dissenting.
I differ in opinion from a majority of the court in this case.
The record shows that Mrs. Mitchell, in her own right, was the owner of two of the tracts of land in controversy; that she was a resident of the county, and had personal property from which her taxes could have been collected. This alone, I think sufficient to invalidate the sale. The authority given to the collector to sell the land of resident tax payers, is limited to those cases, where there is no personalty out of which to make the money. Nor can he enlarge the authority conferred upon him, by putting the lands, whether by mistake or otherwise, into the non-resident list. The facts are the same — that the lands belong to resident owners, and are exempt from sale, where the owners have personal property. The power given to an assessor, or collector is a special one, and must be pursued strictly. Parker vs. Overman, 18 How. 142.
Embarrassment may sometimes ensue to the assessor, in determining whether lands belong to resident or non-resident owners. But the Legislature has not seen proper, thus far, to relieve him of that difficulty, by saying that he may assess them, either to the one or to the other, as convenience or caprice may dictate.
And in assuming to sell lands when he has no power to do so, the collector, by such sale, not only passes no title, but commits a trespass against the owner, for which he is liable to an action.
The citizen tax payer has rights, which as much deserve protection in courts of justice as the speculating purchaser, the officer, or the government.
For the burden of paying a perpetual, and never-ending tax, is sufficiently onerous to him, without being subject to ruthless and unlawful invasion, induced by the negligence or incompetence of officers, whose duty it is to protect his rights, rather than to invade them.
In this case, as in most others involving tax title, the delinquency begins and ends with the collector, and not with the tax payer.
By law, and express law, it was the duty of Sandefur, as assessor of Hempstead county, to have proceeded in person over the county, and have called upon every tax payer to give in their property under oath; and if they neglected or refused to do so, then it became his duty to assess them “ as best he could.”
But, instead of that, he neither called uponMrs. Gray to give in her taxable property, nor assessed it himself “ as best he could,” for he testifies that he never did, in fact, assess the land himself, but copied into his own book the assessment made by Daniel E. Williams, who was a private citizen, and who had no right to make an assessment at all.
In 1853, the Legislature passed an act requiring the tax pa3’ers to meet the assessor at the township precinct, and give in their property, and the same law imposed fifty cents penalty upon them if they neglected to do so, to be paid to the sheriff for the trouble of going to their places of residence.
But in 1851, when the assessment was made in this case, the law, and the universal practice was, to go to the people’s houses and demand an assessment list under oath. And until this demand is made by the assessor, he has no right to assess property for taxes in any case, that is, resident property.
In the opinion of the majority of the court, however, this objection to the assessment and sale is cured by sec. 133, chap. 148, Gould’s Dig. Which provides that no sale of lands shall be considered invalid on account of its having been charged in the tax book, in any other name, than the rightful owner, “ if such land be in other respects sufficiently described in the tax book.”
Taxing the land in the wrong name, is only a part of the difficulty in this case. The main objection is, that it was classed and sold as non-resident land when it was not.
And the officer had no power over it whatever, there being personal property out of which he was bound by law to collect the taxes.
The land was not, therefore, “ in other respects, sufficiently described in the tax book.” It was said to be one thing when it was another. It was described as non-resident when it was resident land.
And which distinctive designation given to it by the sheriff”, becomes just as much a.part of the description as any thing else said about it in the advertisement proposing to sell it.
Indeed, no other part of the description is looked to by the public as possessing so much significance as this leading feature in the sheriff’s notice to sell.
I am aware, that not only in the case at bar, but also in that of Merrick Fenno vs. Hutt, 15 Ark. this court has held the contrary doctrine upon this point.
And although I accord great merit to the argument of the court in that case, still to my mind, the position is logically untenable, and against the clear import of the statute.
For these reasons I regard the sale made by the collector, of the tracts belonging to Mrs. Mitchell, (formerly Mrs. Gray.) wholly invalid, and the decree of the chancellor in the court below, erroneous.
The remaining tract, being owned by Mitchell, individually, and considering that he voluntarily became the purchaser of his own property, knowing it to be so, and for a valuable consideration transferred it to Williams, he is certainly estopped from denying his own sale and setting up title in himself, admitting the sale by the collector to have been, as it was, void.