Campbell v. Dewick

The validity of the tax sale depends upon the construction of three acts relating to taxes in Elizabeth, and the effect that each of these acts has upon the other. The act of February 11th, 1847, (Pamph. L. 52) made taxes on lands in Elizabeth township a lien upon them, and authorized a sale, by warrant of the town committee to any constable of the township, for the stated term of years bid. It provided that the purchaser should enjoy the same for the term bid as against the owner, and all claiming under him ; and that the assessment should be valid as against the lands, notwithstanding any omission or mistake of the name of the real owner in assessing the tax. The first city charter, approved March 13th, 1855, (Pamph. L. 217) provided that the act of 1847 should remain in force, substituting the words “ mayor, treasurer, and clerk,” for “ town committee,” and the w7ord “city” for “township,” and providing that the lands sold might be redeemed within two years by the owner, mort*188gagee, or claimant, by payment of the purchase money, and fifteen per cent, interest. The amendment of the charter, .of March 4th, 1863, (Pamph. L. 109) in section 124, enacted that all acts and parts of acts inconsistent with that act, should be thereby repealed, but that nothing therein contained should be construed so as to destroy, impair, or take away any right or remedy acquired or given by any act thereby repealed, and that all proceedings commenced under such former act should be carried out and completed as though that act had not passed. Section 83 provided that no mortgagee should be divested of his rights in said property, unless six months’ notice, in writing, of such sale should have been given to him by the purchaser, but that nothing therein should impair the lien created by such sale. By this act it is provided that sales of lands for taxes shall be made by the city treasurer.

The taxes for which these sales were made, were levied in 1862, under the charter of 1855, but the sales were made in 1864, after the charter of 1863 was in force. The charter of 1863 was an amendment to that of 1855, and did not repeal it, except so far as its provisions were inconsistent with it. And a sale by virtue of the provisions of the act of 1855, and in accordance with them, is not inconsistent with the provisions of the act of 1863, providing for sales for taxes to be levied under it. Besides, the lien of this tax was a right acquired, and the provision for sale under it and the act of 1847 was a remedy given by those acts, and therefore are expressly saved by the reservation in the repealing clause. It was lawful for the officers chosen under the amended charter to issue the warrant, and the constable to execute it, as the remedy under the old charter. If there was any doubt that the act of 1847 authorized the sale of the title of the mortgagee, when not named in .the assessment, the provision of the act of 1855, that the mortgagee may redeem, puts that doubt at rest. Acts in pari materia, or upon the same subject matter, must be construed together as if parts of one act. And there could be no doubt as to *189whose estate was intended to be sold by an act which provided that a mortgagee might redeem.

The provisions of the amended charter, requiring six months’ notice to a mortgagee, apply to all sales, as well those-before the passage of that act as those after it. The words would require that construction, and the justice and equity of these provisions will not allow a court to give any construction that shall restrict or narrow the plain natural meaning of the words. The sale does not take away the rights of the mortgagee, but the lien of the tax on the land, is preserved. And this lien is, according to the view above1 taken, prior to the mortgage. But when the notice has not. been given, and there is no proof that it has in this case, the mortgagee has still the right to redeem by paying the purchase money and interest. In equity, in a foreclosure suit like this, the title of a purchaser at a tax sale, when the right of redemption is not cut off, will be considered only as-a lien to be discharged out of the proceeds of sale. And when the tax lien is subsequent in time, although prior in right, it will be more consistent with the principles of equity in such proceedings to order the lands to be sold free from, the lien for taxes, and that the purchaser at -the tax sale be-first paid.

It is not necessary, in such case, to prove that the constable who conducted the sale was properly elected and sworn,, and gave bond. It is never required in-case of a deed by a. sheriff. The courts will take notice of the officers of the state.

If it is necessary to prove the existence of the ordinance authorizing the taxes for which this assessment and sale were made, and I am inclined to hold that it is necessary, the recital in the deed is sufficient proof. It recites that "in and by an assessment of taxes, made according to law, to raise the moneys ordered to be raised by the city council of said city, in the year 1862, the sum of $7.70 was assessed against Sarah Bewick.”

The act for the better security of titles to lands sold by *190sheriffs, (Nix. Dig. 864,) and the supplement to it, of April 2dr 1869, (Pamph. L. 1238) provides that the recitals in conveyances by sheriffs, or by authority of any public or municipal authority, shall be prima facie evidence -of the truth of the recital. And although these acts are since the sale, they do not at all affect the title itself, but only change the rule of evidence as to the manner of proving the facts required to make a valid sale.

The re'sult arrived at is, that the tax title of the defendant, Howland, as shown by the answer and evidence, is good, but subject to redemption by the complainant; and that the complainant is entitled to have the lands sold, free from the lien, upon paying the purchase money, interest, and costs of How-land, out of the proceeds of sale.