Opinion
No. 3914.
Decided January 2, 1951.
Laws 1947, c. 103, declaring that a tax collector's deed shall be incontestable after three years from the date of record as to defects of form or procedure in the tax assessment and sale has no application to tax deeds recorded more than three years before passage of the act.
BILL IN EQUITY, to set aside a deed from Howard C. Abbott, tax collector of the town of Derry, to the town of Derry and subsequent conveyances purporting to convey title to the defendant.
The plaintiff acquired title to the property under consideration September 6, 1937. In 1942 the premises were sold at a tax sale to the town of Derry. The deed from the tax collector to the town was dated March 8, 1944, and recorded on April 4, 1944.
There was a trial before a Master with a view. The Master found that the petitioner received no notice of the tax sale and that the sale was void for that reason. The defendant excepted to the Court's decree accepting the Master's report and to the ruling of law that chapter 103 of the Laws 1947 does not apply to the tax deed of 1944 when the three years from the date of the recording of the deed had already expired at the time of the enactment of said chapter.
A bill of exceptions was allowed by Wheeler, J.
John W. Perkins and Everett P. Holland (Mr. Perkins orally), for the plaintiff.
Hamblett, Griffith Moran (Mr. Griffith orally), for the defendant.
The defendant does not dispute the finding of the Master that the plaintiff had no notice of the tax sale as required by R. L., c. 80, s. 19, and the finding that there was a fatal defect in the tax sale. Cf. Palmer v. Coulombe, 95 N.H. 266.
The defense is based upon chapter 103 of the Laws 1947, which is as follows: "1. DEED. Amend chapter 80 of the Revised Laws by adding after section 33 the following new section: 33-a. INCONTESTABILITY. A tax collector's deed shall be incontestable after three years from the date of record, in regard to defects of form or procedure in the tax assessment and the tax sale upon which such deed is based; provided however, that all towns, cities and other incorporated places shall be amenable to process in the superior court for the redress of any actual injury other than those purely technical or nominal in nature resulting from the foregoing provisions. 2. TAKES EFFECT. This act shall take effect upon its passage. [Approved April 23, 1947.]"
Accordingly, the question is raised whether this statute, which shortens the period during which a tax collector's deed may be contested was intended to apply to such deeds that had been recorded more than three years before its passage. In our opinion it was not so intended. The case of Hall v. Hall, 64 N.H. 295, is in point. There the right to bring suit upon notes secured by a mortgage so long as an action could be brought upon the mortgage was limited to real estate mortgages. It was held that the narrowing of time from twenty to six years in actions involving notes secured by personal mortgages, did not destroy a right of action where the six years had already elapsed. The court decided that the new statute was not intended to apply to such rights of action. G. L., c. 1, s. 33 (now R. L., c. 7, s. 35) was cited. See also, the cases cited in the Hall opinion.
In Bourque v. Adams, 93 N.H. 257, a statute extending the time for a lien in favor of the town for taxes was upheld. The lien under consideration had already started to run but had not become lost. This decision was supported by Willard v. Harvey, 24 N.H. 344, where it was said on page 355: "It is wholly immaterial whether the time of limitation has already expired in part or not, provided a sufficient time remains before any claim in question becomes barred, to enable the claimant by the use of reasonable diligence to save his claim by a suit." To the same effect is Gilman v. Cutts, 23 N.H. 376.
Decree affirmed.
All concurred.