Opinion
No. 4608.
Argued October 1, 1957.
Decided November 5, 1957.
1. There was no error in the ruling by the Trial Court that the selectmen of a town were without authority to bind the town by oral agreement with the purchaser of property obtained by the town by tax deed and sold at public auction that the town would reimburse him for any expenses incurred in perfecting the title thereto where the town conferred no express authority upon the selectmen beyond the power to sell and convey the property and there was no evidence that such an undertaking was necessary or usual to the sale of such property.
2. Incurrence of liability for such indemnification cannot be presumed to have been in the interest of the town or within the power of the selectmen in managing its prudential affairs so as to be binding in the absence of an authorizing vote by the inhabitants thereof.
ASSUMPSIT, by writ dated March 24, 1955, to recover taxes paid, and legal expenses incurred by the plaintiff in the course of litigation which culminated in the decision on November 3, 1948, of Palmer v. Coulombe, 95 N.H. 266, establishing his title to real estate acquired from the defendant by deed dated June 6, 1946. The declaration alleges representations by the defendant's selectmen, before sale of the property to the plaintiff, that the town would reimburse him for any loss or expense on account of defective title or adverse claims to the property; and failure of the town to make such reimbursement on demand.
The defendant moved to dismiss for the reasons among others that any agreement such as the writ alleged was beyond the power and authority of the selectmen, and not binding upon the town; that such agreement was without consideration; and that the action was not brought within six years from the time when the plaintiff's right, if any, accrued.
The plaintiff thereafter moved to amend his declaration to further allege that he was deprived of possession until June, 1949, and was thereafter again assured by the selectmen that he would be reimbursed for his expenses.
Upon hearing, the Court (Sullivan, J.) granted the plaintiff's motion to amend, and granted the defendant's motion to dismiss upon the specific grounds of the motion previously stated herein. All questions of law raised by the defendant's exception to the order allowing the amendment, and by the plaintiff's exception to dismissal of his action were reserved and transferred by the Presiding Justice.
Cooper, Hall Cooper and John M. Brant (Mr. Brant orally), for the plaintiff.
Burns, Calderwood, Bryant Hinchey and Errol S. Hall (Mr. Hall orally), for the defendant.
In deRochemont v. Holden, 99 N.H. 80, the authority of selectmen to sell real estate belonging to a town was considered and the conclusion reached that this power resides in the inhabitants of the town, and does not fall within the authority of the selectmen in managing the prudential affairs of the town, or performing any other statutory duties of their office. See also, Moulton v. Beals, 98 N.H. 461.
In the instant case the real estate which the town sold to the plaintiff was acquired by the town by tax deed from the collector. The parties do not question that the later sale by the town was duly authorized by vote of the town, and that conveyance was made by quitclaim deed containing no undertaking which would afford a basis for the action before us. The issue therefore arises whether the selectmen could bind the town by oral agreement, not alleged to have been authorized by vote of the inhabitants, that the town would indemnify or reimburse the purchaser for expenses incurred in perfecting or defending title to the premises conveyed.
The Trial Court committed no error in holding that the selectmen lacked such authority. The vote of the town is understood to have conferred no express authority beyond the power to sell and convey. The authority may be deemed to have carried with it by inference "all necessary or usual means of executing it with effect." Goodale v. Wheeler, 11 N.H. 424, 428. See Restatement, Agency, s. 51. But there is no suggestion that an undertaking to indemnify the plaintiff which he alleges was made by the selectmen in this case was necessary or usual to sale of the premises, or authorized by the town. Cf. Cofran v. Cockran, 5 N.H. 458. Incurrence of such a liability cannot be presumed to have been in the interest of the town, or within the powers of selectmen in managing its prudential affairs, so as to be binding in the absence of an authorizing vote of the town (Smith v. Epping, 69 N.H. 558), any more than a release of liability of a third person to the town would have been. Carlton v. Bath, 22 N.H. 559.
The sale was at public auction (Palmer v. Coulombe, supra, 267) with no condition attached to the sale or established by vote of the town. See Laws 1947, c. 269, now RSA 80:42. Thus the order of the Trial Court was sufficiently founded upon the selectmen's lack of authority, and there is no occasion to consider the other grounds for the order. The order of dismissal or nonsuit is sustained.
Exceptions overruled.
All concurred.