Hyperlawhypertext legal databasebeta Sheldon v. Van Buskirk 2 N.Y. 473

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Sheldon v. Van Buskirk

2 N.Y. 473 Court N.Y. English

Delivered by Ruggles, J.

Contents

Majority

p. 473
Sheldon vs. Van Buskirk.

Headnote

é warrant issued by the supervisors of a county for the collection of taxes is valid, although the persons signing it are not described therein as supervisors, and urthough their names merely are signed to it without any official designation.1
Such a warrant, it seems, is a justification to the collector, without proving that Lae persons signing were actually the supervisors; but if otherwise, it is competent to supply the defect by parol evidence.
The duplicate assessment roll annexed to the warrant and delivered therewith to the collector, pi oves, without other evidence of an adjudication by the supervisors, the levying of the tax.
A process, regulat on its face, and issued from a court or body of men having jurisdiction of the subject matter, protects a ministerial officer in the execution thereof.
But where proporty is seized under an execution, and the officer is sued by a person claiming title thereto under a sale from the defendant which is alleged to be iraudulent as to creditors, he must show the judgment as well as the execution. In such cases the question is one of title merely, and the judgment muav be provea before fraud can be alleged in the sale. Per Rusgles, J.
A town collector may seize not only the goods and chattels of the person taxed, but any goous and chattels in his possession.
Where a collects levies on goods before the return" day specified in his warrant, he may, under «ho statute, (2 E. S. 398, § 6,) sell at any time within a week after such return day. 2
John Sheldon sued Lawrence Van Buskirk in a justice’s court of the county of Cortland, in trespass for entering his close and taking and selling a number of sheep. The defendant was collector of the town of Preble, in that county, and justified under a warrant held by him for the collection of a tax against Thomas Sheldon, who was the plaintiffs son and resided on the same farm with him. The warrant was introduced' in evidence by the defendant, under objection made by the plaintiff, and was in the following form:
“State of New-York, Cortland county, ss. To Lawrence Van Buskirk, collector of the town of Preble, in said county. Greeting: You are hereby commanded to collect from the several persons named in the foregoing tax list, the several sums
1 A. collector acting under a void warrant is not protected by it. Hallock v Rumsey, 22 Hun 89 .
2 Not applicable to school district collectors. Stroud v. Butler, 18 Barb. 327 .
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mentionei in the two last columns of each page thereof, set opposite their respective names; and out of the money so collected you are commanded to pay to the treasurer of the county of Cortland, the sum of six hundred and fifty-one dollars and fifty-six cents; to the town superintendent of common schools of Preble, the sum of one hundred and thirty-one dollars and eighty-seven cents; and to the supervisor of the town of Preble, the sum of one hundred and sixty-seven dollars and thirty-eight cents, together with your fees on the sum so collected and paid over as above said. And you are hereby authorized, in case any person named in said roll shall refuse or neglect to pay said tax, to levy the same by distress and sale of the goods and chattels of said person or persons; and you are hereby further required to make the above specified payment on or before the first day of February next, ensuing the date hereof. Dated at Gortlandville, this 8th day of December, A.D. 1846.” •
The above warrant was signed by twelve persons, with seals affixed to their signatures, but without any official designation. The defendant then further proved, under objection to the evidence, that the warrant was signed, sealed, and delivered to the defendant, as collector, by the supervisors of the county of Cortland. It also appeared that in the tax list annexed thereto, was a tax against Thomas Sheldon. For the purpose of collecting that tax, the defendant levied upon _ the sheep in question before the return day specified in the warrant, but did not sell them until the second day of February, 1847. There was evidence tending to show that at the time of the seizure the sheep belonged to or were in the possession of Thomas Sheldon.
The jury found a verdict for the defendant on which the justice rendered judgment. The county court of Cortland county, on certiorari, reversed the judgment of the justice, and the supreme court sitting in the sixth district, on error brought, reversed the judgment of the common pleas, and affirmed that of the justice. John Sheldon then brought error to this court.
B, D. Noxon, for plaintiff in error.
The warrant claimed by the defendant below to have been issued by the board of supervisors of the county of Cortland was improperly admitted in evidence as a justification to the defendant below. It did not
p. 475
purport to be the official act of the supervisors, not being signed officially, and it not appearing in or upon any part of it, by recital or otherwise, that it was issued by said board. ( 1 Hill, 139 ; 15 Wend. 206 ; 1 Cowen, 679; 4 Hill, 136 ; 5 Wend. 270 ; 9 id. 338 ; 1 Hill, 195 ; 2 Denio, 83 .) It was no justification to the defendant below in taking the property claimed by the plaintiff below, and which was on the plaintiff’s premises and in his possession—no adjudication or proceedings of the board of supervisors in the nature of an adjudication appearing upon the face of said paper or otherwise, against either the plaintiff or Thomas Sheldon. ( 23 Wend 480 ; 5 Hill, 194 ; 2 John. R. 46.) If the warrant was valid it did not authorize the collector to sell property under it on the second day of February, 1847. (1 R. S. 396, § 37.) It was not competent for the defendant below to supply the defects apparent on the fact of the warrant by parol proof.
R. O. Reynolds, for defendant in error.

Van Buskirk, the collector, who was the defendant in the justice’s court, was bound to prove on the trial, for the purpose of justifying himself in levying on and selling the property in question, that he acted under a lawful warrant issued by persons clothed with competent authority for that purpose. He produced a warrant under the hands and seals of the twelve supervisors of the county, but the name of their office was not annexed to their signatures, or otherwise expressed in direct terms on the face of the warrant. It appeared, however, on its face, to be for the collection of the taxes against the inhabitants of the town, and was annexed to a tax list or assessment roll, containing the names of the persons taxed, and the amount of the tax upon each. The warrant was in point of form substantially in pursuance of the statute, and was made by persons actually having lawful authority to make and ’ssue it.

It is said, however, that it did not appear on its face to be the official act of the board of supervisors. In this I think the plaintiff’s counsel is mistaken. The persons composing the board of supervisors all joined in executing the warrant, for a public purpose expressed on its face, and in pursuance of a public duty

p. 476
enjoined on the supervisors by law. The supervisors are public and sworn officers, chosen by the people of the several towns by public election. They hold public meetings for the transaction of the county business, and, among other things, for the laying of taxes necessary for the support of the government of the towns, counties, and state. Every man in the county over which their authority extends must be presumed to know the persons by whom these offices are filled ; and although it might have been more strictly proper that the official character of the act should have been expressly stated, it appears, in my opinion, sufficiently from the public purpose and object of the warrant; and from the fact, known or presumed to be known to the tax payers and to the collector, that those who united in its execution were public and sworn officers having power to do the act A sheriff may lawfully make an arrest without showing the writ on which the arrest is made, but a special deputy must exhibit his authority if required. This is on the presumption that within his own county the sheriff is a known public officer; and the presumption applies to the supervisors as perfectly as to the sheriff. This is not a case in which the plaintiff below could have had any doubt with respect to the nature and character of the warrant, or of the authority on which it issued. The warrant, therefore, was well enough in its form and execution, and it was not necessary, for the purpose of supplying any defect in the instrument, to introduce parol proof that the persons who signed it were actually the supervisors.

But if the warrant should be regarded as defective in this respect, the defect, it would seem, may be supplied by parol evidence. It was so done in a case where a judgment record was signed by a judge who did not describe himself as such. (Elliott v. Cronk’s adm. 13 Wend. 35 .) And where the certificate of the acknowledgment of a deed was made by an officer who did not describe himself as such, it was held that the fact of his being such officer might be supplied by other evidence. (Rhoads v. Selin, 4 Wash. 718 .)

But if the warrant had on its face been expressly stated to be the official act of the board of supervisors, it would nevertheless have been necessary for the collector to prove its execution,

p. 477
and evidence for that purpose was properly received by the justice.

Another point made by the plaintiff is, that the collector should Lave produced not only the warrant but the adjudication, or proceedings of the supervisors in the nature of an adjudication, by which the tax was laid, the collector having sold the goods of John Sheldon to satisfy the tax against Thomas Sheldon. There are several answers to this objection. First. The assessment roll and tax list annexed to the warrant, (which although not printed in the case, is understood to have been produced at the trial,) is the only proceeding in the nature of an adjudication by the supervisors. Of the corrected assessment roll a fair copy is made. One is delivered to the town clerk, and the other to the collector to be annexed to his warrant. The copy is for all purposes a duplicate original, and is evidence of the levying of the tax. This is all that was necessary ; and it was necessary only because the assessment roll or tax list was annexed to and' part of the collector’s warrant. Ever since the case of Savacool v. Boughton, ( 5 Wend. 170 ,) a ministerial officer is protected in the execution of process regular on its face, and coming from a court or body of men having jurisdiction of the subject matter. Where an officer who has seized property by virtue of an execution, is sued by the • defendant in the execution for taking the property, the officer is never compelled to produce the judgment to justify the taking. The execution alone protects him. But if the officer is sued by A. for taking his property under color of an execution against B., the question to be tried is whether the property when taken belonged to A. or to B. If it belonged to A., the execution, with or without the judgment, is no protection, for it does not command the officer to take A’s property. But if A. claims title to the property by virtue of a sale from B. to him, which is alleged to be fraudulent against B’s judgment creditors, then it becomes necessary for the officer to produce the judgment on which the execution issued against B.; but- this is for the purpose of proving, in connection with other testimony, that the pretended sale from B. to A. was fraudulent and void, and that the property therefore still belongs to B. and not to A. The

p. 478
judgment in such case is given in evidence, because it affects the title to the property in question, and not because it is for any other purpose necessary to protect the officer.

In the present case nothing is necessary for the protection of the officer except the warrant. John Sheldon does not claim title to the property in question from Thomas; and if he did ii would make no difference. The collector is authorized by the statute (1 R. S. 387, § 2,) to sell not only the goods and chattels of the party taxed, “ but any goods and chattels in his possession, and no claim of property made by any other person shall be available to prevent a sale.” The jury found by their verdict that the property sold by the collector either belonged to or was in the possession of Thomas Sheldon. The defendant therefore had the right to sell.

The remaining question is whether the defendant had authority to sell on the second of February, the day after that on which by the warrant he was directed to pay over the money collected.

Although the warrant requires all payments therein specified to be made by the collector on or before the first day of February, the statute enlarges the time. (1 R. S. 398, § 6.) “ Every collector shall within one week after the time mentioned in his warrant, for paying the moneys directed to be paid to the town officers of his town, and to the county treasurer, pay to such town officers and county treasurer the sums in such warrant to be paid to them respectively,” &c. The warrant in the meantime remains in the collector’s hands. The sale is not expressly required, either by the warrant or the statute, to be made before the first day of February, and from this section of the statute it is evident that his duty is fully discharged by making the payment within a week after that day. The levy having been made before the first of February, I think the sale was lawful although made after that day. A constable may not sell under an execution in his hands after the return day because he is expressly prohibited by statute. (1 R. S. 253, § 161.) There is no such prohibition in the case of a collector’s warrant. Although he is required by the terms of the warrant to pay the money by the first of February, the

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power to sell does not cease by reason of his omission to obey the direction, any more than in the case of an execution issued out of the supreme court. The clause in the statute which directs the warrant to require all payments to be made on or before the first of February, although peremptory so far as relates to the form of the warrant, is certainly not so with respect to the time when the collector is to pay over; because his duty in that respect is regulated by the section above quoted which extends the time. Admitting that the power to sell ceased when the collector was bound to pay over, it did not cease until the 8th of February.

The judgment of the supreme court must therefore be affirmed, with the costs of the appeal to be paid by the appellant.

Judgment affirmed.

Cases cited