Wilson v. Marsh

34 Vt. 352

• Court: Supreme Court of Vermont
• Decided: February 15, 1861
• Status: Published

Opinion

Peck, J.

The plaintiff claims to recover of the defendants in an action on the case, upon the ground that as listers in the town of Bethel, for the year' 1857, the defendants wrongfully set to the plaintiff in his list certain parcels of land for which he was not liable to be listed, whereby he was wrongfully subjected to taxation on the same.

lie proves that the defendants set the parcels of land in his list for that year upon which taxes were assessed against, and paid by him. The court upon these facts and other facts set forth in the bill of exceptions, pro forma, directed a verdict for the plaintiff, and the question is, whether as matter of law, the defendants upon the facts set forth are liable. This suit involves the question whether the listers in this case committed any errors for which they are liable as matter of law, or for which under the rule of law that governs such cases, the jury would be warranted in finding a verdict against them. Both questions may properly be considered, although, strictly, the first question only is necessary to the determination of the question whether, upon this bill of exceptions the judgment ought to be affirmed or reversed.'

We need spend no time in disposing of the question, as to the rule of law that governs the liability of listers ; for while'in relation to some of their duties they involve so much of matter of judgment and discretion, and partake so much of the nature and character of judicial proceedings that their judgment exercised in good faith, without malice, is conclusive in their favor ; yet in relation to setting real estate in the list to the owner or persons liable to pay taxes thereon, so far as it relates to the persons to whom it is to be set and the number of acres, it may be regarded as settled that the listers are bound to act in good faith and with common care, skill and prudence, and that if they so act, they are not liable for mistakes or inaccuracies, and if not, that they are liable to the party injured for the consequences of such mistakes, oversights, or inaccuracies.

This was so decided in Stearns v. Miller et al., 25 Vt. 20. It is true in that case, (the error consisting in too great a number of acres being set in the list,) the injury complained of arose from an error committed by the listers, the defendants in the action, the year of appraisal when it was their duty to designate the quantity or number of acres, the value, and the owner or person liable to be listed therefor. And it appeared in that case also, that the plaintiff furnished to the listers a statement of his real estafe, containing the number of acres, and the listers for some cause set to him a greater number of acres than such statement contained, and more than he actually owned or was liable to have set in his list. But this cannot vary the rule of law, but leaves its applicaton to be made to "a different state of facts. But notwithstanding this decision, the question is still left open, what is common care, skill and prudeuce in each particular case. This is sometimes, upon a given state of facts not in dispute, a question of law ; and sometimes a question to be submitted to the jury for them to find under instructions.

In the case at bar, it is stated that “ there was no evidence or claim that the defendants as such listers, acted in bad faith in thus setting said real estate in the list of 1857, to the plaintiff, or were wanting in ordinary care or prudence, except so far as it was their duty as listers to have resorted to and acted upon information other than that furnished by the list of appraisals of 1855, and the said certificate of transfers, in ascertaining to whom the said parcels of real estate should by them be set in said list of 1857.” It further appears by the case that the town clerk furnished to the listers April 1, 1857, a certificate purporting to be a list of all transfers of real estate appearing of record in his office to have been made between April 1, 1856, and April 1, 1857, and that the defendants duly noticed in making the list all transfers appearing by such certificate to have been made, and it must be taken that the defendants in other respects followed the appraisal of 1855. The only question is. were the defendants bound to look beyond the appraisal of 1855 and the certificate of the town clerk, as this is the only particular in which, the plaintiff claimed the defendants were derelict in their duty there being no claim that, the defendants had any knowledge of any errors when they made the list, either in the list they made or in that of 1855, or in the certificate of the town clerk.

As to one class of grievances complained of by the plaintiff, it appears they were errors or alleged errors in the list or appraisal of 1855, and were continued and carried into the list made by the defendants in 1857. As to these the court think the defendants are not responsible. The law requires the listers to make an appraisal once in five years, and on such appraisal the listers are required to make a list thereof, and set the number of acres, the amount of the appraisal and the per centum tv such owners thereof as are hy law liable to pay taxes thereon. It then provides that in case of transfers of title in the intermediate time between such appraisals, the listers for such intermediate-years shall make corresponding changes in the list. This list of real estate is obviously intended to have a degree of permanency for five years, with such intermediate changes as the change of ownership or occupancy, or the erection or destruction of buildings (which is specially provided for,) may require, and the listers between the years of appraisal have a right to rely on it as correctly made up, and make it the basis of a new list, and if they dó so, and are guilty of no fault in making, or omitting to make, such changes as the statute contemplates, arising from subsequent events, they cannot be held liable for errors in such appraisal of which they are ignorant, nor charged with negligence for not discovering and correcting such errors, unless it appears that they are not only such as they have the power to correct, but that they are to such an extent and of such a character, and so obvious as to be equivalent to notice. It is trite the statute, see. 8 of the act of 1855, makes it the duty of the listers each year to set real estate to the owners or occupants, such person as shall be the owner or possessor thereof on the first day of April in each year, but the two statutes must be construed together. We have already seen that listers are not bound at their peril to a literal compliance ; it is a question of care and diligence.

Another grievance complained of is, that the defendants set in-the plaintiff's list real estate that he had sold and transferred by deed on record subsequent to the appraisal of 1855, and before April 1, 1857, and which he did not occupy. This transfer, it appears, was not upon the certificate of transfers furnished to the defendants by the town clerk ; and the question is, (to use the language of the exceptions,) were the defendants ‘‘ wanting in ordinary care and prudence,” in not resorting to and acting upon information other than that furnished by the certificate of transfers.

The statute requires the town clerk for the use and benefit of the listers, to prepare and keep a list of all the transfers of real estate, particularly mentioning in such list the names of the grantor and grantee, the number of acres included in each transfer, etc.

We are not prepared to say that this statute was intended in . all cases to be a substitute for the duties required of listers in relation to ascertaining what transfers have been made so as to absolve the listers in all cases from further enquiry, and yet the force we give to it may in many cases have that effect. There may be cases where from a change of occupancy known to the -listers together with other circumstances tending to show a change of title, or where the listers are possessed of such other facts as ought to put them on inquiry outside the certificate, it would be their duty to do so. But the town clerk is a public officer required by law to perform this duty, '■‘•for the use and benefit’’ and at least, in aid of the listers : he is the person from his situation, who has the best means of knowledge, especially, as he has this duty before him during the year to keep this list: and can it be regarded as culpable negligence in the listers to rely on his doings in this particular where no facts come to their knowledge to lead them to doubt his accuracy. This certificate would be but little if any aid to the listers, if they are bound at their peril to examine the records, and not only test its accuracy as to what it does show, but also to see that there are no other transfers. When a party is charged with negligence in not knowing a fact, it is competent for him to show that he made inquiry of persons liable to know, and sought information from the proper source. Here the defendants have made such inquiry of a public officer who is not only most likely to know, but whose duty it is to collect, preserve, and furnish the information ; and the court are of opinion that there is nothing in this case which so far puts them on inquiry as to make them liable for acting on the information they received from the clerk through the certificate.

Another complaint is that some of the parcels set in the list of 1857 to the plaintiff, were under mortgage from the plaintiff, and that prior to the first day of April, 1857, the mortgagees had taken possession (or condilion broken, and were in the occupancy under their mortgages when that list was made, and that such parcels ought not to have been set to the plaintiff, but to such mortgagees. The statute provides that real estate shall be set to the owner or occupant, and that the mortgagor shall be deemed the owner until the mortgagee takes possess'on, after which he, the mortgagee, shall be deemed the owner. This is equivalent to saying that the land shall be set to the mortgagee in possession under his mortgage. To have made the list correct the land in possession of the mortgagees under their mortgages should have been set to such mortgagees and not to the plaintiff. But it is claimed that this is no ground of action for the reason that the plaintiff has lost nothing by the error, inasmuch as he would ultimately have had the taxes to pay, when he redeemed, had the mortgagee paid the taxes. It is true that in order to entitle the plaintiff to recover he must show he has sustained some damage In the case of Stearns v. Miller, 25 Vt., above referred to, the defendants ultimately recovered, by showing that the town omitted to collect of the towff taxes, assessed on the erroneous list, as much as was equal to the sum by which the whole taxes on that list were increased by reason of the error in the list. And in this case, if the court could assume that the plaintiff would redeem, there would be plausibility in the argument, but this can not be assumed — he may never redeem, and if he should not, and the value cf the premises, with the rents and profits the mortgagee receives, is equal to the debt and the taxes the mortgagee would have paid had the list been made to the mortgagee, the plaintiff would not have to pay the taxes, either directly or indirectly — to say nothing of the difference between being compelled to pay the taxes immediately to the collector, and paying them ultimately when he redeems. »

But the court are of opinion that it was error to hold that as matter of law the defendants were liable for setting these parcels in the list to the mortgagor, inasmuch as (he case shows that the listers had no notice of any change of possession from the mortgagor to the mortgagee. Nor can the court say as matter of law there was'no want of care, or diligence. The determination of this question depends on such a variety of facts and circumstances and inferences to be drawn from the evidence, that it should be left to the jury ás a question of care and diligence. The same rule applies as to the parcel foreclosed, and which passed into the possession of the mortgagee under the foreclosure That transfer is not matter of record in the town clerk’s ofhce, and the defendants can ngt be affected with constructive notice of the proceedings in court and decree of foreclosure. It is true the mortgage may be of record, but that is not such a transfer as requires any change in the list, it is only the taking possession under it, or a final foreclosure, that gives the right to set it in the list of the mortgagee.

As to the Lillie place, (No. 6,) Rogers must- be regarded as in possession under the lease from the plaintiff, so far as these defendants are concerned. The case states the possession to be under the lease and when the condition in the lease happened by which the plaintiff was to have the possession, the possession was surrendered up to the plaintiff, although the mortgage held by the lessee (Brockway,) or Rogers his assignee, was still due. And although this happened after this list was made, yet .as the plaintiff was a party to it, it is evidence as to the character of the possession in 1S57. At any rate, whatever may have been the character of the possesion, whether under the lease or under the mortgage, it was so equivocal in its character that the defendants are not liable for not setting this parcel to the mortgagee by reason of this possession — it could not be regarded as negligence to set it in the plaintiff’s li-t, notwithstanding such possession was thus equivocal.

It would seem to be more reasonable for the statute to make it the duty of tax payers to present to the listers a list of their real estate, as well as of their personal property, and to give notice to the listers of all transfers by them of real estate during the preceéding year, and for mortgagors to give notice when the mortgagee takes possession, as the facts are more peculiarly within their knowledge, than to hold that the listers are to take notice of such facts at their peril. But the statute has not so provided, and the court do not feel justified in imposing such duty in the absence of any such enactment, especially as the statute requires them to give a list of persona"! estate, and is silent in this respect as to real estate. The case therefore must be submitted to the jury under the general principles above expressed, so far as the facts developed on a new trial may make them applicable.

Judgment reversed and new trial granted.