O'Grady v. Barnhisel

         JUDGES: Cope, J. delivered the opinion of the Court, Field, C. J. and Norton, J. concurring.

         OPINION

          COPE, Judge

         After the foregoing opinion had been delivered, a rehearing was granted.

         Upon the rehearing, Crocker, J. delivered the opinion of the Court. Norton, J. concurring.

         In this case a rehearing was granted, and it has again been submitted upon some additional questions not directly passed upon in the former opinion. We adhere to the principles there laid down, and it will therefore be considered as forming part of the present opinion.

         Upon the rehearing it was urged that the amount for which the property was sold exceeded the amount of taxes and costs actually due in the sum of five and one-half cents, which is estimated as follows: Amount of taxes, fifty-two dollars and fifty cents; five per cent. thereon for delinquency, two dollars and sixty-two and one half cents; statute allowance for certificate of sale, two dollars; costs of advertising the property, fifty cents. Total amount the property should have been sold for, fifty-seven dollars and sixty-two and one-half cents; amount for which the property was sold, fifty-seven dollars and sixty-eight cents--making an overplus of five and one-half cents. But the respondent insists that there should be included in the estimate of taxes and costs the sum of fifty cents for filing the certificate of sale in the Recorder's office, as required under Secs. 20 and 21 of the Revenue Law of 1857, under which the property was sold, and that by adding this sum to the other amounts of taxes and costs, the result will be that the property sold for forty-four and one-half cents less than the amount really due. We do not think this item is a proper one to be included in the amount for which the property was to be sold. Sec. 17 of the act in question provides that the person who will take the least quantity of the tract or the smallest portion therein of the interest taxed, and " pay the taxes and costs due, including two dollars which the Tax Collector shall be entitled to receive for the duplicate certificate of sale, shall be declared to be the purchaser." The evident meaning is, that the purchaser shall pay the " costs due," at the time of the sale, as any other costs cannot properly be said to be " due; " and as it specially includes only the costs of the certificates, which accrued after the sale, it is clear that it was not intended to include any other subsequent costs. It follows that the fees of the Recorder for filing the certificate should not be included. Those fees are for the purchaser to pay when he files his duplicate certificate with the Recorder, as the filing is for his benefit.

         The respondent insists, however, that the overplus in this case is so small that the sale should not be invalidated on that ground, and that the maxim de minimus non curat lex is properly applicable. We are satisfied that we ought not to treat the sale as void for this trifling excess. If we could in any way see that the owner of the land had suffered any injury by the mistake in the estimate by the Tax Collector of the amount due, it would be very different. The tract assessed for taxes, the whole of which was bid off by the purchaser at the tax sale, includes, it seems, about two hundred acres; and it can hardly be presumed that the purchaser would have bid for a less quantity had the amount been stated at the trifling sum of five and one-half cents less. The mistake may have occurred in the calculation, or it may have been occasioned by an error in making or copying the figures; but it is evident that it was unintentional, and without any design to injure the parties interested. If the owner of the property had offered to redeem it within the time prescribed by law, and had tendered the amount really due at the time of the tax sale, with the proper statutory allowances, his redemption would have been good, though he should have omitted in his tender this excess in the sale; but no such tender was made. If this had been a sale under an ordinary judgment and execution, it could not be pretended for a moment that the sale would have been void on this account. It is true, that the mode of selling property at a tax sale is different from an ordinary sale on execution; but that difference is not sufficient to hold a tax sale void for so trifling a matter. Sec. 32 of the Act of 1857 provides, that every tax levied under the provisions or authority of this act is hereby made a judgment against the person and a lien against the property assessed; which lien shall attach, and judgment date, as of the first Monday in March of each year, and shall have the full force and effect of an execution against all property of the delinquent," etc. It is evident that the Legislature intended by this provision to subject sales of property to the same legal rules as govern sales to enforce judgments and liens against property in the ordinary course of legal proceedings, although the mode of bidding is different. In New Hampshire, executions are extended upon the real estate by appointing appraisers, who set off to the judgment creditor a sufficient quantity of the land to pay the amount due on the execution at its appraised value, which operates as a conveyance of the property and a satisfaction of the judgment without any sale at public auction; and the Courts there hold that such extent is not void because the appraised value of the land thus set off exceeds by a trifling sum the amount due on the execution. ( Burnham v. Aiken , 6 N.H. 307; Avery v. Bowman , 40 Id. 453.)