#### Moses Holden *versus*William Eaton.

The provision in the Act of Congress of January 9, 1815, that the direct tax laid thereby shall remain a lien on land during two years after it shall become payable, does not restrain the collector from selling the land after the two years have expired, where there has been no alienation of it by the owner.

Where no return had been made to the clerk of the District Court of a sale of land for the United States direct tax of 1815, to enable him to give a deed to the purchaser, it was *held,*that a demand of a deed was not necessary in order to sustain an action by the purchaser against the collector for not causing such a return to be made.

In such an action the declaration should contain an allegation that the tax had been duly assessed.

This was an action upon the case against the defendant as a collector of taxes of the United States, for misconduct in his deputy, Leonard Davis.

*17
      *Oct. term*1827

The declaration alleged, that in pursuance of the Act of Congress, passed January 9, 1815, for laying a direct tax, Davis, on the 28th of January, 1819, sold to the plaintiff certain parcels of land, the owners of which had neglected to pay the taxes due thereon ; that no part of the land was redeemed within two years after the sale (that being the period allowed by law for the redemption thereof) ; that at the expiration of three months after that period neither the defendant, nor any other officer within his collection district, had lodged with the clerk of the District Court any statement relative to the land sold and unredeemed, as above mentioned, so that the clerk might give a deed of the same, but the defendant still neglected and refused to make or cause to be made and lodged with the clerk the returns required by the Act of Congress ; by reason of all which the plaintiff had lost the title and possession of the land which he had purchased.

The taxes became due in January, 1816, and the defendant, on the 30th of December, 1818, advertised, that unless they were paid on or before the 28th of January, 1819, the land would on that day be sold. A sale was accordingly made to the plaintiff, as alleged in the declaration. The plaintiff had never demanded a deed of the defendant, nor had the defendant or his deputy made the requisite returns to the clerk of the District Court. The verdict was for the defendant.

*Newton,*for the plaintiff, contended,

that the 24th section of the Act of Congress above mentioned, which provides that the lax shall remain a lien on the land of the individual who may be assessed for the same, during two years after the time it shall become due and payable, was not intended to prevent a sale by the collector after that period, where the land had not been alienated by the owner ; that consequently a return should have been made to the clerk within three months after the sale to the plaintiff; and that such return not having been made, the plaintiff had lost his title to the land, and a demand of a deed, as it would have been futile, was unnecessary. He cited Acts of Cong. 13, *sess.*3, c. 21, § 24, 27 (Jan. 9, 1815) ; Cong. 15, *sess.*1, c 77, § 4, 5 (April 20, 1818).

Merrick, for the defendant,

argued that the object of creating a lien for two years was in part to give the collector a rea*18sonable time in which he might enforce payment of the tax by a sale of land ; that the sale in this instance, having taken place after the two years had expired, was inoperative, and a deed would therefore have been void, had a return been made to the district clerk ; that the deputy, in thus overstepping his duty, could not be considered to have acted officially, and so the defendant was not responsible for his doings. He referred to the Act of 1815, § 24, 26, 29, 31, 33 ; *Marshall*v. *Hosmer,*4 Mass. R. 60 ; *Bond*v. *Ward,*7 Mass. R. 127.

*Oct. 4th,*1828.

He objected likewise, that the declaration was insufficient, inasmuch as it contained no allegation that the tax of 1815 had been duly assessed. *Libby*v. Burnham, 15 Mass. R. 144 ; *Thayer*v. *Stearns,*1 Pick. 482; *Blossom v.*Cannon, 14 Mass. R. 177 ; *Doe*v. *Smith,*1 Holt’s N. P. Cas. 589, and note.

*Per Curiam.*

It appears by the Act of Congress, that the collector might enforce payment of the tax by distress on personal property, or by a sale of land. No limitation of time is provided for making the distress, and there seems to be no good reason why the collector should not sell real estate after the expiration of the two years, as well as personal. The design of the limitation was to prevent the alienation of real estate from being encumbered for an unreasonable period. We think then that the deputy was authorized to make the sale in question, after the two years had expired ;1 and if so, it was an official act to which the defendant’s responsibility attached. At the time of the sale, the officer receives the purchase money, but makes no conveyance; and the purchaser is noi entitled to a deed until the time for redemption has expired. No return having been made to the district clerk, a demand of a deed by the plaintiff was unnecessary. The collector was not authorized to give a deed, and the clerk could not make one for want of the proper return ; so that a demand would have been a useless ceremony.

The declaration ought to allege that the tax was duly as sessed, and if it is defective in this respect, the plaintiff mar have leave to amend.

*Mew trial granted.*

See Revised Stat.. *c.*8, § 18; *Holden*v. *Eaton,*8 Pick. 436; *Hayde*n *Foster,*13 Pick. 492.