Under the act of Congress to lay and collect a direct tax, July
14, 1798, before the collector could sell the land of as unknown
proprietor for nonpayment of the tax, it was necessary that he
should advertise the copy of the lists of lands, &c., and the
statement of the amount due for the tax, and the notification to
pay, for sixty days in four gazettes of the state, if there were so
many.
Page 13 U. S. 65
The facts of the case were thus stated by THE CHIEF JUSTICE in
delivering the opinion of the Court:
This was an ejectment brought by the defendant in error in the
Circuit Court of the United States for the District of West
Tennessee. The plaintiff below claimed under a patent regularly
issued by the proper authority. The defendant made title under a
deed, from the collector of the district, reciting a sale of the
said land as being forfeited by the nonpayment of taxes and
conveying the same to the purchaser. On the validity of this
conveyance the whole case depends. At the trial, the defendant
produced his deed and also a general list of lands owned,
possessed, and occupied on the first day of October, 1798, in
Assessment District No. 12 in the State of Tennessee, corresponding
with the Collection District No. 8, returned to the office of the
late Supervisor of the Revenue for the District of Tennessee by
Edward Douglass, surveyor of the revenue for said assessment
district, among which is the following:
"Grant John, reputed owner in Sumner County on the middle fork
of Bledsoe's Creek, 640 acres of land subject to and included in
the valuation valued at $2,560, no possessor or occupant."
He also produced the tax list furnished by said surveyor to
Thomas Martin Collector of the Collection District No. 8, in which
list said land is described in the same manner as in the said
general list, excepting that the said John Grant is described as
possessor or occupant of said 640 acres of land and said land is
included in the list of lands belonging to residents. He also
produced the advertisements of the sale of the said lands,
mentioned in the said deed to have been made in the Tennessee
Gazette, in which said John Grant is mentioned only as reputed
owner of said land, and proved, by a witness present at the sale,
that the said Henry Bradford, for himself and Daniel Smith, became
the purchaser of the said land, and that the said Daniel and Henry,
before the execution of the said last mentioned deed, assigned
their interest in the said land to the defendant Richard Parker.
But it did not appear that the said collector had at any time
caused a copy of the said list, with a statement of the amount of
the tax and a notification to pay the same, to be published for
sixty days in four gazettes of the state, if there were so
Page 13 U. S. 66
many pursuant to the last clause of the 11th section of the act
of Congress entitled "An act to lay and collect
a direct tax
within the United States,'" vol. 4, p. 212. And thereupon the judge
instructed the jury that the said sale made by said collector was
unauthorized and void because the said collector had not previously
made said last mentioned publication and because it appeared that
the collector proceeded to collect the taxes due on the said land
in the manner prescribed by law for collecting taxes due upon lands
where the owner resides thereon, and not in the manner prescribed
when the owners are nonresidents, and because there is a variance
between the surveyor's books and the collector's list. The
defendant below excepted to this opinion of the judge, and a
verdict and judgment being rendered against him, he has brought the
same by writ of error into this Court.
Page 13 U. S.
67
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case
delivered the opinion of the Court as follows:
It is admitted that if the preliminary requisites of the law
have not been complied with, the collector could have no authority
to sell, and the conveyance can pass no title. On the part of the
plaintiff in error it is insisted that these requisites have been
performed and that the instruction given by the judge is erroneous.
The instruction is that the sale was unauthorized and void.
It was proved in the cause that the proprietors of the land in
controversy were nonresidents of the State of Tennessee when the
tax was assessed, and continued to be so to the time of bringing
the action, and that they had no known agents in that state.
Page 13 U. S. 68
The mode of proceeding with respect to nonresidents is
prescribed in the 11th and 13th sections of the act imposing the
direct tax.
The object of the provisions of the 11th section is
"lands, dwelling houses, and slaves which shall not be owned by
or in the occupation or under the care or superintendence of some
person within the collection district where the same shall be
situated or found at the time of the assessment aforesaid."
It is alleged that the plaintiff below did not entitle himself
to the provisions of this section by bringing himself within its
description. He was a nonresident and had no known agent, but has
not shown that there was no occupant of the land.
The testimony offered by both plaintiff and defendant is spread
upon the record, and although the plaintiff has not shown that
there was no occupant, yet that fact came out in the testimony of
the defendant before the opinion of the court was given. One of the
tax lists produced by him states the land to be without an
occupant, and the other which states John Grant to be the occupant,
is so far disproved because the case admits John Grant to have
been, at the time, an inhabitant of Kentucky without any agent in
the State of Tennessee.
The requisites of the 13th section of the act, which prescribes
the course to be pursued where lands are to be sold because the
taxes are in arrear and unpaid for twelve months, have been
observed. The requisites of the 11th section, which prescribes the
duty of the collector after the assessment of the tax before he can
proceed to distrain for it, have not been observed. The cause
depends on this single point -- was it the duty of the collector,
previous to selling the lands of a nonresident in the manner
prescribed by the 13th section of the act to make the publications
prescribed in the 11th section?
This will require a consideration of the spirit and intent of
the law.
Page 13 U. S. 69
The 9th section makes it the duty of the collector to advertise
that the tax has become due and payable and the times and places at
which he will attend for its collection. It is then his duty to
apply once at the respective dwellings of those who have failed to
attend such places and there demand the taxes respectively due from
them. If the taxes shall not be then paid or within twenty days
thereafter, it is lawful for the collector to proceed to collect
the same by distress and sale.
The 11th section prescribes the duty of the collector with
respect to lands &c., not owned, &c., by some person within
the collection district wherein the same shall be situated.
Upon receiving lists of such lands. &c., he is to transmit
certified copies thereof to the surveyors of the revenue of the
assessment districts, respectively, within which such persons
respectively reside, whose duty it is to give personal notice of
the claim to those who are liable for it. If the tax shall not be
paid within a specified time after this notice, it then becomes the
duty of the collector to collect the same by distress.
If the residence of the owner of such land be unknown, this
section requires certain publications to be made as a substitute
for personal notice, after which it is the duty of the collector to
proceed to collect the tax by distress in like manner as where a
personal demand has been made.
The 13th section prescribes the duty of the collector and the
forms to be observed in the sale of land the taxes on which remain
unpaid for one year. This section contains no reference to those
which preceded it, but marks out the course of the collector in the
specific case. It is therefore contended, and the argument has
great weight, that if the requisites of this section be complied
with, the sale is valid. This opinion is in conformity with the
letter of the section, and it is conceded that the intent must be
very clear which will justify a connection of that section with
those which precede it, so as to engraft upon it those acts which
must be performed by the collector before he can distrain for
taxes. But in this case, when we take the whole statute
Page 13 U. S. 70
together, such intent is believed to be sufficiently
apparent.
There is throughout the act an obvious anxiety in the
legislature to avoid coercive means of collection unless such means
should be necessary, and to give every owner of lands the most full
information of the sum for which he was liable, and to afford him
the most easy opportunity to pay it. Thus, the accruing of the tax
is to be advertised, and the times and places at which the
collector will attend to receive it. A personal demand at the
dwelling houses of those who have neglected to attend to this
notice must then be made a reasonable time before the collector can
collect the tax by distress. Where lands are owned by nonresidents
whose places of residence are known, this personal notice is still
required, and where their residence is unknown, certain
publications are substituted for and deemed equivalent to personal
notice and demand. In each case, it is made the duty of the
collector to proceed to collect the tax by distress and sale.
From this view of the law it is inferred not only that the
legislature was anxious to avoid coercive means of collection, but
has also manifested a solicitude to collect the tax by distress and
sale of personal property, rather than by a sale of the land
itself. That all the means of collection prescribed in the act must
have been tried and must have failed before a sale of the land can
be made. The duty of the collector to make a personal demand from
the resident owner of lands and to make those publications which
the law substitutes for a personal demand where the residence of
the owner is unknown does not depend on the fact that personal
property is or is not on the land from which the tax may be levied
by distress. It is his duty to proceed in the manner prescribed in
the 9th and 11th sections in every case. After having so proceeded,
it is his positive duty to levy the tax by distress if property
liable to distress can be found. If, notwithstanding the
proceedings directed in the 9th and 11th sections, the tax shall
remain one year unpaid, it is to be raised by a sale of the land.
It appears to the Court that the 13th section presupposes
everything enjoined in the 9th and 11th sections to have been
performed, and that the validity of the
Page 13 U. S. 71
sale of land owned by a nonresident, made by the collector for
the nonpayment of taxes must depend not only on his having made the
publications required in the 13th section, but on his having made
those also which are required in the 11th section. Those
publications not having been made in this case, it is the opinion
of the majority of this Court that the sale is void and that the
judge of the district court committed no error in giving this
instruction to the jury.
The judgment is affirmed with costs.
