Stephenson v. Weeks

22 N.H. 257

• Court: Superior Court of New Hampshire
• Decided: December 15, 1850
• Status: Published

Opinion

Woods, J.

Several points of law, of some importance, if not of very great difficulty, are presented for the consideration of the court, by the facts of the case and the arguments of counsel, which, however, it is unnecessary now to determine. An attentive, and careful consideration of the case, has brought us to the conclusion, that a single question, only, is necessary-to be decided, in order to bring this important controversy to a legitimate and final determination. That the plaintiff has sustained damages, for which the defendant must respond, provided the covenants specified in his deeds of conveyance and set forth in the declaration, are of any binding force upon him, as personal contracts, is a matter admitting of no doubt. No doubt can be entertained, that the scope of the covenants under consideration, is sufficient to embrace the defect in the proeéedings, from which the failure of title in the present .case resulted. They in fact, extend to, and cover every defect of title whatsover.

The question, which we propose to consider and decide, is, whether those covenants are to be regarded as personal, voluntary covenants, and binding upon the defendant, or as being merely involuntary official undertakings, prescribed by statute, and, for that cause only, entered into; and neither required by the statute, nor entered into by the defendant, with any purpose of personal obligation on his part ?

It has already been decided in this State, that a collector of taxes, who, upon a sale of land for taxes under the act of December 10, 1796, has executed a deed, with covenants of good right and lawful authority to sell and convey, and of general warranty, in the form prescribed by that statute, is not personally liable upon those covenants, upon a failure of the title conveyed, by reason of errors in the assessment. Wilson v. Cockran, 14 N. H. Rep. 397. The opinion, in that case, proceeds upon the ground that the deed is that of a public officer, made in his public and official capacity, and that the covenants are not personal, but official; that they are not to be regarded as entered into voluntarily, since the statute gives the collector no option as to the form of the conveyance to be executed in pursuance of a sale, and the legislature could not be supposed to have intended, that, by the insertion of such covenants in the deed, the collector should be personally chargeable, either for the value of the land, or the amount of the consideration, most of which by law goes into the public treasury. ■.

This precise question arose and was decided in the same manner and upon like considerations, by the Supreme Court of the State of Vermont. Gibson v. Mussey, 11 Vt. Rep. 212. It was there holden, that the covenants were official, and not personal contracts, and that the same being entered into, not voluntarily, but merely in accordance with the form prescribed by the statutes, it wras never the intention of the legislature, that the same should, have the binding force of a voluntary, legal obligation upon the officer executing the deeds containing them.

The language of the covenants most distinctly shows their character and purpose to be official, and not personal. The undertaking is expressly in the official capacity of the party executing the deed. If we look, then, to the intention of the parties, we find no personal obligation resting upon the officer. And so it should be. No prudent man, worthy to hold the office of collector of taxes, or sheriff, charged with that duty, would consent to become such public agent, if he were thereby to be made personally responsible to the extent claimed, and subjected to such disastrous consequences, as would be likely to flow from a mere error of judgment, in the discharge of the nice and difficult public duty imposed, and which human foresight could scarcely avoid. Anri we think this conclusion is most fully warranted, by an examination of the case, and a consideration of the difficulties encountered by the counsel and the court, in arriving at the 'result, out of which grew the present controversy.

Although, from the admitted ability and learning of 'the Chief Justice, who delivered the judgment of the court, the opinion, in that case, was probably correct; yet it cannot be doubted upon a careful consideration of the arguments of the distinguished counsel in that cause, on behalf of the defendant, that various strong and cogent reasons did exist in support of a different decision. Proprietors of Cambridge v. Chandler, 6 N. H. Rep. 271.

We are clearly of the opinion that the decision in Wilson v. Cochran rests upon a solid foundation, is consonant with sound policy and justice, and in accordance with the well settled principle of law, that the contracts of a public officer, entered into in the line of his duty, and by legal authority, are public acts, and not personal, and of no binding obligation as against the officer himself. Hodgson v. Dexter, 1 Cranch’s Rep. 345; Mackbeth v. Haldimand, 1 Term. Rep. 172; Unwin v. Wolseley, Ib. 674.

In the case under consideration, the defective title resulted from an error in the proceedings of the defendant himself. The sale was made under the act of December 10,1796, whereas it should have been made in accordance with the provisions of the statute of February 11, 1791. The error complained of, then, occurred in the proceedings of the defendant himself. It cannot be doubted, that it would ordinarily be more reasonable to hold an officer liable by law for his own errors, than for the errors of others. Yet we are clearly of the opinion, that, in the present case, that fact can make no difference in the legal result, in regard to his liability.

The principle established by the cases, and upon which alone the decisions in this State and in Vermont rest, or can properly be sustained, namely, that the covenants are official, and not personal contracts, and, upon that ground, not personally obligatory, is equally applicable in the one case, as in the other. If the principle be adopted, that the contracts being entered into officially by the requirements of the statute, are, for that reason, not of the binding force of a legal voluntary contract, we think its application must be general, and reach as well the case where the fault is that of the officer himself as of another.

The official and public character of the contracts, growing out of the covenants, is not changed to private and personal fo'r the reason that the error, for which the officer is attempted to be made responsible, was committed by himself. The entering into the covenants, is neither more nor less an official act for that cause. That fact does not, and cannot in any manner, that we perceive, give character to the covenants, rendering them either more or less binding as contracts, nor furnish a remedy for the injury sustained through the operation of the covenants in the deed. If an injury be sustained in the case of a collector, or a sheriff, in discharging the duties of a collector of taxes, as is alleged in the present case, redress must be sought in some other mode, than by force of covenants merely official, and entered into, in accordance with, and by force of a statute, and constituting, and intended only, as a part of the form of the conveyance, prescribed by the legislature, to be made in pursuance of a tax sale.

The opinion of the Court, therefore, is, that there must be,

Judgment for the defendant.