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(111 A.)

7. Taxation 542-Payment of tax held in- there was no evidence in the case tending to voluntary. show that no interest was charged upon them nor evidence tending to show they had their situs in Pennsylvania.

Where taxpayer mailed check in payment of taxes with letter, stating that payment was made under protest, that taxpayer understood such payment to be necessary in order to avoid penalty, and that the necessary proceedings would be taken to recover the tax so paid, the payment was involuntary.

[1] The principal question raised is whether there was evidence tending to show those two claims. The evidence bearing upon the question of the situs of the accounts assessed tended to show that the accounts originating

Exceptions from Bennington County Court; from the business in Readsboro were kept Harrie B. Chase, Judge.

Action by the National Metal Edge Box Company against the Town of Readsboro. Judgment for plaintiff on directed verdict,

and defendant excepts. Affirmed.

at the plaintiff's home office in Philadelphia, except some small matters in no way con

nected with the accounts in question, and all the branch office at Readsboro had to do with keeping those accounts was to send to the

home office in Philadelphia a statement of Argued before WATSON, C. J., and POW- the daily transactions and accounts originatERS, TAYLOR, MILES, and SLACK, JJ. ing during the day, which were usually sent A. F. Schwenk, of Brattleboro, for plain-curred and the account originated. A copy on the following day after the transaction oc、

tiff.

Collins M. Graves and Henry Chase, both

of Bennington, for defendant.

MILES, J. This is an action on contract to recover money paid the defendant under an alleged protest, upon taxes claimed by the plaintiff to have been illegally and improperly assessed against it. At the close of the evidence both parties moved for a directed verdict. The motion of the plaintiff was granted, and upon the verdict thus directed judgment was rendered for the plaintiff. To the direction of the verdict and judgment thereon the defendant was allowed an exception and also an exception to the court's refusal to grant its motion for a directed ver

dict.

of the statements was kept at the office in

Readsboro, and the originals were entered upon the books of the plaintiff in Philadelphia. The pay roll of the employés at Readsboro was sent to the plaintiff at Philadelphia, and checks were returned with which to pay the employés. All the merchandise manufactured and sold from the branch business at Readsboro was paid for at the office of the plaintiff at Philadelphia. All the plaintiff's business matters originating at Readsboro were attended to at the plaintiff's home office in Philadelphia. The business conducted at Readsboro consisted in manufacturing paper box board and pulp, which was principally sent to Philadelphia, but some was shipped elsewhere on orders from the Philadelphia office, in which case a memorandum of the

The evidence tended to show that the plain- shipment was sent to the home office. The tiff is a corporation, organized under the office at Readsboro had nothing to do with laws of Pennsylvania and located and hav- the sale of the goods manufactured there, ing its principal place of business at Phila- nor with fixing the price for which they were delphia, but is doing quite an extensive busi-sold. We think this evidence clearly tended ness in the defendant town, where it owns to show that the situs of the accounts assessreal and personal property of large value; ed by the listers of defendant was in Pennthat for the year 1917, the plaintiff filed with sylvania, and not in Readsboro. the listers of the defendant its inventory of taxable property in that town, and in that inventory, to question 25a, which is as follows: "On April 1, 1917, what was the aggregate amount of existing debts then due or thereafter to become due to the maker hereof from all solvent debtors within or without the state of Vermont?"-it answered: "$31,

[2] It is a general rule of law, with few, if any exceptions, that debts can have no locality separate from the parties to whom they are due. Says Mr. Justice Field, respecting this rule, in Cleveland, etc., R. R. Co. v. Pennsylvania, 82 U. S. (15 Wall.) 300, 21 L.

Ed. 179:

635." The answer was correct, but the plain- "This principle might be stated in many diftiff insisted, before and at the time the inven-ferent ways, and supported by citations in numerous adjudications, but no number of autory was delivered to the listers, that those thorities and no forms of expression could add debts were not taxable, because their situs anything to its obvious truth, which is recogwas in Pennsylvania and not in Readsboro, nized upon its simple statement." and because they consisted of charges of book representing the purchase price of tangible With the creditor debts are property and personal property on which no interest was may be taxed. All the property there can be charged. No question is made but that those in debts belongs to the creditor. Cleveland, debts consisted of charges of book represent- etc., R. R. Co. v. Pennsylvania, supra; Buling the purchase price of tangible personal lock v. Guildford, 59 Vt. 516, 9 Atl. 360; State property; but the defendant claimed that v. Clement National Bank, 84 Vt. 167, 199, 78

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"October 18, 1917.

Atl. 944, Ann. Cas. 1912D, 22. The accounts, the tax was not illegal in fact. But a tax asassessed were not only due to and owned by sessed against a person upon nontaxable propthe plaintiff, whose domicile was in Pennsyl-erty, is illegal and it requires no citation of vania, but the accounts themselves were in authorities in support of this holding. fact permanently held and situated in Penn- [7] The defendant further contends that sylvania and not in Readsboro. the evidence shows that the tax was paid [3-5] But the defendant contends, though voluntarily. We think it does not. A check that may be so, the plaintiff cannot recover in payment of the tax assessed upon the in this suit; because its exclusive remedy accounts in question was delivered to the was by appeal from the lister's decision to treasurer of defendant by the plaintiff's suthe board of civil authority, and if not satis-perintendent, in a letter of the following fied with their decision, by appeal to the com- tenor: missioner of taxes, and it cites in support of this contention sections 785, 834, and 842 of the General Laws. The proceedings provided for in those sections all relate to errors and mistakes of the listers in the assessment of taxable property, and not to property over which they have no jurisdiction or right to In Babcock v. Granville, 44 Vt. 325, an action in assumpsit to recover money paid on taxes, under protest, one of the defenses insisted upon was that the plaintiff's exclusive remedy was under section 66 of chapter 15 of the General Statutes, which provided, among other things, that the board of civil authority "may abate, in whole or part, any tax, which has been assessed on the list of any person, in which there is manifest error

assess.

or in which there is a mistake of the listers or assessors who made up such list." This court held in that case that it was not the exclusive remedy, and that the action was maintainable. While the remedy for errors and mistakes in assessments by the listers, under that statute, was by abatement, instead of by a hearing before the board and appeal to the commissioner of taxes, the principle involved is the same, and goes to the extent of supporting the plaintiff's contention that, for an illegal assessment, the taxpayer is not confined to the statutory remedy. The court in Babcock v. Granville say that many actions of that kind have been brought in this state and have been maintained. It was early laid down in this state that where the tax is illegal and therefore void the money paid under protest may be recovered in an action at law. Henry v. Chester, 15 Vt. 460, 470.

But the defendant further contends that the tax was not illegal, because the plaintiff included the debts mentioned in the answer to question 25a in its inventory. The case shows this was done at the insistence of the listers who took the inventory, and subject to the plaintiff's objection that the accounts were not taxable. In these circumstances the listers were not misled, and so were not justified in assessing property not taxable, on the ground that the plaintiff was estopped from claiming their illegality.

[6] The defendant further contends that

"Mr. C. H. Brown, Treasurer, Readsboro, Vt.-Dear Sir: We understand that unless the village and town of Readsboro tax for 1917 is paid according to the assessment, as per bill September 22, 1917, we will subject ourselves to a penalty of 8 per cent. closing herewith our check for $4,762.15, but "In order to avoid the penalty, we are inare making this payment under protest with a view of taking the necessary proceedings to recover the excess tax, which we are obliged to pay on the erroneous and improper assessment. The erroneous assessment complained of is on the item No. 25a of $31,635.44 on our tax inventory returned to listers in April, 1917, on which the tax charged is $996.50, less discount 4 per cent. $956.64, and for which bill

is herewith inclosed."

This letter was signed by the plaintiff. While it is a hopeless undertaking to attempt to reconcile the authorities from different jurisdictions and extract therefrom a rule that will apply to every case involving the question of protest, we think that in our own decisions we have a rule that is followed by all our cases, upon the point here involved. The point upon which conflict arises in the different jurisdictions lies in the determination of what degree of compulsion is necessary to make the payment involuntary. We hold in line with our former decisions that the plaintiff had a right to expect, in the circumstances of the case, that unless it paid the tax within the time limited, in due course a warrant would issue, and the collection be enforced with costs and it be subjected to the penalty. This was all the compulsion necessary to make the payment involuntary and the protest available under our former holdings. Stowe v. Stowe, 70 Vt. 609, 41 Atl. 1042; Allen v. Burlington, 45 Vt. 202; Babcock v. Granville, supra.

The view we take respecting the situs of the accounts assessed renders it unnecessary to consider whether interest was charged on those accounts, as that question now becomes immaterial. We find no error in the judg ment and proceedings below, and the same is affirmed.

(94 Vt. 324)

HOLTON v. HASSAM et al. (Supreme Court of Vermont.

(111 A.)

(No. 231.) Washington.

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Where plaintiff originally sued for trespass quare clausum fregit, seeking treble damages under P. S. 5842, for cutting trees, his later motion that the action at law be amended into a suit in equity and transferred to the court of equity was properly granted, where the bill as first filed showed generally, and, as finally amended, specifically, that since the action was commenced defendant had committed and threatened to commit repeated acts of trespass, which would be destructive of the

6. Evidence 343 (3)-Plaintiff may show defendant's chain of title by certified copies of deeds for the purpose of limiting his rights.

Where plaintiff in trespass suit, assignee of a town lease of the west portion of a lot drawn to the support of the gospel, claimed that a similar and prior lease of the same lot under which defendant claimed as assignee covered only the easterly part thereof, and not the whole lot, as claimed by defendant, it was not error to admit in evidence, when offered by plaintiff, certified copies of the deeds in the only line of title of record under which defendant's claim, as such assignee, could be based, for the purpose of showing that the premises covered by defendant's lease were only the easterly part of the lot.

estate, or inflict irreparable injury; equity hav-7. Landlord and tenant
ing jurisdiction to prevent or stop the entire
wrong by injunction.

2. Equity 39(1)—Retains Jurisdiction for
complete relief.

Where equity jurisdiction has rightfully attached, it should be made effectual for the purposes of complete relief.

801⁄2-Presumption

from continued holding that assignee entered for unexpired term.

fendant occupied premises under a certain In suit involving the question whether delease, it might be presumed, from the fact that the grantees, including defendant, of a former holder of the premises, had occupied the premises covered by the lease down to the time of

3. Jury 31 (6)-Defendant not deprived of suit, that such holder entered for the whole of right of jury trial by transfer to equity.

Where action at law was amended by plaintiff into a suit in equity and transferred to the court of equity, such transfer did not deprive defendant of his right of trial by jury; the constitutional guaranty having reference to the right of jury trial previously existing according to the course of the common law, and a court of chancery not being, strictly speaking,

a court of common law. 4. Landlord and tenant

78(1)—Assignment of long-term lease not invalid because not acknowledged and having only one witness.

the unexpired term of the lease and as assignee of the term.

8. Boundaries 35 (4)—Evidence of use and occupation according to line claimed admissible.

In suit involving the question of the division line between two parts of a lot, plaintiff was properly permitted to show by a witness who worked for defendant's predecessor in title for several years and had charge of his part of the lot that he helped about keeping up the boundary fence, and that such predecessor knew where the fences were being kept up at that time; such evidence tending to show use and occupation by those owning the land on defendant's side of the division line.

9. Boundaries 37(5)-Weight of evidence of use and occupation according to line claimed stated.

Assignments of a long-term lease were not invalid as respects the administrator of the last assignee because not acknowledged and signed by but one witness, for G. L. 2746, making an assignment of a long-term lease, not executed as required in the case of a deed, void as against "all persons but the assignor, his heirs or devisees," impliedly make such an assign-" ment good as against the assignor, his heirs and devisees, and in favor of everybody else. 5. Evidence 83(2)-Towns 39 (2)-As-occupying lands in either part would have no signment of lease from town presumed regu-legal tendency to show where the disputed lar.

Where assignee of lease from a town of a public lot drawn to the support of the gospel, and his administratrix and administrator, for a number of years paid to the town the rent of the lot, the town's acceptance and retention of the rent was not only a recognition by the town of his possession under the lease, but also of the several successive assignments of the lease, recorded in its clerk's office, and in such circumstances the law would presume a state of facts to continue which was lawful and regular in every respect, such as taking possession of the premises by the different assignees of the lease, by virtue and in the order of the different assignments, and paying rent as reserved by the lessor.

In suit involving question of division line between two parts of a lot, while evidence of use and occupation alone by those owning and

line was, yet such evidence, in connection with the fact that such line and occupation was in accordance with the line in dispute, would have a tendency to show where the line was.

10. Estoppel 22 (2)-By recitals in deeds under which title claimed.

Persons claiming title under deeds are bound by the recitals therein.

11. Landlord and tenant 63(1) Tenant cannot deny landlord's title.

A tenant cannot set up a leasehold title under lease of earlier date, executed and delivered by the lessor to a third person under whom such tenant has no standing, as this would deny his lessor's title.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

12. Towns 35 (2)—Giving of second lease to another tenant held to show revocation of first lease.

Where a public lot drawn to the support of the gospel was leased by the town in 1816, the lease containing a clause as to forfeiture for default, but it did not appear that the lessee ever took possession or paid any rent, the giving in 1844 by the town of a lease of the lot to another lessee was an act showing resumption of possession by the town, and warranted a finding that the prior lease had become null and void under its terms relating to forfeiture, or had been abandoned by mutual consent, there being a "revocation" in either case, for a revocation may be by operation of law or by act of the parties.

be sustained. The bill as first filed showed generally, and, as finally amended, specifically, that since the original act of trespass, and since the action at law was commenced, defendant Hassam had committed and threatened to commit repeated acts of trespass to the property in question, which would be destructive of the estate or inflict irreparable injury. In such circumstances equity has jurisdiction to prevent or stop the entire wrong by injunction, as is specifically prayed. Griffith v. Hilliard, 64 Vt. 643, 25 Atl. 427; Averill v. Vermont Valley R. R., 88 Vt. 293, 92 Atl. 220.

[2] We need not consider the other grounds of the demurrer; for, since equity jurisdiction has rightfully attached on the ground

13. Descent and distribution ~71(4) One claiming title by descent to grandnephew mentioned, it should be made effectual for the must prove it.

Where person through whom defendant claimed leasehold title was a grandnephew of the original lessee, no interest in the grandnephew in the leasehold was to be inferred from the mere fact of his relationship, but defendant had the burden of proving it; for, while the legal presumption is that every deceased person leaves heirs capable of inheriting, or next of kin, there is no presumption that a person of mature years left no children nor father nor mother.

purposes of complete relief. Van Dyke v. Cole, 81 Vt. 379, 70 Atl. 593, 1103; Deerfield Lumber Co. v. Lyman, 89 Vt. 201, 94 Atl. 837.

[3] Defendant urges in effect that the transfer deprived him of the right of trial by jury for which reason it was in violation of the organic law.

It is true that, as the case stood in the court of law, a trial by Jury was a constitutional right. But, as the plaintiff could have adequate and complete remedy only in a court of equity, and therefore his motion for a transfer to that court was prop

Appeal in Chancery, Washington County; erly granted, such constitutional right no Leighton P. Slack, Chancellor.

longer existed. The guaranty in this respect Suit by Russell B. Holton, administrator, contained in the Constitution has reference against F. V. Hassam and another. Decree to the right of trial by jury previously existfor plaintiff, and defendants appeal. Affirm- ing according to the course of the common ed and remanded. law. A court of chancery is not, strictly POW. speaking, a court of common law, and consequently a trial by jury of issues of fact joined in a cause pending therein is not demandable as a matter of right. Huntington v. Bishop, 5 Vt. 186; Plimpton v. Somerset, 33 Vt. 283; Crampton v. Hollister, 70 Vt. 633,

Argued before WATSON, C. J., and ERS, TAYLOR, and MILES, JJ.

Charles Batchelder, of Bethel, for appel

lants.

Sumner E. Darling, Jr., of Hardwick, for appellee.

41 Atl. 588.

vey, so called, not included in a lease dated March 5, 1833, executed by selectmen of Woodbury to Benjamin Ainsworth, said lot drawn to the support of the gospel in said town of Woodbury, with all the appurtenances thereto belonging, to him, the said Wm. Barnes, his heirs, executors, administrators, and assigns, to their proper use and The lease was for a term tenantship," etc.

WATSON, C. J. [1] The land in question For the purpose of showing a leasehold is the west portion of lot No. 125 in the town title in Adolphus Holton, the plaintiff introof Woodbury, a public lot drawn to the sup-duced in evidence a lease from the selectport of the gospel. The action as first men of the town of Woodbury to William M. brought was trespass quare clausum fregit Barnes, dated the 2d day of March, 1844, against defendant Hassam alone, seeking of "all that part of Lot No. 125 in Janes' surtreble damages under section 5842 of the Public Statutes for cutting down and destroying a large number of trees growing thereon, the time alleged being on, to wit, the 1st day of September, 1913, and divers other days between that time and the day of the bringing of the suit in July, 1915. After that suit was brought, the plaintiff moved that the action at law be amended into a suit in equity and transferred to the court of equity, "so long as wood grows and water runs,” and which motion was granted. Defendant ob- provided for the payment annually of a jected to such transfer, and on appeal relies yearly rent, with a clause of forfeiture in upon his claim that it was improperly grant-case of default on the part of the lessee, ed, because, he says, the bill contains no al- concluding with the statement: legations on which equity jurisdiction can properly be based.

"This lease is made in consequence of the

But this claim cannot lease of same land dated March 5, 1833, being

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

given up, and is meant to be subject and agree-, but the assignor, his heirs or devisees." But able to the present law provided for leasing of impliedly this statute further says that such minister land in this state."

This instrument was duly recorded in the records of the town of Woodbury on the day it was executed.

an assignment, executed without conforming to these statutory requisites, shall be good and effectual in law to transfer a leasehold estate as against the assignor, his heirs, and devisees, and in favor of everybody else. Sterling v. Baldwin, 42 Vt. 306; Lemington v. Stevens, 48 Vt. 38; Buswell v. Marshall, 51 Vt. 87. This being so, it should seem that no argument is necessary to convince one of the lack of merit in both assigned grounds of the exception.

the aid of her son, the plaintiff, until she died, when the plaintiff was appointed administrator de bonis non of his father's estate, which office he still holds.

[4] On the 29th day of October, 1853, Barnes executed and delivered to one Edward C. Johnson an assignment of said lease, which assignment was indorsed on the original lease, and was recorded in the office of the town clerk of Woodbury on the 1st day of November, 1853. This assignment was [5] It did not appear whether Barnes or signed by but one witness, and shows no ac- any of the assignees of the Barnes lease priknowledgment by the assignor. On the 4th or to Adolphus Holton took possession of the day of November, 1853, Johnson assigned premises described in the lease, or paid to said lease to Samuel Britton, Wm. B. Swett, the town of Woodbury the rent therein reand Charles Shipman by an instrument in served. But Holton took possession of the writing indorsed on the original lease. As in premises soon after the assignment to him the preceding instance, this assignment con- was executed, and he and his legal representtains but one witness, and was not acknowl-atives continued to occupy the same, either edged by the assignor. It was recorded in personally or through persons holding under the town clerk's office on the day of its ex- them, without interruption by any person, so ecution. On the 17th day of November, 1863, far as appeared before the chancellor, until Britton executed to Swett a transfer of Brit- the fall of 1913. Holton died in 1873, and his ton's right, title, and interest under said widow, Helen A. Holton, was appointed adlease, which was indorsed on the lease. This ministratrix of his estate. She continued to transfer, though signed and sealed by Brit- occupy and look after the said premises with ton, contains no witness and no acknowledgment. On the 15th day of August, 1870, Swett, in due form, executed by indorsement on the original lease, and delivered to Adolphus Holton, his executors, administrators, In January, 1894, the administratrix paid and assigns, a transfer of "all the right, ti- to the treasurer of the town all the rent and tle, and interest of myself, Samuel Britton interest on unpaid rent then due and owing and Charles Shipman in the within-described to the town on that part of lot 125 occupied land and premises and to this lease." The by Adolphus and by his administrators after last two transfers named were recorded in his death. The town accepted and retained the town clerk's office on the 30th day of the rent so paid, and all the rent which July, 1914. The foregoing is all the record title Adolphus Holton had to any part of lot 125, so far as appeared before the chancellor. Exception was taken to the findings because the chancellor received in evidence (against exceptions) the Barnes lease and the assignments appearing thereon. on the ground that the assignments by Barnes, Johnson, and Britton, respectively, were not legally sufficient to pass any interest under the lease, and on the further ground that the lease and the evidence of the acts of the parties referred to therein and in said assignments did not tend to show any right or title to any part of the lot in question, in the plaintiff or the estate which he claims to represent. It is urged, in effect, that since none of these three assignments was properly witnessed and acknowledged, none of them had any force, referring to the statute (G. L. 2746). By the provisions of that section an assignment of a lease of lands, if the lease be for It is found that from the time Adolphus a longer term than one year, shall be by Holton took assignment of the lease he and deed, signed, sealed, witnessed, acknowledg- his legal representatives occupied all the ed, and recorded, as required in the case of land now claimed by the plaintiff continuousdeeds; "and an assignment otherwise ex- ly, making such use of it as they desired to ecuted shall be void as against all persons and the nature of the land would permit

thereafter accrued was paid by the administrators to the treasurer of the town, and the same was accepted and retained by the town. We think such acceptance and retention of the rent was not only a recognition by the town of Holton's possession of the leasehold estate under the Barnes lease, but also of the several successive assignments of that lease, all of which must have been known to the town because recorded in its clerk's office. In these circumstances it is not too much to say, nothing to the contrary appearing, that the law will presume a state of facts to continue which was lawful and regular in every respect, such as taking possession of the premises by the different assignees of the lease, by virtue and in the order of the different assignments, and paying rent as reserved by the lessor. Pollock, C. B., Price v. Worwood, 4 H. & N. 512, 514; Propagation Society v. Sharon, 28 Vt. 603.

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