is as general as the assessment, and proposed to sell “ thebalace of the Orange Grove tract remaining unsold,” to pay the entire sum assessed, without noticing the payment of any part of it; nor can the land to which it refers be identified, and located, otherwise than by reference to extraneous written, and perhaps verbal evidence. And to this it may be added, that it not only does not appear that the sale was advertised for three months, but it was proved by the positive testimony-of one witness, that the advertisement first appeared on the 7th of January, 1842, and the sale was made on the 7th of February next thereafter — being thirty days. It is unnecessary to inquire whether any particular in which we have noticed the proof to be wanting, constitute so many legal objections to the title of the defendant, Lyon, since it is perfectly clear from the terms of the statute, that the two last stated are substantial defects in the advertisement, and are fatal to his pretensions. The affirmation in the answers of Lyon and Huggins, that the sale was advertised according to lato, are too general and indefinite to entitle them to be considered a direct denial of the allegation, that the notice of the sale was published for thirty days only. These defendants do not state what they consider a legal advertisement — it may be, they consider such as was published, and for the period proved, was a compliance with the statute. Be this as it may, upon principles of reason and analogy, the opinion of a defendant generally expressed, that a matter was transacted pursuant to the law, cannot outweigh the positive declarations of a witness, who states the facts specially, which show that the law was disregarded.

We need not consider any other question discussed in this case, as the result cannot be changed by any conclusion we might attain in respect to them. The consequence is, that the chanceller rightly perpetuated the injunction, and set aside the sale and conveyance upon which the defendant, Lyon, rested his claim — the decree is therefore affirmed.