(33 R. I. 400)

HASSETT v. EVERSON. (Supreme Court of Rhode Island. Feb. 2, 1912.)

1. TAXATION (§ 330*)-ASSESSMENT-NOTICESUFFICIENCY.

A notice by assessors of a town, which requires every person liable to taxation to render an account of his ratable estate at the assessors' room on Saturday, Otcober 5th, and on Saturday, October 12th, at which place and dates the assessors will meet at 10 o'clock, to assess a tax ordered by the town, is insufficient to support a tax assessed on November 9th following, because it fixes no date for the taxpayer to make a return, and an assessment bas

ed thereon is invalid.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 551, 552; Dec. Dig. § 330.*] 2. TAXATION (§ 805*) -ILLEGAL TAXES SALES TITLE OF PURCHASER-LACHES.

Where an assessment for taxes is invalid, and a sale for nonpayment of taxes is made, the purchaser obtaining possession acquires no title until he has been in adverse possession for the statutory period, and until the running of such period the owner is not guilty of laches, precluding a recovery of the property.

of September, A. D. 1901, it was voted that a town tax of 60 cents on each and every hundred dollars of the ratable property of this town be levied and assessed on the inhabitants thereof and all others owning ratable property therein, to defray the various expenses thereof; that the same be paid into the town treasury on or before the first day of January next ensuing: Now, therefore, notice is given to every person and body corporate liable to taxation in said town of Warwick to bring in unto the undersigned assessors a true and exact account of all his ratable estate, describing and specifying the value of every parcel of his real and personal estate, at the assessors' room in the town hall, Apponaug, in said War

wick, on Saturday, the 5th, and on Saturday, the 12th, days of October next ensuing, at which place and days the undersigned will meet at ten of the clock in the forenoon, and continue together until three of the clock in the afternoon for the purpose of assessing the tax ordered by the town as set forth in the vote herein before recited. Warwick, September 3, A. D. 1901. Benj. F. Dawley, Wm. V. Slocum, Benjamin Hill, Jacob A. LockEd-wood, John A. Belcher, Assessors."

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*] Case Certified from Superior Court, Kent County; Christopher M. Lee, Judge.

Action by Catherine Hassett against ward W. Everson. Certified to the Supreme Court for hearing and determination on agreed statement. Judgment for plaintiff. Mumford, Huddy & Emerson (Charles C. Mumford, of counsel), for plaintiff. Bassett & Raymond (Russell W. Richmond, of counsel), for defendant.

BLODGETT, J. It appears by the agreed statement of facts in this action of trespass and ejectment for the recovery of possession of a tract of land in the town of Warwick, which action was originally brought in the superior court for Kent county and then certified to this court to be heard and determined under the provisions of section 4, c. 298, Gen. Laws 1909, as follows:

(1) That on April 8, 1901, the plaintiff acquired title in fee simple to the close in question by deed duly recorded.

(4) That, said tax not being paid, the collector of taxes of said town made a deed of the same to one Sprague on December 29, 1902, and that by mesne conveyances the defendant has acquired whatever title has passed to Sprague under said tax deed, and has "entered upon said land and ousted the plaintiff from the possession thereof."

[1] The insufficiency of the notice above given by the tax assessors is alleged by the plaintiff to invalidate the assessment of the land in question. We are of the opinion that her contention must be sustained. In Matteson v. Warwick & Coventry Water Co., 28 R. I. 570, 581, 68 Atl. 577, 581, we held as follows: "The time for rendering an account must follow the day and hour established for the valuation and ownership of the ratable estate of the taxpayer, in order that he may be able to render a true and exact "(2) That pursuant to the vote of the fi- account thereof, as required by statute." nancial town meeting of the said town of And see Carr v. Capwell, 30 R. I. 325, 75 Warwick held upon the 3d day of September, Atl. 309; Struthers v. Potter, 30 R. I. 444, 1901, the assessors of taxes of said town did 75 Atl. 867; Whitford, Bartlett & Co. v. on the 9th day of November, A. D. 1901, Clarke, 33 R. I. 331, 80 Atl. 257. By the assess a tax at the rate of 60 cents on each agreed statement of facts it appears that the and every $100 of ratable property; and the tax in question was assessed on November property hereinbefore described was taxed 9, 1901. But this date does not appear in to the plaintiff, being valued at $2,000 and the notice above set forth. Indeed, there is the tax thereon assessed at the sum of $12." no date specified in said notice as of which (3) That prior to assessing said tax the the taxpayer is to make a return of his tax assessors of Warwick posted and pub-ratable estate. The utmost that can be lished for the period and in the manner required by law the following notice: "Town of Warwick. Assessor's Notice. Whereas, at a town meeting holden in and for the town of Warwick, on Tuesday, the 3d day *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 82 A.-3

claimed under such a notice is that those taxpayers who chose to do so could make a return as of October 5, 1901, and those who chose to do so might make their return as of October 12, 1901, a provision which is so

clearly invalid as to require no extended dis-1 286, § 5, which provides for the entry of a decussion.

fault judgment in actions for the possession of
premises upon the failure of the defendant to
enter an appearance, it thereupon became the
duty of the court to disregard the claim of jury
trial filed, and to default the cause and enter
judgment as of the entry day of the writ, and
of the clerk to issue execution thereon, unless
the issue of such execution had been stayed in
some proceeding for the purpose of removing
the default and reinstating the cause.
[Ed. Note. For other cases, see Judgment,
Dec. Dig. § 103.*]

2. APPEARANCE (§ 4*)-SUFFICIENCY.
In an action of trespass and ejectment, an
appearance of the defendants was insufficiently
filed, where received through the mail by the
clerk of the court on the day following the en-
try day, as the right to answer ceased at the
close of the session of court on such entry day.
[Ed. Note.-For other cases, see Appearance,
Cent. Dig. §§ 12-14; Dec. Dig. § 4.*]

[2] The defendant avers that the plaintiff has been guilty of such laches in the institution of these proceedings that she is now precluded from a recovery in her favor. Among the cases cited on defendant's brief is Martin v. White, 53 Or. 319, 327, 100 Pac. 290, 293, in which the Supreme Court of Oregon affirms the doctrine laid down by the Supreme Court of Michigan in Groesbeck v. Seeley, 13 Mich. 329, as follows: "If the proceedings to sell for taxes were illegal, no lapse of time can change their character, and they can never therefore become legal. If the tax purchaser obtains possession, and holds it until protected by a limitation law, he then becomes safe not because his tax title is any more regular, but because the holder of the better title has become incapable of asserting it. As an illegal tax title is a nullity, it cannot of itself divest or affect the true title in any way, and the true owner cannot be lawfully compelled to incur expense or take active measures to get rid of it unless he sees fit. But if he becomes ousted, whether by a pretended tax title holder or by any adverse claimant, he can only secure the enjoyment of his rights SWEETLAND, J. This is a petition for a by active measures, and the party in pos- writ of mandamus against the justice and session may then rely on such possession clerk of the district court of the Second until it is lawfully assailed by suit or other-judicial district. wise within the period of limitation." This [1, 2] The petitioner commenced his action statement of the law by the defendant is exactly the plaintiff's contention, and we approve and adopt it.

Inasmuch as it appears by the agreed statement of facts that the defendant has not acquired any title by adverse possession for the statutory period, it follows that, since the assessment is clearly invalid because of the defective notice above set forth, our decision must be for the plaintiff for possession of the close in question, and the papers in the case will be sent back to the superior court for the county of Kent, with direction to enter judgment for possession for the plaintiff in accordance with this decision.

(23 R. I. 398)

MATHEWSON v. LEWIS et al. (Supreme Court of Rhode Island. Jan. 29, 1911.)

1. JUDGMENT (§ 103*)-DEFAULT.

Under Gen. Laws 1909, c. 286, 87, which provides when and on what conditions a party in a civil case may claim a jury trial, where, in an action of trespass and ejectment, the petitioner filed a written claim for a jury trial, it was the duty of the clerk of the district court at once to certify and transmit the cause and papers therein to the superior court, if the defendants entered their appearance on the entry day during the session of the court, but, where such defendants did not so enter their appearance, the filing of the claim for a jury trial was without effect; and under Gen. Laws 1909, c.

Petition by Thomas G. Mathewson for a writ of mandamus against Nathan B. Lewis and another as Justice and Clerk of the District Court of the Second Judicial District. Writ granted.

Henry P. Eldredge, Jr., for petitioner. Charles E. Gorman and Frederick C. Olney, for respondents.

of trespass and ejectment against the Mathewson Company, a corporation, and others, by writ issued from said district court, dated October 7, 1911, and returnable to said district court on October 19, 1911. Said writ was duly served upon the defendants, and said writ and the declaration were duly entered in said court on the return or entry day of said writ before the call of the docket in said court on said day. The petitioner also filed with said writ upon the entry day thereof a written claim for jury trial in accordance with the provisions of chapter 286, § 7, Gen. Laws 1909. The effect of filing said claim of jury trial, as interpreted by this court in Needle v. Biddle, 32 R. I. 342, 79 Atl. 942, was to require the clerk of said district court at once to certify and transmit the case and the papers therein to the superior court, provided the defendants in said case entered their appearance in the case on the entry day during the session of the court. If the defendants did not so enter their appearance, the filing of said claim of jury trial by the petitioner was without effect. The defendants in said case failed to enter their appearance upon the entry day of the writ before the end of the session of said court. It thereupon became the duty of said court, in accordance with chapter 286, § 5, Gen. Laws, 1909, to disregard the claim of jury trial filed by the petitioner, to default said case, and to enter judgment for the plaintiff therein

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

5. Towns (8 45*) - TORTS - ACTS OF THIRD PERSONS AUTHORIZATION BY TOWN.

Plaintiff could not recover for injuries to his premises from the cutting down of a tree near by under authority given by a town, unless the injury was the result of negligence on the part of the person cutting.

[Ed. Note.-For other cases, see Towns, Cent. Dig. §§ 79, 80; Dec. Dig. § 45.*]

Action by William E. Du Hadaway against the Commissioners of the Town of Townsend. Verdict for plaintiff.

Argued before LORE, C. J., and SPRUANCE and GRUBB, JJ.

Edwin R. Cochran, Jr., for plaintiff. Mar

tin B. Burris, for defendant.

Action on the case (No. 86, February term, 1902), to recover damages for injuries to plaintiff's property, by the cutting of certain shade trees.

It was admitted at the trial that the title to the property was in the plaintiff and that said plaintiff was the owner of the trees alleged to have been damaged.

an improper exercise of that authority, for Daniels' own benefit and not for the benefit of the town.

You must be satisfied by a preponderance of the evidence that Mr. Daniels had the authority, properly given him by the commissioners of Townsend, to do that act, in order to make the town of Townsend liable for such act. If he had the authority so to do, the town would be liable for such damages as were actually sustained.

[3, 4] As to the question of damages, if, after an examination of the evidence in this case, you determine that he is entitled to damages, he would be entitled to actual

damages. But to entitle him to recover at all, you must be satisfied that the man who

cut the tree had the authority of the town commissioners so to do, and that it was in the interests of the town. If it was not, the town could not be bound or mulcted in damages for any injury that may have been sustained by such act. The damage could only be, as I have said before, actual damages.

[5] It is proper to say to you that in no event can recovery be had by the plaintiff, unless the injury was the result of negligence on the part of the person who, you must be satisfied, was authorized by the commissioners of Townsend.

You have all the evidence in this case be

fore you, and it is for you to say upon the evidence, whether any injury was done for which the defendant is liable, and, if so, to what amount.

LORE, C. J. (charging the jury). Gentlemen of the jury: The case you are impaneled to try is an action brought by William E. Du Hadaway against the commissioners of the town of Townsend, in this state. The plaintiff claims that on the 11th day of September, 1901, certain parties authorized by the commissioners of the town of Townsend cut down trees near his dwelling house, one of which fell upon other trees belonging to him in his yard and did damage to two of his trees. He claims damages to the extent of $250 for each tree, making $500; also damage to his front fence, to the extent of $10, and to his curb, to the amount of $5, and to a certain rustic seat, for which he claims $18-making his total claim $533. JENKINSON v. NEW YORK FINANCE CO. [1, 2] This case turns largely upon whether or not the persons cutting down the trees

were authorized to do so, by the commis

sioners of Townsend, in such a way as to bind the corporation. We will say to you, gentlemen, upon the point of authority, that if the town commissioners of Townsend, acting as such, either in a body or a majority of them so acting, employed this man to cut down the tree, it would be sufficient au

Verdict for plaintiff for $105.

et al.

(79 N. J. E. 247)

(Court of Chancery of New Jersey. Dec. 30,

1911.)

No decision should be made in an administration suit as to the share which certain persons not parties to the suit would take under a will.

[Ed. Note.-For other cases, see Judgment

Cent. Dig. § 428; Dec. Dig. § 243.*]

2. TRUSTS (§ 147*) — ASSIGNMENT BY BENEFICIARY-PRIORITIES-CLAIM OF TRUSTEE.

Assignments of equitable interests in a fund held by a trustee being subject to the equities of the trustee arising before notice of the assignment, a loan wrongfully made to a legatee by a testamentary trustee from the trust funds, without notice of a prior assignment by the legatee of his interest in the estate, could be retained by the trustee from the amount payable to the legatee or his assignees, irrespective of whether the amount advanced was a loan to the legatee or an advancement from the share due him from the estate.

thority for so doing. We will say, further, that if a majority, or even less than a majority, so contracted, and the remaining commissioners, or all of them, approved or assented to or acquiesced in that act, then it would be done with authority. We will say to you, further, that if Mr. Daniels made the application to cut down the tree for his own benefit, and the commissioners properly gave him authority to do so for his own benefit, that would authorize him to cut it down in a proper way, and not improperly; and the town commissioners, even if authority was given, would not be liable for

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 147.*]

[Ed. Note. For other cases, see Vendor and B., viz., the New York Finance Company, who Purchaser, Dec. Dig. § 226.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes