Opinion
No. 3477.
Decided May 2, 1944.
Title under a tax deed is defective where the posting of the warrant for the town meeting authorizing such conveyance was not in accordance with R. L., c. 57, s. 4 requiring the warrant to be posted fourteen days before the day of the meeting. One claiming ownership of land under a defective tax title is not an "owner" within the meaning of the Landlord and Tenant Act (R. L., c. 413, s. 12) and therefore cannot maintain an action thereunder for the possession of the land.
ACTION, under the Landlord and Tenant Act in the Municipal Court of Derry, for the possession of land in Sandown. The defendant pleaded title, in consequence of which the case was transferred to the Superior Court. Trial by the Court. At the close of the plaintiff's evidence, the defendant moved to dismiss the action on the ground that it could not be brought under the Landlord and Tenant Act (R. L., c. 413), since there was no relationship of landlord and tenant between the parties. This motion was denied, subject to exception, and the Presiding Justice reserved the right to permit the plaintiff to amend the action into a writ of entry.
The defendant also moved to dismiss upon various grounds which may be gathered up into the proposition that the plaintiff has no title. The question of law arising from that motion was transferred without ruling by Lorimer, J., in advance of the completion of the trial. The defendant has not yet introduced any evidence. The essential facts appear in the opinion.
William H. Sleeper (by brief and orally), for the plaintiff.
George R. Scammon (by brief and orally), for the defendant.
The denial of the motion to dismiss the action under R. L., c. 413 was erroneous, though the plaintiff may still be permitted in discretion to amend. The statute (s. 12) permits actions to be brought by the "owner, lessor," or (as against a mortgagor in possession) by the "purchaser at a mortgage foreclosure sale." There is no evidence that the plaintiff is the defendant's lessor or that the plaintiff bought the premises at a foreclosure sale. The plaintiff claims, however, to be the owner of the premises under a deed from the selectmen of Sandown. The title of the Town of Sandown derives from a tax deed from the presumed collector of taxes of that town for 1937, who assumed to sell the premises to the town for the nonpayment of the taxes he believed to have been assessed on the premises in the name of the Estate of Etta Sargent. The defendant appears to claim title under a deed from the administrator of that estate, though he has not yet had the opportunity to prove his claim.
The main defect in the plaintiff's title, the defendant asserts, arises from the fact that the warrant for the town meeting of 1937 was posted on February 23, while the meeting was held on March 9. The warrant was required to be posted fourteen days before the day of the meeting. R. L., c. 57, s. 4. In reckoning time, the day of posting is not to be counted. R. L., c. 7, s. 34. Consequently the notice was given only thirteen days before the meeting. The defective notice voided the assessment made thereunder, and the plaintiff cannot establish a tax title as owner of the premises. Grafton Bank v. Kimball, 20 N.H. 107, 111; Osgood v. Blake, 21 N.H. 550, 564.
Judgment for the defendant, nisi.
All concurred.