THOMPSON V. ROE, 63 U. S. 422 (1859)

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U.S. Supreme Court

Thompson v. Roe, 63 U.S. 22 How. 422 422 (1859)

Thompson v. Roe

63 U.S. (22 How.) 422




Under the act to incorporate the City of Washington passed on the 15th of May, 1820, amended by the act of 1824, it is not a condition to the validity of the sale of unimproved lands for taxes that the personal estate of the owner should have been exhausted by distress.

The ordinances of the corporation cannot increase or vary the power given by the acts of Congress, nor impose any terms or conditions which can affect the validity of a sale made within the authority conferred by the statute.

The facts of the case and instruction given by the circuit court are stated in the opinion of the Court.

Page 63 U. S. 431

MR. JUSTICE GRIER delivered the opinion of the Court.

The lessors of the plaintiffs below claim to recover a lot of ground in the City of Washington the title to which was admitted to have been in their ancestor in 1835. In that year it was sold for taxes by the corporate authorities. The plaintiffs in error claim through mesne conveyances of the tax title.

Page 63 U. S. 432

The lot in question was assessed as vacant and unimproved, but the owner, Mr. Carroll, resided in Washington City. He owned a large number of unimproved lots, the taxes on which amounted to $5,690. He had personal property in and about his house, estimated at between five and six thousand dollars.

On the trial but a single defect was alleged against the tax title, which raised the question

"Whether, upon the true construction of the charter of 1820, as amended by the act of 1824, it was a condition to the validity of the sale of unimproved lands for taxes that the personal estate of the owner should have been previously exhausted by distress."

The court instructed the jury:

"That if Carroll resided within the limits of the corporation of Washington, and had in his possession personal property sufficient to pay all taxes due by him, which might have been seized and subjected to distress and sale, it was the duty of the corporation, through their collector, to resort first to such personal property, which not being done, the sale of the lot in question was illegal and void."

The correctness of this instruction is the only question presented by the record for our consideration.

The authority granted to the city and the mode of its exercise is to be found in the 10th section of the act "to incorporate the City of Washington," passed on the 15th of May, 1820. It provides

"that real property, whether improved or unimproved, on which two or more years' taxes shall have remained unpaid may be sold at public sale, to satisfy the corporation therefor,"

with this proviso, that no sale "shall be made in pursuance of this section of any improved property, whereon there is personal property of sufficient value to pay the taxes," &c.

It is the obvious intent of this law that the thing or property shall be held liable for the tax assessed upon it, and that the tax is a lien in rem, which may be sold to satisfy it. It seems to assume also that the property should be assessed to some person as owner, for it provided for a longer or shorter notice by advertisement, according to the residence of the owner, whether in or out of the district or of the United States. Where

Page 63 U. S. 433

the owner is out of the jurisdiction of the corporation, the assessment can impose no personal liability on him. But where he resides in the city, he may be considered as personally liable for the taxes assessed against his property, and "charged to him," and though not liable to an action of debt, the 12th section of the act provides an additional remedy for the corporation. Besides that of proceeding in rem, under the provisions of the 10th section, it enacts that

"the person or persons appointed to collect any tax imposed by virtue of the powers granted by this act shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith"


The Act of May 26, 1824, which modifies and changes some of the provisions of this act, provides, among other things, "that no sale for taxes shall be void by reason of such property not being assessed or advertised in the name of the lawful owner."

Without inquiring whether this act repeals the 12th section of the previous act by implication, it shows plainly that the property assessed is considered as primarily liable for the tax, without regard to ownership. But assuming that the owner, residing in Washington, is still personally liable for taxes assessed on his unimproved lots, there is nothing to be found in this law that, by any fair construction, requires that the remedy against the person must be exhausted before that against the property charged with the tax can be resorted to. It is not necessary to the validity of the assessment and sale of the property taxed, that the name of the true owner be ascertained. The collector, therefore, cannot be bound to search for him, or to distrain the personal property of one who may or may not be the owner, even when named as such in his assessment list.

The remedy given by the twelfth section to the corporation is coordinate or cumulative, but is not imperative as a condition precedent to the exercise of the authority to sell the property assessed. It is a power conferred on the officer, to be used at his discretion -- not a favor to the owner. If he is unable to pay the taxes assessed on his property, it may not

Page 63 U. S. 434

be a very desirable measure for him to have his household furniture distrained and sold on ten days' notice, when the remedy against his land cannot be pursued till two years' taxes are due and unpaid, and the owner has then two years more to redeem his land after the sale. A construction of this act, which made it the imperative duty of the collector to distrain the personal property, might be ruinous to the proprietor, and deprive him of an important privilege.

The City of Washington was laid out on an immense scale. But a very small portion of the lots and squares were improved or productive. Their value to the owners was in a great measure prospective, while the present burden of taxes, to those who owned large numbers of them, was oppressive. As we see in the present case, if the collector had levied on the personal property of the owner for the taxes charged on his vacant and unproductive lots, it would have left him without furniture in his house, or servant to wait on him. Hence, a four years' delay was to him a valuable privilege. It demonstrates too the evident policy of the act of Congress is not compelling a sale of the owner's personal property before the lands charged could be sold. In Georgetown and Alexandria, old-charged towns, where the lots were nearly all improved, and yielding profit to the owners, the statute adopted a different policy. By the proviso to the eighth section of the act of 1824, which applies exclusively to those towns, the collector is not permitted to sell real property where the owner charged with the tax has sufficient personal estate, out of which to enforce the collection of the debt due.

The case of Mason v. Fearson, 9 How. 248, has been urged in the argument as an example of the construction of this statute, which should be followed in this case, and where the word may is construed to mean must. But that case has no analogy to the present. It is only where it is necessary to give effect to the clear policy and intention of the legislature, that such a liberty can be taken with the plain words of a statute. But there is nothing in the letter, spirit, or policy, of this act, which requires us to put a forced construction on its language, or interpolate a provision not to be found therein.

Page 63 U. S. 435

In this case, the owners of the tax title have had the possession, paid the taxes, built and made valuable improvements on the lot, in the presence of the former owners, for near twenty years. That which was of comparatively small value at first, has now become valuable. Under such circumstances, a court of justice should be unwilling to exercise any judicial ingenuity to forfeit even a tax title, where the former owners have been so slow to question its validity.

The counsel for the appellees have endeavored to support this instruction of the court, by a reference to certain ordinances of the corporation, which, among other things, direct the collector to levy first on the personal property of the person charged with the tax, unless such person shall give consent in writing to the contrary. This direction to the collector is a very proper one. It leaves the election of this remedy to the person charged, and not to the officer. But the power to sell the lands for taxes is to be found in the acts of Congress, not in the ordinances of the corporation. They can neither increase nor vary it, nor impose any terms or conditions, such as evidence of the owner's election, which can affect the validity of a sale made within the authority conferred by the statute.

The purchaser of a tax title is not bound to inquire further than to know that the sale has been made according to the provisions of the statute which authorized it. The instructions or directions given by the corporation to their officers may be right and proper, and may justly be presumed to have been followed; but the observance or nonobservance of them cannot have the effect of conditions to affect the validity of the title.

The question argued by the counsel of appellees, again bringing up the endless controversy as to the terminus a quo, in the computation of time, and which was noticed by this Court in the case of Griffith v. Bogert, 18 How. 162, is not in the case as presented by the record, and we cannot anticipate its decision.

Judgment reversed, and venire de novo.

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