ajorn^U Caw ^rl|ool Eibtary 
 
Cornell University Library 
 KF 685.T2B63 1875 
 
 A practical treatise on the power to sel 
 
 3 1924 018 781 751 
 
|| Cornell University 
 J Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018781751 
 
PEACTICAL TREATISE 
 
 ON THE / 
 
 POWER TO SELL^LAND 
 
 NON-PAYMENT OF TAXES, 
 
 EMBKACINO 
 
 THE DECISIONS OF THE FEDERAL COURTS, AND OF 
 
 THE SUPREME JUDICIAL TRIBUNALS OF THE 
 
 SEVERAL STATES AND TERRITORIES. 
 
 BY 
 ROBERT S. BLACKWELL. 
 
 FOURTH EDITION, 
 
 EEV:SED AHD ENLARGED. 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1875. 
 
Entered according to Act of Congress, in the year 1864, by 
 
 LITTLE, BROWX, AND COMPASY, 
 
 In the Clerk's OflSce of the District Court of the District of Massachusetts. 
 
 Entered according to Act of Congress, in the year 1869, by 
 
 LITTLE, BROWN, AND COMPANY, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts. 
 
 Entered according to Act of Congress, in the year 1875, by 
 
 LITTLE, BROWN, AND COMPANY, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 cambridgk; 
 
 PRESS OF JOHN WILSON A.NI> SOX. 
 
TO 
 
 ARCHIBALD WILLIAMS, ESQ., 
 
 LATE UNITED STATES ATTORNEY FOK THE DISTKICT OF ILLINOIS: 
 
 AN ABLE LAWYER, 
 
 THE PIONEEK IN TAX TITLE LITIGATION IN ILLINOIS, AND WHO, BY BIS ADVICE 
 
 AND ENCOURAGEMENT, HAS MATERIALLY AIDED IN THE 
 
 PREPARATION OF THIS WORK, AND FOR WHOM THE 
 
 AUTHOR ENTERTAINS THE HIGHEST 
 
 SENTIMENTS OF RESPECT 
 
 AND FRIENDSHIP, 
 
 THIS BOOK IS BEDICATED. 
 
PREFACE 
 
 TO THE FOURTH EDITION. 
 
 In the preparation of the present Edition it was deemed 
 inexpedient to make any alterations in the text of the 
 author (with which the profession have become quite 
 familiar) other than to correct such manifest verbal 
 and clerical errors and inaccuracies as came to the 
 notice of the editor. 
 
 Occasionally, however, some slight additions thereto 
 have been made, such new matter being usually distin- 
 guished therefrom by being included within brackets. 
 
 The marginal paging of the prior editions has been 
 retained throughout in the present, and all references 
 are to such marginal paging. 
 
 The new matter is mostly in the form of notes, and 
 embodies the results of upwards of five hundred and 
 fifty (550) cases. 
 
 No case has been omitted that has come to the notice 
 of the editor, whether decided prior to, or since the 
 publication of, the next preceding edition, and special 
 
vi PREFACE TO THE FOURTH EDITION. 
 
 care has been taken to refer to every reported case 
 down to the time of going to press. 
 
 The cases digested in the " Additional Note " to the 
 next preceding edition have been incorporated in the 
 body of the present edition where they respectively 
 belonged. 
 
 M. D. E. 
 
 Lansing, Mich., Jan. 25, 1875. 
 
EDITOR'S NOTE. 
 
 (THIRC EDITION.) 
 
 The work of the present editor has consisted in the 
 collection of the cases subsequent to the last edition. 
 Some additional citations of the earlier authorities have 
 also been made. In all, upwards of four hundred cases 
 have been added. The new matter is in the form of 
 foot-notes distinguished by the letters of the alphabet. 
 Occasionally a citation has been incorporated in the 
 notes of the earlier edition without distinguishing mark. 
 The star pages are the pages of the last edition, and are 
 referred to in the contents, table of cases, and index. 
 The matter of the last edition has been considerably 
 compressed, by changes in the manner of printing, and 
 method of citation, and the number of pages has been 
 increased but slightly, if at all. The attention of ihe 
 reader is especially called to- the digest of cases in the 
 Additional Note (a), embracing cases reported while this 
 volume was going through the press, or which had 
 escaped previous search. Great pains have been taken 
 to make the citations complete up to the present time. 
 
 (a) The cases above referred to have been in this (the fourth) edition 
 incorporated in the body of the work where they respectively belong. 
 
 F. V. B. 
 
 Boston, Oct. 1, 1869. 
 
PREFACE 
 
 TO THE SECOND EDITION. 
 
 The first edition of this work was published in the 
 year eighteen hundred and fifty-five. The death of 
 the learned author necessarily devolved the preparation 
 of a new edition upon other hands ; but the subject was 
 so thoroughly and exhaustively treated in the original 
 production, as to leave but little more to be done, than 
 to examine and incorporate the subsequent decisions. 
 Over two hundred cases have been added, and several 
 pages of new matter incorporated into the text and 
 notes. It is generally distinguished from the original 
 by being included in brackets. 
 
 The addition of the statutes of the several States 
 upon the subject of Tax Titles, was found to be imprac- 
 ticable without nearly doubling the size and cost of the 
 work ; and, therefore, only such portions of the several 
 acts are quoted as have been made the subject of judi- 
 cial decisions. 
 
 The references to the cases cited throughout the 
 volume have been examined and verified, and many 
 errors corrected therein. 
 
 E. H. B. 
 July 1, 1864. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 PAGES 
 
 Op the Fundamental Pkinciples wiuck contkol the Taxing 
 
 POWBK 1-30 
 
 CHAPTER II. 
 
 Of the Nature of the Power to sell Land for the Non-pay- 
 ment OF Taxes, and of the Strictness required in such 
 Sales 81-64 
 
 CHAPTER III. 
 Op the Onus Proband! 65-90 
 
 CHAPTER IV. 
 
 Op the Election and Qualification op the Several Officers 
 who hate ant thing to do with the Execution of the 
 Power 91-105 
 
 CHAPTER V. 
 
 Op the Listing and Valuation op the Land 106-153 
 
 CHAPTER VI. 
 Op the Levy op the Tax 154-166 
 
 CHAPTER VII. 
 Op the Authority to collect the Tax 167-171 
 
 CHAPTER VIII. 
 Op the Demand op the Tax 172-175 
 
J CONTENTS. 
 
 CHAPTER IX. 
 
 Or THE Seizube or the Body, oe Goods and Chattels, of the 
 
 Delinquent, to satisfy the Tax 176-180 
 
 CHAPTER X. 
 
 Of the Eetuen of the Delinquent List 181-183 
 
 CHAPTER XI. 
 
 Of the Pkoceedings where a Judicial Condemnation is 
 
 . 184-212 
 
 KEQUIRED 1.01r-^l.i 
 
 CHAPTER XII. 
 
 Of the Adtektisement of the Time and Place of Sale . . 213-250 
 
 CHAPTER XIII. 
 
 Of the Authority of the Officer to sell ... ... 251-259 
 
 CHAPTER XIV. 
 
 Of the Distinctions between Conditions Precedent and 
 
 Directory Requirements 260-265 
 
 CHAPTER XV. 
 Of the Sale of the Land • 266-295 
 
 CHAPTER XVI. 
 Of jhe Certificate of Sale . . 296-302 
 
 CHAPTER XVII. 
 
 Of Conditions Subsequent to the Sale 303-344 
 
 CHAPTER XVIII. 
 
 Of the Authentication of the Different Documents . . . 345-351 
 
 CHAPTER XIX. 
 
 Of the Confirmation of the Sale 352-354 
 
 CHAPTER XX. 
 
 Of the Location of the Land sold 355-357 
 
CONTENTS. XI 
 
 CHAPTER XXI. 
 
 Op the Amendment op the Proceedings . . . .' 358-363 
 
 CHAPTER XXII. 
 Op the Tax Deed ;..._. 364-391 
 
 CHAPTER XXIII. 
 
 Oi* Variances between Different Documents and Records 
 
 Relating to the Proceedings 392-395 
 
 CHAPTER XXIV. 
 
 Op Sales actually and constructively Fraudulent .... 396-405 
 
 CHAPTER XXV. 
 
 Op the Effect of the Sale and Deed where the Land sold 
 
 WAS Exempt prom or not Subject to Taxation .... 406-411 
 
 CHAPTER XXVI. 
 
 Of the Effect op the Sale and Deed where the Taxes have 
 
 BEEN PAID before THE SaLE 412-417 
 
 CHAPTER XXVII. 
 
 Of the Effect op the Sale and Deed where a Redemption 
 
 from the Sale has been made 418-436 
 
 CHAPTER XXVIH. 
 
 Of the Effect op the Sale and Deed where the Officer has 
 
 ABUSED or exceeded HIS AUTHORITY 487-441 
 
 CHAPTER XXIX. 
 
 Of the Covenants of the Officer, contained in the Tax 
 
 Deed 442-444 
 
 CHAPTER XXX. 
 
 Op the Consent of the Owner to Irregularities in the Pro- 
 ceedings and op Estoppel 445-446 
 
 CHAPTER XXXI. 
 
 Of Sales op Land for Taxes under the Charter and Ordi- 
 nances op Municipal and other Corporations 447-458 
 
jj{ CONTENTS. 
 
 CHAPTER XXXII. 
 Of the Fokfeitcke or Lands to the State where the Taxes 
 
 HAVE NOT BEEN PAID 459-472 
 
 CHAPTER XXXIII. 
 
 Of the Effect of the EeIpeal op the Law under which the 
 
 Proceedings took Place 473-480 
 
 CHAPTER XXXIV. 
 
 Of the Jdkisdiction of the Courts in Causes involving the 
 Validity of Tax Sales and of the Remedies of Parties 
 interested Therein 481-499 
 
 CHAPTER XXXV. 
 
 Of the Mode of pleading a Tax Title 500-509 
 
 CHAPTER XXXVI. 
 
 Of the Rules of Evidence relating to the Maintenance and 
 
 Overthrow op a Tax Title 610-533 
 
 CHAPTER XXXVII. 
 
 Op the Title which passes to the Purchaser at a Tax 
 
 Sale ' 534-555 
 
 CHAPTER XXXVIII. 
 Of the Principle of Stare Decisis concerning Tax Titles . 556-560 
 
 CHAPTER XXXIX. 
 
 Of Tax Titles as the Foundation of an Adverse Possession 
 
 under the statute of limitation 561-586 
 
 CHAPTER XL. 
 
 Op Compensation for Improvements made by Persons in Pos- 
 session UNDER Tax Titles 587-594 
 
 CHAPTER XLI. 
 
 Op the Interpretation and Construction op Statutes affect- 
 ing Real Property 595-634 
 
 Appendix 635-641 
 
 Index 733-761. 
 
TABLE OF CASES. 
 
 THE PAGES KEFERRED TO ARE THE STAR PAGES. 
 
 Abbott V. Doling, 34, 223, 368. 
 
 V. Lindenbower, 79, 82, 144, 
 
 193. 
 o. Yost, 168. 
 Abell V. Cross, 353. 
 Ackley v. Sexton, 286. 
 Adams v. Adams, 438, 511. 
 V. Bainter, 274. 
 V. Beale, 79, 82, 299, 417, 424, 
 
 432, 480. 
 V. Blake, 424. 
 t>. Castle, 488. 
 V. Jackson, 95, 98, 102. 
 V. Larrabee, 128. 
 V. Litchfield, 107. 
 V. Turrentine, 45. 
 Adriance v. McCafferty, 34, 117. 
 Ainsworth v. Dean, 97, 100, 136, 145, 
 
 286. 
 Alcorn v. Hamer, 7. 
 Aldrich V. Aldrich, 167. 
 Alexander v. Helber, 448. 
 
 V. Pitts, 232. 
 Alger V. Curry, 245, 509. 
 Allen V. Armstrong, 79, 82, 90, 98, 105. 
 V. Buffalo, 483. 
 V. Everts, 371. 
 V. Parish, 260. 
 
 V. Peoria R.R. Co., 154, 160. 
 V. Robinson, 73. 
 V. Ssott, 168. 
 
 V. Smith, 33, 34, 66, 74, 79, 216, 
 244, 249, 616, 528. 
 Altes V. Hinckler, 35, 499. 
 Alvord V. Collins, 85, 72, 74, 97, 145, 
 
 160, 235, 238. 
 Amberg v. Rogers, 79, 381. 
 Ambler v. Clayton, 417. 
 Anderson v. Kerns Co., 7. 
 V. Patton, 188. 
 V. Rider, 148, 280, 644. 
 V. State, 409, 488. 
 
 Andrews v. Senter, 282, 306. 
 
 Annan v. Baker, 74, 296, 362, 371, 381. 
 
 Anscomb V. Shore, 437. 
 
 Anson v. Anson, 399. 
 
 Appleton V. Hopkins, 176. 
 
 Armstrong v. Morrill, 568. 
 
 V. Treasurer of Athens Co., 
 409, 481. 
 Arnold v. Smith, 401. 
 Arrowsmith v. Burlingim, 8, 24, 551, 
 
 565. 
 Artlmr v. Nevill, 492. 
 Arthurs?;: Sraathers, 138, 140,142, 143. 
 Ashville v. Means, 164. 
 Astrom v. Hammond, 5, 411. 
 Atkins u. Hmman, 69, 148, 199, 201, 
 
 202, 203, 206, 209, 210, 211, 
 
 361, 535. 
 V. Kinnan, 55, 63, 263, 368. 
 Att'y-Gen. v. Plank Road, 7. 
 Atwater v. Woodbridge, 407. 
 Atwell V. Zeluff, 128. 
 Auditors. Atchison,Topeka, and Santa 
 
 Fe R.R. Co., 2. 
 V. Bleight, 197. 
 Augusta V. National Bank, 6. 
 Aukney v. Albright, 413, 417. 
 Aulanier v. The Governor, 93. 
 Austin V. Soule, 245. 
 
 V. Holt, 114, 300, 368, 392, 586. 
 Avery v. Judd, 399. 
 
 V. Rose, 268, 304. 
 
 B. 
 
 Bachelor v. Bachelor, 241. 
 Backus V. Lebanon, 407. 
 Bacon v. Conn, 434, 490. 
 Bagshaw v. Goward, 487. 
 Bailey v. Doolittle, 85, 249, 401. 
 
 V. Wordye, 337. 
 Baker v. Kelley, 372, 461, 586. 
 
 „. Towles, 74, 154. 
 
 V. Whiting, 401, 568. 
 
XIV 
 
 TABLE OP CASES. 
 
 Ballance v. Forsythe, 857, 899. 
 Ballard v. Appleton, 484. 
 
 V. Stephenson, 589. 
 Ballou V. Bleeker, 7. 
 Baltimore v. Chase, 177. 
 V. State, 409. 
 Baltimore Turnpike Co., Ex parte, 111. 
 Bangor v. Lancey, 348. 
 Bangs V. Snow, 160. 
 Bank v. New Albany, 408. 
 V. Smyers, 584. 
 V. Woodside, 142. . 
 Bank of Columbia v. Okely, 23. 
 Bank of Georgian. Savannah, 166, 526. 
 Bank of Republic v. Hamilton, 409. 
 Bank of U. S. v. Dandrldge, 628. 
 V. Osborn, 570. 
 V. Shultz, 487, 570. 
 Bank of TJtica v. Mersereau, 136, 368, 
 
 369, 373, 492. 
 Barbour v. HoUingsworth, 576. 
 
 V. Nelson, 465. 
 Barger v. Jackson, 353. 
 Barker v. Blake, 146. 
 
 V. Hesseltine, 143. 
 Barlow v. Bell, 589. 
 Barnard v. Graves, 168. 
 Barnett v. Cline, 482, 491. 
 Barrett v. Amerein, 400. 
 Barrow v. Davis, 481. 
 Bartholomew v. Leech, 320, 401. 
 Bartlett v. Lacy, 348. 
 Barton v. Moss, 401. 
 Baskins v. Winston, 285, 290. 
 Bassett v. Porter, 168, 176. 
 
 V. Welsh, 400. 
 Bates V. Branch Bank of Mobile, 39, 44, 
 187. 
 V. P. & M. Bank, 44, 187. 
 Battemore v. White, 51, 65. 
 Bayard v. Inglis, 586. 
 Bealls V. Guernsey, 260. 
 Beals V. Amador Co., 3. 
 Bean v. Tompson, 277. 
 Beard v. Smith, 459, 460. 
 Beaty v. Knowler, 33, 4-52. 
 
 V. Mason, 65, 74, 177. 
 Bechdle v. Lingle, 142. 
 Bedell v. Janney, 45. 
 Beekman i: Brigham, 74, 83. 
 Belcher v. Mhoon, 79, 353, 501. 
 Bell V. Barnett, 589. 
 V. Bowen, 96. 
 V. Wilson, 47, 88, 444. 
 Bellows V. Elliott, 34, 74, 314, 559. 
 
 V. Parsons, 559. 
 Belton V. Briggs, 590. 
 Benedict v. Gilman, 589. 
 Bennett v. Hunter, 417, 461. 
 Benson v. Mayor of New York, 476. 
 Bergen v. Clarkson, 29, 448. 
 Bernal v. Lynch, 400. 
 Berri u. Patch, 481. 
 
 Bestor v. Powell, 211, 269, 271, 316, 
 
 317, 319, 374, 442. 
 Bettis V. Taylor, 187. 
 Bettison v. Budd, 89, 90, 895, 400, 513. 
 Bewdly's Case, 558. 
 Biddle v. Noble, 189. 
 Biddleman v. Brooks, 79, 144, 146. 
 Bidwell V. Coleman, 128, 227. 
 
 V. Webb, 216, 228. 
 Bigler v. Karns, 548, 586. 
 Billings V. Detten, 128, 157, 158, 212, 
 
 261. 
 Birch V. Fisher, 92, 97, 100, 110. 
 Biscoe V. Coulter, 79, 89, 286, 364, 889, 
 
 409, 410, 449, 511, 685. 
 Bishop V. Lovan, 34, 74, 251. 
 
 V. Marks, 7. 
 Bissell V. Kellogg, 481. 
 Black V. Percifield, 353. 
 Blackwood v. Van Vleet, 482. 
 Blair v. Wagoner, 544. 
 Blake v. Howe, 399. 
 
 V. SUirtevant, 96, 168. 
 Blakely v. Bestor, 125, 202, 400. 
 Blakeney v. Ferguson, 34, 62, 65, 491, 
 
 506. 
 Blalock V. Gaddis, 233. 
 Blanchard v. Bissell, 451. 
 Blanding v. Burr, 3. 
 Bledsoe v. Doe, 76. 
 Bleecker r. Ballou, 1. 
 Bleidorn v. Abel, 475. 
 Bleight V. Auditor, 165. 
 Blight V. Atwell, 359. 
 
 V. Banks, 73, 359, 413, 418. 
 Blodgett V. Holbrook, 517. 
 Blue Jacket v. Johnson County, 411. 
 Blunt V. Willard, 639. 
 Boardman v. Bourne, 286, 368. 
 V. Ford, 79. 
 V. Halliday, 92. 
 Board of Commissioners v. Brown, 488. 
 Board of Supervisors v. Chicago, B. & 
 
 Q. R.R. Co., 6. 
 Bodertha i'. Spencer, 168. 
 Bodley v. Hoard, 73. 
 Boisgerard v. Johnson, 35, 290. 
 Bolan V. Bolan, 75, 85, 512. 
 BoUnger v. Henderson, 433. 
 Bond V. Kenosha, 7, 488. 
 Bonnell o. Roane, 90, 172, 354, 382. 
 Booth V. Woodbury, 1. 
 Bosvvorth v. Danzien, 381,-382. 
 Botsford V. Burr, 589. 
 Bott V. Perley, 172, 406, 458. 
 Bouldin v. Massie, 879. 
 Bowen v. Bell, 76. 
 
 I). Donovan, 177. 
 Bowers v. Green, 658. 
 
 V. Williams, 424. 
 Bowman •!. Wettig, 197, 565. 
 
 i,. Cockrill, 79, 368, 400, 686. 
 Brackett v. Whidden, 168. 
 
TABLE OP CASES. 
 
 XV 
 
 Brackett v. Gilmore, 297. 
 Bradley v. Snyder, 589. 
 
 V. McAttee, 172, 409, 447. 
 Bradstreet v. Huntington, 561. 
 Brady v. Offutt, 34, 106. 
 Braley v. Seaman, 108, 153, 202. 
 Branson u. Yancey, 401, 491. 
 Bratton v. Mitchell, 154. 
 Brettaugh v. Locust Mt. Coal Co., 137. 
 Brewer v. Springfield, 481. 
 Brewster v. Hough, 3, 406, 407, 409. 
 
 V. Syracuse, 7. 
 Bride v. Watt, 579, 582. 
 Bridge v. Brocken, 84. 
 
 V. Crocker, 84. 
 Bridge Co. v. Wyandotte Co., 484. 
 Briggs V. Whipple, 514. 
 Bright V. Boyd. 434, 495, 589. 
 
 V. McCullough,J6. 
 Briscoe v. Allison, 481, 484. 
 Bristol V. Chicago, 30. 
 Broadhead v. Milwaukee, 1. 
 Broadway Baptist Church v. McAttee, 
 
 6, 409. 
 Brobst V. Thompson, 296. 
 Brooks V. Hardwick, 355. 
 
 V. Rooney, 35. 
 Broughton v. Journeay, 138. 
 Brown v. Austin, 534. 
 
 V. Connelly, 528, 619. 
 
 V. Devine, 564. 
 
 V. Dinsmoor, 34, 64, 124, 135. 
 
 V. Hays, 137, 414. 
 
 V. Hogle, 121, 158, 184, 192,261, 
 289, 401. 
 
 V. Hummel, 24. 
 
 V. Hutchinson, 223, 368. 
 
 V. Moore, 450. 
 
 V. Simons, 399. 
 
 V. Smith, 34. 
 
 V. Veazie, 34, 62, 64, 65, 69, 145, 
 216, 226, 246, 480. 
 
 V. Wheeler, 39, 44, 187, 213. 
 
 V. Wright, 34, 71, 73, 74. 170. 
 Bruce v. Schuyler, 149. 150, 276, 296, 
 
 299, 390, 476, 573. 
 Bruen v. Graves, 511. 
 Brunn v. Murphy, 79, 108, 144, 356. 
 Brush V. Cook, 95. 
 Bryan v. Harvey, 475. 
 Bubb II. Tompkins, 433. 
 Buchanan v. Reynolds, 381. 
 Buchannon v. Upshaw, 446. 
 Buck V. Delafield, 85. 
 Buckingham v. Hallett, 586. 
 Buckley v. Osborn, 406, 410. 469. 
 Bucknall v. Story, 65, 79, 160, 165, 482. 
 Bucknam v. Ruggles, 97. 
 Budd V. Bettison, 90, 869, 381. 
 
 V. State, 21. 
 Buell V. Irwin, 160. 
 Buffalo City Cemetery v. Buffalo, 409. 
 Bulkley «. Callalan, 82, 286, 373. 
 
 Bunner v. Eastman, 33, 83, 88, 90, 220, 
 
 340. 
 Burch V. Fisher, 34. 
 
 V. Savannah, 6. 
 Burchard v. Hubbard, 382, 450. 
 Burd V. Ramsay, 138, 167, 174, 177,210. 
 Burger «. Carter, 21, 30, 165, 197. 
 Burgess v. Pue, 168. 
 Burke v. Elliott, 95. 
 Burl. & Mo. Riv. R.R. u. Spearman, 
 
 488. 
 Burnes v. Atchison, 7. 
 Burnett K. Cincinnati, 485, 488. 
 V. Delauny, 350. 
 V. Sacramento, 7. 
 Burns v. Lyon, 276, 319, 320. 
 Burr V. Hunt, 79, 282. 
 
 V. Wilcox, 446. 
 Burrill v. Phillips, 279. 
 Burroughs v. Bashford, 491. 
 Burton v. Hintrager, 419, 424, 432, 446. 
 Bush V. Davison, 62, 303, 333, 339. 
 Bussey v. Gilmore, 163. 
 
 V. Leavitt, 35, 79, 219, 238. 
 Butler V. Chariton County Court, 476. 
 a. Palmer, 475. 
 V. Porter, 401. 
 Byam v. Cook, 286, 446. 
 Byington v. Bookwalter, 431, 435, 612. 
 V. Hampton, 433, 434. 
 V. Rider, 418, 423, 435. 
 V. Robertson, 503. 
 Byrne v. Stewart, 21. 
 
 C. 
 
 Cadmus w. Jackson, 184, 414, 535. 
 Cahoon v. Coe, 202, 225, 233, 268, 304, 
 
 350. 
 Caine v. Hunt, 594. 
 Calder v. Keegan, 411. 
 
 V. Rutherford, 365. 
 Call V. Chase, 491. 
 
 V. Dearborn, 368. 
 Cambridge v. Chandler, 222, 245. 
 Camden v. Allen, 172. 
 Camden and Amboy R.R. Company u. 
 
 Hillegas, 163. 
 Campbell v. Dewick, 79, 99. 
 
 V. Leach, 438, 511. ' 
 
 V. Mclrwin, 188. 
 
 V. Morris, 4. 
 
 V. State, 212. 
 
 V. Wilson, 139, 141. 
 Carbee v. Hopkins, 309. 
 Cardigan v. Page, 97, 101, 102, 145, 
 
 155, 170, 255, 277, 512. 
 Carithers v. Weaver, 400, 568. 
 Carlisle v. Longworth, 34, 87. 
 Carraichael v. Aiken, 35, 144, 154, 226. 
 Carpenter v. Sawyer, 34, 249, 313, 514. 
 Carrington v. Entick, 697. 
 
XVI 
 
 TABLE OP CASES, 
 
 Carrol v. Perry, 411. 
 Carroll v. Safibrd, 5. 
 Case V. Albce, 586. 
 
 V. Dean, 82, 83, 160, 359, 398, 481. 
 Cass V. Bellow.s, 241. 
 Catterlin v. Douglas, 177. 
 Caul V. Spring, 544. 
 Cavender v. Heirs of Smith, 384. 
 Cedar Rapids R.R. Co. t. Woodbury 
 
 Co., 411. 
 Chambers v. Willson, 370, 399. 
 Chandler v. Moulton, 403, 405. 
 0. Nash, 39. 
 
 0. Spear, 34, 168, 223, 264, 
 368, 435, 486. 
 Chapin v. Curtenias, 212, 426, 432. 
 Chaplin v. Holmes, 268, 433, 482. 
 Chapman v. Bennett, 74, 276. 
 
 a. Brooklyn, 144, 442. 
 V. Templeton, 567, 568. 
 Charles v. Waugh, 35, 189, 193, 199. 
 Chase v. Dearborn, 401. 
 V. Hathaway, 213. 
 V. Sparhawk, 168. 
 Cheaney v. Hooser, 447. 
 Cheatham v. Howell, 214. 
 Chegaray v. Jenkins, 409. 
 Chesnut v. Marsli, 187, 188, 199, 201, 
 
 202, 209, 402, 473. 
 Chicago V. Larned, 6. 
 Chicago & N. W. R.R. Co. v. Board 
 
 of Supervisors, 6. 
 Chicago, &c., R.R. v. Prary, 488. 
 Chickering v. Failes, 202,401, 414, 565, 
 
 579. 
 Chiles V. Davis, 579. 
 Choteau v. Jones, 400. 
 Christy v. Minor, 73. 
 Church V. Oilman, 367. 
 Cincinnati College v. Stale, 409. 
 Clark V. Conner, 79, 352, 353. 
 • V. Holmes, 39. 
 V. Lyon, 579. 
 V. Mowyer, 233. 
 Clarke v. Courtney, 33, 441. 
 V. Crane, 153, 263. 
 V. Graham, 379. 
 • V. Strickland, 226, 281,471, 535. 
 V. Tucker, 249, 311. 
 Clay !>.. Nicholas Co., 484. 
 Clayton v. Chicago, 30. 
 Cleghorn v. Posthlewaite, 484. 
 Clemens v. Lewis, 261. 
 Clippinger v. Tuller, 299. 
 Coco V. Tliienman, 79. 
 Cohen v. iVIcKlmoyle, 660. 
 
 V. Sliarp, 482. 
 Coit V. Wells, 97, 102, 249, 312, 512, 
 
 514. 
 Colburn v. Ellis, 96. 
 Colby V. Russell, 114, 348. 
 Cole V. Pennoyer, 665. 
 Coleman v. Anderson, 161, 520. 
 
 Coleman v. Baker, 433. 
 Collins V. Barclay, 417, 544. 
 
 V. Smith, 572. 
 Colt V. Eves, 261. 
 Columbia v. Pennoyer, 661. 
 Coman v. State, 512. 
 Commercial Bank v. Tola, 1. 
 
 V. Woodside, 142. 
 Commissioners v. McCarty, 261. 
 
 a. Smith, 138. 
 Commonwealth v. Browne, 168. 
 </. Fowler, 96. 
 V. Louisville Canal, 
 
 481. 
 V. Supervisors, 488. 
 Comstock V. Beardsley, 330, 388, 339. 
 
 ';. Cover, 434. 
 Condit V. Blackwell, 369. 
 Coney v. Owen, 406, 593. 
 Connelly v. Nedrow, 318. 
 Conner v. Folsom, 6. 
 Conrad v. Darden, 154, 268. 
 
 V. TheAtlanticIns. Co.ofNew 
 York, 650. 
 Converse v. Jennings, 435. 
 Conway v. Cable, 299, 3<J6, 433. 
 V. Waverly, 481, 482. 
 0. Younkin. 358, 484. 
 Conyers v. Kenan, 584. 
 Cook w. Norton, 202, 417, 572. 
 Cook County v. Chicago R.R., 484. 
 Cooley V. O'Connor, 111, 215, 296. 
 
 V. Waterman, 400. 
 Coombs V. Warren, 144, 399. 
 Cooper V. Brockway, 418. 
 
 V. Bushley, 418. 
 Coppinger v. Rice, 399. 
 Corbett V. Nutt, 431. 
 Corbin v. Davenport, 442. 
 u. De Wolf, 286. 
 V. Hill, 82, 90, 167. 
 V. Woodbine, 491. 
 Corfield v. Coryell, 4. 
 Corliss V. Corliss, 213. 
 Cornwall v. Todd, 53, 165. 
 Corwin v. Campbell, 481. 
 V. Merritt, 63, 263. 
 Cossart v. Spenee, 418. 
 Costigan (.. Mohawk & Hudson R.R. 
 
 Co., 75. 
 Coucy V. Cummings, 63. 
 County of Guthrie v. County of Car- 
 roll, 411. 
 County Commissioners v. Clarke, 236, 
 854, 406. 
 V. Parker, 110. 
 County Court of Madison Co. v. Peo 
 
 pie, 6, 447. 
 County Court of Obion v. Marr, 156. 
 County Levy, case of, 7. 
 Cousins V. Allen, 377, 431. 
 Cowell V. Doub, 110, 240. 
 V. Washburn, 644. 
 
TABLE OP CASES. 
 
 XVU 
 
 Coxe V. Blanrlen, 356. 
 V. Clift, 482. 
 V. Gibson, 398. 
 V. Grant, 68, 177. 
 V. Sartwell, 431. 
 V. Walcott, 401, 433. 
 Craig V. Bradford, 260. 
 V. Flanagin, 436. 
 V. Kelly, 184, 201, 289, 322, 600. 
 Crandall v. State, 4. 
 Crane v. Janesville, 146, 484. 
 V. Eeeder, §6, 471, 510. 
 Cranmer v. Hall, 138, 586, 592. 
 Crawford v. State, 44, 187. 
 Creigh v. Wilson, 692. 
 Creightou v. Manson, 7. 
 Cromelien v. Brink, 433. 
 Crooke v. Andrews, 144, 482. 
 Crosby v. Lyon, 6, 409. 
 Cross- V. Milwaukee, 163. 
 Crostliwait v. Byington, 654. 
 Croswell v. Byrnes, 206. 
 Crowell V. Goodwin, 286, 287. 
 Crown V. Veazie, 480. 
 Cruger v. Dougherty, 74, 144, 226, 260, 
 
 446. 
 Crura V. Burke, 74, 414. 
 
 V. Cotting, 535. 
 Culver V. Hayden, 34, 225, 249, 263, 
 
 311. 
 Cumberland Co. v. Webster, 484. 
 Cummings v. Clarke, 96. 
 Curl V. Watson, 425, 431, 433, 434. 
 Currie v. Fowler, 73, 124, 133, 164, 228, 
 
 283, 366, 380, 421, 449. 
 Curry u.Hinman, 81, 209,211, 212,413. 
 Curtis V. Morrow, 299. 
 V. Norton, 353. 
 
 V. Supv'rs Brown Co., 125,442. 
 Curtis, Adm'r v. Whipple, 1. 
 Cushing V. Longfellow, 34, 278. 
 Cutler V. Hurlbut, 369, 686. 
 Cuttle V. Brockway, 266, 316, 319, 366, 
 374, 404, 419,445. 
 
 D. 
 
 Dafour v. Camfranc, 96. 
 Daggett V. Everett, 176. 
 Daily v. Newman, 184, 285. 
 
 V. Swope, 6, 447. 
 Dakotah v. Parker, 165. 
 Dallam v. Oliver, 177. 
 Dalton V. Fenn, 79, 370, 371. 
 Daniels v. Burso, 417. 
 Darling v. Gunn, 6, 484. 
 D'Antignac-K. Augusta, 74. 
 Daughdrill v. Life Ins. Co., 7. 
 Davenport v. Farrar, 423. 
 Davis V. Fames, 34, 112. 
 
 K. Handy, 286. 
 
 0. Maynard, 514. 
 
 Davis V. Sirams, 243. 
 Davison v. Gill, 39, 41. 
 Day V. Graham, 260. 
 Dean v. Ainsworth, 121, 123, 124, 165, 
 175, 335. 
 V. Borchsenius, 168, 488, 491. 
 V. Charlton, 163. 
 V. Early, 586. 
 V. Gleason, 114, 153, 488. 
 V. Madison, 448, 483. 
 De Brahm v. Fenwick, 590. 
 De Chastelleux v. Fairchild, 14. 
 De Graw v. Taylor, 586. 
 De Witt V. Hays, 482. 
 Decker v. Freeman, 458. 
 Dejarnett v. Haines, 74, 79. 
 Delaplaine v. Cook, 79, 84, 365. 
 Delauny v. Burnett, 299. 
 Dellet V. Whitner, 589, 590. 
 Delogny v. Smith, 34, 216, 238, 241. 
 Delorme v. Ferk, 125, 365. 
 Den V. Hunt, 584. 
 Denike v. Eourke, 321, 371, 447. 
 Dennett u. Crocker, 417. 
 Denning v. Smith, 50, 65, 66, 68. 
 Dennis v. Shaw, 168, 200. 
 Denniston v. Unknown Owners, 411. 
 Dentler v. State, 34, 184, 187, 189. 
 Detroit Young Men's Society v. Mayor, 
 
 128, 409. 
 Detroit, &o., R R. v. Bearss, 101. 
 Devinny v. Reynolds, 278, 319, 320. 
 Devor v. McClintock, 295. 
 Dickenson v. Breeden, 565, 679. 
 
 V. Gilliland, 278. 
 Dietrick v. Mason, 141, 160, 433. 
 Dikeman v. Dikeman, 299. 
 V. Parish, 74, 518. 
 Dill V. Roberts, 163. 
 Dillingham v. Brown, 568. 
 
 V. Snow, 160, 168, 261, 448. 
 Divers v. Whitesides, 495. 
 Dixon V. Doe, 451, 642. 
 Doane v. Chittenden, 287, 635. 
 Doe V. Allen, 34, 268, 304, 374. 
 
 V. Chunn, 276, 390, 449, 450, 451. 
 
 V. Devours, 29, 210, 550. 
 
 V. Flagler, 281. 
 
 V. Hearick, 569, 586. 
 
 V. Hiraelick, 84, 106, 259, 571. 
 
 V. Hommel, 186. 
 
 V. Karick, 585. 
 
 V. McQuilken, 155, 160, 161, 246, 
 
 274, 513. 
 V. Strong, 290. 
 V. Sweetser, 285, 288. 
 V. Whitlock, 182. 
 V. Wise, 186. 
 Dolan V. Trelevan, 299, 365, 381. 
 Donahoe v. Hartless, 183. 
 
 i: Richardson, 285. 
 V. Veal, 387. 
 Donnell v. Bellas, 278, 318, 374. 
 
XYIU 
 
 TABLE OP CASES. 
 
 Dorgan v. Boston, 7. 
 
 Dorrance Street, in matter of, 7. 
 
 Doty V. Beasley, 366. 
 
 Dougherty v. Dicky, 413, 414. 
 
 Doughty V. Hope, 33, 34, 62, 65, 83, 
 
 111, 340. 
 Douglas V. Dangerfield, 124, 128, 228, 
 399, 490, 491, 492. 
 V. TuUock, 586. 
 V. Wickwire, 95. 
 Douglas County v.- Union Pacific Kail- 
 way Co., 411. 
 Downer v. Woodbury, 98, 104, 168. 
 Downer, Adm'rs of v. Smith, 401. 
 Downey v. Nutt, 208. 
 Downing v. Roherts, 168. 
 
 V. Shoenberger, 432. 
 Dows V. Chicago, 484. 
 Dowtie's Case, 461. 
 Drake v. Phillips, 448, 488. 
 Dranguet v. Proudhomme, 75. 
 Dreshack o. McArthur, 34, 74, 107, 
 
 154, 406, 569. 
 Drew V. Davis, 160. 
 Driesbach v. Berger, 320. 
 Dubois V. Campau, 74, 400, 401. 
 
 V. Hepburn, 424. 
 Dubuque v. Wooten, 265. 
 Dubuque & P. R.R. Co. v. Webster 
 
 Co., 441. 
 Ducat V. Chicago, 6. 
 Dudley v. Little, 43, 397, 489, 491. 
 Dufour V. Cawfranc, 76. 
 Dugan V. Mayor, 448. 
 Dukes V. Rowley, 85, 202, 210, 249. 
 Dunden v. Snodgrass, 136. 
 Dunham v. Chicago, 6, 106, 362. 
 
 D. Osborn, 550. 
 Dunlap V. Dougherty, 584. 
 
 Gallatin, 535. 
 Dunn V. Games, 73, 74, 513. 
 V. Meriwether, 76. 
 V. Ealyea, 124. 
 V. Winston, 536. 
 Dunning v. Roberts, 200. 
 Dunnovan v. Green, 484. 
 Dyer v. Branch Bank of Mobile, 406, 
 
 488, 543. 
 Dykeman v. Parish, 94, 95. 
 
 E. 
 
 Earl of Darlington v. Pultney, 499. 
 Early v. Doe, 34, 74, 216, 236, 417. 
 Eastman v. Little, 234. 
 East St. Louis v. Witts, 447. 
 Eaton V. North, 83, 365, 372, 376, 400, 
 
 544. 
 Eddy V. People, 213. 
 Edgerton v. Bird, 585, 586. 
 0. Schneider, 399. 
 Edward ;;. Beard, 164. 
 
 Egerton v. Third Municipality, 172. 
 Egyptian Levee Co. v. Hardin, 1, 7. 
 Einstein v. Gay, 281, 368. 
 Eitcl V. Eoote, 184. 
 
 Eldridge v. Kuehl, 160, 268, 286, 381, 
 398, 413, 586. 
 V. Tibbitts, 480. 
 Elkin V. People, 375. 
 Elliot V. Eddins, 69, 71, 74, 215, 237, 
 248. 
 V. Peirsoll, 186, 206. 
 Elliott V. Gerard, 432. 
 
 V. Glancy, 470, 472. 
 EUis V. Hall, 139, 141. 
 
 V. Kenyon, 74, 177. 
 Elston «. Kennicott, 202, 417, 572, 579, 
 
 584. 
 Elwell V. Shaw, 160. 
 Emerson v. Co. of Washington, 410, 
 
 442. 
 Emery v. Gas Co., 1, 7. 
 
 V. Harrison, 73, 74. 
 Entick V. Carrington, 595. 
 Eppinger v. Kirby, 202, 362. 
 Ervin's Appeal, 24. 
 Erwin v. Helm, 142, 356, 383, 452. 
 Essington v. Neill, 268. 
 Evans v. Sharp, 163. 
 Everett v. Smith, 567. 
 
 F. 
 
 Eager v. Campbell, 319, 544. 
 Fain v. Garthright, 584. 
 Fairfax v. Hunter, 461, 464. 
 Falkner v. Dorman, 368. 
 Farmers' & Merchants' Bank v. Ches- 
 ter, 95. 
 Farmers' & Mechanics' Bank v. Wood- 
 burn, 473. 
 Farmers' & Mechanics' Bank v. Bron- 
 
 son, 74. 
 Farnum v. Bowker, 434. 
 
 «. BufEum, 34, 43, 52, 216, 
 226, 235. 
 Farrar v. Eastman, 237, 240, 249, 351, 
 381, 390, 458, 526. 
 V. Perley, 458. 
 Farrington v. Wilson, 411. 
 Faure v. Winans, 399. 
 Faxon v. Wallace, 423, 432. 
 Fell V. Cessford, 579. 
 
 V. Price, 385. 
 Fellows V. Deniston, 143, 281, 411. 
 
 V. Pinney, 478. 
 Ferguson v. Landram, 6, 446. 
 
 V. Miles, 386. 
 Fergurson v. Etter, 400. 
 V. Heath, 286. 
 Ferris v. Coover, 90, 108. 
 Fetterman v. Hopkins, 95. 
 Finch V. Brown, 432, 435, 549. 
 
TABLE OP CASES. 
 
 XIX 
 
 Finley v. Brown, 373, 433. 
 
 V. Cook, 565, 568. 
 Finney v. Ackerman, 354. 
 
 <j. Boyd, 124. 
 
 V. Ford, 354. 
 First National Bank v. Meredith, 484. 
 Fish V. Brown, 140, 141. 
 Fisk V. Brunette, 899, 433. 
 Fitch K. Casey, 34, 65, 72, 365, 394. 
 
 V. Pinckard, 33, 35, 74, 148, 164, 
 
 215, 238, 394, 447, 449, 451. 
 
 Flanagan v. Grimmet, 66, 79, 376, 381, 
 
 669. 
 Flatbush v. Uremd, 55. 
 Fletcher f. OUver, 6, 409. 
 
 V. Peck, 476. 
 Flint V. Sawyer, 255. 
 Floyd V. Galbraith, 483, 484, 485. 
 Foot V. Stevens, 186. 
 Foote V. Milwaukee, 488. 
 Forhes v. Halsey, 79. 
 FoiTestier v. Boardman, 279. 
 Fortman v. Euggles, 199. 
 Foster v. Kenosha, 447. 
 
 0. McUevit, 74, 140, 141. 
 Foust V. Ross, 34, 74. 
 Fowler v. Bebee, 95. 
 
 V. St. Joseph, 482, 488. 
 Fox V. Cash, 402. 
 
 V. Turtle, 193, 194. 
 Foxcroft V. Nevens, 114, 348. 
 Francis v. Russell, 177, 178, 188. 
 Franklin v. Talmadge, 219. 
 Freeman v. Thayer, 524. 
 Fremont v. Boling, 256, 488. 
 
 V. Mariposa, 488. 
 French v. Edwards, 260, 286. 
 
 V. Thayer, 324. 
 Freutz v. Klotsch, 368, 377, 401. 
 
 V. Patterson, 66, 125, 286, 433. 
 Frick V. Sterrett, 320. 
 Fridge v. State, 186. 
 Frink v. Darst, 558. 
 Frost V. Ross, 74. 
 Frye v. Bank of Illinois, 399. 
 
 u. Phillips, 367. 
 Fuller V. Hodgdon, 399. 
 Furness v. Williams, 508. 
 
 G. 
 
 Gage V. Billings, 482. 
 
 V. Chapfnan, 482. 
 
 V. Graham, 396, 447, 488. 
 
 V. Rohrback, 482. 
 Gale V. Mead, 306. 
 Gait V. Galloway, 492. 
 Games v. Stiles, 62, 65, 74, 107, 216, 
 
 514, 559. 
 Gardner v. Brown, 228. 
 V. Gerrish, 399. 
 Garibaldi v. Jenkins, 144, 281, 420. 
 
 Garrett v. White, 154, 251. 
 
 V. Wiggins, 35, 74, 79, 82, 86, 
 215, 248, 480. 
 Garwood v. Hastings, 148, 399. 
 Gaskins v. Blake, 436. 
 Gavin v. Shuman, 74, 82, 84, 369. 
 Gaylord v. Scarff, 35, 212, 353, 354, 
 
 413, 414. 
 George v. Messinger, 139. 
 Gibbs V. Swift, 283. 
 Gibson v. Bailey, 360. 
 
 V. Chouteau, 411. 
 
 V. Mason, 1, 3, 28. 
 
 V. Mussey, 442. 
 
 V. Bobbins, 140. 
 Giddings v. Smith, 308. 
 Gilbert v. Columbia Turnpike Co., 39, 
 
 40, 513. 
 Gillet V. Webster, 491. 
 Gilliam v. Reddick, 95. 
 Gillis V. Barnett, 286. 
 V. Martin, 589. 
 Gilman v. Riopelle, 125, 401, 510, 568. 
 
 V. Sheboygan, 7. 
 Gilmore w. Holt, 95. 
 
 V. Thompson, 593. 
 Gladney v. Deavors, 177, 550. 
 Glancy v. Elliott, 399, 401. 
 Glasgow V. Rowse, 6. 
 Glass V. Gilbert, 137. 
 
 V. Sloop Betsey, 186. 
 Goewey v. Urig, 74, 83, 579. 
 Goodall V. Harrison, 202. 
 Goodenow v. Tyler, 279. 
 Goodwin v. Lyon, 589. 
 Gordon v. Tax Appeal Court, 407, 409. 
 Gossett V. Kent, 90, 167, 175, 281. 
 Gouveneur v. New York, 177. 
 Grand Gulf R, & B. Co. v. Bryan, 299. 
 Granger v. Parsons, 153. 
 Graves v. Bruen, 35, 79, 107, 150, 152, 
 365, 370, 371, 373, 512. 
 
 w. Hayden, 73, 375. 
 Gray v. Coan, 287, 373, 418. 
 Greely v. Bartlett, 279. 
 Green v. Biddle, 590. 
 
 u. Craft, 172, 304. 
 
 V. Watson, 139. 
 Greenbaum v. King, 165. 
 Greene v. Lunt, 34, 97, 114, 125, 174, 
 226. 
 
 V. Mumford, 484. 
 Greve v. Coffin, 79. 
 Griffin v. Creppin, 125, 226. 
 
 V. Dogan, 1, 28, 79, 501. 
 
 V. Mixon, 29. 
 Griffith V. Depew, 589. 
 Grignon's Lessee v. Astor, 186. 
 Grim v. Weissenberg School Dist., 1, 
 
 163. 
 Grimmer v. Sumner, 354, 482. 
 Groesbeck v. Seeley, 79, 82, 512, 586. 
 Guilford v. Murray, 171. 
 
XX 
 
 TABLE OF CASES. 
 
 Giiittard T'p v. Com'rs, 296. 
 Gulf K.R. Co. V. Blake, 484. 
 
 V. Morris, 484. 
 
 V. Wheaton, 484. 
 Gunnison v. Hoehue, 586. 
 Gwin V. Van Zant, 214. 
 Gwynne v. Neiswanger, 88, 411, 492. 
 
 H. 
 
 Hadley v. Tankersley, 35. 
 Hale V. Branscum, 568. 
 
 V. Gushing, 98, 99, 104. 
 V. Gladfelder, 579. 
 V. James, 650. 
 V. Kenosjia, 6. 
 Hale, &c., Co. v. Storey County, 5. 
 HaU V. Collins, 34, 72, 73, 74. 
 V. Dowling, 5. 
 V. Kellogg, 160, 482, 510. 
 u. McCaughey, 555. 
 Hallenbeck v. Halm, 484. 
 Halsey v. Blood, 255, 438, 435. 
 Ham V. Miller, 448. 
 Hamilton v. Adams, 76. 
 
 V. Burum, 177, 178, 188. 
 „. Fond du Lac, 143, 481, 
 
 482, 483. 
 V. Hamilton, 589. 
 V. The St. Louis County 
 
 Court, 8. 
 V. Valliant, 442. 
 V. Wright, 579. 
 Hammond v. Hannin, 417. 
 Hand v. Ballou, 79, 326. 
 Hanlon v. Westchester Co., 482, 484. 
 Hannel v. Smith, 87, 133, 168, 182, 222, 
 
 253, 349, 469, 470, 492, 559. 
 Hannewell v. Charleston, 481. 
 Hannewinkle v. Georgetown, 482, 484. 
 Hannibal R.R. v. Shacklett, 409. 
 Hapgood V. Batoheller, 279. 
 Harbeson w. Jack, 140, 141. 
 Hardenburgh v. Kidd, 160. 
 Hardin v. Crate, 565, 579, 584. 
 
 V. Owings, 67. 
 Hardy v. Waltham, 406. 
 Harmon v. Stockwell, 182, 266. 
 Harney v. Charles, 433. 
 Harper v. McKeehan, 139. 
 V. Sexton, 286, 499. 
 Harriman v. Titus, 187. 
 Harrington v. Worcester, 369. 
 Harris o. Wood, 29. 
 Harrison v. Baker, 590. 
 V. Fleming, 590. 
 V. Haas, 491. 
 Hart V. Henderson, 163, 433. 
 V. Plumb, 409. 
 V. Seixas, 186. 
 Hartley v. State, 168. 
 Hartwell v. Root, 528, 619. 
 
 Harvey v. Mitchell, 74, 356. 
 Harward v. Drain Co., 447. 
 Hatch V. Buffalo, 483. 
 Hathaway v. Elsbree, 138, 139, 142. 
 
 V. Goodrich, 168. 
 Haven v. Cram, 356. 
 Hawkins v. Barney's Lessee, 561. 
 «. Kemp, 37, 63, 352. 
 V. Lowry, 589. 
 Hayden v. Dunlap, 214, 260. 
 
 V. Foster, 160, 164, 280, 286. 
 Hayes v. Hanson, 262. 
 Head v. James, 128, 483. 
 Heard v. Walton, 421. 
 Hearick v. Doe, 569. 
 Heath v. Roome, Ex parte, 261. 
 Heft V. Gephart, 71, 108, 139, 414, 416, 
 
 510. 
 Hemphill v. Holt, 576. 
 Henderson v. Oliver, 225, 613, 586. 
 Henry v. Tillson, 514. 
 Herring v. Pollard, 589. 
 Hersey v. Milwaukee, 106, 488. 
 Hess V. Harrington, 148, 356, 393. 
 Hessler v. Drainage Com'rs, 447. 
 Hewitt V. Berryman, 589. 
 Heydon's Case, 46. 
 Heywood v. Buffalo, 482, 484. 
 Hibernia S. & L. S. v. Ordway, 481, 
 
 491, 500. 
 Hickey v. Stewart, 186. 
 Hiekox v. Tallman, 90. 
 Higgins V. Crosby, 401, 679. 
 High V. Shoemaker, 6, 30, 135. 
 Hightower v. Freedle, 84, 90, 374. 
 Hildreth v. Mclntire, 92. 
 Hill V. Figley, 116. 
 
 o. Higdon, 7. 
 
 v. Kricke, 564, 58-5, 586. 
 
 u. Leonard, 35, 74. 
 
 u. Lund, 586. 
 
 V. Mason, 181. 
 
 V. Mowry, 382. 
 Hills V. Chicago, 181. 
 
 u. Wolfe, 261. 
 Hines v. Leavenworth, 7. 
 Hinchman v. Whetstone, 579. 
 Hinraan v. Pope, 44, 67, 69, 74, 75, 76, 
 
 86, 206, 210, 211, 252. 
 Hitchcox v. Kawson, 74. 
 Hoagland v. Culvert, 95. 
 Hobbs V. Clements, 34, 226. 
 
 V. Shumates, 66, 79, 381. 
 Hobson u. Dutton, 79, 268, 368, 406, 
 
 512. 
 Hockenbury v. Snyder, 138, 592. 
 Hodge V. Wilson, 33, 285, 289. 
 Hodgdon v. Wight, 417, 433, 471. 
 Hoffman v. Bell, 140, 364, 374. 
 Hogins V. Brashears, 89, 370, 881. 
 Hoke V. Henderson, 24. 
 Holbrook v. Dickinson, 6, 34, 83, 85, 
 210, 417, 579. 
 
TABLE OP OASES, 
 
 XXI 
 
 Holbrook v. Fellows, 321. 
 Holden v. James, 21. 
 Hole V. Rittenhouse, 72, 517. 
 Holliday v. Marshall, 367. 
 V. Swailes, 213. 
 HoUingsworth v. Barbour, 492. 
 HoUister o. Bennett, 162, 256, 307. 
 HoUoway v. Clark, 433, 581, 584. 
 Holroyd v. Pumphrey, 236. 
 Holt V. Hemphill, 34, 65, 73, 107, 154, 
 
 168, 216, 251, 492. 
 Home of the Friendless v. Rowse, 407. 
 Homer w. Cilley, 108, 168, 182, 222, 254, 
 268. 
 V. Smith, 220. 
 Hood V. Mathers, 395, 432. 
 Hooker v. Young, 260. 
 Hope V. Deadrick, 164, 447. 
 
 V. Sawyer, 211, 212, 270. 
 Hopkins v. Lovell, 481. 
 
 u. Sandige, 181. 
 Hopper V. Malleson's Ex'ors, 74, 510, 
 
 536. 
 Horner v. Doe, 186. 
 Hospital V. Phila. County, 404. 
 Houghton V. Burnham, 484. 
 V. Matthews, 279. 
 Howe V. Russell, 74. 
 Howell v. Bristol, 6. 
 
 V. Buffalo, 163. 
 V. Maryland, 409. 
 Howes V. Racine, 491. 
 Hubbard v. Brainard, 53, 160, 165. 
 V. Johnson, 381, 568. 
 V. Johnson Co., 484. 
 V. Winsor, 108, 154, 446. 
 Hubbell V. Weldon, 33, 35, 123, 534. 
 Huebsehmann v. McHenry, 590. 
 Huey V. Van Wie, 82, 275, 365, 371. 
 Huger V. Kline, 488. 
 Hnghey, Lessee of «. Horrel, 34, 43, 51, 
 61, 115, 216, 221, 242, 244, 248, 266. 
 Hulick V. Soovil, 79, 367, 383, 452. 
 Hume V. Wainscott, 144, 223. 
 Hunsaker v. Wright, 7. 
 Hunt V. McFadgen, 90, 279, 354, 413. 
 
 V. Rowland, 491. 
 Hunter v. Cochran, 413, 414. 
 Huntington v. Brantley, 181. 
 Hurlbutt V. Butenop, 153. 
 Hurley v. Powell, 82, 160, 166, 413. 
 V. Street, 268, 373, 586. 
 V. Woodruff, 82. 
 Hnse V. Merriam, 161. 
 Huston, u. Foster, 34, 72, 74, 367. 
 Hutchins v. Moody, 177. 
 Huzzard v. Trego, 401, 435, 512, 544. 
 
 I. 
 
 IlUnois V. Delafleld, 278. 
 Illinois Mutual Fire Ins. Co. v. Mar- 
 seilles Manufacturing Co., 423. 
 
 Indianapolis v. Langsdale, 442. 
 
 Inglis V. Bayard, 687. 
 
 Inraan w. Jackson, 458. 
 
 Inter. Life Ins. Co v. Scales, 433. 
 
 Iowa Homestead Co. u. Webster Co., 
 
 411. 
 Ireland v. Rochester, 213, 488. 
 Iron Manufacturing Co. o. Barron, 254. 
 Irving V. Brownell, 35, 74, 150, 378, 
 
 565, 576, 578. 
 Irwin V. Bank of United States, 541, 
 544. 
 V. Ire go, 544. 
 V. Miller, 417, 512. 
 Isaacs ». Decker, 163. 
 
 V. Gearheart, 288, 446. 
 
 V. Shattuck, 34, 219, 249, 310, 
 
 312, 313, 347. 
 V. Wiley, 34, 61, 64, 97, 103, 218, 
 350. 
 Iverslie v. Spaulding, 245. 
 Ives V. Canaan, 446. 
 
 V. Lynn, 173, 174, 245, 286, 296, 
 
 299, 308. 
 V. Kimball, 74. 
 
 Jack V. Harbeson, 169, 170. 
 Jackson v. Babcock, 535. 
 
 V. Clark, 492. 
 
 V. Cummings, 201. 
 
 V. Delancy, 356. 
 
 V. Esty, 34, 67, 71, 73, 74, 327, 
 328, 329, 330. 
 
 V. Fletcher, 139. 
 
 V. Morse, 81, 84, 182, 413. 
 
 V. Roberts, 76, 368. ' 
 
 V. Roosevelt, 356. 
 
 V. Sassaman, 139. 
 
 V. Shaflfer, 528, 619. 
 
 V. Shepard, 35, 73, 74, 174, 
 177, 335. 
 
 V. Thomas, 584. 
 
 <j. Wendell, 366. 
 
 n. Wood, 366. 
 Jacobs V. Porter, 425. 
 Jacques v. Kopman, 228. 
 James v. Gordon, 33. 
 u. Reynolds, 19. 
 V. Stookey, 206. 
 Jandon v. McDowell, 572. 
 Jaquith v. Putney, 102, 145, 286, 360. 
 Jarrott v. Vaughn, 423. 
 Jarvis v. Peck, 535, 544. 
 
 V. Silliman, 245. 
 Jayne v. Gregg, 572, 579. 
 Jefferson Bank v. Skelly, 7. 
 Jeffrey v. Brokaw, 82, 686. 
 Jenkins v. Rock Co., 483, 488. 
 
 0. Sharpf, 125, 500. 
 Jenks V. Wright, 65, 215, 266, 418. 
 
XXll 
 
 TABLE OF CASES. 
 
 Jennings v. Collins, 146. 
 
 u. McDowell, 74, 141. 
 V. Rudd, 481. 
 Jesse V. Preston, 83, 34, 72, 74. 
 Job V. Tebbetts, 107, 150, 151, 153, 174, 
 
 180, 201, 208, 209, 511, 512. 
 Johnson v. Chase, 166, 286, 373. 
 
 V. Elwood, 74, 79, 348, 365, 
 u. Goodridge, 113, 348. 
 u. Howard, 172. 
 u. M'Intire, 145, 174. 
 V. Smith, 401. 
 Johnston v. Jackson, 74, 586. 
 
 V. Oshkosh, 484. 
 Johnstone v. Scott, 124, 417. 
 Jones V. Bridgeport, 144. 
 V. Burford, 173. 
 u. Collins, 419, 432. 
 «. Davis, 400. 
 </. Derore, 87, 536. 
 V. Gibson, 356, 414, 438, 468, 548. 
 V. Gillis, 160, 184. 
 V. Mack, 9, 482, 524, 525, 527. 
 V. McLain, 180. 
 V. Perry, 20. 
 V. Sumner, 488. 
 ^. Tiffin, 358. 
 Jordon v. Rouse, 74. 
 Joy V. Oxford, 442. 
 Joyner v. Third School District of Eg- 
 
 remont, 160, 165. 
 Judd V. Fox Lake, 483, 484. 
 
 V. Mosely, 433. 
 JudeTine v. Jackson, 34, 62, 249, 311, 
 
 362. 
 Judson V. State, 44, 187. 
 
 K. 
 
 Kansas & P. Railw. Co. v. Russell, 484, 
 
 488. 
 Kansas Indians, 411. 
 Keane v. Cannovan, 74, 79, 80, 135, 
 
 533. 
 Kearns v. McCarville, 299. 
 Keating v. Williams, 140. 
 Keene v. Barnes, 275, 282. 
 
 V. Houghton, 34, 267. 
 Keith V. Preston, 34, 73, 74. 
 Kellar v. Savage, 114, 348. 
 Kelley v. Connell, 528, 619. 
 V. Corson, 106, 162. 
 V. Craig, 109, 169, 246, 274, 289, 
 322, 512, 513. 
 Kellogg V. Ely, 488. 
 
 V. McLaughlin, 238, 249, 277, 
 
 512. 
 V. Oshkosh, 488. 
 Kelly V. Hunter, 492. 
 V. Medlin, 79. 
 Kelsey v. Abbott, 63, 79, 90, 135, 144 
 400. ' . . , 
 
 Kemps V. Kennedy, 186. 
 
 Kemper v. McClelland, 48, 159, 160, 448. 
 
 Kendfick v. Earquar, 409. 
 
 Kenna's Heirs v. Quarrier's Heirs, 460. 
 
 Kennedy o. Dailey, 139, 140, 141, 370. 
 
 V. Kennedy, 589. 
 Kenney v. Greer, 186, 558. 
 Kent V. DeLaine Co., 95. 
 Kenny v. Harwell, 6. 
 Kenyon v. Duchene, 484. 
 Kerwer v. Allen, 398. 
 Kibbie v. Williams, 564. 
 Kilpatrick v. Sisneros, 382, 586. 
 Kimball v. Ballard, 162. 
 Kinderhook v. Claw, 213. 
 King V. Harrington, 590. 
 V. Potter, 381, 590. 
 V. Whitcomb, 168. 
 Kingman v. Glover, 176, 257, 304. 
 Kinney v. Beverly, 24, 72, 107, 118, 
 216, 248, 277, 368, 462. 
 V. Doe ex. dem. Laman, 111, 
 112, 148. 
 Kinsworthy v. Austin, 413. 
 
 V. Mitchell, 144, 413. 
 Kirkpatrick v. Mathiot, 401. 
 Kneeland v. Gilman, 413. 
 
 V. Milwaukee, 63, 106, 484. 
 Knight V. Barnes, 354. 
 Knowlton v. Supervisors, 7, 483. 
 Knox V. Cleveland, 564, 585. 
 
 V. Huidekoper, 144, 365, 367, 368. 
 V. Leidgen, 401, 544. 
 V. Peterson, 449. 
 Koch V. Bridges, 274. 
 Krueger v. Knab, 368. 
 Krutz V. Fisher, 401, 568. 
 Kuhn V. Board of Education, 484. 
 
 L. 
 
 Lacey v. Davis, 30, 79, 83, 114, 160, 345, 
 400,534. '''... 
 
 Lachman v. Clark, 134. 
 Lackawanna Iron Co. v. Fales, 139. 
 
 320. 
 Lafferty v. Byers, 34, 74, 127, 132, 174, 
 216,227,268. . ' ' ' ' 
 
 Laflin v. Chicago, 160. 
 
 b. Herrington, 565. 
 Lagroue v. Rains, 34, 223. 
 Lain v. Cook, 63, 369. 
 
 V. Shepardson, 297, 369, 586. 
 Laing v. McKee, 433. 
 Laird v. Heister, 143, 415, 511. 
 Lake v. Gray, 433. 
 V. Morse, 429. 
 Lamb v. Gillett, 510. 
 
 V. Irwin, 401, 433. 
 Lambertson v. Hogan, 592. 
 Lancaster v. County Auditor, 421. 
 V. Pope, 514. 
 
TABLE OP CASES. 
 
 XXlll 
 
 Lane v. Bommelmann, 85, 202. 
 0. Dorraan, 21. 
 V. James, 304, 306, 308. 
 V. Sharpe, 435. 
 Landon v. Litclifield, 407. 
 Langdon v. Poor, 34, 62, 218, 226, 249, 
 
 250, 362. 
 Large v. Fisher, 34, 223, 368. 
 Larimer v. MeCall, 138, 139, 142. 
 Larrabee v. Hodgkins, 382. 
 Lathatn v. Edgerton, 186. 
 Lathrop v. Brittain, 376. 
 Latimer v. Lovett, 73, 74, 83. 
 Lawrence v. Fast, 202. 
 
 V. Kenny, 579, 586. 
 V. Speed, 260. 
 Lazarus v. Bryson, 404. 
 Ledyard v. Brown, 579. 
 Lee V. Ruggles, 482, 491. 
 Lefevre v. Major, 143, 409. 
 Lefferts v. Suprs. Cal. Co., 481. 
 Legget V. Long, 544^ 593. 
 Leland v. Bennett, 338. 
 Leper v. Pulsifer, 153. 
 Leslie v. St. Louis, 482. 
 Lessee of Dresbacls; v. McArthur, 47, 
 
 94, 132, 185, 477. 
 Lessee of Davis v. Powell, 590. 
 Lessee of Dunn v. Games et al., 94. 
 Lessee of Holt's Heirs v. Hemphill's 
 
 Heirs, 47, 84, 94, 132, 185, 254, 294. 
 Lessee of James v. Stookey, 242. 
 Lessee of Massie's Heirs v. Long et al., 
 
 156, 600. 
 Lessee of McMillan i'. Rohbins, 551. 
 Lessee of Perkins v. Dribble, 47, 153. 
 Lessee of Shaler v. Magin, 590. 
 Lessee of Wallace v. Seymour, 635. 
 Lessee of Ward v. Barrows, 617. 
 Lessee of Winters v. Stirling, 6] 8. 
 Levert v. P. & M. Bank, 44. 
 Levy V. Smith, 150. 
 Levy Court v. Gwynn, 39. 
 Lewis V. Disher, 181, 417, 586. 
 
 V. Robinson, 401. 
 Libby v. Burnhara, 160. 
 Lindsay v. Fay, 79, 418, 559, 564, 585. 
 Lin Sing v. Washburn, 7. 
 Lisbon v. Bath, 155, 163. 
 Litchfield v. County of Polk, 488. 
 Little V. Smith, 558. 
 
 V. Thurston, 82. 
 Livingston v. Albany, 6. 
 
 u. HoUenbeck, 482. 
 V. Moore, 29. 
 Lloyd V, Lynch, 401. 
 Lochman v. Clark, 63. 
 Lockhart v, Harrington, 7. 
 Lockwood V. St. Louis, 482. 
 Logwood V. P. & M. Bank, 44. 
 Lohrs V. Miller's Lessee, 413, 460. 
 Long V. Burnett, 90, 118, 365, 369. 
 V. Long, 202. 
 
 Longfellow v. Quimby, 279. 
 Loomis V. McClintock, 36. 
 
 V. Pingree, 286, 413. 
 Lott V. Ross, 448. 
 Loud V. Charleston, 481. 
 
 V. Pennimann, 284. 
 Louisville v. Bank of Kentucky, 448, 
 
 509. 
 Louisville Canal v. Commonwealth, 
 
 409. 
 Louisville & N. R.R. Co. v. Warren 
 
 Co., 484. 
 Love V. Gates, 74. 
 
 V. Welch, 881. 
 
 V. Wilbourn, 217, 268, 290, 406. 
 Lovejoy v. Lunt, 276, 286, 306. 
 Lovingston v. Wider, 447. 
 Low V. Lewis, 410. 
 Lowe V. Weld, 111, 348. 
 Lowell V. Oliver, 3. 
 
 Luffborough v. Parker, 216, 514, 544. 
 Luke V. Morse, 363. 
 Lumsden v. Cross, 1, 7, 79. 
 Lunt V. Wormell, 143. 
 Lusk V. Harber, 211, 212. 
 Lybrand v. Haney, 353, 368, 400, 586. 
 Lyerly v. Wheeler, 76. 
 Lyford v. Dunn, 286. 
 Lyman v. Philadelphia, 137, 433, 512. 
 Lynch v. Brudie, 592. 
 Lynde v. Melrose, 442. 
 Lyon V. Burt, 47, 74. 
 
 u. Hunt, 34, 488. 
 
 V. Kain, 579. 
 
 M. 
 
 Mack V. Jones, 3, 410, 448, 449, 450. 
 
 Macklot V. Davenport, 488. 
 
 Madara v. Eversale, 142. 
 
 Madison County v. Bartlett, 164. 
 
 Magee v. Commonwealth, 7. 
 
 Maloney v. Mahar, 181. 
 
 Maloy V. Marietta, 7. 
 
 Manly v. Gibson, 199, 209, 211. 
 
 Mann v, Utica, 144, 263, 482. 
 
 Marbury v. Madison, 14. 
 
 Marchant v, Langworthy, 260. 
 
 Margate Pier v. Hannan, 93. 
 
 Mariner v. Saunders, 511. 
 
 Marr v. Enloe, 156. 
 
 Marsh u. Chesnut, 121, 157, 158, 212, 
 
 261. 
 Martin v. Carron,178. 
 
 u. Lacy, 216. 
 
 u. Mansfield, 145. 
 
 V. Snowden, 288, 481, 491. 
 
 V. Tax Collector, 165. 
 Mason v. Fearson, 34, 48, 292, 438, 451. 
 
 V. Woods, 155, 160. 
 Massie's Heirs, Lessee of u. Long, 128, 
 512. 
 
XXIV 
 
 TABLE OP CASES, 
 
 Masterson v. Beasley, 428, 433. 
 Mather v. Hutchinson, 433, 481. 
 Matter of Mayor, &e., of N. Y., 1. 
 Matthews v. Light, 34, 74, 401. 
 Maul V. Eider, 401. 
 Maxcy v. Clabaugh, 150, 277, 299, 369, 
 
 373, 374, 376, 492. 
 May V. Holdridge, 163. 
 Mayhew v. Davis, 52, 74, 155, 174, 175, 
 
 180, 262, 490. 
 Maynes v. Moore, 488. 
 Mayo V. Ah Loy, 184, 406. 
 V. Foley, 148. 
 V. Wilson, 18, 45. 
 V. Woods, 297. 
 Mayor v. Howard, 448. 
 Mays V. Cincinnati, 447. 
 McArthur v. Nevill, 492. 
 McBride v. Chicago, 488. 
 McCall V. Himebaugh, 586. 
 
 V. Lorimer, 109, 167, 168, 169, 
 
 512 
 V. Neely, 582, 584. 
 MoCampbell v. McCampbell, 589. 
 McCarroIl v. Weeks, 28, 187, 188. 
 McClung V. Ross, 188. 
 McComb V. Bell, 7. 
 McConnell v. Konepel, 414, 579. 
 
 V. Street, 565. 
 McCord V. Bergautz, 433, 544. 
 McCormack v. Russell, 433. 
 McCoy V. Chilicothe, 484. 
 
 V. Dickinson College, 367. 
 V. Turk, 252. 
 McCready </. Sexton, 82, 873, 396, 
 
 513, 586. 
 McCulloch V. Dodge, 433, 480. 
 McDermott v. Hoffman, 511, 567. 
 
 V. Scully, 33, 39, 268, 368, 
 381. 
 McDonald v. Maus, 317, 319. 
 V. Murphree, 484. 
 McDonough v. Gravier, 35, 63, 263. 
 McElmoyleti. Cohen, 563. 
 McEntire ;;. Brown, 381, 586. 
 
 0. Durham, 76. 
 McGahen i: Carr, 35, 184, 201, 414. 
 McGoon V. Scales, 5, 410. 
 McGregor v. Baloh, 92, 93, 95. 
 Mcllvoy V. Speed, 186. 
 Mclnerny v. Reed, 448. 
 Mclnstry v. Tanner, 95. 
 McKabe v. SheafFer, 169, 170. 
 McKee u. Champaign Co., 199. 
 
 V. Lamberton, 138, 140, 141, 
 592. 
 McKibben v. Charlton, 140. 
 McKim V. Moody, 590. 
 V. SomerS, 95. 
 McKinstry v. Piersall, 279. 
 McLaughlui v. Green, 399. 
 V. Kain, 417. 
 V. Thompson, 156, 160. 
 
 McMahan v. McGraw, 401, 481, 568. 
 
 McMillan v. Bobbins, 69, 472. 
 
 McMinn v. Whelan, 400. 
 
 McNamara v. Estis, 586. 
 
 McPike V. Pen, 482. 
 
 McQuilken v. Doe, 473. 
 
 McReynolds v. Longerberger, 106, 417, 
 
 513, 585. 
 McVeagh v. Chicago, 6. 
 Mead v. Gale, 261. 
 
 V. Mallett, 309, 559. 
 Means v. Osgood, 362. 
 Mecklem v. Blake, 382, 564. 
 Medley v. Elliott, 564. 
 Meeka v. Whately, 79, 353, 501. 
 Merriam v. Moody's Executors, 448, 
 
 449. 
 Merrick v. Hutt, 89, 90, 144. 
 Merrill v. Humphrey, 481, 491. 
 Merritt v. Farris, 106. 
 
 V. Thompson, 145, 202, 204. 
 Merton v. Dolphin, 124, 414. 
 Messeck v. Supervisors, 484. 
 Messenger o. Germain, 117, 143, 150, 
 
 182, 252. 
 Messing v. Kemble, 437. 
 Metcalf V. Gillett, 55. 
 Methodist Church v. Baltimore, 7. 
 Miami County i'. Wan-zop-pe-che, 411. 
 Michew v. McKoy, 136. 
 Michiel v. Mullen, 234. 
 Middletown v. Berlin, 111. 
 Miles V. Walker, 216. 
 Miller v. Craig, 7. 
 
 V. Gorman, 138. 
 V. Grandy, 484. 
 V. Hale, 144, 164, 255. 
 V. Keene, 592. 
 V. Neiman, 482. 
 V, Porter, 425. 
 
 V. Williams, 73, .77, 85, 874, 399. 
 Milliken v. Benedict, 138, 140, 142. 
 Mills V. Charleton, 163, 447, 491. 
 
 V. Johnson, 261, 488. 
 Miltimore v. Rock, 488. 
 Milwaukee Iron Co. v. Hubbard, 143, 
 
 481, 483. 
 Milwaukee & St. Paul Railway Co. v. 
 
 Crawford Co.,, 409. 
 Minor v. McLean, 74, 183, 256, 512. 
 V. Natchez, 72, 214, 216, 251. 
 Minot V. Phil. R.R. Co., 407. 
 Mirehouse v. Rennell, 556. 
 Mitchell V. Bratton, 139, 140, 
 V. Maxwell, 275. 
 V. Milwaukee, 488. 
 Mittchell V. Ettee, 586. 
 Mix V. Whitlock, 155. 
 Mobile R.R. v. Peebles, 483. 
 Mohawk & Hudson Railroad Company 
 
 V. Clute, 483. 
 Monk V. Jenkins, 262. 
 Montgomery v. Meredith, 116. 
 
TABLE OF CASES. 
 
 XXV 
 
 Moody B. Fleming, 584. 
 Moore v. Alleghany City, 165, 168. 
 Moore v. Brown, 34, 51, 52, 66, 240, 
 268, 381, 388, 573. 
 V. Patch, 240. 
 V. Titman, 399, 565, 579. 
 Moorhouse v. Bowen, 265. 
 Morgan v. Camp, 200. 
 Morrill v. Swarz, 193, 199. 
 Morris v. Crocker, 34, 74. 
 V. Himelick, 259. 
 V. Terrell, 590. 
 Morris Canal Co. v. Jersey City, 482, 
 
 488. 
 Morrison r. Norman, 321, 565, 584. 
 
 V. St. Paul, 417, 483. 
 Morton v. Edwin, 55. 
 
 «. Harris, 282, 544. 
 V. Reed, 34, 44, 79. 
 V. "Waring, 73, 404. 
 Moss V. Mayo, 414. 
 
 V. Shear, 63, 79, 80, 90, 118, 295, 
 369, 400. 
 Motz V. Detroit, 7, 488. 
 Moulton V. Blaisdell, 82, 216, 246, 280. 
 
 V. Doran, 281. 
 Mt. Carbon Co. v. Andrews, 481. 
 
 V. Blanchard, 484. 
 Mulligan v. Hintrager, 434, 436. 
 Munson v. Minor, 481. 
 Murray v. Guilford, 142. 
 Murray's Lessee v. Hoboken Land Co., 
 
 28. 
 Muscatine v. Miss. & Mo. R.R. Co., 6. 
 Musselman v. Logansport, 163. 
 Mussey v. White, 73, 260. 
 Myers v. Copeland, 480. 
 V. Entriken, 279. 
 
 N. 
 
 Nalle V. Eenwick, 34, 73, 107, 109, 154, 
 
 155, 216, 236, 403. 
 Nancarrow v. Weathersbee, 73, 154. 
 Nash V. Bun, 139. 
 Natchez v. Minor, 33, 35, 76. 
 National Bank of Cleveland v. City of 
 
 lola, 1, 163. 
 Negley v. Breading, 143. 
 Negus V. Yancey, 432. 
 Neiswanger v. Gwynne, 536, 591. 
 Nelson v. Allen, 590. 
 
 V. Pierce, 145, 155, 245, 513, 
 
 536. 
 V. Rountree, 299. 
 New Jersey v. Wilson, 407. 
 New Orleans v. Turpin, 447. 
 New York Indians, in matter of, 411. 
 New York Schools, in matter of, 1, 7, 
 
 29. 
 Newell V. Wheeler, 63, 144, 263, 482. 
 Nichols V. Bridgeport, 7. 
 
 Nichols V. Nashville, 7, 448. 
 
 V. Walker, 406. 
 Niles V. Walker, 216. 
 Noble V. BuUis, 433. 
 
 V, Indianapolis, 144. 
 
 V. The State, 184, 266. 
 Noland v. Busby, 249, 502. 
 Norris v. Russell, 65, 135, 154, 510. 
 North V. Wendell, 368. 
 Northern R.R. v. Connelly, 7. 
 Northorp v. Devore, 274, 363. 
 Norwich v. Co. Commissioners, 164. 
 Noyes v. Haverhill, 268. 
 
 O. 
 
 Oberich v. Gilman, 144, 590. 
 Obert V. Hammel, 186, 219. 
 O'Brien v. Coulter, 34, 74, 288, 438, 491. 
 O'Byme v. Mayor, &c., of Savannah, 2, 
 
 447. 
 O'Conner v. Mullen, 363. 
 O'Grady v. Barnliisel, 80, 89, 144, 160. 
 O'Kane v. Treat, 7. 
 Oloott V. State, 203, 206. 
 Oldham v. Jones, 73, 401. 
 Oliver v. Croswell, 401. 
 
 V. Washington Mills, 1, 3, 4. 
 Olmstead v. Henry Co., 484. 
 O'Neal V. Virginia, &c., Co., 144. 
 Ontario Bank v. Bunnell, 165, 450. 
 Orono V. Veazie, 79, 125, 433. 
 Orr V. Cunningham, 431. 
 
 V. Travacier, 268. 
 Ortman v. Giles, 124. 
 Orton V. Noonan, 125, 146, 286, 299, 
 
 365, 417. 
 Osborn v. Humphrey, 407. 
 
 u. United States Bank, 484, 
 487. 
 Osborne v. Mayor, &c., 3, 447. 
 Ottawa V. Barney, 491. 
 
 V. Spencer, 6, 7. 
 
 V. Walker, 488. 
 Overing v. Foote, 79, 164, 261, 483. 
 Overseers, &c., of Amenia v. Overseers 
 
 of Stanford, 1. 
 Owens V. Vanhook, 138. 
 Owners v. Mayor of Albany, 213. 
 
 Pacific R.R. Co. v. Cass Co., 409. 
 Paden v. Akin, 164. 
 Page's Case, 461. 
 Page V. Webster, 401. 
 Paine v. Libby, 554. 
 
 V. Moreland, 186. 
 Palmer v. Boling, 411, 483. 
 
 V. Napoleon, 481, 491. 
 V. Rich, 79, 481, 482. 
 
XXVI 
 
 TABLE OP CASES. 
 
 Parham v. Decatur County, 28, 164. 
 
 Paris V. Berry, 164. 
 
 Parish v. Eager, 177, 300, 482. 
 
 V. Golden, 108, 156, 168, 362. 
 
 V. Stevens, 586. 
 Park V. Tinkham, 268. 
 Parker v. Baker, 95. 
 
 V. Baxter, 534. 
 
 V. Challiss, 488. 
 
 V. Overman, 61, 89, 105, 354. 
 
 0. Eedfleld, 407. 
 
 V. Eule, 34, 174, 177, 215, 254. 
 
 u. Sexton, 82, 160, 166, 373. 
 
 V. Smith, 84, 177, 412, 512. 
 
 V. Windsor, 5, 148, 411. 
 Parkhurst v. Van Cortlandt, 589. 
 Parks V. Miller, 192. 
 Patrick v. Davis, 89, 226. 
 V. Marshall, 590. 
 V. Sherwood, 401. 
 Patten v. Green, 133. 
 Patterson w. Blackmore, 138, 140. 
 V. Brindle, 432, 433. 
 V. Yuba Co., 4. 
 Patton V. Long, 114, 139, 415. . 
 Payne v. Danley, 283, 354. 
 Payson v. Hall, 92, 97, 101. 
 Peacock v. Bell, 186. 
 Pease v. Lav^son, 586. 
 Pejepscut Proprietors v. Ransom, 519. 
 Penn v. Clemans, 34, 286, 406, 431, 433, 
 
 436. 
 Pentland v. Stewart, 154, 155, 167, 253. 
 People V. Allen, 261. 
 
 V. Auditor-Gen., 5, 299. 
 
 V. Burr, 3. 
 
 V. Canty, 447. 
 
 u. Castro, 143, 500. 
 
 V. Cohen, 5. 
 
 V. Collins, 95, 96. 
 
 V. Colman, 7. 
 
 V. Common Council, 447. 
 
 V. Crockett, 125. 
 
 V. Culverwell, 135. 
 
 u. Detroit, 432. 
 
 u. Doe, 85. 
 
 V. Doe G., 184, 410. 
 
 V. Eddy, 409. 
 
 V. Empire, &c., Co., 202. 
 
 V. Flint, 135. 
 
 V. Erisbie, 5. 
 
 V. Gerke, 409. 
 
 V. Goldtree, 163. 
 
 V. Halsey, 167. 
 
 u. Hammond, 298. 
 
 V. Hastings, 105, 107, 502. 
 
 V. Haws, 3. 
 
 V. Holley, 261. 
 
 V. Lawrence, 7. 
 
 V. Leet, 135. 
 
 V. Mariposa Co., 185. 
 
 V. Mayor, 575. 
 
 V. Mayor of Chicago, 447. 
 
 People V. Mayor of New York, 83, 87, 
 340, 373, 435, 492. 
 V. McCreery, 106, 163, 261, 409. 
 V. McEwen, 148. 
 V. Miner, 165. 
 V. Mining Co., 5, 409. 
 V. Morse, 135. 
 V. Nichols, 160, 192. 
 V. Pearis, 106, 114, 143. 
 V. Peck, 261. 
 V. Pico, 135. 
 V. Rains, 148. 
 V. Riggs, 433. 
 u. Roper, 409. 
 V. Salomon, 447. 
 u. San Franc. Sav. Union, 148, 
 
 163, 202, 510, 512. 
 V. Seymour, 136. 
 V. Shearer, 5. 
 V. Shimmins, 146. 
 V. Sierra Buttes. Q. M. Co., 
 
 108, 144, 148. 
 V. State Treasurer, 1. 
 V. Township Board of Salem, 
 
 1,5, 
 V. Whyler, 1, 6, 409. 
 People ex rel. GriflBn v. Mayor of 
 Brooklyn, 1. 
 Park Commissioners 
 V. Moffat, Mayor, 
 &c., 447. 
 Presburg v. McEwen, 
 
 433. 
 Seaman v. Hammond, 
 296, 297. 
 Peoria v. Kidder, 1, 7. 
 Perkins, Lessee of v. Dibble, 34, 125, 
 129. 
 V. Proctor, 406. 
 Perry v. Dover, 514. 
 Peters v. Heasely, 277, 404. 
 Pfiffner v. Krapfel, 432. 
 Philadelphia Ass'n v. Wood, 6. 
 Phebe v. Jay, 14. 
 Phelan v. Boylan, 401. 
 Philadelphia v. Miller, 137, 144, 433. 
 Phillips V. Phillips, 62, 73. 
 
 V. Sherman, 73, 433. 
 V. Zerbe Run Imp. Co., 399. 
 Piatt V. St. Clair's Heirs, 400. 
 Pickett V. Hartsock, 199, 204. 
 Pierce v. Benjamin, 268. 
 
 V. City of Boston, 172. 
 </. Hall, 249, 814. 
 V. Richardson, 145, 226. 
 V. Schutt, 160, 491. 
 V. Sweetser, 242, 245. 
 Pidgeon v. People, 203. 
 Pike V. Hanson, 97, 99. 
 Pillow V. Roberts, 79, 585. 
 Pillsbury v. Aud. Gen., 481. 
 Pinkham v. Moraug, 306. 
 Pinney v. Fellows, 407. 
 
TABLE OF CASES. 
 
 XXVU 
 
 Pitkin V. Yaw, 199, 206, 209, 210, 282, 
 
 362, 389, 392, 395. 
 Pitman v. Brownlee, 72. 
 Pitts V. Bootli, 5, 181, 215. 
 Pittsburg, &c., Railw. Co. v. Chicago, 
 
 202. 
 Pittsfield V. Barnstead, 118, 533. 
 Piatt V. Eice, 409. 
 
 V. Stewart, 39, 510. 
 Pleasants i'. Scott, 369, 381. 401, 569. 
 Plumb V. Robinson, 424, 432. 
 Plymouth v. Jackson, 476. 
 
 V. Painter, 98, 95. 
 Polk V. Hill, 212, 272. 
 
 V. Rose, 38, 65, 73, 177, 288, 482, 
 488. 
 Pomeroy v. Lambeth, 590. 
 Pond V. Negus, 156, 261. 
 Pope a. Headen, 34, 69, 71, 74, 215, 
 237. 
 V. Macon, 433. 
 Porter v. Lafferty, 399. 
 
 u. Whitney, 34, 244, 249, 458, 
 517. 
 Portland, &c., R.R. v. Saco, 409. 
 Potwin V. Oades, 202. 
 Powell V. Madison, 63. 
 
 V. Tuttle, 33, 61, 63, 111. 
 Powers V. Barr, 285. 
 V. Fuller, 82. 
 Preston v. Van Gorder, 544. f 
 Prettyman v. Walston, 401. 
 Price V. Mott, 433. 
 Primm v. Belville, 6, 409. 
 Prindie v. Campbell, 216, 227, 233, 265, 
 
 268, 274. 
 Pritchett v. People, 95. 
 Proprietors of Cardigan v. Page, 97, 
 101, 102, 145, 155, 170, 255, 277, 512. 
 Propst V. Meadows, 186. 
 Providence Bank v. Billings, 3, 409. 
 Puget Sd. Agr. Co. u. Pierce Co., 411. 
 Pulliam V. Robinson, 589. 
 Pumpelly v. Owego, 484. 
 Pursell V. Porter, 392. 
 Putnam v. Ritchie, 590. 
 
 Q. 
 
 Quinby & Co. v. N. A. Coal Co., 296, 
 
 392, 512. 
 Quinlon v. Rogers, 586. 
 Quinn v. Quinn, 401. 
 
 R. 
 
 Rafferty's Heirs v. Byers, 216. 
 Railway Co. v. Prescott, 411. 
 Rand v. Seofield, 417. 
 Randolph v. Metcalf, 85, 193, 202, 251. 
 Rathbum v. Acker, 172. 
 
 Rawlings v. Bailey, 565. 
 Ray V. Murdock. 79, 290, 365, 380. 
 Rayburn v. Kuhl, 79, 118, 362, 451. 
 Raymond v. Bell, 186. 
 Rayner v. Lee, 143, 413. 
 Rea V. McEachron, 363. 
 Reading v. Finney, 136, 137, 413. 
 Reed v. Chandler, 110. 
 V. Goodyear, 524. 
 V. Morton, 34, 52, 61, 77, 261, 296, 
 
 299, 314, 861. 
 V. Reber, 482, 491. 
 V. Tyler, 433, 482, 491. 
 V. Wright, 23. 
 Reeve v, Kennedy, 161. 
 Reeves v. Towles, 74, 154. 
 
 u. Wood County, 1, 7. 
 Register v. Bryan, 34, 50, 262, 288, 
 
 468. 
 Reily v. Lancaster, 5, 105, 184, 400.* 
 Reinboth v. Zerbe Imp. Co., 401. 
 Renick v. Wallace, 190, 492, 541. 
 Rex V. Croke, 39, 40, 186, 214, 513. 
 V. Leicester, 261. 
 V. Sparrow, 261. 
 Reynolds v. Leiper's Heirs, 470. 
 
 V. Weiss, 410, 418. 
 Rhinehart v. Schuyler, 18, 79, 85, 149, 
 
 150, 678. 
 Rhodes v. O'Farrell, 184. 
 
 V. Sexton, 160, 166. 
 Eice V. Auditor-General, 442. 
 V. Johnson, 275. 
 V. Nelson, 425, 426, 435. 
 V. White, 296, 298. 
 Richawls v. Stogsdell, 417. 
 Richardson v. Dorr, 34, 74, 76, 308, 617. 
 V. McKinson, 589. 
 V. State, 183. 
 Eiggs V. Henneberry, 565. 
 Eigor V. Frye, 584. 
 Rima v. Cowan, 82. 
 Eising V. Granger, 143, 176. 
 Bitter v. Patch, 481. 
 Elvers v. Thompson, 122, 567, 568. 
 Eobb ii. Bowen, 586. 
 Eoberts v. Chan Tin Pen, 281, 359. 
 
 V. Pillow, 89. 
 Eobertson v. Livingston, 279. 
 Robinett v. Preston, 74, 95, 531. 
 Robinson v. Gaar, 482. 
 
 V. Howe, 299, 432. 
 V. Huf£, 463. 
 V. Preston, 74. 
 V. Williams, 142, 319. 
 Eobson V. Osborn, 79, 593. 
 Eoby V. Chicago, 146. 
 Eockbald v. Barnes, 66. 
 Rockingham, &c.. Bank v. Portsmouth, 
 
 481. 
 Rockland & Venango Coal Co. v. 
 
 McCalmont, 74, 433. 
 Roe V. Prideaux, 438, 511. 
 
XXVIU 
 
 TABLE OF CASES. 
 
 Rogers v. Dill, 186. 
 
 V. Jolinson, 318, 433, 586. 
 
 V. Park, 187, 188. 
 
 V. Riitter, 424, 435. 
 Eonkendorff v. Taylor, 33, 34, 62, 74, 
 98, 99, 215, 222, 228, 232, 240, 268, 
 283, 451. 
 Eose V. Himely, 186. 
 Roseberry v. HufF, 488. 
 Eosenburger v. Sehull, 142. 
 Ross V. Barland, 541. 
 
 V. Irving, 690, 591. 
 Rowe V. Blakeslee, 406. 
 Rowland v. Doty, 81, 83, 84, 413, 
 
 489. 
 Ruby V. Huntsman, 275. 
 Rule V. Parker, 47, 207, 210, 254. 
 Runnells v. State, 14. 
 Eussel V. Reed, 405. 
 
 V. Werntz, 144, 146, 417. 
 Eussell V. Mann, 63, 503. 
 
 Same v. "Wendell, 432. 
 Sanborn v. Rice County, 6, 7. 
 Sanderson v. La Salle, 122. 
 Sandford v. DeCamp, 406. 
 Sapp V. Morrill, 376, 482, 568. 
 Sargent v. Bean, 235. 
 V. Peirce, 55. 
 Saunders v. Springsteen, 115. 
 Savage v. Holyoke, 73, 74. . 
 
 Savannah v. Hartridge, 165. 
 Savings Bank v. Portsmouth, 1^5. 
 Savings and Loan Society v. Austin, 
 
 484. 
 Sawyer v. City of Alton, 164. 
 V. Springfield, 417. 
 V. Vaughan, 75, 442. 
 Sayles v. Davis, 365, 544. 
 Sayre v. Tompkins, 481. 
 Scales V. Alvis, 34, 177, 237, 250, 277, 
 ; 445. 
 
 Scammon v. Chicago, 30, 63. 
 Scarborough v. Parker, 265. 
 Scarritt v. Chapman, 209. 
 Schaeffer v. The People, 177, 412. 
 Schedda v. Sawyer, 401. 
 Schenck v. Peay, 34, 93, 111, 160, 896, 
 
 413, 421, 435, 461, 621. 
 Schenley v. Alleghany, 16. 
 Schlencker v. Risley, 95, 96, 168. 
 Schmidt v. Gatewood, 43; 
 Schoffi-. Gould, 236,515. 
 Schofield V. WatWns, 106, 488. 
 Schuyler v. Hull, 107, 152, 512. 
 Scofleld V. Lansing, 154, 481, 482. 
 Scott V. Babcock, 74, 184, 266. 
 
 V. Detroit Young Men's Society, 
 
 74, 83. 
 V. Onderdonk, 482. 
 
 Scott V. Stearns, 34, 74, 79, 107, 114, 
 348, 510. 
 V. Surman, 279. 
 
 V. Watkins, 4, 30, 105, 226, 353. 
 Scovill V. Kelsey, 297. 
 Scroggs u. Taylor, 590. 
 Seager v. Kearsage Mining Co., 17d, 
 
 176, 181, 406. 
 Sewall V. Jones, 165. 
 Seymour v. Hartford, 407, 409. 
 Shalemiller v. McCarty, 296. 
 Sharp V. Johnson, 63, 263. 
 
 V. Speir, 33, 39, 53, 447, 448, 
 596. 
 Sharpless v. Mayor, &c., 1. 
 Shaw V. Dennis, 7, 164. 
 V. Orr, 13-5, 261. 
 V. Peckett, 172. 
 Sheafe v. Wait, 283. 
 Sheaffer v. M'Kabe, 139, 140. 
 Shearer v. Woodburn, 34, 62, 432. _ 
 Sheehan v. Good Samaritan Hospital, 
 
 409. 
 Sheldon v. Coates, 98, 104, 233, 350, 
 512. 
 ' V. Van Buskirk, 168. 
 Shell V. Martin, 488. 
 Shelton v. Dunn, 376, 435, 491. 
 Shepardson v. Elmore, 400. 
 
 0. Milwaukee Co., 483. 
 Sherwood v. Reade, 33. 
 Shimmen v. Inman, 34, 145, 146, 235, 
 
 283, 307, 360. 
 Shoalwater v. Armstrong, 84, 449, 451. 
 Shoat V. "Walker, 381, 568. 
 Shoenberger v. Downing, 506. 
 Shoemaker v. Grant Co., 165. 
 Shortall v. Hinckley, 564. 
 Shortridge v. Catlett, 367. 
 Shriver v. Lynn, 186. 
 Shumway v. Shumway, 213. 
 Siblev V. Smith, 79, 83, 114, 137, 144, 
 
 263", 276, 348, 365, 390. 
 Siegel V. Outagamie Co., 146,481,491. 
 Silliman v. Frye, 296, 380. 
 Simmons v. Johnson, 124. 
 Sisk V. Smith, 390, 550. 
 Six Carpenters' Case, 437, 440. 
 Skinner v. Brown, 256. 
 V. Pulton, 85. 
 V. Hutten, 7. 
 Slater v. Maxwell, 288, 396, 489. 
 Smiley v. "Wright, 550. 
 Smith V. Allen, 45, 47, 86, 94, 98, 254, 
 287, 293. 
 u. Auditor-General, 491. 
 v. Bodflsh, 34, 61, 66, 74, 394. 
 V. Brotherline, 114. 
 V. Burlingame, 213. 
 0. Chapman, 364, 460, 547. 
 V. Cleveland, 82, 299, 564. 
 V. Corcoran, 73, 154. 
 V. Hileman, 39, 42, 55, 868. 
 
TABLE OP CASES. 
 
 XXIX 
 
 Smith V. Jones, 177. 
 
 V, Leavenworth Co., 484. 
 
 V. Lewis, 399, 547. 
 
 V. Macon, 419, 432. 
 
 V. Messer, 98, 145, 226, 268, 276, 
 
 314, 535. 
 B. McGrew, 138. 
 V. Moreman, 76. 
 V. Sanger, 339. 
 V. Simpson, 406. 
 V. Smith, 106, 854. 
 V. Spooner, 696. 
 V. State, 76, 187, 189, 394, 464. 
 Snyder v. Palmer, 399. 
 Soens V. Racine, 1, 3, 7. 
 Southall V. McKeand, 589. 
 Spangler v. Jacoby, 54. 
 Spear v. Ditty, 84, 98, 103, 155, 175, 
 218, 225, 249, 264, 812, 313, 347, 368, 
 511, 516. 
 Speed V. St. Louis Co. Court, 410. 
 Spellman v. Curtenius, 148, 183, 188, 
 199, 204, 206, 210, 211, 300, 356, 665, 
 584. 
 Sperry v. Gibson, 485. 
 Spiller V. Baumgard, 257. 
 Spurlock V. Allen, 34, 233. 868. 
 Sprague v. Coenen, 381, 394, 418. 
 
 V. Pitt, 586. 
 Sprecker v. Wakely, 564, 685, 586. 
 Springer v. Eosette, 482. 
 Stackpole v. Arnold, 345. 
 Stalil V. Roost, 79, 377. 
 Stanberry v. Sillon, 79, 87. 
 Stanley v. Smith, 216, 413. 
 State V. Allen, 28, 160. 
 V. Atkins, 410, 484. 
 V. Bank of Newbern, 166. 
 V. Bank of Smyrna, 407, 409. 
 V. Baxter, 34, 74, 481. 
 0. Bowker, 434. 
 V. Carroll, 93. 
 
 V. Central Pacific R.R. Co., 396. 
 V. Click, 260. 
 V. Cole, 49. 
 V. Coleman, 21. 
 V. Commissioners, 435. 
 V. Eureka Mining Co., 202. 
 V. Falkinburge, 163. 
 II. Haight, 410. 
 V. Hundhausen, 299. 
 V. Jersey City, 7, 144. 
 V. Magill, 296. 
 V. Manhattan Co., 108. 
 V. Mayor, 123, 215, 409, 481. 
 V. Mcintosh, 165. 
 V. Metz, 265, 517. 
 V. Moore, 5. 
 V. Newark, 163. 
 V. New Orleans, 7. 
 V. N. O. Nav. Co., 7. 
 1'. Parker, 409. 
 V. Pemberton, 164. 
 
 State V. Reed, 163. 
 V. Scott, 39. 
 V. Shaw, 862, 410. 
 V. Simons, 21. 
 V. Tappan, 1. 
 
 V. Township of Union, 123, 144. 
 V. West. Un. Tel. Co., 117. 
 V. Williston, 146, 373. 
 V. Wilson, 410. 
 V. Winn, 299, 876. 
 V. Woodside, 168. 
 V. Wright, 656. 
 State ex rel. Roe v. Williston, 144, 401. 
 State Bank v. Buckraaster, 260. 
 V. Cooper, 21. 
 V. Marsh, 218. 
 a. People, 410. 
 V. Savannah, 450. 
 V. Smyers, 684. 
 Steadman v. Planters' Bank, 74, 89. 
 Stead's Executors v. Course, 34, 65, 74, 
 
 133, 162, 177, 287, 608, 615. 
 Stearns v. Gittings, 582. 
 Stebbins v. Guthrie, 298, 370, 590. 
 Stein V. Mobile, 7. 
 Stephens v. Holmes, 297, 434. 
 
 II. Wells, 414. 
 Stephenson Co. v. Manny, 165. 
 Stetson V. Kempton, 160, 163, 448. 
 Stevens v. Hollister, 202. 
 V. McNamara, 74. 
 V. Palmer, 351. 
 V. Robertson, 76. 
 Stevenson v. Bonesteel, 499, 586. 
 
 0.. Dunlap, 589. 
 Stewart v. Aten, 128. 
 u. Brooks, 438. 
 V. Corbin, 82, 177, 286, 406. 
 V. Davis, 409. 
 V. Graffies, 257. 
 V. McSweeney, 79, 84. 
 u. Shoenfelt, 410. 
 V. Trevor, 142. 
 Stierlein v. Daley, 79, 82, 870, 371. 
 Stiles V. Weir, 216, 225, 226. 
 Stilwell V. People, 193. 
 Stinson v. Smith, 6, 7. 
 Stockton and Visalia R.R. Co. v. Com- 
 mon Council, &c., 3, 4. 
 Stokes V. State, 163. 
 Stout V. Merrill, 4-20. 425. 
 Stowell V. Zouch, 45. 
 St. Anthony Falls W. Pow. v. Greeley, 
 
 174, 181,216,461. 
 St. Joseph V. Anthony, 7. 
 
 V. O'Donoghue, 7. 
 St. Louis Co. Court v. Hamilton, 16. 
 0. Sparks, 156, 
 261. 
 St Mary's College v. Crowl, 409. 
 St. Peter's Church v. Co. of Scott, 123, 
 
 409. 
 Strauch v. Shoemaker, 136, 544. 
 
XXX 
 
 TABLE OP CASES. 
 
 Street v. Hughes, 852, 448. 
 Stridde v. Saroni, 340. 
 Striker v. Kelly, 33, 83, 260. 
 Stringer v. Young, 260. 
 Strong V. Flagler, 239. 
 V. Parish, 492. 
 Stuart V. Parish, 492, 541. 
 Stuke's Case, 589. 
 Sturdevant v. Mather, 365, 398, 399. 
 Sully V. Kuehl, 145, 160, 166, 266, 268. 
 Sumner v. Dorchester, 165. 
 
 V. Sherman, 34, 63, 309. 
 Supervisors of McUonough County v. 
 
 Campbell, 488. 
 Susquehanna Bank v. Broome Co., 
 
 484. 
 Sutton V. Calhoun, 79, 225, 235, 381. 
 
 V. Nelson, 316, 317. 
 Swan V. Knoxville, 164. 
 Swope V. Purdy, 411, 568. 
 V. Saine, 381, 568. 
 
 Tahele v. Tabele, 550. 
 Tabor v. Cook, 17, 482. 
 Tacey v. Irwin, 417. 
 Talbot V. Dent, 447. 
 Talcott V. Draper, 564. 
 Tallman v. Janesville, 163. 
 
 .,. White, 43, 83, 84, 124, 125, 
 182, 226, 381. 
 Tarr v. Haughey, 433. 
 Taylor v. Brown, 260. 
 
 V. Buckner, 582. 
 
 V. Cole, 437. 
 
 V. French, 33, 34, 249, 309, 313, 
 348, 559. 
 
 V. Galloway, 33, 36, 441. 
 
 a. Horde, 666. 
 
 ./. Miles, 406, 568. 
 
 V. Myer, 492. 
 
 V. People, 174, 180, 187, 201. 
 
 V. Porter, 19, 22. 
 
 V. Rountree, 482. 
 
 v.- Snyder, 399, 489,491. 
 
 V. Steele, 418, 435. 
 
 V. Stringer, 404. 
 
 V. Thompson, 481. 
 
 V. Whiting, 589. 
 Tax Cases, 407. 
 Telle V. Green, 446. 
 Templeton v. Morgan, 267. 
 Terrell v. Grimmel, 433. 
 Terrett v. Taylor, 407. 
 Terrill v. Groves, 148. 
 Terry v. Blight, 34, 73, 74, 76. 
 Thacher v. Powell, 35, 39, 62, 177, 178, 
 
 183, 186, 188. 
 Thacker, Ex parte, 193. 
 Thames Manufacturing Co. v. La- 
 throp, 34, 68, 119, 122, 157, 261. 
 
 Tharp v. Hart, 84. 
 Thayer v. Stearns, 153. 
 The King v. The Corporation of Bed- 
 ford Level, 93. 
 The New York Indians, 5. 
 Thevenin v. Slocum, 461, 515. 
 Thomas v. Lawson, 89. 
 u. Leland, 164. 
 V. Stickle, 297, 586. 
 Thompson v. Carroll, 178, 292, 451. 
 V. Ebbetts, 483. 
 V. Gardner, 172, 174. 
 V. Gotham, 73, 216, 454. 
 V. Mason, 589. 
 V. Rogers, 174, 255, 266. 
 V. Schuyler, 150, 370. 
 V. Treasurer, &c., 7. 
 Thurston v. Little, 64, 107, 153, 160. 
 
 0. Martin, 114, 406. 
 Tibbetts v. Job, 107. 
 Tidd V. Smith, 245. 
 Tiernan v. Wilson, 288. 
 Tilson V. Thompson, 371. 
 Tipton u. Weyand, 96. 
 Tobey v. Haggerty, 114. 
 Toledo R.R. Co. v. Lafayette, 488. 
 Tolman v. Emerson, 76, 368, 518. 
 Torrey v. Millbury, 160, 263. 
 Townsen v. Wilson, 114. 
 Townsfind v. Downer, 73, 517. 
 Treat v. Orono, 75, 442. 
 Treon's Lessee v. Emerick, 128, 227. 
 Tripp V. Ide, 382. 
 Troutman v. May, 74. 
 Truesdell v. Rhodes, 481, 544. 
 Trustees v. Ellis, 409. 
 
 V. Webster Co., 411. 
 Trustees of Paris v. Berry, 164. 
 Tucker v. Aiken, 93, 98, 102. 
 V. Fergeson, 409, 411. 
 V. Justices, 163. 
 Tumble v. Square, 394. 
 Turner v. Leoraans, 79. 
 
 V. Smith, 276, 534. 
 V. Watterson, 320. 
 Turney v. Yeoman, 124, 132, 365. 
 Tweed v. Metcalf, 108, 163, 166, 286, 
 
 303, 400. 
 Twiggs V. Chevallie, 413, 460. 
 Twombly v. Kimbrough, 89, 105, 275, 
 396, 491. 
 
 u. 
 
 Union Pacific R.R. Co. u. Lincoln Co., 
 
 410, 484. 
 United States v. Dandridge, 528. 
 V. Kirkpatrick, 260. 
 V. Maurice, 92, 95. 
 V. Van Zandt, 260. 
 Upton V. Holden, 168. 
 Usher v. Pride, 472. 
 
 V. Taft, 255, 266. 
 
TABLE OF CASES. 
 
 XXXI 
 
 V. 
 
 Vail V. Beach, 409. 
 "Van Alen v. Vanderpool, 279. 
 "Van Benthuysen v. Sawyer, 433. 
 Vance v. Schuyler, 150, 260. 
 Vancleave v. Milliken, 585. 
 Vanderbilt v. Adams, 164. 
 Van Doren v. New York, 482. 
 Van Horn's Lessee v. Dorrance, 276. 
 V. Fonda, 14, 590. 
 Vanover v. Davis, 488. 
 Van Rensselaer v. Kidd, 482, 483. 
 
 V. "Whitbeck, 108, 153, 
 156, 167, 168. 
 Van Voorhis v. Budd, 144. 
 Van Wormer v. Mayor of Albany, 186. 
 Vanzant v. Waddell, 20. 
 Varick v. Tallman, 33, 34, 43, 65, 72, 
 
 77, 79, 83, 84. 
 Varney v. Stevens, 401. 
 Vasser v. George, 6, 274, 290. 
 Vernon's Case, 45. 
 Vieley v. Thompson, 484. 
 Villas V. Eeynolds, 124. 
 Voorhees v. United States Bank, 186. 
 Voris V. Thomas, 399, 400, 401. 
 
 "W". 
 
 Waddell v. Vanzant, 30. 
 "Wakeley v. Mohr, 369. 
 
 V. Nicholas, 354. 
 "Waldby v. Callendar, 442, 481. 
 "Waldron v. MeComb, 33, 441. 
 
 V. Tattle, 72, 74, 288, 531, 
 569. 
 Walker v. Chapman, 156, 261. 
 
 u. Moore, 286. 
 Wallace v. Berger, 286. 
 
 V. Brown, 184, 354. 
 
 ■/. Porter, 492. 
 
 a. Scott, 138. 
 
 V. Seymour, 492, 541. 
 
 V. Shelton, 7. 
 Wallingford v. Fiske, 281, 282, 569. 
 Wales V. Stetson, 596. 
 Wain V. Shearman, 586. 
 Wals V. Grosvener, 482, 500. 
 Walsh V. Matthews, 1, 7. 
 Walton V. Gray, 413, 590. 
 
 0. Hale, 73, 376, 531. 
 Ward V. Barrows, 182, 527. 
 Warden v. Supervisors, 488. 
 Ware v. Bradford, 76. 
 V. Little, 82. 
 V. Thompson, 286. 
 Warner v. Outagamie County, 162, 442. 
 Washburn v. Cutter, 568. 
 Washburn College v. Shawnee Co., 409. 
 Washington v. Miller, 105. 
 
 Washington v. Pratt, 216, 231, 235, 290, 
 
 451. 
 Wash. Univ. v. Rowse, 407, 409. 
 Waters V. State, 150, 165. 
 Watkins v. White, 559. 
 Watson V. Atwood, 79. 
 V. Esty, 327. 
 V. Stuker, 74, 75. 
 Watt V. Gilniore, 367, 395. 
 Watterson v. Wilson, 168, 170, 172. 
 
 t". Kirkwood, 411. 
 Webb V. Dixon, 383. 
 
 V. Bidwell, 502. 
 Webber v. Cox, 214. 
 Webster v. Alton, 7. 
 
 V. French, 156, 261. 
 V. Seymour, 172. 
 Weed V. McQuilken, 155, 160, 192. 
 Weeks v. Milwaukee, 106, 483. 
 Weer v. Hahn, 220, 824. 
 Weller v. St. Paul, 488. 
 WelUngton v. Gale, 55, 514. 
 Wells V. Burbank, 108, 156, 162, 282, 
 246, 268, 513. 
 V. Burnham, 484. 
 V. Company, 74, 108, 109, 232, 
 
 246, 304, 403, 512. 
 a. Smyth, 106. 
 Wentworth o. Allen, 233, 458. 
 Weslbrook v. Willey, 83, 341, 583. 
 Westcott V. McDonald, 73. 
 West School District of Canton v. Mer- 
 rills, 159, 448. 
 Wetheibee o. Dunn, 66, 79, 90, 99, 185. 
 Wettig V. Bowman, 579. 
 Weyand v. Tipton, 76. 
 Wheaton v. Sexton, 76. 
 Wheeler v. Anthony, 144, 168. 
 V. Mills, 118. 
 V. Winn, 74. 
 V. Yeuda, 548. 
 Wheelock v. Hall, 528. 
 White V. Flynn, 82, 84, 369. 
 V, Kendrick, 21. 
 V. Strahl, 299. 
 V. White, 23. 
 V. Willard, 318. 
 Whitehurst v. Gaskill, 233. 
 Whiteside v. Divers, 428. 
 White Sulphur Springs Co. v. Holly, 
 
 484. 
 Whitford v. Lynch, 375. 
 Whiting V. Sheboygan R.R. Co., 1. 
 Whitney v. Gunderson, 185, 400, 411. 
 V. Marshall, 79, 84, 586. 
 V. Thomas, 144, 166. 
 Whittelsey v. Clinton,. 107. 
 Whittier v. Varney, 860. 
 Wiggins V. Mayor of New York, 260. 
 Wight V. Warner, 39. 
 Wilcox V. Humphrey, 118, 482, 484. 
 V. Jackson, 186, 541. 
 V. Smith, 93, 95. 
 
xxxu 
 
 TABLE OF CASES. 
 
 Wilding V. Horner, 85. 
 Wiley V. Bean, 377, 379. 
 V, Palmer, 4. 
 V. Scovill, 147, 282, 395. 
 Wilkins V. Huse, 183, 188, 190, 216, 
 
 233, 252, 272, 353. 
 Willard v. Blount, 545. 
 t. Strong, 399. 
 V. Wethersbee, 29. 
 Williams v. Cammaek, 7, 438, 481. 
 V. East India Co., 528, 619. 
 V. Gleason, 184, 205, 212. 
 V. Grey, 401. 
 V. Harris, 228. 
 V. Heath, 286, 296. 
 V. Hilton, 399. 
 c. Peyton, 33, 35, 69, 71, 74, 
 
 77, 215, 246. 
 V. State, 187, 189. 
 V. Townsend, 399, 417. 
 V. XJnderhill, 34, 85, 321. 
 Williamsburg v. Lord, 102, 111, 471. 
 Williamson v. Bedford, 76. 
 
 V. Berry, 186, 353. 
 Williamsport v. Kent, 448. 
 Williston V. Colkett, 125, 136. 
 Wilson V. Bell, 34, 68, 376. 
 V. Buckman, 163. 
 V. Cochran, 443. 
 V. Jarvis, 354. 
 V. Lemon, 84. 
 V. McKenna, 321, 433. 
 V. Watterson, 139, 140, 141, 142. 
 Winchester v. Cain, 154, 432. 
 Winder v. Sterling, 182, 527, 528. 
 Wing V. Hall, 569. 
 Winkler v. Higgins, 381. 
 Winn V. Macon, 7. 
 Winslow V. Morrill, 114. 
 Winstanley v. Meacham, 584. 
 Winterbourne v. Morgan, 437. 
 Winthrop v. Huntington, 590. 
 Wisner v. Davenport, 166, 233. 
 Wistar v. Kam merer, 34, 216. 
 Withers v. Buckley, 17. 
 0. Yeadon, 589. 
 Witherspoon w. Duncan, 5, 17. 
 
 Witherspoon v. Dunlap, 275. 
 Woddye v. Coles, 288. 
 Wofford V. McKinna, 382, 586. 
 Woodbridge v. Detroit, 7. 
 Woodburn v. Farmers' and Mechanics* 
 Bank, 402. 
 V. Wizeraan, 282. 
 Woodbury v. Shackleford, 435. 
 Woodcock V. Bennett, 23. 
 Woodman v. Clapp,'365, 373, 376,417. 
 Woodruff!). McHarry, 579. 
 Woods V. Freeman, 202. 
 Woodward v. Blanchard, 565. 
 Woolfolk V. Ponbene, 108, 133. 
 Worth V. Fayetteville, 481. 
 Worthing v. Webster, 73, 533. 
 Wray v. Pittsburgh, 7. 
 Wright V. Bennett, 428. 
 
 y. Cradlebaugh, 82, 124, 410. 
 
 V. Dunham, 79, 83. 
 
 V. Marsh, 476. 
 
 V. Sperry, 340, 401. 
 
 V. Wing, 299, 301, 342. 
 Wyman v. Campbell, 186. 
 V. Smith, 386. 
 
 Yancy v. Hopkins, 34, 44, 53, 65, 66, 
 
 145, 177, 187, 403, 488, 491. 
 Yankee v. Thompson, 34, 79, 223, 368. 
 Yeuda v. Wheeler, 35, 124, 125, 144, 
 
 226, 548. 
 Young V. Dowling, 494. 
 
 V. Keogh, 55, 353, 493. 
 
 V. King, 416. 
 
 V. Lorain, 39, 186, 187. 
 
 V. Martin, 34, 62, 138, 241. 
 
 V. Stringer, 305. 
 
 V. Thompson, 205, 362. 
 
 Zurcher v. Magee, 39, 44, 187. 
 Zylstra's Case, 21. 
 
AMERICAN EEPORTS CITED. 
 
 KAKES OF REPORTS. STATE. 
 
 Abbott's Practice (R.), New York. 
 
 Abbott's U. S. R., U. S. Circ. and Dis. Courts. 
 
 Addison, Pennsylvania. 
 
 Adams, New Hampshire. 
 
 Aikens, Vermont. 
 
 Alabama or Minor, Alabama. 
 
 Alabama (N. S.), Alabama. 
 
 Allen, Massachusetts. 
 
 Appleton, Maine. 
 
 Arkansas, Arkansas. 
 
 Ashmead, Pennsylvania. 
 
 Bailey South Carolina. 
 
 Bailey's Chancery South Carolina. 
 
 Baldwin, U. S. Circuit. 
 
 Barbour New York. 
 
 Barbour's Chancery, New York. 
 
 Barr, Pennsylvania. 
 
 Bay, South Carolina. 
 
 Bibb, Kentucky. 
 
 Binney, Pennsylvania. 
 
 Bissell's U. S. 7th Circ. Court. 
 
 Blackford, Indiana. 
 
 Bland's Chancery, Maryland. 
 
 Blatchford, U. S. Circuit Cpurt. 
 
 Bond U. S. Circ. and Dis. Courts 
 
 Brayton, Vermont. 
 
 Breese Illinois. 
 
 Brevard, South Carolina. 
 
 Brockeabrough, U. S. Circuit. 
 
 Bush Kentucky. 
 
 Caines New York. 
 
 Caines's Cases in Error, New York. 
 
 California, California. 
 
 Call Virginia. 
 
 Carolina Law Repository, North Carolina. 
 
 Cameron & Norwood, North Carolina. 
 
 Carter Indiana. 
 
 Casey, Pennsylvania. 
 
 Chandler, Wisconsin. 
 
 Charlton (T. U. P.), Georgia. 
 
 Charlton (R. M.), Georgia. 
 
 Cheve's Chancery Cases South Carolina. 
 
 Chipman (N.) Vermont. 
 
 Chipman (D.) Vermont. 
 
 Clarke's (Vice-Chancellor), New York. 
 
 CUfford, U. S. 1st Circ. Court. 
 
 c 
 
XXxiv AMERICAN REPORTS CITED. 
 
 ITAHES 0» BEPOKTS. STATE. 
 
 Cobb Georgia. 
 
 Coldwell, Tennessee. 
 
 Coleman & Gaines's Cases, New York. 
 
 Colorado, Colorado. 
 
 Comstoek, New York. 
 
 Conference, North Carolina. 
 
 Connecticut Connecticut. 
 
 Constitutional Court, South Carolina. 
 
 Cooke, Tennessee. 
 
 Cowen, New York. 
 
 Coxe New Jersey. 
 
 Crabbe, U. S. Circuit. 
 
 Cranch, U. S. Supreme Court. 
 
 Cushing Massachusetts. 
 
 Cushman, Mississippi. 
 
 Dallas, Pennsylvania. 
 
 Dana, Kentucky. 
 
 Day, Connecticut. 
 
 Deady, TJ. S. Circ. and Dis. Courts. 
 
 Denio, New York. 
 
 Dessaussure South Carolina. 
 
 Devereux's Equity, North Carolina. 
 
 Devereux's Law, North Carolina. 
 
 Devereux & Battle, North Carolina. 
 
 Derereux & Battle's Equity, North Carolina. 
 
 Dillon U. S. 8th Circ. Court. 
 
 Douglass, Michigan. 
 
 Dudley, Georgia. 
 
 Dudley's Law South Carolina. 
 
 Dudley's Equity, South Carolina. 
 
 Edwards's Chancery, New York. 
 
 English, Arkansas. 
 
 Fairfield, Maine. 
 
 Florida, Florida. 
 
 Foster, New Hampshire. 
 
 Freeman's Chancery, Mississippi. 
 
 Gallison, U. S. Circuit. 
 
 Gibbs, Michigan. 
 
 Gill Maryland. 
 
 Georgia Reports, Georgia. 
 
 Gill & Johnson, Maryland. 
 
 Gilman, Illinois. 
 
 Gjlmer, Virginia. 
 
 Gilpin, Pennsylvania. 
 
 Grant, tJ. S. Circ. E. Dis., Pa. 
 
 Grattan, Virginia. 
 
 Gray, Massachusetts. 
 
 Green, New Jersey. 
 
 Green's Chancery, New Jersey. 
 
 Greene, Iowa. 
 
 Greenleaf, Maine. 
 
 Griswold, Ohio. 
 
 Hall New York. 
 
 Halsted New Jersey. 
 
 Halsted's Chancery, New Jersey. 
 
 Hammond, Ohio 
 
 Hardin \ Kentucky. 
 
 Harper s Law, South Carolina. 
 
 Harper s Equity South Carolina. 
 
 Harrington, Delaware. 
 
 Harris, . Pennsylvania. 
 
 Hams & Gill, Maryland. 
 
 Harris & Johnson, Maryland. 
 
AMERICAN REPORTS CITED. XXXV 
 
 NAMES OF REPORTS. STATE. 
 
 Harris & McHenry, Maryland. 
 
 Harrison, New Jersey. 
 
 Hawks Nortli Carolina. 
 
 Haywood North Carolina. 
 
 Heiskell Tennessee. 
 
 Henning & Munford, Virginia. 
 
 Haywood, Tennessee. 
 
 Hill New York. 
 
 Hill, South Carolina. 
 
 Hill's Chancery, South Carolina. 
 
 Hoffman, ^ . . . New York. 
 
 Hopkins's Chancery New York. 
 
 Houston, Delaware. 
 
 Howard, Mississippi. 
 
 Howard U. S. Supreme Court. 
 
 Howard's Practice (R.), New York. 
 
 Hughes, Kentucky. 
 
 Humphreys, Tennessee. 
 
 Idaho, Idaho. 
 
 Illinois Reports, Illinois. 
 
 Indiana, Indiana. 
 
 Iowa, Iowa. 
 
 Iredell's Law North Carolina. 
 
 Iredell's Equity, North Carolina. 
 
 Jefferson, Virginia. 
 
 Jones, Pennsylvania. 
 
 Johnson New York. 
 
 Johnson's Cases New York. 
 
 Johnson's Chancery, New York. 
 
 Kansas, Kansas. 
 
 Kelly, Georgia. 
 
 Kentucky Decisions, Kentucky. 
 
 Kirby, Connecticut. 
 
 Lansing, New York. 
 
 Leigh Virginia. 
 
 Littell, Kentucky. 
 
 Littell's Select Cases, Kentucky. 
 
 Louisiana Louisiana. 
 
 ■ Louisiana Annual R Louisiana. 
 
 Maine, Maine. 
 
 Manning, . . Michigan. 
 
 Martin, North Carolina. 
 
 Martin, Louisiana. 
 
 Martin & Yerger, ... Tennessee. 
 
 Marshall (A. K.), Kentucky. 
 
 Marshall (J. J.), Kentucky. 
 
 Mason U. S. 1st Circ. Court. 
 
 Massachusetts, Massachusetts. 
 
 Maryland Reports Maryland. 
 
 Maryland Chancery, Maryland. 
 
 McCahon, Kansas. 
 
 M'Cord, ... South Carolina. 
 
 M'Cord's Chancery, South Carolina. 
 
 M'Lean, U. S. 7th Circ. Court. 
 
 M'MuUan South Carolina. 
 
 M'MulIan's Chancery, South Carolina. 
 
 Meigs Tennessee. 
 
 Metealf, Massachusetts. 
 
 Michigan, Michigan. 
 
 Minnesota Minnesota. 
 
 Mississippi, Mississippi. 
 
 Minor, Alabama. 
 
 Missouri, Missouri. 
 
XXXvi AMERICAN REPORTS CITED. 
 
 NAMES OP REPORTS. STATE. 
 
 Monroe, Thomas Kentucky. 
 
 Monroe, Benjamin, Kentucky. 
 
 Montana, Montana. 
 
 Morris, l<'"a- 
 
 Munford Virginia. 
 
 Murpliey, North Carolina. 
 
 Nebraska, '.'.'.'. Nebraska. 
 
 Nevada Nevada. 
 
 New Hampshire, New Hampshire. 
 
 New Jersey, New Jersey. 
 
 New Jersey Equity, New Jersey. 
 
 New Jersey Law, New Jersey. 
 
 New York New York. 
 
 North Carolina, Nortli Carolina. 
 
 Nott & M'Cord South Carolina. 
 
 Ohio, ... Ohio. 
 
 Ohio State, Oliio. 
 
 Oregon, Oregon. 
 
 Overton, Tennessee. 
 
 Paige, New York. 
 
 Paine, U. S. Circuit. 
 
 Peck, . Tennessee. 
 
 Peek, Illinois. 
 
 Pennington New Jersey. 
 
 Pennsylvania, Pennsylvania. 
 
 Penn. State Pennsylvania. 
 
 Penrose & Watts, Pennsylvania. 
 
 Peters's Circuit Court, .... . U. S. 3d Cire. Court. 
 
 Peters . . U. S. Supreme Court. 
 
 Peters's U. S Condensed, . . . . Supreme Court U. S. 
 
 Pike . . Arkansas. 
 
 Pickering, ... Massachusetts. 
 
 Porter, . Alabama. 
 
 Porter, . Indiana. 
 
 Randolph, Virginia. 
 
 Ravvle . . Pennsylvania. 
 
 Rhode Island, . . Rhode Island. 
 
 Rice, ... ... South Carolina. 
 
 Rice's Equity, . . South Carolina. 
 
 Richardson's Law . . South Carolina. 
 
 Richardson's Equity, South Carolina. 
 
 Riley's Chancery Cases, . . ... South Carolina. 
 
 Riley's Law Cases South Carolina. 
 
 Robinson, Virginia. 
 
 Robinson, . Louisiana. 
 
 Root, . . . Connecticut. 
 
 Sandford's Chancery New York. 
 
 Sandford's Sup. Court, New York. 
 
 Sawyer, U. S. 9th Circ. Court. 
 
 Saxtons Chancery New Jersey. 
 
 Scaminon, Illinois. 
 
 SeUlen New York. 
 
 Sergeant & Rawle, Pennsylvania. 
 
 Shepley, Maine. 
 
 Slade, Vermont. 
 
 Smedes & Marshall, Mississippi. 
 
 Smedes & Marshall's Chancery, .... Mississippi. 
 
 Smith Indiana. 
 
 Southard, New Jersey. 
 
 South Carolina South Carolina. 
 
 South Carolina New Series, South Carolina. 
 
 Speer South Carolina. 
 
 Speer's Equity, South Carolina. 
 
AMERICAN REPORTS CITED. XXXYU 
 
 NAMES OF KEPOKTS. STATE. 
 
 Spencer, New Jersey. 
 
 Stanton, Ohio. 
 
 Stewart, Alabama. 
 
 Stewart & Porter Alabama. 
 
 Story, U. S. 1st Giro. Court. 
 
 Strobliart, South Carolina. 
 
 Strobhart's Chancery, South Carolina. 
 
 Sumner , U. S. 1st Cire. Court. 
 
 Taney's Decisions XJ. S. 4th Circ. Court. 
 
 Taylor, North Carolina. 
 
 Tennessee, Tennessee. 
 
 Texas, Texas. 
 
 Tyler Vermont. 
 
 Vermont, Vermont. 
 
 Virginia Cases, Virginia. 
 
 Walker Mississippi. 
 
 Walker's Chancery, Michigan. 
 
 Wallace, TJ. S. Circuit. 
 
 Wallace, U. S. Supreme Court. 
 
 Wallace, Jr U. S. 3d Circ. Court. 
 
 Washburn, Vermont. 
 
 Washington Circuit Court, U. S. 3d Circ. Court. 
 
 Washington, Virginia. 
 
 Washington Territory, Washington Territory. 
 
 Watts, . Pennsylvania. 
 
 Watts & Sergeant, Pennsylvania. 
 
 Wendell, Now York. 
 
 Weston Vermont. 
 
 West Virginia, West Virginia. 
 
 Wharton Pennsylvania. 
 
 Wisconsin, Wisconsin. 
 
 Wright, Ohio. 
 
 Wheaton, XJ. S. Supreme Court. 
 
 Wilcox, Ohio. 
 
 Woodbury & Mlnot U. S. 1st Circ. Court. 
 
 Woolworth, Nebraska. 
 
 Woolworth U. S. 8th Circ. Court. 
 
 Wythe's Chancery, Virginia. 
 
 Yeates, Pennsylvania. 
 
 Yerger Tennessee. 
 
 Zabriskie, New Jersey. 
 
BRITISH REPORTS CITED. 
 
 KEFOKTEKS. 
 
 Adolphas & Ellis. 
 
 Ambler. 
 
 Barnewall & Cresswell. 
 
 Barnewall & Adolphus. 
 
 Bingham's Reports. 
 
 Bingham's New Cases. 
 
 Broderip & Bingham. 
 
 Bulstrode. 
 
 Burrow. 
 
 Campbell's Nisi Prius Eeports. 
 
 Clark and Finnelly. 
 
 Coke's R. 
 
 Cowper. 
 
 Croke's Charles. 
 
 Croke's Elizabeth. 
 
 Croke's James. 
 
 Douglas. 
 
 East. 
 
 Dow. 
 
 English Law and Equity Reports. 
 
 KEPOETEES. 
 
 English Common Law Eeports. 
 
 Espinasse. 
 
 Hobart. 
 
 Howell's State Trials. 
 
 Levinz. 
 
 Lord Raymond. 
 
 Maule & Selwyn. 
 
 Meeson & Welsby. 
 
 Mylne & Keen. 
 
 Modern. 
 
 Plowden. 
 
 Peere Williams. 
 
 RoUe. 
 
 Salkeld. 
 
 Saunders. 
 
 Scott's New Eeports. 
 
 Taunton. 
 
 Term Reports. 
 
 William Blackstone. 
 
 Wilson. 
 
MISCELLANEOUS WORKS CITED. 
 
 NAME OF WORK. ABBREVIATION. 
 
 Adams on Ejectment, Ad. Eject. 
 
 American Leading Cases, Am. Lead. Ca. 
 
 Angell on Limitations, Ang. Lim. 
 
 Bacon's Works Bac. Works. 
 
 Bacon's Abridgment, Bac. Abr. 
 
 Blackstone's Commentaries, Bl. Com. 
 
 Broom's Legal Maxims, Broom's Max. 
 
 Chitty's Pleadings Chitty PI. 
 
 Coke's Littleton, Co. Litt. 
 
 Comyn's Digest Com. Dig. 
 
 Cooley's Constitutional Limitations (3d ed.), Cooley's Const. Lim 
 
 Cruise's Digest, Cru. Dig. 
 
 Dillon on Municipal Corporations {2d ed.), Dill. Mun. Corp. 
 
 Doctor and Student Doet. & Stu. 
 
 Dwarris on Statutes, Dwarris. 
 
 East's Pleas of the Crown East P. C. 
 
 Eden on Injunctions by Waterman, Eden Injunc. 
 
 Federalist, Fed. 
 
 Fonblanque'l Equity, Fonb. E. 
 
 Foster's Pleas of the Crown, Fost. P. C. 
 
 Gale's Statutes of Illinois, Gale's Stat. 
 
 Greenleafs Evidence, Greenl. Ev. 
 
 Institutes by Coke, Inst. 
 
 Kent's Commentaries, Kent Com. 
 
 Lieber's Legal and Political Hermeneutics, Lieber Herm. 
 
 Littell's Statutes of Kentucky, Litt. Stat. 
 
 Marshall's Decisions, Marsh. Dec. 
 
 Opinions of the Attorneys-General of the United States, . Op. Atty. Gen. 
 
 Paley's Works, Paley'a Works. 
 
 Perkins's Treatise on Conveyances, Perk. 
 
 Revised Statutes of Illinois, 1845, R. S. 111. 18i5. 
 
 Revised Laws of Illinois, 1833 R. L. III. 1833. 
 
 Sergeant's Land Laws of Pennsylvania, Serg. Land Laws. 
 
 Shepherd's Touchstone, Touch. 
 
 Smith's Commentaries, Smith's Cora. 
 
 Smith's Laws of Pennsylvania, Smith's Laws. 
 
 Starkie's Evidence Stark. Ev. 
 
 Story on Constitution, Story Const. 
 
 Story's Equity Jurisprudence, Story Eq. 
 
 Sugden on Powers Sugd. Pow. 
 
 Sullivan's Lectures, Sul. Lee. 
 
 Sullivan's Land Titles Sul. Ld. Titles. 
 
 Vattel's Law of Nations, Vattel. 
 
 Viner's Abridgment, Vin. Abr. 
 
 Webster's Works Web. Works. 
 
 Western Legal Observer, Wes. Leg. Ob. 
 
INTRODUCTION. 
 
 The subject of the following work is a matter of control- 
 ling importance to the landed interests of the United States, 
 inasmuch as it relates to an extraordinary power, which is 
 annually exercised over estates, and which, when well exe- 
 cuted, works a complete divestiture of the title against the 
 wiU of the owner, and oftentimes without his knowledge. 
 This power has been exercised by all the States since their 
 admission into the Union ; and it has, on several occasions, 
 been resorted to by the Federal government. A very large 
 number of cases involving the validity of titles, having their 
 origin in this power, have been adjudicated by the Federal 
 and State tribunals. The principles of law which relate to 
 powers of this character, are calculated to enlist the atten- 
 tion of every lawyer ; and in the new States especially, are 
 in constant application in the regular course of his practice. 
 Notwithstanding the importance of the law upon this subject, 
 no separate treatise has been devoted to its investigation. 
 Kent, in his commentaries, has paid no attention to the sub- 
 ject, and Mr. Hilliard, in his work on Real Property, dis- 
 misses it quite summarily ; in fact, no general treatise upon 
 American law, deigns to treat it upon principle. The annual 
 digests of American decisions have not even assigned to it a 
 separate title, and the reporters seem at a loss to know under 
 what head they shall refer to it in their indices. The de- 
 cisions of our Courts upon the subject, — numbering up- 
 wards of one thousand — are scattered throughout the pages 
 of seven or eight hundred volumes of the American reports, 
 and are thus inaccessible to the mass of the profession. A 
 
INTRODUCTION. xli 
 
 work which shall present the principles relating to the execu- 
 tion of this class of powers, as illustrated by the numerous 
 decisions of the Courts, is therefore much needed, and the 
 importance of the subject justifies its publication. The atten- 
 tion of the author has been directed to this matter, by his 
 employment in a number of tax title causes before the 
 Supreme and Circuit Courts of Illinois, and the Circuit Court 
 of the United States ; and the difficulties under which he 
 labored in the prosecution of his studies upon this branch of 
 the law, and in the preparation of his briefs and arguments, 
 suggested the idea that a separate treatise upon this subject 
 would be well received by the profession at large. He ac- 
 cordingly named the matter to a friend, — an eminent lawyer 
 of great experience, and perfectly familiar with the subject, 
 even to its minutest details, — who not only cordially ap- 
 proved of the project, but promised to render every assistance 
 in his power. The author remembering the remark of Lord 
 Coke, that some addition to the general stock of learning is 
 " a debt which every man owes to his profession," cheerfuUy 
 undertook the task, prosecuted it at such periods of leisure 
 as occurred in the course of his engagements at the bar, and 
 now submits it to public criticism. The author does not 
 claim for himself originality in the execution of the work, 
 either as to the ideas advanced, or even the language em- 
 ployed to express them. He has endeavored to present the 
 principles which eminent judges and lawyers have laid down 
 for the control of officers engaged in the execution of this 
 class of powers, and when they themselves were clear in the 
 mode of expression, he has not hesitated to adopt their lan- 
 guage. 
 
 The plan of the work embraces the entire field of litigation 
 upon the subject. The subject is arranged in the most 
 natural Inanner which suggested itself to the mind of the 
 author ; the authorities upon which he has relied are invaria- 
 bly cited in the margin, and the author trusts that the sub- 
 division of the work into chapters, appropriately headed, and 
 the addition of a Table of Cases and Contents, and a com- 
 plete Index, will render it easy of reference to every lawyer. 
 
 Reducing to a system the rules which apply to tax sales, 
 
xlii INTRODUCTION. 
 
 and the principles upon which they are founded, so as to 
 render it perfect, is a task of much labor and difficulty. One 
 of these difficulties grows out of the conflicting provisions of 
 the revenue laws of the different States, and the peculiar 
 local policy which governs their construction. This is alluded 
 to by Judge McLean, in delivering the opinion of the 
 Supreme Court of the United States, in the case of Games v. 
 Stiles (14 Peters, 322), which came up from the State of 
 Ohio : " The laws of Ohio, imposing a tax on lands, and 
 regulating its collection, like similar laws in, perhaps almost 
 all the other States, are peculiar in their provisions, having 
 been framed under the influence of a local policy. And this 
 policy has, to some extent, influenced the construction of 
 those laws. There can be no class of laws more strictly local 
 in their character, and which more directly concern real 
 property, than these. They not only constitute a rule of 
 property, but their construction by the Courts of the States, 
 should be followed by the Courts of the United States with 
 equal, if not greater strictness, than the construction of any 
 other class of laws." Again, the sale of land for the non- 
 fiayment of taxes, is a proceeding unknown to the common 
 law of England. While the feudal tenure prevailed in that 
 country, the enforcement of the collection of the tallage, 
 scutage, or hidage tax, by a sale of the land itself, would 
 have been contrary to the poUcy of the feudal system. The 
 vassal received the right of using and enjoying the land on 
 condition of fealty and the performance of certain services, 
 while the lord still retained the paramount right ; and the fief 
 was distinguished from allodial possessions, by the circum- 
 stance that it could not be ahened without the consent of the 
 feudal lord. No tenant could be imposed upon him against 
 his will. For this reason, the fief could not be seized under 
 execution, or sold for taxes which may have been levied 
 upon it. Indeed, the only involuntary alienation of a fend, 
 known to the common law, was its forfeiture for treason. 
 The taxes were collected either by the imprisonment of the 
 delinquent, the distress of his goods and chattels, or an exe- 
 cution against them out of the Exchequer. In modern times 
 the land tax is farmed out, with a clause of entry and 
 
INTRODUCTION. xliii 
 
 distress, and when these fail, resort is had to a suit in the 
 Exchequer, by the farmer of the revenue, and sometimes a 
 composition takes place between the land-owner and the gov- 
 ernment, and the tax is redeemed by the payment of a gross 
 sum. Thus the common law is a stranger to the power of 
 sale exercised in this country over landed estates, for the 
 non-payment of taxes assessed. Yet that law furnishes the 
 principles by which this new power is to be governed. It 
 is the chief excellence of the common law that it is flexible, 
 and constantly expands with the exigencies of society ; that 
 it applies to new combinations of circumstances those rules 
 which are derived from its fundamental principles. In the 
 language of Judge Story, " May it ever continue to flourish 
 here, for it is the law of liberty, and the watchful and inflexi- 
 ble guardian of private property and public rights." 
 
 Chicago, June, 1855. 
 
POWER TO SELL LAND 
 
 FOR NON-PAYMENT OF TAXES. 
 
 CHAPTER I. 
 
 OF THE FUNDAMENTAL PEINCIPLE8 WHICH CONTROL THE TAXING 
 
 POWER. 
 
 Taxes are defined to be burdens or charges imposed by the 
 legislative power of a State, upon persons or property, to raise 
 money for public purposes,^ and can be levied for public pur- 
 poses only, (a) 
 
 1 Overseers, &c., of Amenia v. Overseers, &c., of Stanford, 6 Johns. 92; Matter 
 of Mayor, &c., of New York, 11 id. 77 ; Bleecker v. Ballou, 3 Wend. 263. In a 
 narrower sense, and as opposed to " excise," a tax is " a charge apportioned 
 either among the whole people of the State, or those residing within certain dis- 
 tricts, municipalities, or sections ; " while an excise " is based on no rule of 
 apportionment or equality whatever," but is a fixed, absolute, and direct charge 
 laid on merchandise, products, or commodities without any regard to the amount 
 of property belonging to those on whom it may fall, or to any supposed relation 
 between money expended for a public object and a special benefit occasioned to 
 those by whom the charge is paid. Oliver v. Wash. Mills, 11 Allen, 274, 275. 
 For the distinction between a tax and an assessment, see State v. Mayor, 35 
 N. J. Law, 157; 36 id. 478; Peoria v. Kidder, 26 111. 351 ; Egyptian Levee Co. 
 V. Hardin, 27 Mo. 495; 50 Mo. 155; Eeeves v. Wood Co. 8 Ohio State, 833; 
 Lumsden v. Cross, 10 Wise. 282 ; Emery v. Gas Co. 28 Cal. 345 ; Walsh v. Mat- 
 thews, 29 Cal. 123; People v. Whyler, 41 Cal. 851; 2 Dill. Mun. Corp. sees. 
 599, 602, 617 ; Cooley's Const. Lim. 497. 
 
 (a) Grim v. Weissenberg School District, 57 Penn. St. 483 ; Broadhead v. 
 Milwaukee, 19 Wise. 652 ; People ex rel. v. Township Board of Salem, 20 Mich. 
 452 ; Same v. State Treasurer, 23 Mich. 499 ; Soens v. Racine, 10 Wise. 271 ; 
 Whiting V. Sheboygan R.R. Co. 25 Wise. 167 ; Curtis's Adra'r v. Wliipple, 24 
 Wise. 350 ; State ex rel. u. Tappan, 29 Wise. 664 ; National Bank of Cleveland v. 
 City of lola, 9 Kan. 689 ; Sharpless v. Mayor of Philadelphia, 21 Penn. St. 147 ; 
 
 1 
 
2 OF THE FUNDAMENTAL PRINCIPLES 
 
 There is a manifest distinction between the taxing power 
 and that of the eminent domain. Both, in effect, appropriate 
 private property to public uses. They differ only in degree. 
 But taxation exacts money from individuals, as their share of 
 a public burden ; and the tax-payer, according to the theory of 
 our system, receives a just compensation in the benefits con- 
 ferred by the government, in the proper application of the 
 tax.i 
 
 When, however, property is appropriated by virtue of the 
 right of eminent domain, it is taken, not as the owner's share of 
 a public burden, but as so much more than his share. Special 
 compensation is, therefore, to be made.^ The taxing power has 
 no existence in a state of nature. It is the creature of civil 
 society. Government begets its necessity. There must be in- 
 terwoven in the frame of every government a general power 
 * 2 of * taxation. Money is, with propriety, considered as the 
 vital principle of the body-politic ; as that which sustains 
 its life and motion, and enables it to perform its most essential 
 functions. A complete power, therefore, to procure a regu- 
 lar and adequate supply of revenue, as far as the resources of 
 the community will permit, may be regarded as an indispen- 
 sable ingredient in every constitution. From a deficiency in 
 this particular, one of two evils must necessarily ensue ; either 
 the people must be subjected to continual plunder, or the gov- 
 ernment must perish for want of revenue to support it.^ 
 
 It may therefore be laid down as a principle of universal 
 constitutional law, that the power to levy and collect taxes is 
 an incident of sovereignty, without which no government 
 could exercise the powers expressly delegated to it. (a) In 
 
 Commercial Bank v. City of lola, 2 Dill. C. C. 353 ; Gibson v. Mason, 5 Nev. 
 308 ; Cooley's Const. Lira. 129, 175, 487-495, and cases cited. 
 
 J Booth V. Woodbury, 32 Conn. 118 ; Griffin o. Dogan, 48 Miss. 20. 
 
 '^ The People ex rd. Griffin v. Tlie Mayor of Brooklyn, 4 Comst. 419 ; Booth 
 V. Woodbury, 32 Conn. 118 ; Griffin v. Dogan, supra. 
 
 3 Federalist, No. 30. 
 
 (a) A de facto government, able to maintain its supremacy by its arms, may 
 exercise the sovereign power of taxation ; but after it has assessed a tax, if it is 
 overthrown before the tax is collected, and the power of .the rightful sovereign 
 is re-established, the tax will not be enforced. O'Byrne v. Mayor, &c., of Savan- 
 nah, 41 Geo. 331. Under a constitutional provision restricting tlie jurisdiction 
 of the Supreme Court to original proceedings in quo warranto, mandamus, and 
 
WHICH CONTROL THE TAXING POWER. • 3 
 
 vain have the people, in their primary capacity, established 
 government, and armed it with legislative, judicial, and execu- 
 tive powers, unless the means of performing these functions 
 have also been granted to the government, either expressly 
 or by implication. In the Federal Constitution there is an 
 express grant to Congress, of the power to " levy and collect 
 taxes." The State constitutions do not confer this power 
 upon the legislature by any specific clause ; ^ it passes under 
 the general designation of " legislative power." It is im- 
 plied, upon the principle, that a grant of legislative, judicial, 
 and executive powers, carries with it, by construction, all the 
 means necessary for their execution. It is also implied from 
 the limitations to be found in the several State constitutions, 
 as to the manner of levjdng' taxes. The power of taxation 
 operates upon all persons and property within the territorial 
 jurisdiction of a State. There is no limitation upon the power 
 of the legislature, as to the amount or objects of taxation. 
 The interest, wisdom, and justice of the representative body, 
 and its relation with its constituents, furnish the only se- 
 curity against unjust and excessive taxation. These 
 * principles are fully sustained by the authorities.^ Such * 3 
 is the nature, necessity, and extent of the taxing power. 
 
 habeas corpus, and such appellate jurisdiction as may be provided by law, held, 
 that appellate jurisdiction can only be given where there has been a decision by 
 one clothed with judicial authority, and acting in a judicial capacity when 
 making the decision ; that the power to tax is a legislative power, and not in 
 any sense judicial; that the valuation of property for purposes of taxation is an 
 incidept to the taxing power, and therefore not such judicial power as can be 
 conferred upon the Supreme Court ; and therefore sec. 11 of chap. 124 of the 
 Laws of 1869, giving said court jurisdiction to hear appeals from the Board of 
 County Clerks in the appraisal of property of railroads for the purpose of 
 taxation, is unconstitutional. Auditor v. Atchison, Topeka, & Santa Fe E.R. 
 Co. 6 Kan. 500. 
 
 1 This statement does not apply to all the States. Thus the Constitution of 
 Massachusetts contains an express grant to the legislature of power " to impose 
 and levy proportional and reasonable assessments, rates, and taxes, upon all the 
 inhabitants of, and persons resident and estates lying within, the said Common- 
 wealth." See also Art. XIV. Const, of iMich. 1 Comp. Laws of 1871, p. 73. 
 
 2 Providence Bank v. Billings, 4 Pet. 514 ; Brewster v. Hough, 10 N. H. 138 ; 
 Mack V. Jones, 1 Foster, 393 ; See also Lowell v. Oliver, 8 Allen, 247 ; People v. 
 Haws, 34 Barb. 69 ; People ex rel. Blanding v. Burr, 18 Cal. 343; Soens v. Kacine, 
 10 Wise. 271 ; Oliver v. Wash. Mills, 11 Allen, 268; Gibson v. Mason, 5 Nev. 
 283; Osborne v. Mayor, &c. 44 Ala. 493; Stockton & VisaUa K.K. Co. u. Com- 
 
4 OP THE FUNDAMENTAL PRINCIPLES 
 
 Let US now proceed to an examination of those limitations 
 imposed upon the legislature, as to the manner of levying and 
 collecting taxes. One of the reasons assigned by a great 
 lawyer and statesman, in justification of the grant of an ade- 
 quate taxing power to every government, is the protection of 
 the citizen from the " continual plunder " to which he would 
 otherwise be subjected by the wants of the government, and 
 the rapacity of the public agents.^ It is not to be presumed, 
 therefore, that the people of this country, in framing their gov- 
 ernments, designed, while conferring the taxing power for the 
 express purpose of preventing the indiscriminate plunder of 
 their property by public agents, to legalize a system by which 
 the very evil they intended to guard against might finally pre- 
 vail. Besides, one of the great ends of government is the 
 protection of private property, which, in a state of nature, was 
 held by a precarious tenure, and liable to constant invasion by 
 superior force. It would not, therefore, be reasonable to sup- 
 pose that the citizen, in entering into a governmental compact 
 for the purpose of appealing to the strong arm of constitutional 
 law, when his rights of property were invaded, intended to 
 confer an arbitrary power of taxation upon the government, in 
 the exercise of which his property would be rendered equally 
 insecure as in the natural state. He would gain nothing by 
 such a compact ; true, he would have a security against the 
 force and fraud of his neighbors, but would thereby become a 
 prey to the passions of the entire community, acting under 
 color of a written constitution. Such a view of the constitution 
 of a free people would render it a mere license to governmental 
 plunder. Happily for the people, the power of taxation which 
 
 they have delegated to their government, is not an arbi- 
 * 4 trary * one, but limited by the words and " spirit of the 
 
 Constitution," (a) and the principles of natural justice. 
 
 Under the Federal Constitution, all revenue bills must 
 
 originate in the popular branch of Congress ; direct taxes must 
 
 mon Council of Stockton, 41 Cal. 147 ; Beals v. Board of Supervisors of Amador 
 County, 35 Cal. 624. 
 
 1 Federalist, No. 30. 
 
 (a) As to the "spirit of the constitution" not being an interdiction upon 
 legislative power, see Patterson y. Yuba County, 13 Cal. 182; Stockton & 
 Visalia E.R. Co. v. Stockton, 41 Cal. 162. 
 
WHICH CONTROL THE TAXING POWER. 5 
 
 be apportioned among the States, according to their respective 
 numbers, to be determined by adding to the whole number of 
 free persons (including those bound to service for a term of 
 years, and excluding Indians not taxed), three-fifths of all 
 other persons ; taxes can be laid only for the purpose of pay- 
 ing the debts, and providing for the common defence and gen- 
 eral welfare of the United States ; no direct tax can be levied 
 unless in proportion to the enumeration of persons as con- 
 tained in the census, directed to be taken by the Constitution. 
 In some of the States, all, and in others many, of the follow- 
 ing limitations are imposed upon the taxing power. No tax 
 can be levied, under any pretence whatever, without the 
 consent of the people or their representatives. Revenue bills 
 must originate in the lower branch of the legislature. Taxes 
 can be levied and collected only for public purposes ; this is 
 also implied from the very definition of the tax. (a) The levy 
 must be a reasonable one. The mode of levying the tax is 
 directed to be by valuation, so that every person shall pay a 
 tax in proportion to the value of his estate. In order to pro- 
 duce equality in the assessments, new valuations of property 
 shall be taken at stated periods. No one species of property 
 shall be taxed higher than another of equal value. In some 
 of the States by constitution, in others by ordinance or com- 
 pact, the lands of non-resident proprietors cannot be taxed 
 higher than lands belonging to residents of the State ; and it 
 has been held by the Supreme Court of Alabama, that the 
 clause in the Federal Constitution, which declares that " the 
 citizens of each State shall be entitled to all of the privileges 
 and immunities of citizens of the several States," forbade the 
 legislature of that State from imposing a higher tax upon the 
 property of non-residents than, by the general laws, were 
 imposed upon residents.^ To * prevent the moneys raised * 5 
 by taxation from being squandered, and thereby create the 
 necessity for a new levy, it is declared that no money shall be 
 drawn from the treasury but in consequence of appropriations 
 
 1- "Wiley V. Parmer, 14 Ala. 627. See Corfield v. Coryell, i Wash. C. C. 380, 
 381 ; Campbell v. Morris, 3 Har. & McH. 535, 554 ; Crandall v. State, 10 Conn. 
 343 ; Oliver v. Wash. Mills, 11 Allen, 268, 281 ; Scott v. Watkins, 22 Ark. 564.- 
 
 (a) See authorities cited on p. 1, note (o). 
 
6 OP THE FUNDAMENTAL PRINCIPLES 
 
 made by law ; and, that the people may keep watch of their 
 agents, it is further provided that accurate statements of the 
 public receipts and expenditures shall be attached to and pub- 
 lished with the laws, at the end of each session of the legis- 
 lature. Such are the positive restrictions which the people, 
 in the exercise of their inherent sovereignty, have seen proper 
 to impose upon, the taxing power of their representatives. 
 
 By compact made between the Federal Government and 
 some of the new Statfes, it is expressly stipulated that bounty 
 lands granted, or to be granted, by the United States for mili- 
 tary services, shall, while they continue the property of the 
 soldier or his heirs, be exempt from taxation for the term of 
 three years from the date of the patent ; (a) and that all lands 
 sold by the United States shall be exempt from taxation for 
 the period of five years from and after the day of sale. Re- 
 strictions imposed by the Federal Constitution upon the taxing 
 power of the States may be noticed in this connection. The 
 public domain of the United States cannot be taxed by the 
 States in which they lie ; ^ nor can lands, purchased by the 
 
 1 Hall V. Bowling, 18 Cal. 619 ; McGoon v. Scales, 9 Wal. 23. But after sale, 
 payment of price, and issue of certificate, it may be taxed, though patent has not 
 been issued. People u. Shearer, 30 Cal. 045 ; Witherspoon v. Duncan, 21 Ark. 
 240 ; B. c. 4 Wal. 210 ; Carrol u. SaflFord, 3 How. (U. S.) 441 ; Astrom v. Ham- 
 mond, 3 McLean, 107. But occupation by a pre-emptioner, without payment, is 
 not sufficient to subject the land to tax. People v. Shearer, ubi sup. See Pitts 
 V. Booth, 15 Texas, 453. In California it is held, that improTeraents, though made 
 by one occupying without license, may be taxed. People v. Shearer, ubi sup. But 
 see Parker v. Winsor, 5 Kan. 375, holding that " improvements " are a part of 
 the real estate, and that the statute providing that certain improvements shall be 
 " taxed as personal property " means simply that they shall be taxed in the same 
 manner as personal property is taxed, but does not mean that the improvements 
 shall be personal property, it being beyond the power of the legislature to make 
 such a change, and that when the land is exempt from taxation the improvements 
 thereon are not taxable. But see 1 Wash. Ter. 198. And the " claim to and 
 possession of " land of the United States has been held to be taxable property. 
 People V. Cohen, 31 Cal. 210 ; Reily v. Lancaster, 39 Cal. 354 ; People i'. Frlsbie, 
 31 Cal. 146. Thus the possessory claim of miners is held to be taxable. Hale, &c., 
 Co. v. Storey County, 1 Nev. 104 ; State v. Moore, 12 Cal. 56 ; People v. Shearer, 
 supra; People v. Mining Co. 37 Cah 54. See cases cited on p. * 411. 
 
 (a) In the People ex rel. Throop v. Auditor General, 9 Mich. 134, it was hdd, 
 that this language being clear and unambiguous must be applied precisely 
 according to its tenor, and cannot be held to mean three years from the location 
 of the land ; and, where lands thus exempt have been taxed, the Auditor General 
 may be compelled by mandamus to reject the taxes thereon on the application 
 of the owner. See also Fisher v. Wisner, 34 Iowa, 447. 
 
WHICH CONTROL THE TAXING POWER. 7 
 
 Government of the Union, with the assent of the State, for 
 the erection of forts, magazines, arsenals, dock-yards, mints, 
 post-offices, court and custom houses, and other needful build- 
 ings, which may be necessary in carrying into effect the powers 
 intrusted to the Federal Government.^ This would be tax- 
 ing the means employed by the General Government in the 
 execution of its acknowledged powers. Besides, " exclusive 
 legislation " is granted to Congress by the Constitution, over 
 all such places as may be ceded by the States to the General 
 Government, or may be purchased by the latter, with the con- 
 sent of the States.^ The last class of limitations upon the 
 taxing power, as to the manner of levying the tax, are 
 those which * have their foundation in natural justice. * 6 
 That such exist is clearly established by the authori- 
 ties.® 
 
 It is a fundamental principle in our government and laws, 
 that individuals are protected in the enjoyment of their prop- 
 erty, except so far as it may be taken in one of two ways, viz., 
 as a public tax, upon principles of just equality, or for public 
 use, with a just compensation, ascertained according to the 
 provisions of the Constitution. As money is property, the 
 collection of every tax is taking property from the citizen, and 
 to be legal, must be referrible to one of the two modes above 
 mentioned. The principle of just equality, is, therefore, the 
 governing one by which the validity of every tax levied by the 
 legislature is to be determined. This equality can be secured 
 only by uniformity in levying the tax, and a periodical valua- 
 tion of the estate of every citizen. If the tax is laid to raise a 
 revenue for the expenses of the State, it should be laid equally 
 upon all the property in the State, (a) The legislature have not 
 
 ' 1 Opinions of Attorney-General, 620 ; 5 id. 316 ; Opinion of Justices, 1 Mete. 
 580. 
 
 2 4 Wheat. 316 ; 9 Wlieat. 738. 
 
 3 5 Dana, 31 ; 9 Dana, 516 ; 4 N. H. 556 ; 6 Har. & J. 382, 383 ; 6 Barb. 209 ; 
 20 Micli. 474. See Piiila. Assn. w Wood, 89 Penn. St. 73. 
 
 (a) For a more full discussion of the princi^i e of equality and uniformity of 
 taxation under various State constitutions, see the following cases : Broadway 
 Baptist Church v. McAttee, 8 Bush (Ky.), 508; Stinson w. Smith, 8 Minn. 372 ; 
 Sanborn ■.. Eice County, 9 Minn. 273 ; Conner v. Tolsom, 13 Minn. 219 ; Hol- 
 brook V. Dickinson, 46 111. 285; Chicago v. Lamed, 34 111. 203; Ottawa v. 
 Spencer, 40 111. 211; Primm v. City of Bellville, 59 111. 142; County Court of 
 
8 OP THE FUNDAMENTAL PRINCIPLES 
 
 the power to exact from a single individual, or class of citizens, 
 or a single county, city, or town, the means of defraying the 
 entire expenses of the State ; for if this could be done, the 
 constitutional prohibition could be evaded in all cases, and 
 the legislature could take private property for public use, 
 without compensation, under the vague and indefinite pre- 
 tence of taxation. 
 
 The distinction between constitutional taxation, and the 
 taking of private property for public use, by legislative power, 
 may not be definable with perfect precision. But it is clear, 
 that whenever the property of a citizen shall be taken from him 
 by the sovereign will, and appropriated, without his con- 
 sent, for the benefit of the public, the exaction should not be 
 considered as a tax, unless similar contributions be made by that 
 public itself ; or rather, shall be exacted by the same public will, 
 from such constituent members of the same community 
 * 7 generally, as own the same kind of property. This is * in 
 accordance with the well-known maxim, that a common 
 burden shall be sustained by a common contribution, (a) The 
 ascertainment of the value of all the property in the State or 
 district where the tax is to be levied is essentially necessary 
 to enable the taxing power to make such an assessment as 
 the wants of the State or district may require, to apportion it 
 among all the citizens of the State or district, and compel 
 
 Madison County v. People, 58 111. 456 ; McVeagh „. Chicago, 49 111. 318 ; Dun- 
 ham V. Chicago, 55 III. 357 ; Darling v. Gunn, 50 111. 424 ; Duc^t v. Chicago, 
 48 111. 172; Board of Supervisors v. Chicago, Burlington, & Quincy R.R. Co. 
 44 111. 229 ; Chicago & Northwestern R.K. Co. ... Board of Supervisors, 44 111. 
 240 ; People v. Wliyler, 41 Cal. 351 ; Crosby v. Lyon, 37 Cal. 242 ; Fletcher v. 
 Oliver, 25 Ark. 289 ; City of Augusta v. National Bank of Augusta, 47 Geo. 
 562 ; Kenny v. Harwell, 42 Geo. 416 ; Burch v. Savannah, 42 Geo. 596 ; Liv- 
 ingston V. Albany, 41 Geo. 21 ; Hale v. Kenosha, 29 Wise. 599 ; Daily v. Swope, 
 47 Miss. 367 ; Muscatine v. Miss. & Mo. K.R. Co. 1 Dill. C. C. 536 ; Glasgow 
 V. Eowse, 43 Mo. 489 ; Bright u. McCuUough, 27 Ind. 223 ; Howell o. Bristol, 
 8 Bush, 493 ; High v. Shoemaker, 22 Cal. 363 ; Yasser v. George, 47 Miss. 713. 
 See p. * 106, note. See also Ferguson v. Landram, 1 Bush, 548, holding that 
 no State can tax her own citizens for aiding or opposing the prosecution of a 
 national war for which they have been or are liable to be taxed by the general 
 government. 
 
 (a) Apportionment of the burden is a necessary element in all taxation, and 
 any attempt at the exercise of this power without it is absolutely void. Motz v, 
 Detroit, 18 Mich. 495. See also Woodbridge v. Detroit, 8 Mich. 274. 
 
WHICH CONTROL THE TAXING POWER. 9 
 
 all to share equally in the common burden. Such are the 
 principles by which the legislative power in this country is 
 controlled in the levy of taxes, as laid down by all of the 
 authorities. The difficulty seems to lie in their application to 
 the facts of each particular case. We shall content ourselves 
 with a reference to the adjudged cases, without attempting to 
 reconcile them with each other.^ Thus, in the language of 
 Chancellor Kent : " It is not sufficient that no tax can be 
 imposed on the citizens but by their representatives in the 
 legislature. The citizens are entitled to require that the 
 legislature itself shall cause all public taxation to be fair 
 and equal in proportion to the value of property, so that 
 no one class of individuals, and no one species of property, may 
 be unequally or unduly assessed." ^ 
 
 1 6 Barb. 209; 5 Dana, 31; 9 id. 516; 4 N. H. 565; 6 Har. & J. 382, 383; 
 4 Comst. 419. 
 
 2 2 Kent's Com. 331. See note (a), p. 6. A tax cannot be imposed exclu- 
 sively on any subdivision of the State to raise money for any purpose not 
 peculiarly for its benefit. Sanborn v. Rice County, 9 Minn. 273. Tiiat a tax 
 for a special purpose, leviable exclusively on real estate in a city, is void as 
 discriminating in favor of personal property, see Gilman v. Sheboygan, 2 Black 
 (U. S.), 510. That the legislature has no power to exempt from taxes, but 
 may commute, see Hunsaker v. Wright, 30 111. 146 ; Daughdrill v. Life Ins. Co. 
 31 Ala. 91 ; O'Kane v. Treat, 25 111. 557. But see Jefferson Bank v. Skelly, 
 
 1 Black (U. S.), 436 ; People v. Colman, 4 Cal. 46. The legislature cannot set 
 aside any race as special objects of taxation. Lin Sing v. Washburn, 20 Cal. 
 534. Nor provide unequal rates of taxation of property. Kuowlton u. Super- 
 visors, 9 Wise. 410; Attorney-Gen. v. Plank Boad, 11 Wise. 35. Nor provide 
 different processes of collection for different individuals. MeComb v. Bell, 
 
 2 Minn. 295. 
 
 As to the constitutionality of local and special assessments and betterment 
 laws, see Dorgan v. Boston, 12 Allen, 228; Hill v. Higdon, 5 Ohio (s. s.), 243; 
 Beeves v. Wood County, 8 id. (n. s.) 333 ; Northern R.R. v. Connelly, 10 id. 
 (n. s.) 159 ; Maloy v. Marietta, 11 id. (n. s.) 636 ; Thompson v. Treasurer, 11 id. 
 {n. s.) 678 ; Burnett v. Sacramento, 12 Cal. 76 ; Creighton v. Manson, 27 id. 613 ; 
 Emery v. Gas Co. 28 id. 345 ; Walsh v. Matthews, 29 id. 123 ; Egyptian Levee 
 Co. V. Hardin, 27 Mo. 495 ; St. Joseph v. Anthony, 30 id. 537 ; St. Joseph v. 
 O'Donoghue, 31 id. 345 ; Skinner v. Huttbu, 33 id. 244 ; State v. N. O. Nav. Co. 
 11 Martin (La.), 309; Wallace v. Shelton, 14 La. Ann. 498; Bishop <-. Marks, 
 15 id. 147 ; State v. New Orleans, 15 id. 354 ; In matter of Dorrance St. 4 R. I. 
 255; Anderson v. Kerns Co. 14 Ind. 199 ; Webster v. Alton, 9 Foster (N. H.), 
 369 ; Nichols v. Bridgeport, 23 Conn. 189 ; Brewster v. Syracuse, 19 N. Y. 116 ; 
 In matter of New York Schools, 31 id. 574; People v. Lawrence, 36 Barb. 177; 
 State V. Jersey City, 4 Zab! (N. J.) 662 ; Miller v. Craig, 3 Stockt. 175 ; Schenley 
 V. Alleghany, 25 Penn. 128 ; Magee v. Commonwealth, 46 id. 358 ; Wray v. 
 Pittsburg, 46 id. 365; Methodist Ch. v. Baltimore, 6 Gill (Md.), 391 ; Case of 
 
10 OF THE FUNDAMENTAL PRINCIPLES 
 
 Before treating of the rules which govern the courts in the 
 construction of a class of statutes by which rights of property 
 are affected, it may not be deemed inappropriate to consider 
 the principles by which legislative power is controlled in this 
 country. These principles are to be foun4 in our written con- 
 stitutions, and are deducible in a threefold manner : 1. From 
 the declared ends of government. 2. From the particular pro- 
 visions of the Constitution. 3. From the structure of the gov- 
 ernment itself. In discussing this subject, we shall refer to 
 the Constitution of Illinois, because it is more familiar to us, 
 while at the same time, it is substantially like that of every 
 * 8 other State in the Union. The thirteenth article of that * in- 
 strument, in order " that the general, great, and essential 
 principles of liberty and free government may be recognized 
 and unalterably established," proceeds to declare: 1. "That all 
 men are born equally free and independent, and have certain 
 inherent and indefeasible rights, among which are those of 
 enjoying and defending life and liberty, and of acquiring, 
 possessing, and protecting property and reputation, and of pur- 
 suing their own happiness." 2. " That all power is inherent 
 in the people, and all free governments are founded on their 
 authority, and institutedfor their peace, safety, and happiness." 
 It will be seen, on a critical examination of these provisions, 
 that seven great and essential principles are declared : 1. That 
 all men are created free and independent. 2. That they 
 possess the rights of life, liberty, reputation, and property, 
 independent of human laws. 3. That these rights are inde- 
 feasible in their nature. 4. That all power is inherent in the 
 people at large. 5. That human government is founded upon 
 their authority. 6. That government is instituted for their 
 security. 7. That the only end of government is the preserva- 
 tion and perpetuation of these inherent powers and rights. 
 
 County Levy, 5 Call (Va.), 139 ; Lockhart v. Harrington, 1 Hawks (N. C), 408 ; 
 Winn V. Macon, 21 Geo. 275 ; Stein v. Mobile, 24 Ala. 591 ; Williams v. Cammack, 
 27 Miss. 219; Alcorn o. Hamer, 38 id. 652 ; Woodbridge v. Detroit, 8 Mich. 274; 
 Shaw V. Dennis, 5 Gilm. (111.) 405; Peoria v. Kidder, 26 111. 351; Ottawa v. 
 Spencer, 40 111. 211; Nichol v. Nashville, 9 Humph. (Tenn.) 252; Soens v. 
 Bacine, 10 Wise. 271 ; Lumsden v. Cross, 10 id. 282; Bond v. Kenosha, 17 id. 
 284 ; Stinson v. Smith, 8 Minn. 366 ; Burnes v. Atchison, 2 Kan. 454 ; Hines v. 
 Leavenworth, 8 id. 186. 
 
WHICH CONTROL THE TAXING POWER. 11 
 
 They all affirm the great truth, that " rights are from nat- 
 ure, while titles and remedies are the invention of society." ^ 
 The Hon. Edward Bates, now Judge of the Land Court in 
 St. Louis, in his argument in the case of Hamilton v. The St. 
 Louis County Court,^ thus enforces this position : " What is 
 a constitution, and what are its objects ? It is easier to tell 
 what it is not, than what it is. It is not the beginning of a 
 community, nor the origin of private rights ; it is not the 
 fountain of law, nor the incipient state of government ; it is 
 not the cause, but consequence of personal and political free- 
 dom ; it grants no rights to the people, but is the creature of 
 their power, the instrument of their convenience, designed 
 for their protection in the enjoyment of the rights and powers 
 which they possessed before the constitution was made ; 
 it is but the framework of *the political government, *9 
 and necessarily based upon the pre-existing condition of 
 laws, rights, habits, and modes of thought. There is nothing 
 primitive in it ; it is all derived from a known source. It 
 presupposes an organized society, law, order, property, per- 
 sonal freedom, a love of political liberty, and enough of cul- 
 tivated intelligence to know how to guard it against the 
 encroachments of tyranny. A written constitution is, in 
 every instance, a limitation upon the powers of government, 
 in the hands of agents, for there never was a written republi- 
 can constitution which delegated to functionaries all the 
 latent powers which lie dormant in every nation, and are 
 boundless in extent, and incapable of definition. Our con- 
 stitution, in express terms, acknowledges and continues in 
 force all former rights, laws, offices, and functions of office." 
 
 A similar recognition of existing rights is to be found in 
 most of our constitutions. It is a simple affirmation of a 
 principle of natural justice, that revolutionary and peaceable 
 changes in tbe form of government do not overturn the es- 
 tablished rights, duties, and obligations which may have 
 been acquired or created prior to the change.^ Nor has a 
 conquest any such effect.* Rights and obligations depend 
 
 1 Judge Pope, in Arrowsmith v. Burlingame, 4 McLean, 497. 
 
 2 15 Mo. 13, 14. 3 9 Cranch, 43; 4 Wheat. 518. 
 4 8 Wheat. 588; 1 Pet. 542; 7 Pet. 51; 12 Pet. 410. 
 
12 OF THE FUNDAMENTAL PRINCIPLES 
 
 upon the natural law for their existence. Force was the 
 ■vital principle of society in a state of nature. This led to 
 violence and bloodshed. Peace and civilization demanded a 
 substitute. This superinduced government, the theory of 
 which is the surrender of remedies into the hands of the 
 chosen agents of the people at large. It thereupon became 
 the duty of the society to provide remedies for the enforce- 
 ment of everj' right, and the redress of every wrong. This 
 was done by the organization of a government, divided 
 into three great departments, in each of which such portions 
 of the sovereign power was lodged as was deemed necessary 
 to effect this object. The legislature have power to prescribe 
 
 general rules for the government of society ; the courts 
 * 10 are empowered to expound and apply these rules to the 
 
 facts of each individual case ; and the executive power 
 enforces the sentence of the law. It would seem therefore 
 to be the duty of government, to regulate the mode of acqui- 
 sition and transfer of property, to declare what should be 
 evidence of the owner's right, and to furnish him with a 
 remedy to enforce it. 
 
 It follows, of necessity, that neither the whole govern- 
 ment, nor any department thereof, has an inherent power; 
 that it can rightfully exercise such powers only as have been 
 delegated to it by the people, in their written constitution ; 
 and that these powers are to be exercised in subservience to, 
 and not in subversion of, the declared ends of governinent. 
 We must, therefore, look to the constitution itself to ascer- 
 tain what power is delegated to the government, and each of 
 its departments. That constitution declares that " the legis- 
 lative authority of this State shall be vested in a General 
 Assembly, which shall consist of a Senate and House of 
 Representatives, both to be elected by the people;" that 
 " the executive power of the State shall be vested in a gover- 
 nor ; " and that " the judicial power of this State shall be, 
 and is hereby, vested in one supreme court, in circuit courts, 
 in county courts, and in justices of the peace." These are 
 all of the powers which the people have delegated to the 
 government. They constitute together the power to make, 
 apply, and execute laws. But they are held by the govern- 
 
WHICH CONTROL THE TAXING POWER. 13 
 
 ment in trust, to be exercised for the protection, and not 
 destruction, of the rights of life, liberty, reputation, and 
 property. This simple limitation, resulting from the declared 
 ends of the government, if faithfully observed, would be a 
 sufficient guarantee against governmental wrong. 
 
 But the people, in the abundance of their caution, have 
 thought proper to impose many specific limitations on these 
 general powers of the government, for the purpose of more 
 effectually protecting the life, liberty, reputation, and prop- 
 erty of the citizen. Those relating to the security of life, 
 liberty, and reputation may be thus enumerated. No ex post 
 facto law shall ever be passed. No person shall, for the 
 same offence, * be twice put in jeopardy. No person * 11 
 shall be held to answer for any criminal offence, unless 
 on the indictment, or presentment, of a grand jury. No 
 person shall be compelled to give evidence against himself. 
 General warrants to search or seize a citizen are prohibited. 
 In all criminal prosecutions the accused has a right to be 
 heard, by himself and counsel ; to demand the nature and 
 cause of the accusation against him ; to confront the wit- 
 nesses against him; to have compulsory process to compel 
 the attendance of witnesses in his favor; and to a speedy 
 public trial, by an impartial jury of the vicinage. All per- 
 sons shall be bailable by sufficient sureties. Excessive bail 
 shall not be demanded. All penalties shall be proportioned 
 to the nature of the offence. No person shall be transported 
 out of the State. No person shall be imprisoned for debt. 
 There shall be neither slavery nor involuntary servitude in 
 this State. Every citizen may freely speak, write, and print 
 on any subject, being responsible for the abuse of that liberty. 
 The pardoning power is vested in the executive ; and the 
 privilege of the writ of habeas corpus is secured. 
 
 The specific limitations in favor of property are as follows : 
 Private property shall not be taken for public use without 
 just compensation. All taxes shall be levied by valuation of 
 estates. The obligation of contracts shall remain inviolate. 
 No conviction for crime shall work a forfeiture of estate, or 
 corruption of blood. No soldier shall be quartered upon the 
 citizen. The people shall be secure in their houses, papers. 
 
14 OF THE FUNDAMENTAL PEINCIPLES 
 
 and possessions from unreasonable searches. Besides the 
 foregoing, there are three additional guarantees in favor 
 of the rights of the citizen: 1. "No freeman • shall be im- 
 prisoned, or disseised of his freehold, liberties, or privileges, 
 or outlawed, or exiled, or in any manner deprived of his life, 
 liberty, or property, but by the judgment op his peees, or 
 THE LAW op the LAND." 2. "Every person in this State 
 ought to iind a certain remedy in the laws, for all injuries or 
 wrongs which he may receive in his person, property, or 
 character; he ought to obtain justice freely, and without 
 
 being obliged to purchase it, completely and without 
 * 12 denial, promptly and without delay, * conformably to 
 
 the laws ; " and 3. " The right of trial by jury shall 
 remain inviolate." 
 
 Such are the specific limitations and guarantees of the 
 Constitution, in favor of life, liberty, reputation, and prop- 
 erty ; and for the purpose of keeping them in the constant 
 view of the people, and every branch of the government they 
 have instituted, it is emphatically declared, " That a frequent 
 recurrence to the fundamental principles of civil government, 
 is absolutely necessary to preserve the blessings of liberty." 
 These provisions, and the declared ends of the government, 
 would seem to afford ample security to the rights of indi- 
 viduals, at least so far as they can be secured by mere paper 
 declarations. But experience has abundantly proven, that 
 mere declarations of rights and restrictions of power afford, 
 of themselves, but feeble security against the abuse of govern- 
 mental authority. Sir William Blackstone, after treating of 
 the absolute rights of individuals, as defined and protected 
 by the laws of England, says, " In vain would these rights 
 be declared, ascertained, and protected by the dead letter of 
 the laws, if the Constitution had provided no other method 
 to secure their actual enjoyment. It has, therefore, estab- 
 lished certain other auxiliary subordinate rights of the 
 subject, which serve principally as outworks or barriers, to 
 protect and maintain inviolate the three great and primary 
 rights of personal security, personal libertj', and private 
 property." ^ 
 
 1 1 Blackstone's Com. 140. 
 
WHICH CONTROL THE TAXING POWER. 15 
 
 The people of the United States have, in their constitu- 
 tions, done the same thing, with this essential difference, that 
 the outworks and barriers erected for the protection of these 
 primary rights, are much more complete and perfect than 
 those of the British Constitution. These rights are defined 
 and declared in our constitutions, substantially as they are 
 by the common law, but with us the declaration of rights is 
 absolutely binding upon the government, and every depart- 
 ment thereof, while in England they do not bind the govern- 
 ment. There the practical maxim is, that Parliament is 
 omnipotent, (a) and the only guarantee the subject has 
 against legislative aggression is in * the organization of * 13 
 Parliament, and in the individual responsibility of the 
 members of the popular branch to their constituents. In 
 this country we have an appeal to an independent and im- 
 partial judiciary, who will bring legislative acts to the test of 
 the Constitution, and, if found to be in violation of that 
 instrument, will arrest their progress, by declaring them 
 unconstitutional and void, before they reach their intended 
 victims. This doctrine, though seriously resisted at first, is 
 now the settled law of the land, and familiar to all. (5) The 
 reasoning in support of it is unanswerable. All power is 
 inherent in the people. The Constitution is the form of 
 government instituted by them in their sovereign capacity, in 
 which first principles are laid down, and fundamental laws 
 established. It is the supreme, permanent, and fixed will of 
 the people, in their original, unlimited, and sovereign capac- 
 ity. In it the inherent rights of the citizen are recognized, 
 and the obligation and duty of the entire community to pro- 
 tect and preserve them inviolate, are specifically provided 
 for. It is the power of attorney of the people to their ser- 
 vants and agents, — the government of the State. From the 
 decrees of the Constitution there can be no appeal, for it 
 emanates from the highest source of human power. An act 
 of the legislature is the will of the people, in a derivative and 
 subordinate capacity. The Constitution is the commission of 
 
 (a) Cooley'8 Const. Lira. 3, 4, 86, 175. 
 
 (6) For a full discussion of this subject, see Cooley's Const. Lim. p.l59 et seq., 
 and note (3), p. 160. 
 
16 ■ OF THE FUNDAMENTAL PRINCIPLES 
 
 the legislative body, and that body must act within the pale 
 of its authority ; and all of its acts contrary to, or in violation 
 of, the constitutional charter, are absolutely void. The 
 supremacy of the Constitution over ordinary laws is the great 
 reason why the latter should give way when inconsistent with 
 the former. The oath of fealty taken by every officer of the 
 government, demands, at the hands of the judges, an adher- 
 ence to the fundamental law. 
 
 Besides, the Constitution is a law to which every citizen is a 
 party, but acts of the legislature are but the will of a majority 
 of the community. To make them binding upon the minority, 
 they must be in conformity with the principles of the Constitu- 
 tion ; to the adoption and continuance of which every one 
 * 14 is * presumed to have assented. If the legislature, in 
 the exercise of an unlimited discretionary power, can 
 overleap the barriers of the Constitution, and put at defiance 
 the fundamental principles of the government, then our 
 boasted freedom and independence is all a mere delusion, — 
 ana instead of looking up to the fabric of our political institu- 
 tions with reverence, as the means of establishing an immense 
 empire, in which freedom and the rights of man shall be 
 understood and maintained, the government of the law only 
 acknowledged, and the eternal principles of justice secured 
 to all, we shall, in the language of a distinguished statesman, 
 " be called upon to curse our revolution as a great fountain 
 of discord, violence, and injustice."^ In the language of 
 Chief Justice Gibson : " It is idle to say that the authority of 
 each branch of the government is defined and limited in the 
 Constitution, if there be not an independent power able and 
 willing to enforce the limitations. Experience proves that 
 the Constitution is thoughtlessly, but habitually, violated; 
 and the sacrifice of individual rights is too remotely con- 
 nected with the objects and contests of the masses to attract 
 their attention. From its very position, it is apparent that 
 the conservative power is lodged in the judiciary, which, 
 in the exercise of its undoubted rights, is bound to meet 
 every emergency; else causes would be decided not only 
 
 1 Runnels v. State, 1 Miss. (Walker) 147; Phebe v. Jay, Breese, 209; Mar- 
 bury V. Madison, 1 Cranch, 137. 
 
WHICH CONTROL THE TAXING POWER. 17 
 
 by the legislature, but sometimes without hearing or evi- 
 dence."^ 
 
 In the election, qualification, and organization, of the vari- 
 ous officers which constitute the several departments of the 
 government, our constitutions are also more complete than in 
 the English system. Here, the people elect all of their offi- 
 cers. In England, most of the important offices are held 
 independently of the people. But the great advantage of 
 ours over the British Constitution, consists in the division of 
 the government into separate, independent, and co-ordi- 
 nate departments, and * the consequent limitation of * 15 
 legislative power. As a practical idea, this is purely 
 American. It is the great feature which distinguishes ours 
 from every other government. In all others the theory is, 
 that the legislative authority is supreme and despotic, abso- 
 lutely incapable of limitation ; consequently, that an act 
 passed with the usual solemnities, however oppressive and 
 unjust it may be, is absolutely obligatory, and must be 
 obeyed. This distributive feature of our government, as 
 it is deemed the most important of any, is the only out- 
 work or barrier established by the Constitution against gov- 
 ernmental abuse of power, which we propose to consider 
 minutely. 
 
 The Constitution of Illinois sets out with this declaration : 
 " The powers of the government shall be divided into three 
 distinct departments, and each of them be confided to a sepa- 
 rate body of magistracy ; those which are legislative to one, 
 those which are executive to another, and those which are 
 judicial to the third." The principle thus established is 
 carried out in detail by the organization of a general assem- 
 bly, consisting of a senate and house of representatives, 
 and investing it with the legislative power of the State ; 
 by the organization of an executive department, called the 
 governor, in which the executive power of the State is 
 lodged ; and by the organization of supreme and inferior 
 courts, to whom the judicial power of the State is dele- 
 gated. The Constitution then limits the power of each of 
 these great departments as heretofore shown, and declares, 
 
 1 De Chastelleux v. Fairchild, 15 Penn. 18. 
 2 
 
18 OP THE FUNDAMENTAL PRINCIPLES 
 
 in the most explicit language, " that no person, or collection 
 of persons, being one of these departments, shall exercise 
 any power properly belonging to either of the others, except 
 as hereinafter expressly directed or permitted, and all acts 
 in contravention of this section shall be void." 
 
 It will be perceived, by a careful analysis of the whole in- 
 strument, and the above sections, that all legislative power is 
 vested in the general assembly ; that the whole judicial power 
 which the people intended to grant, is vested in the courts, and 
 that every executive function of the government is vested 
 in the governor. This is to be understood subject to 
 * 16 the * exceptions expressly enumerated in the Constitu- 
 tion which serve as an additional proof of the truth of 
 the general rule. One of these exceptions is the impeach- 
 ment of public oificers. The House of Representatives may 
 impeach, and the Senate try the offender. Thus the whole 
 judicial power of the State is vested in the courts, with the 
 exception of the trial of impeachments. 
 
 It will be further perceived, that the general assembly and 
 governor, or either of them, cannot exercise any judicial func- 
 tions ; that neither the general assembly nor the courts can 
 exercise any executive power ; and that neither the governor 
 nor courts can properly exercise any legislative power. And 
 if, in any case, they transgress the principle thus laid down, 
 their act is a nullity. It will also be seen that the disqualifi- 
 cation extends to the person and the department. The great 
 principle thus established is, that no person or department 
 shall act as legislator, judge, and executioner, at the same 
 time. He shall not be permitted to enact, apply, and execute 
 a law, by which the life, liberty, property, or reputation of 
 the citizen may, in any manner, be affected. While these 
 propositions are universally admitted, the diflBiculty in carry- 
 ing them into practical operation, seems to be in defining 
 with precision the exact limits of legislative, executive, and 
 judicial power. With due deference to timid judges, who 
 seem unable to surmount this difficulty, and therefore give 
 loose rein to legislative power, it may be laid down as a self- 
 evident proposition, that the power of the legislative depart- 
 ment is limited to the making of laws, and not to the exposition 
 
WHICH CONTROL THE TAXING POWER. 19 
 
 or execution of them. Again, it is the province of the legis- 
 lature to declare what the law shall be, and not what it is, or 
 was. (a) The exercise of their power, precedes the conduct 
 intended to be affected by it. It would be contrary to the 
 first principles of justice to deprive a citizen of his life, lib- 
 erty, or property, by an ex post facto or retrospective law. 
 Under such a system of legislation, no person could be secure 
 in his rights ; no one could ever know what his rights were, 
 nor for what act of omission or commission on his part, they 
 might be forfeited to the State. Such an administration 
 of the government would be intolerable — as * unjust as * 17 
 the enactment of general laws, and at the same time, 
 Caligula-like, withholding a knowledge of their provisions 
 from the people, upon whom they were designed to operate. 
 To use the expressive language of Judge Coulter : " That is 
 not legislation which adjudicates in a particular case, pre- 
 scribes the rule contrary to the general law, and orders it to 
 be enforced. Such power assimilates itself more closely to 
 despotic rule than any other attribute of government." ^ On 
 the other hand, the judicial power of the State acts upon past 
 conduct, and declares what the law was at the time of the 
 happening of the act complained of. It will thus be seen 
 that the true distinction between judicial and legislative power 
 is, that the former acts upon past conduct, while the latter 
 prescribes the rule by which human action shall be governed 
 in the future. If this plain line of demarcation between 
 these two classes of governmental power, is strictly observed 
 and rigidly enforced, the difficulty attending this controversy 
 will be surmounted, and the rights of the citizen more fully 
 secured. 
 
 Our constitutions all declare " That no freeman shall be im- 
 prisoned or disseised of his freehold, liberties, or privileges, or 
 outlawed, or exiled, or in any manner deprived of his life, 
 liberty, or property, but by the judgment of' his peers, or the 
 LAW OP THE LAND." ^ This clause, on account of its bearing 
 
 (a) See Cooley's Const. Lim. p. 92 et seq. 
 
 1 4 Harris, 206. 
 
 2 The amendment to the Constitution of the United States that no person 
 shall be " deprived of life, liberty, or property without due process of law," is 
 not restrictive of State powers. Withers v. Buckley, 20 How. 84 ; Witherspoon 
 V. Duncan, 4 "Wal. 210 ; Abb. Nat. Dig. Const. Law, § 60. 
 
20 OP THE FUNDAMENTAL PRINCIPLES 
 
 on the subject under consideration, as well as its great impor- 
 tance when properly understood, as a protection against legisla- 
 tive spoliation, also deserves a critical examination. It will be 
 observed that the clause does not absolutely prohibit the legis- 
 lature from depriving a freeman of his life, liberty,' or property, 
 but declares that it shall only be done in one of two ways : 
 1. " By the judgment of his peers ; " which is universally ad- 
 mitted to mean a judgment rendered upon the verdict of a 
 juTj ; (a) or, 2. " By the law of the land," — this, in England, 
 where the same language was used in Magna Charta, was well 
 understood to require a judgment ; and embraced judgments, 
 by confession in criminal and civil causes, upon demur- 
 * 18 rer by * default, and all other judgments which, by the 
 general laws of the realm, it was legal to render without 
 a regular trial by jury : such as judgments for contempt, con- 
 victions under the military and naval laws of the kingdom, 
 judgments in the ecclesiastical and other courts, proceeding ac- 
 cording to the course of the civil law. Lord Coke said, that 
 " to judge a man in a civil or criminal case, without affording 
 him an opportunity to be heard in his own defence, would be 
 against this provision." - 
 
 That this was the meaning of the expression, " law op the 
 LAND," as used in the great charter of English rights, seems to 
 have been the opinion of all the common-law jurists in that 
 country ; but that it means the same thing in our own Consti- 
 tution, has not been so universally agreed. Some judges have 
 been greatly perplexed in attempting to ascertain its true mean- 
 ing, and have given judgment in entire disregard of it. One 
 judge, at least, admitting that it did mean and require a 
 " judgment," obviated its force by saying it applied only to 
 criminal cases, and that, unless the clause was so restricted, 
 
 (a) Under a statute (Laws of Mich, of 1865, p. 576) providing that "any 
 person claiming title to lands through the Auditor General's deed, executed upon 
 a sale thereof for non-payment of taxes, may file a bill in chancery to quiet his 
 title thereto, without talcing possession thereof," &c., held, that under Art. 0, § 27, 
 of the Constitution (providing tliat "the right of trial by jury shall remain," 
 &o.), the legislature could not authorize such a proceeding without providing 
 a mode by which the defendant could have a jury trial, if he so elected, where 
 the right existed when the Constitution was formed, as in this case. Tabor v. 
 Cook, 15 Mich. 322. 
 
 ' Sullivan's Lectures, ch. 39 and 40. 
 
WHICH CONTROL THE TAXING POWER. 21 
 
 it would be in opposition to legislative usage.^ The Supreme 
 Court of New Hampshire, in the Dartmouth College case, de- 
 cided " That all statutes, not repugnant to any other clauses 
 of the Constitution, seem always to have been considered as 
 ' the law of the land,' within the meaning of this clause." ^ 
 But their judgment was reversed by the Supreme Court of 
 the United States.^ In another case, where the validity of a 
 statute authorizing an arrest in a criminal case, without oath 
 or warrant, came in question, the same court held the follow- 
 ing language : " No subject shall be arrested but by the ' law 
 of the land,' — that is, by due process of law warranted by 
 the Constitution, by the common law adopted by the Consti- 
 tution, or by statutes passed in pursuance of the Constitu- 
 tion."* 
 
 * On the other hand. Judge Bronson says that these * 19 
 words " Do not mean a statute passed for the purpose of 
 working the wrong. That construction would render the re- 
 striction nugatory, and turn this part of the Constitution into 
 mere nonsense. The people would be made to say to the two 
 houses, ' You shall be vested with the legislative power of the 
 State, but no one shall be disfranchised or deprived of any of 
 the rights or privileges of a citizen, unless you pass a statute 
 for that purpose.' In other words, ' You shall not do the 
 wrong unless you choose to do it.'" ^ 
 
 C. J. Hemphill says, " The terms, ' law of the land,' have 
 often been construed, and somewhat variously defined. When 
 first used in the Magna' Charta of the kings of England, they 
 probably meant the established law of the kingdom, in opposi- 
 tion to the civil or Roman law, which was about being intro- 
 duced into the land, to the exclusion of the former laws of the 
 country. They are now, in their most usual acceptation, re- 
 garded as general public laws, binding upon all the members 
 of the community, under all circumstances, and not partial or 
 private laws, affecting the rights of private individuals, or 
 
 1 Rhinehart v. Schuyler, 2 Gilm. 520. 
 
 2 1 N. H. 130. 
 
 3 4 Wheat. 618. 
 
 1 Mayo V. Wilson, 1 N. H, 53. 
 6 Taylor v. Porter, 4 Hill, 146. 
 
22 OP THE FUNDAMENTAL PRINCIPLES 
 
 classes of individuals." ^ The conjecture of Judge Hemphill, 
 that it was the common, as contradistinguished from the civil 
 law, intended by this clause, is not a very reasonable one, when 
 it is remembered that Sullivan, in his lectures, and all of the 
 English jurists, agree that judgments in the ecclesiastical and 
 maritime courts, which proceed upon the principles, and in 
 conformity to the practice, of the civil law, are regarded as 
 valid under this clause ; and when it is further remembered 
 that such a construction of the term law, would confine the 
 people of England to the old black-letter law, without the legis- 
 lative power of modifying and improving it, to meet the pro- 
 gressive demands of modern civilization. 
 
 Judge Catron remarks, that " the clause, ' law of the land,' 
 
 means a general and public law, equally binding upon 
 * 20 every * member of the community. The right to life, 
 
 liberty, and property, of every individual, must stand 
 or fall by the same rule or law that governs every other mem- 
 ber of the body-politic, or ' land,' under similar circumstances ; 
 and every partial or private law, which directly proposes to 
 destroy or affect individual rights, or does the same thing 
 by afPording remedies leading to similar consequences, is un- 
 constitutional and void. Were this otherwise, odious indi- 
 viduals and corporate bodies would be governed by one rule, 
 and the mass of the community, who made the law, by 
 another. The idea of the people, through their representa- 
 tives, making laws whereby are swept away the life, liberty, 
 and property of one, or of a few citizens, by which neither the 
 representative nor their other constituents are willing to be 
 bound, is too odious to be tolerated in any government where 
 freedom has a name." ^ 
 
 This doctrine is advanced by Judge Peek, in the same 
 case, in these words : " A law which is partial in its opera- 
 tion, intended to affect particular individuals alone, or to 
 deprive them of the benefit of the general law, is unwarranted 
 by the Constitution and void."3 The principle was again 
 affirmed in Jones v. Perry.* In this case the court held that 
 
 1 James v. Reynolds, 2 Texas, 251, 252. 
 
 2 Vanzant v. Waddell, 2 Yerg. 270. 
 
 3 2 Yerg. 269. 4 lo Yerg. 59. 
 
WHICH CONTROL THE TAXING POWER. 23 
 
 the sale of the estate of a ward, by his guardian, under a 
 special act of the legislature, no judicial proceedings inter- 
 vening, was not a sale according to the "law of the land." 
 The same principle was applied by the Supreme Court of 
 Illinois, upon this state of facts : The legislature passed a 
 special act authorizing A. to sell and convey the lands of 
 an intestate, or a sufficiency thereof, to raise the sum of 
 $1,008.87, together with interest and costs ; and directed 
 that the proceeds should be applied to the extinguishment of 
 the claims of A. and B. against the estate of the decedent, 
 for moneys advanced, and liabilities incurred by them on 
 account of the estate. The court held the law unconsti- 
 tutional, because it was an exercise of judicial * power * 21 
 by the legislature, and also, to use the language of the 
 court, it " disseises the freehold of the heirs of the ancestor, 
 without a hearing upon an ex parte application and ex parte 
 evidence. It will not, we suppose, be seriously contended that 
 such an act, thus passed, under such a state of facts, is the 
 lex terrce meant, or the judgment of one's peers, intended by 
 the Constitution." ^ 
 
 The same construction is given to this clause by the Su- 
 preme Court of Tennessee, in two other cases.^ In the latter 
 case it was held, that an act of the legislature, declaring it a 
 felony for a servant to embezzle the funds of a particular 
 bank, while the same crime, under the general law, was a 
 simple misdemeanor, was contrary to this clause, and void. 
 The same principle was applied by the Supreme Court of 
 Massachusetts, to a special act of the legislature, suspending 
 the operation of a general limitation law, in favor of a par- 
 ticular class of creditors.^ In South Carolina they hold that 
 the Constitution guarantees to the citizen " a trial according 
 to the course of the common law, which," says Judge O'Neall, 
 " I understand to be the meaning of the words ' the law of 
 the land.' " * Again, in Byrne v. Stewart, Chancellor Wat- 
 
 1 Lane v. Dorman, 3 Scam. 238. 
 
 2 State Bank v. Cooper, 2 Yerg. 605, 606 ; Budd v. State, 3 Humph. 483. 
 
 3 Holden v. James, 11 Mass. 396. 
 
 * Burger v. Carter, 1 MoMuU. 413 ; State v. Simons, 2 Speers, 767 ; Zylstra's 
 Case, 1 Bay, 384 ; White v. Kendrick, 1 Brev. 471 ; State v. Coleman, 1 McMull. 
 502. 
 
24 OF THE FUNDAMENTAL PRINCIPLES 
 
 ties remarks : " It has been determined by the Constitutional 
 Court, in several cases, that the lex terrce contemplated by 
 our Constitution, not only means the common law, which is 
 unquestionably the sense in which it is understood in Magna 
 Charta, but also comprehends all acts in force at the time of 
 making the Constitution." ^ 
 
 Such a construction of the clause is evidently too narrow 
 and confined, as it would tie up the hands of the legislature, 
 and prevent them from enacting laws which the imperative 
 
 necessities of society may from time to time require. 
 * 22 * The masterly and comprehensive definition of this 
 
 clause by Daniel Webster, is, perhaps, the true one, 
 and sustained with more unanimity by the authorities than 
 any other : " By the law of the land, is most clearly intended 
 the general law, — a law which hears before it condemns, — 
 which proceeds upon inquiry, and renders judgment only 
 after trial. The meaning is, that every citizen shall hold his 
 life, liberty, property, and immunities, under the protection 
 of general rules which govern society. Every thing which 
 may pass under the form of an enactment is not, therefore, 
 to be considered as the law of the land. If this were the 
 case, acts of attainder, bills of pains and penalties, acts of con- 
 fiscation, acts reversing judgments, and acts directly trans- 
 ferring one man's estate to another, legislative judgments, 
 decrees and forfeitures, in all possible forms, would be the 
 law of the land. Such a strange construction would render 
 constitutional provisions of the highest importance, com- 
 pletely inoperative and void. The administration of justice 
 would be an empty form and idle ceremony, and judges 
 would sit to execute legislative judgments and decrees, not to 
 declare the law and administer the justice of the country." ^ 
 In Taylor v. Porter,^ Judge Bronson says of this provision : 
 "The meaning of this section, then, seems to be, that no 
 member of the State shall be disfranchised, or deprived of 
 any of his rightis or privileges, unless the matter shall be 
 adjudged against him upon trial, had according to the course 
 
 1 3 Dessaussure, 478. 
 
 2 Argument in the Dartmouth College Case, 5 Webster's Works, 487, 488. 
 
 3 4 Hill, 146. 
 
WHICH CONTROL T^E TAXING POWER. 25 
 
 of the common law. It must be ascertained judicially, that 
 he has forfeited his privileges, or that some one else has a 
 superior title to the property he possesses, before either can 
 be taken from him. It cannot be done by mere legislation." 
 Again he remarks : " It will be seen that the same measure 
 of protection against legislative encroachment, is extended to 
 life, liberty, and property; and if the latter can be taken 
 without a forensic trial and judgment, there is no secu- 
 rity for the * others." He concludes that " the law of * 23 
 the land " and " due process of law," are synonymous 
 terms. A similar decision was made in White v. White.^ 
 The doctrine of Webster and Bronson is adopted, in its fullest 
 extent, by the Supreme Court of lowa.^ 
 
 Judge Story says that " this clause, in effect, affirms the 
 right of trial according to the process and proceedings of the 
 common law."^ Chancellor Kent says, "The words, 'by 
 the law of the land,' as used in Magna Oharta, &c., are 
 understood to mean due process of law." * . Justice Johnson, 
 in delivering the opinion of the court in the Bank of Colum- 
 bia V. Okely,^ and speaking of these words, says that " after 
 volumes spoken and written with a view to their exposition, 
 the good sense of mankind has at length settled down to 
 this : that they were intended to secure the individual from 
 the arbitrary exercise of the powers of government, unre- 
 strained by the established principles of private rights and 
 distributive justice." 
 
 The clause in question accomplishes this intention com- 
 pletely, if it requires judicial as well as legislative action ; 
 but if it means that a man may be deprived of his rights, 
 simply by an act of the legislature, without judgment, it is 
 difficult to perceive, in such a case, how the citizen can be 
 said to be secured against the arbitrary exercise of legislative 
 power, or how the legislature is restrained by the established 
 principles of private right and distributive justice. Judge 
 Wood worth, in Woodcock v. Bennett,^ remarks, that " it is 
 
 i 5 Barb. 481-483. 2 Reed v. Wright, 2 Greene, 22, 24. 
 
 3 Story on the Constitution, § 1783. 
 
 i 2 Kent's Com. 13. » 4 Wheat. 244. 
 
 6 1 Cow. 740. 
 
26 OF THE FUNDAMENTAL PRINCIPLES 
 
 one of the great principles upon which our security depends, 
 under a government of laws, that no person shall be put out 
 of his freehold, or lose his goods and chattels, unless he be 
 duly brought to answer, or be forejudged of the same by due 
 
 course of law." Judge Tucker says of these words, 
 *24 "the meaning *and intention of which, certainly is, 
 
 that no man shall be deprived of his property, without 
 being first heard in his own defence." ^ Chief Justice Ruffin 
 says, " This clause does not mean an act of the legislature, 
 for that construction would abrogate all restriction on legis- 
 lative authority. The clause means that statutes which 
 would deprive a citizen of the rights of person or property, 
 without a regular trial according to the course and usage of the 
 common law, would not be the law of the land in the sense 
 of the Constitution." ^ In Brown v. Hummel,^ it is said by 
 the judge delivering the opinion of the court, that, " By the law 
 of the land is meant, the law of an individual case, as estab- 
 lished in a fair open trial, or an opportunity given for such 
 trial, in open court, and by due course and process of law ; 
 not a bill of attainder, in the shape of an act of assembly, 
 whereby a man's property is swept away from him without a 
 hearing, trial, or judgment, or the opportunity of making 
 known his rights, or producing his evidence." 
 
 Again, the same court, in Ervine's Appeal,* state, that this 
 clause " Is an affirmation of a great doctrine contained in 
 Magna Charta : ' Neither will we pass upon any one, but by 
 the lawful judgment of his peers, or by the law of the land ; ' 
 and Lord Coke says, that the words per legem terroe, mean by 
 due process of law, and being brought into court to answer 
 according to law. If government is interdicted from taking 
 private property, even for public use, without just compensa- 
 tion, how can the legislature take it from one man, and dis- 
 pose of it as they think fit? The great principle is, that a 
 man's property is his own, and that he shall enjoy it accord- 
 ing to his pleasure, — injuring no other man, — until it is 
 proved, in due process of law, that it is not his, but belongs 
 
 1 Kinney v. Beverley, 8 Henn. & Munf. 836. 
 
 3 Hoke V. Henderson, 4 Dev. 15. a 6 Barr, 87. 
 
 * 4 Harris, 256. 
 
WHICH CONTROL THE TAXING POWER. 27 
 
 to another." Judge Pope affirms the same general principle 
 in Arrowsmith v. Burlingim.^ (a) 
 
 * Upon a careful review of all the authorities, it may * 25 
 be safely affirmed as a principle of constitutional law, 
 that the clause in question requires judicial as well as legis- 
 lative action, before any person can be deprived of his life, 
 liberty, or property. Even those who have questioned the 
 correctness of this construction, admit that it was so construed 
 in England, and the only reason assigned for not adhering to 
 the same construction in this country, is, that many acts of 
 the legislature would be inconsistent with it, and, therefore, 
 this cannot be its true meaning ; thus bringing the Constitu- 
 tion to the test of legislation, instead of legislation to the test 
 of the Constitution. Such a position amounts to a virtual 
 abrogation of all constitutional restraints upon the power of 
 the legislature, and makes that body as omnipotent as Parlia- 
 ment itself. On the other hand, the power of the legislature, 
 as limited by the weight of authorities, consists in the power 
 to pass general laws for the peace, safety, and happiness of 
 the people, directing what they may do or omit, and declar- 
 ing the consequences of a violation of such laws. Here their 
 power ceases. The application of those laws to the cases of 
 individuals, is assigned to other agents ; consequently the 
 legislature has no power, by its own mere action, to deprive 
 any citizen of his property. 
 
 Such are the securities which the people, in the exercise of 
 their inherent powers, have provided against legislative 
 spoliation. It will be seen that every individual has, in the 
 Constitution, an absolute, complete, and perfect protection in- 
 the quiet use and enjoyment of his property, until it shall be 
 judicially ascertained that he has violated some general law 
 of the land, which authorizes a seizure and divestiture of his 
 right thereto, for such violation. This is most clearly the 
 true reading and exposition of the text of the Constitution. 
 If, however, the requirements of the Constitution must yield 
 
 1 4 McL. 498. 
 
 (o) For an exhaustive discussion of this subject, see Cooley's Const. Lim. 
 ch. xi. p. 351. 
 
28 OP THE FUNDAMENTAL PRINCIPLES 
 
 to legislative usage, in direct violation thereof, then, of neces- 
 sity, aU legislative acts which conflict with these great funda- 
 mental principles, should be held, in their construction and 
 application, to the most rigid scrutiny. 
 
 In concluding this branch of the subject, it may not 
 * 26 be * considered improper to make a few suggestions in 
 relation to the constitutional mode of enforcing the 
 collection of taxes. 
 
 The power to levy a tax properly belongs to the legislative 
 power, (a) The collection of it involves the exercise of judi- 
 cial and executive functions. The legislature levy the tax — 
 direct that a demand shall be made upon the owner of the 
 land for the tax charged against it, and if payment is refused, 
 authorize the collector to seize the body or goods of the delin- 
 quent, and in case satisfaction is not had in one or the other 
 of these modes, power is conferred upon the collector to sell 
 and convey the land itself. Now before the power to sell the 
 land can exist under the law, the fact of the levy and non- 
 payment of the tax, the demand, and return of no goods, or 
 that the body cannot be found, must exist. These facts 
 must be ascertained to exist before the power of sale attaches. 
 Whether the power to decide the question of delinquency is 
 vested by law in the regularly constituted judicial tribunals, 
 or in those specially instituted for that purpose, or in the 
 collector himself, can make no kind of difference ; it is the 
 exercise of judicial power, and the officer who sells performs 
 an executive function ; so that, in point of fact, the legisla- 
 tive, judicial, and executive departments of the government, 
 all aid in the execution of the taxing power. The legislature 
 declare what facts shall constitute a cause of forfeiture ; the 
 judiciary ascertain the facts, apply the rule of law prescribed, 
 and pronounce a judgment of condemnation. 
 
 For these reasons it has been suggested by an eminent law- 
 yer of Illinois, who has great experience in questions of this 
 character, that " No valid sale of land for the non-payment of 
 a tax, having the effect of divesting the owner of his estate, 
 can legally take place, unless each of the three great depart- 
 
 (a) See note (a), p. 2. 
 
WHICH CONTROL THE TAXING POWER. 29 
 
 ments of the government concur in the condemnation." It 
 was in accordance with this suggestion that the Legislature of 
 Illinois, in 1839, passed a new revenue law, levying an uni- 
 form tax, requiring a personal demand of the owner, and 
 directing that in case payment of the tax was neglected, or ' 
 refused, the goods and chattels of the delinquent should 
 be * seized and sold in satisfaction. The collector was * 27 
 required to report a list of the delinquents who had no 
 goods and chattels in the county, out of which the tax could 
 be levied, to the Circuit Court of the county, and apply for 
 judgments against their lands, first giving notice in a news- 
 paper of his intention to make the application. Upon filing 
 his report, and a copy of the advertisement, certified by the 
 printer, if no objection was taken to the regularity or legality 
 of the proceedings, the court was authorized to render a 
 judgment for the taxes, and order a sale of the land. After 
 judgment, the clerk was required to make out, under the seal 
 of the court, and deliver to the collector, a precept containing 
 a copy of the report and the order of the court thereon, which 
 constituted the authority of the officer to sell. This continues 
 substantially the law of Illinois to' this day. 
 
 Similar statutes were in force in Tennessee, Ohio, and 
 Indiana. No such power as that of selling land for the non- 
 payment of taxes, is to be found in the revealed, natural, 
 civil, or common law. But there are analogous powers to be 
 found in the common-law code, and in the statute law of 
 every civilized nation ; for example, the power to condemn 
 land for public uses, and in other cases where power is exer- 
 cised over the estates of the citizen, such as the sale of land 
 for the payment of the debts of the owner. In all of these 
 cases judicial proceedings intervene. The Constitution de- 
 clares that private property may be taken for public use, 
 upon making just compensation. The legislature direct the 
 laying out of a public highway. Before the title of the owner 
 is divested, a regular judicial inquiry takes place. The ques- 
 tions, whether the use is a public one, or whether it is a mere 
 legislative pretence to divest the title of the owner, and con- 
 fer it upon a favorite, and what compensation shall be made 
 to the owner, as an equivalent for the loss of his estate, are 
 
30 OP THE FUNDAMENTAL PRINCIPLES 
 
 all inquired into and judicially decided, after due notice and 
 a hearing. So in every case where the title to real or per- 
 sonal property is sought to be divested under the general 
 
 laws of the land, judicial proceedings always intervene. 
 * 28 There is no difference in principle, * between the power 
 
 of taking land for public use, and the power to tax, and 
 enforce its collection by a sale of the land. In both cases the 
 land is taken for the use of the public ; they differ only in 
 degree. Why, then, should not the same solemn forms be 
 pursued in the one case as in the other ? The only answer is, 
 state necessity and immemorial usage. The former demands, 
 and the latter sanctions this departure from the letter and 
 spirit of the Constitution. It is said in Parham v. Decatur 
 County,^ that " the sovereign right to lay and collect taxes 
 grows out of the necessities of the government — an urgent 
 necessity — which admits no property in the citizen while it 
 remains unsatisfied. The right to tax is coeval with all gov- 
 ernments. It springs out of the organization of the govern- 
 ment. All property is a pledge to pay the necessary debts 
 and expenses of the government." The Supreme Court of 
 Tennessee decided, that their summary tax laws were consti- 
 tutional, holding this language : " It is certainly true that they 
 have the character of summary proceedings, and it is equally 
 true, that they must, of necessity, be so ; for if the govern- 
 ment were necessitated to take the cautious and tedious steps 
 of the common law, in giving personal notice, making up 
 regular pleadings, and having a trial by jury, judgment and 
 execution, it would cease to exist, for want of money to carry 
 on its necessary operations ; loss of credit, and a total extinc- 
 tion of the national faith, the basis of all regular governments, 
 must be the inevitable consequence." ^ In the case of the 
 State V. AUen,^ the court in commenting upon the lex terroR 
 of the Constitution, as applied to these summary tax laws, 
 say : " We think that any legal process, which was originally 
 
 1 9 Geo. 352. 
 
 2 McCarrolI v. "Weeks, 2 Over. 215. See also Griffin v. Dogan, 48 Miss. 20; 
 Gibson v. Mason, 5 Nev. 801 ; Murray's Lessee v. Hoboken Land Co. 18 How. 
 (U. S.) 272; all holding such summary proceedings constitutional. 
 
 3 2 McCord, 56. 
 
WHICH CONTROL THE TAXING POWER. 31 
 
 founded in necessity, ha'S been consecrated by time, and ap- 
 proved and acquiesced in by universal consent, must be an 
 exception to the right of trial by jury, and is embraced in 
 the alternative, ' law of the land.' " And in Harris v. 
 * Wood,^ the Court of Appeals of Kentucky remark, * 29 
 that " Taxes were always recoverable (before the adop- 
 tion of the Constitution), not only without a jury, but even 
 without a judge, and the assessment of ministerial officers has 
 been made to operate as an execution on the citizen, and the 
 collector could distrain, &c." The same general doctrine has 
 been asserted. in other cases.^ 
 
 " It is undoubtedly a principle of natural justice, that 
 every person shall have an opportunity of being heard before 
 he is condemned ; and to a hearing every tax-payer is en- 
 titled — but not before the ministerial officers of the law. 
 They act at their peril in selling the land of the person as- 
 sessed, where the taxes have been paid, or where they have not 
 strictly complied with" the law of the land; and he acts at his 
 peril in determining the question whether he will redeem or 
 contest the validity of the sale. If he adopts the latter 
 course, then, and not till then, is he entitled to be fully 
 heard in his defence, in the judicial tribunals of the coun- 
 try." 3 
 
 Thus it will be seen, that all of the cases concede that the 
 summary exercise of this power is against the spirit of the 
 Constitution, but defend it upon the ground of immemorial 
 usage and state necessity. But to use the emphatic language 
 of the Supreme Court of Missouri, in the case above cited : 
 " This very necessity begets another necessity, that in the 
 execution of such a power the law shall be strictly and punc- 
 tiliously complied with in all of its requirements." Besides, 
 so cautious are the courts in confining the taxing power 
 within the bounds of " state necessity," that they will never 
 permit the enforcement of a penalty, or double tax, in a 
 
 1 6 Mon. 643. 
 
 2 Doe V. Devours, 11 Geo. 79; 6 Mo. 64; Bergen o. Clarkson, 1 Hal. 352; 
 Livingston v. Moore, 7 Pet. 469. See In matter of New York Sciiools, 31 N. Y. 
 674; Griffin v. Mixon, 38 Miss. 424. 
 
 3 WiUard v. Wetlierbee, 4 N. H. 118. 
 
32 OF THE FUNDAMENTAL PRINCIPLES 
 
 summary manner, under the " vague and indefinite pretence 
 of taxation." Taxation includes the power to collect, in a 
 
 summary mode, the amount levied, from the necessity 
 * 30 of the case. This * arbitrary but indispensable power 
 
 must be used only to the extent absolutely demanded 
 by the public necessities, and never abused by applying it to 
 the purposes of penal enactments, and under the guise of 
 taxation, to impose penalties which are to be enforced with- 
 out recourse to the ordinary tribunals. The Constitution 
 protects the citizen from- all judgments against his person or 
 property, otherwise than by a regular jury trial, as heretofore 
 accustomed. Now the only difficulty in enforcing this guar- 
 antee, is to distinguish between a tax and a penalty. That 
 is a tax, which bears equally upon the whole community, 
 but that which is added to the burden of one citizen, because 
 of his failure to list his land for taxation, called " dooming," 
 and the double and triple tax levied upon him, by reason of 
 his neglect to pay his tax when due, can in no proper sense 
 be termed taxes ; they are, in fact, penalties. Judge Richard- 
 son, in Burger v. Carter,^ says "If is admitted that under 
 this wise, protective provision, 'law of the land,' if the 
 alleged tax shall amount to a penalty, for some infraction of 
 the law, the tax collector cannot, by his authority, assess the 
 penalty under the name of a tax, for if it is a penalty, a jury 
 must decide upon the supposed infraction before the penalty 
 can be inflicted." (In Scammon v. Chicago, (a) it is said per 
 curiam, " That the legislature may provide for the recovery 
 of reasonable costs either by a percentage on the amount of 
 the recovery, or by fixing specific sums in a bill of items, 
 there can be no doubt." " One of the objects in giving costs 
 is to cover expenses incurred in prosecuting a suit for the 
 recovery of the demand. Hence it is reasonable that the 
 delinquent tax-payer should in some mode be required to 
 meet the expense incurred in prosecuting a suit for the 
 recovery of the amount which remains delinquent, and the 
 
 1 1 MoMuU. Law, 420. See Scott v. Watkins, 22 Ark. 566. 
 
 (a) 44 111. 278 ; Clayton v. Chicago, 44 111. 280; Bristol v. Chicago, 22 111. 587. 
 See, however, Lacey v. Davis, 4 Mich. 157 ; High v. Shoemaker, 22 Cal. 370, 
 which seem to support a contrary opinion. 
 
WHICH CONTEOL THE TAXING POWER. 83 
 
 same is equally true of unpaid special assessments. That 
 the legislature may authorize the courts to impose and render 
 a judgment for such a penalty, we have no doubt ; but we 
 do not believe that such a power can be conferred upon a 
 mere ministerial officer without an opportunity to be heard 
 by the tax-payer). 
 
34 NATURE OP THE POWER TO SELL LAND 
 
 CHAPTER II. 
 
 OF THE NATUBE OF THE POWER TO SELL LAND FOR THE NON- 
 PAYMENT OP TAXES, AND OF THE STRICTNESS REQUIRED IN 
 SUCH SALES. 
 
 According to the strict rules of the common law, the only 
 authority which a stranger could exercise over an estate in 
 land, was a power of selling, leasing, or incumbering it. The 
 power was Toluntarily created by the owner. It was always 
 a naked power, and general or special according to the will 
 of the donor. Involuntarj- alienations were contrary to the 
 policy of the feudal system, and consequently no estate could 
 be divested by inere operation of law, and against the will of 
 the owner, except in the single instance of its forfeiture for 
 high treason ; and then the power was exercised through the 
 intervention of the judicial tribunals. 
 
 From the nature of voluntary alienations, and the mode of 
 effecting them — by feoffment and livery of seisin — it is very 
 certain that they did not admit of the annexation to them, 
 of powers of appointment and revocation. The strictness of 
 those times would not countenance the apparent repugnancy 
 of giving or selling an estate absolutely to another, and yet 
 reserving to the feoffor the privilege of recalling the estate, 
 or vesting it in another, without a new livery. Such a trans- 
 action was not consistent with that public notoriety, which 
 was then deemed a necessary circumstance in the alienation 
 of property.! The only means which the feoffor had, of 
 retaining any authority over land, after its alienation, 
 * 32 was by annexing a * condition to the charter of feoff- 
 ment, that upon the tender of a certain sum of money, 
 or the performance of any other act by the feoffor, or his 
 heirs, as stipulated between the parties, the feoffor should 
 have a right of re-entry; so that the estate which was 
 
 1 Sugden on Powers, ch. 1, § 1. 
 
FOE THE NON-PAYMENT OF TAXES, ETC. 35 
 
 divested by the feoffment and livery of seisin, might revest 
 in the feoffor, by a strict performance of the condition, and a 
 re-entry upon the land.^ But it will be remembered, that 
 these conditions were regarded with jealousy by the courts, 
 and a strict compliance with their terms was invariably ex- 
 acted.2 
 
 When, however, the doctrine of uses was introduced, this 
 difficulty no longer existed. Though such shifting of estates 
 was repugnant to the nature of common-law conveyances, yet 
 it was perfectly agreeable to the principles and intent of an 
 equitable use, which had, for its main object, the enabling of 
 owners to dispose of their estates in the manner most agree- 
 able to themselves.^ On the enactment of the statute of 
 uses, powers of revocation and appointment grew into a sys- 
 tem and thus changed the entire policy of the common law. 
 Such powers were exercised, either by the owner of the fee, 
 or of some interest carved out of it, or by a stranger to the 
 estate. In the first case the power was regarded as coupled 
 with an interest, in the latter it was held to be a mere naked 
 authority. Such was the general nature of common-law 
 powers. 
 
 In modern times, when a more free and unrestricted power 
 of alienation took place, and the interests of mankind required 
 that the real property of the citizen should contribute to the 
 common burdens of the community, and be subjected to the 
 payment of his debts, involuntary alienations became frequent. 
 The power to sell and convey the estate, to satisfy the charge 
 thus created, was usually vested in some court or public offi- 
 cer. In this manner a class of powers, to which the common 
 law was an utter stranger, have sprung into existence ; 
 but which, * nevertheless, are controlled, in their execu- * 33 
 tion, by the principles of that law. To that law we 
 are, therefore, compelled to look for analogies in the con- 
 struction of all statutes which confer power upon strangers, 
 to be exercised over the landed estates of the country. The 
 power to impose a tax upon real estate, and sell it where 
 there is a failure to pay the tax, is a high prerogative, and 
 
 1 Powell on Powers, 1, 2. 2 Sugden on Powers, ch. 1, § 1. 
 
 ' Powell on Powers, 2. 
 
36 NATURE OP THE POWER TO SELL LAND 
 
 should never be exercised in doubtful cases.^ It is a naked 
 power, which, in this instance, may be defined to be a power 
 operating upon an estate, in which the officer who executes 
 it, has no manner of interest, and over which he has no con- 
 trol other than that which the law has expressly delegated to 
 him.^ 
 
 It is a statutory power, depending alone upon the will of 
 the sovereign, and not upon the consent of the owner. The 
 statute creates the power, selects the agent to execute it, and 
 prescribes the formalities which shall attend its execution.^ 
 Judge Sharkey thus defines a statutory power : "A power 
 derived exclusively and directly from a statute, without any 
 other agency, or the action of any judicial tribunal." * 
 
 It is a special as contradistinguished from a general au- 
 thority. The officer to whom it is delegated has no general 
 power to sell land for the taxes charged against it, but simply 
 a special one, to sell in the particular case mentioned in the 
 
 statute creating the power.^ 
 * 34 * It will, therefore, be perceived, that the officer 
 intrusted with the power of sale exercises a naked, 
 statutory, and special authority, depending alone upon the 
 high prerogative of the State, and the letter of the law for its 
 support. This much for the nature of the power. 
 
 The validity of a tax sale depends upon the authority of 
 the officer to sell, and upon the fairness of the transaction. 
 It would be going too far to say, that the officer, selling land 
 
 » Beaty v. Knowler, 4 Pet. 152; Sharp v. Speir, i Hill, 76. 
 
 2 Williams v. Peyton, 4 Wheat. 77 ; s. c. 4 Pet. Cond. 394 ; Varick v. Tall- 
 man, 2 Barb. 113 ; Sharp v. Speir, 4 Hill, 76 ; 4 Smedes & M. 631 ; Waldrou v. 
 McComb, 1 Hill, 111 ; Clarke v. Courtney, 5 Pet. 319 ; Taylor u. Gall,oway, 
 1 Ham. 232; Hodge v. Wilson, 12 Smedes & M. 498; Hubbell v. Weldon, 
 Hill & Denio, 139 ; Allen v. Smith, 1 Leigh, 248 ; Jesse v. Preston, 5 Grat. 120. 
 
 3 Doughty V. Hope, 8 Denio, 595 ; Varick v. Tallman, 2 Barb. 113 ; Sharp v. 
 Speir, 4 Hill, 76 ; 4 Smedes & M. 630, 681 ; Hodge v. Wilson, 12 Smedes & M. 
 498. 
 
 * Natchez v. Minor, 10 Smedes & M. 246. 
 
 5 Williams v. Peyton, 4 Wheat. 77 ; s. c. 4 Pet. Cond. 394 ; Varick v. Tall- 
 man, 2 Barb. 115, 116 ; Eonkendorff v. Taylor, 4 Pet. 349 ; Powell v. Tuttle, 
 3 Comst. 401 ; Sherwood c. Eeade, 7 Hill, 431 ; Striker v. Kelly, 2 Denio, 330 ; 
 James v. Gordon, 1 Wash. C. C. 335 ; 4 Smedes & M. 627, 628 ; Fitch v. Pinck- 
 ard, 4 Scam. 69 ; Polk v. Rose, 25 Md. 153 ; Bunner v. Eastman, 50 Barb. 639 ; 
 McDermott v. Scully, 27 Ark. 226. 
 
FOR THE NON-PAYMENT OP TAXES, ETC. 37 
 
 with or without authority, could by his mere conveyance 
 transfer the title of the rightful proprietor. He must act in 
 conformity with the law, from whence his power is derived, 
 and the purchaser is bound to inquire whether he has so 
 acted.i (a) It is, therefore, held to be a condition precedent 
 to the passing of the title at such sales, that all of the pro- 
 ceedings of the officers who have any thing to do with the 
 listing and valuation of the land, the levy and collection of 
 the tax, the advertisement and sale of the property, the 
 return, filing, or record of the proceedings, whether the acts 
 are to be performed before or after the sale must be in strict 
 compliance with the statute authorizing the sale.^ 
 
 ' Stead's Executor v. Course, 4 Cranoh, 403 ; s. c. 2 Pet. Cond. 151. 
 
 (a) The validity of acts touching the assessment, levy, and delinquency of 
 taxes is determined under the laws in force at the time they were done; and the 
 tax sale is governed by the law in force when it was made. Penn v. Clemans, 
 19 Iowa, 372. 
 
 2 Judevine v. Jackson, 18 Vt. 470; Early v. Doe, 16 How. (U. S.) 610 ; Lyon 
 V. Hunt, 11 Ala. 295 ; Sumner v. Sherman, 13 Vt. 609 ; Isaacs v. Wiley, 12 Vt. 
 677 ; Doughty v. Hope, 3 Denio, 695 ; Shimrain v. Inman, 26 Me. 228 ; Smith v. 
 Bodfish, 27 Me. 295 ; Brown v. Veazie, 25 Me. 362 ; Varick v. Tallman, 2 Barb. 
 113 ; Blakeney v. Ferguson, 3 Eng. (Ark.) 277 ; Young v. Martin, 2 Yeates, 312 ; 
 Shearer v. Woodburn, 10 Barr, 511 ; Morton u. 'Reed, 6 Mo. 74, 75 ; Parker v. 
 Rule, 9 Cranch, 64 ; s. c. 3 Pet. Cond. 308 ; Ronkendorflf v. Taylor, 4 Pet. 349 ; 
 Nalle I/. Fenwick, 4 Band. 585 ; Yancy a. Hopkins, 1 Munf . 419 ; Earnum v. 
 Buffum, 4 Cush. 267 ; Lessee of Hughey v. Horrell et al. 2 Ham. S31 ; s. c. 1 Ohio, 
 Cond. 335 ; Holt v. Hemphill, 3 Ham. 232; s. c. 1 Ohio, Cond. 551 ; Carlisle v. 
 Longworth, 5 Ham. 368 ; s. c. 5 Ohio, 229 ; Lafferty v. Byers, 5 Ham. 457 ; 
 Lessee of Dresback v. McArthur, 6 & 7 Ohio, Cond. 307 ; Lessee of Perkins ■,. 
 Dibble, 10 Ohio, 433; Fitch v. Casey, 2 G. Greene, 300; Reeds v. Morton, 9 Mis. 
 878 ; O'Brien u. Coulters, 2 Blackf. 421 ; Dentler u. State, 4 Blackf. 258 ; Reg- 
 isrer V. Bryan, 2 Hawks, 17 ; Pope et al. v. Headen, 5 Ala. 433 ; Scales v. Alvis, 
 12 Ala. 617 ; Terry v. Blight, 3 Mnn. 270 ; Bishop v. Lovan, 4 B. Mon. 116 ; 
 Allen V. Smith, 1 Leigh, 248 ; Wilsons v. Bell, 7 Leigh, 22 ; Jesse v. Preston, and 
 Keith V. Preston, 5 Grat. 120 ; Thames Manufacturing Co. v. Lathrop, 7 Conn. 
 550 ; Keene v. Houghton, 19 Me. 368 ; Gushing v. Longfellow, 26 Me. 306; Hobbs 
 V. Clements, 32 Me. 67 ; Matthews v. Light, 32 Me. .305 ; Brown v. Smith, 1 N. H. 
 36; Brown v. Dinsmoor, 3 N. H. 103; Mason v. Fearson, 9 How. (U. S.) 248; 
 Moore v. Brown, 4 McL. 211 ; Jackson v. Esty, 7 Wend. 148; Culver v. Hay den, 
 1 Vt. 359; Hall v. Collins, 4 Vt. 316 ; Richardson v. Dorr, 5 Vt 9; Spear v. Ditty, 
 "S Vt. 46; Bellows v. Elliott, 12 Vt. 569; Isaacs v. Shattuck, 12 Vt. 668; Brown 
 V. Wright, 17 Vt. 97 ; Carpenter v. Sawyer, 17 Vt. 121 ; Langdon v. Poor, 20 Vt. 
 13 ; Chandler v. Spear, 22 Vt. 388 ; Taylor v. French, 19 Vt. 49 ; Wistar v. 
 Kammerer, 2 Yeates, 100 ; Burch v. Fisher, 13 Serg. & Rawle, 208 ; Huston v 
 Foster, 1 Watts, 478 ; Foust v. Ross, 1 Watts & Serg. 501 ; Porter v. Whitney, 
 1 Greenl. 306 ; Delogny v. Smith, 8 La. 418 ; Morris v. Crocker, 4 La. 147 ; 
 
38 NATURE OP THE POWEE TO SELL LAND 
 
 * 35 * In the language of Chief Justice Marshall : " That 
 
 no individual, or public oflacer, can sell, and convey a 
 good title to, the land of another, unless authorized to do so 
 by express law, is one of those self-evident propositions to 
 which the mind assents without hesitation; and that the per- 
 son invested with such a power must pursue with precision 
 the course prescribed by law, or his act is invalid, is a prin- 
 ciple which has been repeatedly recognized in this court." ^ 
 So strict, indeed, are the decisions in reference to this class 
 of sales, that it has been said that a tax deed is primd facie 
 void.^ 
 
 The strictness required in such cases has its origin in that 
 great fountain of the common law which regulates powers. 
 A special authority must be strictly pursued ; but more lati- 
 tude is allowed in the exercise of a general authority .^ "Where 
 a general power is given executors, by will, to sell land, they 
 have a discretion, to sell for cash or upon credit ; they may 
 select that time which they may regard as most appropriate 
 for the sale, provided there is no unreasonable delay ; they 
 
 may sell at public or private vendue ; they may sell it 
 
 * 36 all at once, * or at different times ; they may sell it 
 
 entire, or in parcels, to suit the interest of the estate, 
 
 McDonough v. Gravier, 9 La. 546 ; Carmichael v. Aikin, 13 La. 205 ; Alvord 
 V. Collin, 20 Pick. 418; Brooks v. Kooney, 11 Geo. 427; Boisgerard v. Johnson, 
 23 Miss. 122 ; Bussey v. Leavitt, 3 Fairf. 378 ; Garrett u. Wiggins, 1 Scara. 335 ; 
 Graves «. Bruen et al. 11 111. 437, 438; Hill v. Leonard, 4 Scam. 140; Fitch v. 
 Pinckard, 4 Scam. 69 ; Williams v. Peyton, 4 Wheat. 77; Jackson v. Shepard, 
 7 Cow. 88; Thatcher v. Powell, 6 Wheat. 119; Irving w. Brownell, 11 111. 402; 
 Hubbell V. Wcldon, Hill & Denio, 189 ; Yeuda v. Wheeler, 9 Texas, 408 ; Hatley 
 V. Tankersley, 8 Texas, 12 ; Lane v. Bommelmann, 21 111. 14S ; Gaylord v. Scarff, 
 6 Clarke (la.), 579; McGahen v. Carr, id. 331; Charles v. Waugh, 85 111. 315; 
 Altis V. Hinckler, 36 111. 265; Schenck v. Peay, 1 Woolworth C. C. 175; Scott 
 V. Stearns, 2 Mich. N. P. Ill ; Greene v. Lunt, 58 Me. 532 ; Doe on demise of 
 Taylor v. Allen, 67 N. C. 346; Holhrook u. Dickinson, 46 111. 285; Davis v. 
 Fames, 26 Texas, 296 ; Brady v. Offut, 19 La. An. 184 ; Adriance v. McCafferty, 
 2 Robertson (N. Y.), 153 ; Yankee u. Thompson, 51 Mo. 237 ; Lagroue v. Bains, 
 48 Mo. 536 ; Spurlock v. Allen, 49 Mo. 178 ; Large v. Fisher, 49 Mo. 307 ; Abbott 
 V. Doling, 49 Mo. 802 ; State v. Baxter, 36 N. J. Law, 191. (The authority mus{ 
 be made to appear, must be strictly pursued, and no intendments can be indulged 
 in to support the proceedings. Williams v. Underbill, 58 lU. 137). 
 
 1 Thatcher v. Powell, 6 Wheat, 119 ; s. c. 5 Pet. Cond. 27. 
 
 2 4 Smedes & M. 628, — a mere dictum, however. 
 
 3 The President, &c., of Natchez v. Minor, 10 Smedes & M. 264. 
 
FOB THE NON-PAYMENT OP TAXES, ETC. 39 
 
 or the convenience of purchasers, and may adopt such form 
 of conveyance, and such ceremonies in the execution of the 
 title-deeds, as they, in the exercise of a sound discretion, may 
 deem proper. All that law requires of them, is the exercise 
 of good faith, and a due regard to the interests intended to 
 be promoted by the testator. 
 
 But if, on the other hand, a special power is delegated to 
 them ; if, for example, they are required to sell at a particular 
 time, for cash, at public auction, in particular parcels, by 
 lease and release", or any other prescribed mode of convey- 
 ance ; or if any other specific directions are given in the will, 
 as to the manner in which the power shall be exercised, all 
 of these become conditions precedent, and must be strictly 
 observed by the executors, or the power is not well executed, 
 and no title will pass to the purchaser.^ 
 
 So, where a general power of attorney is given by one per- 
 son to another, to sell and convey an estate, a discretion is 
 necessarily vested in the attorney, and great latitude is 
 allowed in the exercise of the authority. But if the owner of 
 the estate prescribe, in the instrument creating the power, the 
 mode of its exercise, all of the requirements of the warrant 
 must be strictly complied with, or the power does not arise. 
 The powers in both of the cases mentioned, are termed com- 
 mon-law authorities.^ .The same rules apply to the execution 
 of powers of appointment and revocation, which grow out of 
 the statute of uses. Where the power is given generally, 
 without defining the mode in which it must be executed, it 
 may be exercised either by deed, will, or a simple note in 
 writing, without even an attestation ; and the reason is that 
 the law treats the instrument by which the power is executed, 
 as a mere appointment or revocation of the use, according to 
 the will of the donor, and if the intention to do this is 
 manifest * upon the face of the instrument, it is regarded * 37 
 as a valid execution.^ 
 
 But there are cases where the power is special, in which 
 particular circumstances are required to attend the execution 
 
 1 Taylor D. Galloway, 1 Ham. (Ohio) 232; Loomis v. McCllntock, 10 Watts, 
 274. 
 
 2 Sugden on Powers, 1. ^ Sugden on Powers, ch. 5, § 2. 
 
40 NATURE OF THE POWER TO SELL LAND 
 
 of it. "These are generally, first, a particular instrument; 
 secondly, a particular mode of execution ; and, thirdly, condi- 
 tions not strictly relating to the instrument, as the consent of 
 third persons, tender of money, or the like." Where forms 
 are imposed on the execution of such a power, it is either to 
 protect the remainder-man from a charge in any other mode, 
 or to preserve the person to whom it is given, from a hasty 
 and unadvised execution of the power. In each case, the 
 circumstances must be strictly complied with ; in the first, it 
 would be in direct opposition to the agreement, to consider 
 the estate charged, when the mode pointed out is not adhered 
 to ; in the second, to dispense with the solemnities and forms 
 required to attend the execution of the power, is to deprive a 
 man of the bridle which he has thought proper to impose on 
 his weakness or frailty of mind, in order effectually to guard 
 himself against fraud and imposition.^ 
 
 The strictness required in the execution of this class of 
 powers, is admirably sustained by the reasoning of Lord Ellen- 
 borough, in the case of Hawkins v. Kemp.^ There, the terms 
 of the power required that the revocation should be by deed 
 or other instrument in writing, executed in the presence of, 
 and attested by three credible witnesses, enrolled in one of 
 his majesty's courts of record at Westminster, and with the 
 consent and approbation of nine persons, named in the instru- 
 ment creating the power. The deed executed under this 
 power was not enrolled until after the death of the appointee, 
 but every other requirement had been complied with, and 
 this objection being taken to the deed, it was sustained by 
 the court, the Lord Chief Justice saying, " Every one of these 
 required circumstances is in itself perfectly arbitrary, 
 * 38 and * (except only as it is in fact required) unessen- 
 tial in point of effect, to the legal validity of any instru- 
 ment by which old uses should be revoked, or new uses 
 declared. It is, in itself, immaterial whether the instrument in 
 writing, purporting so to revoke and declare the uses, should 
 be by deed ; whether such deed should be executed in the pres- 
 ence of what and how many witnesses ; whether it should be 
 
 1 Sugden on Powers, ch. 5, § 3. 
 
 2 3 East, 410. 
 
FOR THE NON-PAYMENT OP TAXES, ETC. 41 
 
 afterwards attested by the witnesses, and ultimately enrolled in 
 any court of record, and whether it should be sanctioned by 
 the consent and approbation of the several trustees named for 
 that purpose. It might (if it had so pleased the parties 
 creating the power) have been done by any writing of the 
 persons so authorized, unsealed, unattested, and unenroUed, 
 and unsanctioned by any consent or approbation whatever. 
 If these circumstances be unessential and unimportant, except 
 as they are required by the creator of the power, they can be 
 satisfied only by a strictly literal and precise performance. 
 They are incapable of admitting any substitution, because 
 these requisitions have no spirit in them which can be other- 
 wise satisfied ; incapable of receiving any equivalent, because 
 they are, in themselves, of no value." 
 
 There is still another class of powers, more closely resem- 
 bling the power in question, which are created by statute, and 
 depend upon the statute for the mode and manner of their ex- 
 ecution, and may, therefore, be properly termed statutory 
 powers. Such are sales of land by administrators, to pay the 
 debts of an intestate ; by guardians, for the maintenance and 
 education of their wards ; proceedings for the condemnation 
 of land to public uses, and others of a like nature. Sometimes 
 the power is conferred upon superior courts of general common 
 law and chancery jurisdiction; again upon inferior courts of 
 special jurisdiction, and again upon commissioners who act in a 
 judicial capacity. In all of these cases the power is special, 
 and the proceedings are summary. If this special authority is 
 conferred upon a superior court of general jurisdiction, which 
 usually proceeds according to the course of the common law, 
 the tribunal is regarded, quoad hoc, as an inferior court with 
 special jurisdiction. The rule applicable to such apower 
 is *thus laid down by Justice Caton, in reviewing a *39 
 guardian's sale: "This is a proceeding, not according 
 to the course of the common law, but a special jurisdiction 
 conferred by the statute, and, although in a court of general 
 common law and chancery jurisdiction, yet when a court un- 
 dertakes to exercise this extraordinary jurisdiction, which is 
 not in conformity with either, it must appear upon the face of 
 the record or proceeding itself that the contingency existed, 
 
42 NATURE OP THE POWER TO SELL LAND 
 
 or at least was alleged, which authorized it to proceed under 
 the statute and make the order." ^ 
 
 The language of C. J. Marshall is similar. He says, " In 
 summary proceedings, where a court exercises an extraordi- 
 nary power under a special statute prescribing its course, we 
 think that course ought to be exactly observed, and those facts 
 especially, which give jurisdiction, ought to appear, in order to 
 show that the proceedings are coram judice." ^ In other words, 
 all of the facts which are essential to the exercise of the power, 
 must affirmatively appear upon the face of the record ; they 
 cannot be supplied by proof, or made out by intendment. The 
 authorities upon this point are uniform.^ 
 
 If, on the other hand, this special authority is conferred 
 upon an inferior tribunal of limited jurisdiction, or upon 
 commissioners, or upon any other individuals who act quoad 
 hoc in a judicial capacity, the rule is still more strict. It is 
 thus laid ^ down. Where a special authority is delegated by 
 statute to particular persons, or to any inferior tribunal, affect- 
 ing the property of individuals against their will, the course 
 prescribed by law must be strictly pursued, and appear to be 
 so upon the face of the proceedings, or the power is not 
 * 40 well executed.* * And it makes no difference in the 
 application of tiiis principle, whether the question comes 
 before the superior courts by certiorari or collaterally. If the 
 law has not been strictly complied with, the- proceeding is a 
 nullity, and the adjudication gives it no additional validity. 
 
 In the case of Rex v. Croke,^ which was a proceeding to 
 condemn property for public uses, by the court of Quarter 
 Sessions, before a jury summoned by the sheriff, the statute 
 required, that the precept for a jury should be issued on the 
 
 1 Young V. Lorain, 11 Dl. 636, 637. 
 
 2 Thatcher v. Powell, 6 Wheat. 119 ; s. c. 5 Pet. Cond. 28 ; Wiglit v. Warner, 
 1 Doug. (Mich.) 384; Clark v. Holmes, 1 Doug. (Mich.) 890; Piatt v. Stewart, 
 10 Mich. 260 ; Chandler v. Nash, 5 Mich. 409. 
 
 3 Zurcher v. Magee, 2 Ala. 253 ; Bates v. Branch Bank of Mobile, 2 Ala. 689; 
 Brown v. Wheeler, 3 Ala. 287. 
 
 * Smith V. Hileman, 1 Scam. 323 ; Sharp v. Speir, 4 Hill, 86 ; Rex w. Croke, 
 1 Cowp. 26 ; Davison v. Gill, 1 East, 64; 7 Term, 363 ; 1 Bur. 377 ; 4 Bur. 2214; 
 Gilbert v. Columbia Turnpike Company, 3 Johns. Cas. 107 ; State v. Scott, 
 3 Green (N. J.), 340; Levy Court v. Gwynn, 4 Har. & J. 227; McDermott v. 
 Scully, 27 Ark. 226. 6 1 Cowp. 26. 
 
FOR THE NON-PAYMENT OP TAXES, ETC. 43 
 
 application of " the Mayor, Aldermen, and Commons of Lon- 
 don, in common council assembled," and that notice in writ- 
 ing should be given to the mortgagee in possession, &c. The 
 order of the Quarter Sessions recited an application by the 
 " Mayor, Commonalty, and Citizens of London," that proof 
 of due notice had been given to Croke, the defendant, and 
 omitted to state whether Croke was a mortgagee in or out of 
 possession. On certiorari, the court of King's Bench quashed 
 the order of condemnation, 1. Because of the misrecital of 
 the corporate name of the city of London ; 2. Because the 
 record did not set out the notice, and aver that it was in 
 writing ; and 3. Because the order did not show that the 
 defendant was a mortgagee in possession of the land condemned. 
 Gilbert v. Columbia Turnpike Company,^ was a proceeding 
 to condemn land for the use of the turnpike company, under 
 a statute which provided, that in case of a disagreement 
 between the company and the owner, the president and 
 directors might apply to one of the judges, or assistant justices 
 of the Court of Common Pleas of Columbia county, not inter- 
 ested in said road, and the judge or justice should appoint 
 three commissioners, freeholders of the county, and not in- 
 habitants of any of the towns through which the road shall 
 pass. The law further provided, that the commissioners 
 should name a day for a hearing, and give the owner four 
 days' notice of their appointment, and of the time and place 
 of meeting, take an oath and proceed to inquire, &c. 
 * The inquisition did not recite a disagreement ; the * 41 
 non-interest of the judge who appointed the commis- 
 sioners ; that the commissioners were not inhabitants of any 
 town through which the turnpike passed, and that a written 
 notice was given to the owner. The inquisition was brought 
 before the Supreme Court by certiorari, and quashed for the 
 reasons above named. In each of the preceding cases it wiU 
 be seen that the question came directly before the court, on 
 certiorari, to quash the order itself. 
 
 In Davison v. Gill,^ an order was made by two justices of 
 the peace, under the 13 Geo. III., c. 78, sec. 19, for stopping 
 up an old footway, and setting out a new one. A schedule 
 
 1 3 Johns. Cas. 107. ^ i East, 64. 
 
44, NATURE OP THE POWER TO SELL LAND 
 
 was annexed to the statute, giving the form of the order, and 
 the statute declared that the form set out in such schedule, 
 " shall be used on all occasions, with such additions and vari- 
 ations only, as may be necessary to adapt it to the particular 
 exigency of the case." The form referred to sets forth the 
 length and breadth of the new or substituted footway. The 
 justices omitted to state in their order the length and breadth 
 of the substituted way. The action was trespass, q. e.f., for 
 breaking and entering the close of the plaintiff. The defend- 
 ant justified upon the ground that the locus in quo was part 
 and parcel of a public footway. The validity of the foregoing 
 order of the justices thus came up, the close being parcel of 
 the old footway stopped up by them. Judgment was given 
 for the defendant, Kenyon, C. J., saying, " The court are 
 always disposed to support, as far as they can, the acts of the 
 magistrates below, but we must take care not to let our 
 wishes carry us beyond the bounds of law. The justices have 
 a limited power given them under the act of Parliament, and 
 it must appear that this order was made by virtue of that 
 power, &c. The words of the act are peremptory. I cannot, 
 therefore, say that these words are merely directory. Power 
 is given to the magistrates to take away, on certain condi- 
 tions, a right which the public before enjoyed, and this 
 * 42 is to be done in a certain * prescribed form, &c. Now 
 here is a material variance in the order, from the form 
 prescribed, for it does not set forth the length and breadth of 
 the new path set out in lieu of the old one." 
 
 Smith V. Hileman,^ was an ejectment to recover a parcel of 
 land, which the defendant claimed under a sale made by an 
 administrator to pay debts, in pursuance of the order of the 
 Circuit Court. The statute under which this proceeding took 
 place, required the administrator to set forth in his deed of 
 conveyance, " the order of the court at large." The deed, in 
 this case, omitted to set forth the order at large, but recited 
 it substantially. The court held that no title passed by the 
 deed. Smith, J., in delivering the opinion, says, " The rea- 
 son of this precision we are not at liberty to inquire into, nor 
 what the supposed necessity may have been, in the opinion 
 
 • 1 Scam. 323. 
 
FOB TH^ NON-PAYMENT OP TAXES, ETC. 45 
 
 of the legislature, for its adoption . It is sufficient to perceive, 
 that the recital of the substance of the order, is not a compli- 
 ance with, or an observance of the act. A special power 
 granted by statute, affecting the rights of individuals, and 
 which divests the title to real estate, ought to be strictly pur- 
 sued, and should appear to be so on the face of the proceed- 
 ings." The last cases cited arose collaterally, and the 
 proceedings, in each case, were treated as nullities. 
 
 It will thus be seen, that the common-law rule which dis- 
 tinguishes between general and special powers, is uniformly 
 and consistently applied by the courts in England and the 
 United States, to every class of powers, whether they are re- 
 garded as common-law authorities, those deriving their effect 
 from the statute of uses, or statutory powers. It has already 
 been shown that the collector, or other officer, has no general 
 authority to sell land for the non-payment of taxes, but a 
 special power to sell in the particular cases prescribed by 
 law.^ Wherefore it is held that those cases must exist, or 
 the power does not arise ; and when it does arise, all of 
 those .formalities, * which the law creating the power * 43 
 has imposed upon it;s own officers, for the security of 
 private rights, must be faithfully observed in the execution 
 of the power. The power itself is a high prerogative, and 
 the exercise of it, a rigorous proceeding. It divests the owner 
 of his title without his consent, and very often for a trifling 
 consideration ; and the legislature have usually shown a cau- 
 tious solicitude to protect the rights of private property, by 
 clogging the exercise of this power with conditions and forms, 
 intended as guards against oppression and fraud.^ 
 
 The doctrine of the common law, which requires that those 
 conditions shall be complied with, and forms strictly observed, 
 more forcibly applies'to ministerial officers, charged by statute 
 with the execution of a special authority to be exercised over 
 the estates of individuals, than in those cases where one citi- 
 zen delegates a special power to another ; because those offi- 
 cers are agents, appointed under the authority of the general 
 
 1 Ante, p. * 33. 
 
 2 Tallman v. White, 2 Comst. 70 ; Hughey v. Horrell, 2 Ohio, 231 ; Farnum 
 V. Buffum, 4 Cush. 267. 
 
46 NATURE OP THE POWER TO SELL LAND 
 
 law, in the selection of whom, the party to be affected by 
 their acts has no immediate agency, and over whom he has no 
 manner of control. He cannot confer the power upon another, 
 whom he might esteem more worthy of confidence, but must 
 abide the act of the agent of the law.^ 
 
 Besides, in this class of powers, the government, by its 
 agents, acts in hostUity to, and with the view of subverting 
 the title of the citizen, for an alleged breach of its revenue 
 regulations. Under such circumstances the presumption is, 
 that the owner has violated no law — neglected no duty en- 
 joined upon him, which shall have the effect of working a 
 forfeiture of his estate. He waives nothing by silence, stands 
 upon all of his rights, and is permitted to insist upon a strict 
 comphance with all of those conditions which the law has 
 imposed upon its own agents, for their guide in the exe- 
 * 44 cution of the power.^ * Another reason assigned for 
 this strictness is that the power of the officer to sell land 
 for the non-payment of taxes by the owner, is a naked one, 
 not coupled with an interest ; and in all such cases, whether 
 the power is general or special, the common law requires that 
 every prerequisite to the exercise of the power, must precede 
 it ; that the agent must pursue the power, or his act will not 
 be sustained by it.^ Judge Scates, in Hinman v. Pope,* weU 
 remarks, that " this vigilance of the law upon naked powers, 
 is a substitute for that vigilance which interest always 
 prompts in those who execute a power coupled with an in- 
 terest." 
 
 Again, proceedings of this kind partake somewhat of a judi- 
 cial character, yet, in point of fact, they are usually ex parte, 
 always summary, and the notice to the owner is merely con- 
 structive. The course of the common law in judicial pro- 
 ceedings is thus departed from, — that fundamental principle 
 of natural justice which requires actual notice, and an oppor- 
 tunity of a hearing before condemnation, is violated in spirit, 
 and the owner of the land, under pretence of delinquency, 
 " is disseised of his freehold without the judgment of his peers 
 
 1 Schmidt v. Gatewood, 2 Rich. Equity, 170 ; Dudley v. Little, 2 Ohio, 504. 
 
 2 Varick v. Tallman, 2 Barb. 113. 
 
 ' Vide authorities cited ante, p. * 33. * 1 Gilm. 181. 
 
FOR THE NON-PAYMENT OP TAXES, ETC. 47 
 
 or the law of the land." (a) It is conceded that the collec- 
 tion of taxes cannot, in general, be made by ordinary suits, 
 and that the proceedings, in such cases, must, of necessity, 
 be summary and ex parte. But this very necessity begets 
 another, that in the execution of such a power, the law shall 
 be strictly and punctiliously complied with, in aU of its requi- 
 sitions.i This rule is applied to all summary proceedings 
 prescribed by statute, where the accustomed course of the 
 common law is departed from.^ 
 
 And here it may be remarked, that the common law 
 enters * largely into the construction of every statute. * 45 
 A just interpretation is ever controlled by that law.^ 
 It is said to be the best construction of a statute to expound 
 it as near to the rule and reason of the common law as possi- 
 ble, and by the course which that law observes in similar 
 cases.* The reason assigned by Chancellor Kent for this rule 
 of construction is thus stated : " For it is not to be presumed 
 that the legislature intended to make any innovation upon 
 the common law, further than the case absolutely required. 
 This has been the language of the courts in every age, and 
 when we consider the constant, vehement, and exalted eulogy 
 which the ancient sages bestowed upon the common law, as 
 the perfection of reason, and the best birthright and noblest 
 inheritance of the subject, we cannot be surprised at the great 
 sanction given to this rule of construction." ^ The Chan- 
 cellor, after stating that " we cannot be surprised at the great 
 sanction given to this rule," because it was regarded " as the 
 birthright and noblest inheritance of the subject," might have 
 added, that the rule was not only venerable and patriotic, 
 
 (a) See contra, pp. * 28 & 29 and cases cited. 
 
 1 Morton v. Reed, 6 Mo. 64. 
 
 2 Levert v. P. & M. Bank, 8 Port. 104 ; Logwood v. P. & M. Bank, 1 Minor 
 (Ala.), 23; Yancy v. Hopkins, 1 Minor (Ala.), 171 ; Crawford v. State, 1 Minor 
 (Ala.), 143; Bates v. P. & M. Bank, 8 Port. 99; Judson v. State, 1 Minor, 
 153 ; Zurcher v. Magee, 2 Ala. 253 ; Bates v. Branch Bank of Mobile, 2 Ala. 689 ; 
 Brown «. "Wheeler, 3 Ala. 287. 
 
 8 10 Johns. 586. 
 
 « Dwarris on Statutes, 695; 1 P. "Wms. 252; 1 Saund. 240; 10 Johns. 579; 
 Doug. 27; 1 Bur. 445; 1 Kent, 464; 6 Bac. Abr. 383; Co. Litt. 2726; Stowell 
 V. Zouch, Plow. 365 ; Heydon's Case, 8 Coke, 7 ; Vernon's Case, 4 Coke, 4. 
 
 « 1 Kent's Com. 464. 
 
48 NATUKE OP THE POWER TO SELL LAND 
 
 but that it was founded in the common sense of expositors. 
 In construing a new law, we instinctively look to the old one, 
 which is superseded, or repealed. To use the quaint and 
 expressive language of Lord Coke : " In construing a statute, 
 we must look to the old law, the mischief, and the remedy." 
 No judge, however acute, can properly construe a new law, 
 without knowing what the old law was. This seems a self- 
 evident proposition. When a word is used in a statute, 
 which has a well-known and definite meaning at common 
 law, it is presumed that the legislature used it in that sense, 
 
 and it should be so received and expounded by the 
 *46 courts.^ When a * power is given by statute, but the 
 
 means of its execution are not prescribed, the power 
 must be executed according to the course of the common law. 
 Where the provisions of a statute are general, it is subject to 
 the control and order of the common law; in other words, 
 the statute is to receive such a construction as may be agree- 
 able to the rules of the common law in cases of that nature ; 
 for statutes are not presumed to make any alteration in the 
 common law, further or otherwise than the act expressly 
 declares.2 This doctrine is expressly affirmed by the statute 
 of Illinois, which declares that " the common law of England, 
 &c., shall be considered as of full force, untU repealed by 
 legislative authority. ' ' ^ 
 
 Where a right is given by statute, but no remedy to en- 
 force it, the common-law remedy may be adopted ; and where 
 a new remedy is given to enforce a right, or redress a wrong, 
 recognized by the common law, and there are no negative 
 words in the statute, the party injured has an election to 
 proceed under the statute, or at common law. And lastly, 
 when a statute makes an innovation upon the established 
 principles of the common law, it must be strictly construed 
 in all cases.* Thus, in every view the rules of the common 
 law, in relation to special and naked powers and summary 
 
 1 6 Bac. Abr. 383 ; 6 Mod. 148 ; Mayo v. Wilson, 1 N. H. 53 ; Bedell v. Janney, 
 4Gilm. 205, 206; Adams v, Turrentine, 8 Ired. 147; Dwarris on Statutes, 
 696. 
 
 2 6 Bac. Abr. title " Statute," 383, 384. 
 ^ Eevised Statutes, 1845, p. 337, § 1. 
 
 * 16 Johns. 7 ; 2 GUm. 184 & 429 ; 4 Binney, 116. 
 
FOR THE NON-PAYMENT OP TAXES, ETC. 49 
 
 proceedings, are peculiarly applicable to those officers of the 
 law who, under the authority of general statutes, sell land 
 for the non-payment of taxes. There are other reasons, 
 equally, if not more weighty, why those officers should strictly 
 conform to the requirements of the law. The chief purpose 
 of government is the protection of life, liberty, and property ; 
 and this is a fundamental principle in our free constitutions. 
 The bill of rights attached to every one of them, declares, 
 that the " acquisition, possession, and protection of property," 
 is one of the inalienable rights of every citizen. A speedy 
 and complete remedy, by due course of law, for all 
 invasions of property, is guaranteed to him. He *is *47 
 protected in the enjoyment of his property from the 
 encroachment of every department of the government, by 
 those limitations which have been imposed by the Constitu- 
 tion upon the taxing power ; by that provision which pro- 
 hibits the taking of private property for public uses, without 
 due compensation, and by the further declaration that he 
 shall not be " disseised of his freehold, or in any manner be 
 deprived of his property, without the judgment of his peers 
 or the law of the land." Not even a conviction for the high- 
 est crime known to the law, can have the effect of working a 
 forfeiture of his estate. Thus the mantle of the Constitution 
 and laws is thrown around the property of the citizen, to 
 shield it from public or private invasion. The spirit of these 
 great fundamental principles, therefore, requires that when 
 the high power of selling the estates of delinquent tax-payers 
 is delegated to a subordinate officer, all of those conditions, 
 checks, and forms, which the legislature have seen proper in 
 their wisdom to prescribe with a view to prevent fraud, op- 
 pression, and injustice in the execution of the power, should 
 be observed by the officer in letter and spirit. It is a maxim 
 of the law, that every statute ought to be so construed as to 
 preserve unimpaired fundamental principles.^ 
 
 The evident intention of the legislature in the enactment 
 of this class of laws, is to coerce the payment of taxes from 
 the unwilling, and at the same time to protect the rights of 
 private ownership as guaranteed by the fundamental prin- 
 
 1 1 Pet. Cond. 426; 8 Johns. 41. 
 4 
 
50 NATURE OF THE POWER TO SELL LAND 
 
 ciples of our institutions. The former object is accomplished 
 by the sale of the delinquent's lands ; the latter by those con- 
 ditions and forms, with which the officer is bridled and re- 
 strained in the execution of the power of sale. A double — 
 a general and particular — intent is thus manifested in all 
 such laws, both of which should be sacredly respected, and 
 carried out by the courts in construing them ; the true prin- 
 ciple applicable in all such cases being, that the private in- 
 terest of the citizen is never to be sacrificed to a greater 
 extent than is necessary to secure a public object of 
 * 48 adequate importance ; nor should the * power be exer- 
 cised in any other mode than that specially pointed out 
 by the statute.^ As a matter of public policy, tax sales 
 should not be sustained, unless the laws are shown to have 
 been complied with. In the varied transactions of men, 
 absolute punctuality in the payment of taxes is impossible. 
 Misfortune, disease, and death prevail in every community, 
 and interrupt the performance of the duties of the citizen 
 toward the government of his choice. A mere oversight of 
 the owner, and not a wilful and perverse disposition, may 
 have been the occasion of the failure to pay the tax.^ 
 
 But for the rule of strictness required by the courts in this 
 class of powers, great injustice would oftentimes be done, and 
 innocent persons lose their estates. The taxes may have been 
 paid, and by accident the evidence of the payment may be 
 lost to the owner. > The officer intrusted with the collection 
 of the tax may have neglected to make a personal demand 
 upon the tax-payer. Guardians of the estates of infants; 
 executors in whom the estate is vested by will, charged with 
 the execution of a power over it ; agents intrusted with 
 -the payment of the tax, and tenants for life, who enjoy the 
 profits of the estate, may fail to pay the taxes assessed ; the 
 ■collector himself may, by mistake, return one as delinquent 
 who is not so in point of fact. These, and many other cases, 
 which will readily suggest themselves to every person at all 
 ■conversant with these tax sales, oftentimes happen, and the 
 
 1 Broom's Maxims, Second London Edition, 1848, pp. 8, 4. 
 
 2 Mason t. Fearson, 9 How. (U. S.) 248; counsel arguendo in Kemper v. 
 McClelland, 19 Ohio, 324. . 
 
FOR THE NON-PAYMENT OP TAXES, ETC. 51 
 
 estates of innocent persons are thus divested without their 
 knowledge. The possibility that the power to sell may be 
 abused, and injustice done in such cases, ought to require at 
 the hands of the court a strict construction of, and literal 
 compliance with, the law. That no statute ought to be so 
 construed as to work injustice, nor ^o that an innocent man 
 may be punished or endangered, are maxims of the common 
 law.i 
 
 There is another principle of construction which may 
 be * properly applied in this connection. It is thus laid *49 
 down by Lord Holt : " Let a statute be ever so chari- 
 table, if it give away the property of the subject, it ought to 
 be construed strictly." ^ Let it be remembered that the 
 statute to which Holt applied this rule of construction, was 
 a statute discharging insolvent debtors from imprisonment ; 
 the ordinary rule is, that in cases involving personal liberty, 
 if a statute extends it, you are to construe it liberally ; if it 
 restrains liberty, then construe it strictly.^ If you sell the 
 land of one who has paid the taxes due upon it, you in effect 
 give it away, and have not even the plea of charity as a justi- 
 fication or excuse for your conduct. There is still another 
 rule of law which may be properly applied to powers of this 
 character. Where a statute creates a new power, and at the 
 same time provides the means and mode of executing it, those 
 to whom the power is intrusted can execute it only in the 
 mode prescribed.* 
 
 This rule requires a rigid adherence to the directions and 
 forms which the legislature has seen proper to lay down for 
 the government of its agents. The power is purely arbitrary, 
 and this furnishes a strong reason why it should not be exer- 
 cised in an arbitrary manner. If the forms required to be 
 observed are once departed from, there is an end of all legal 
 restraint, and the discretion of the officer is bounded by his 
 will alone. This would be intolerable to a free people. No 
 court would venture to sanction a doctrine which would 
 
 1 Co. Litt. 360 a ; 7 Johns. 482 & 495, 496. 
 
 2 6 Bac. Abr. 389; 12 Mod. 513. ^ 12 Johns. 373. 
 
 1 6 Mass. 44; 14 Mass. 389; 1 Blaokf. 39; 1 Mo. 428; State v. Cole, 2 Mo- 
 Cord, 117. 
 
52 NATURK OP THE POWER TO SELL LAND 
 
 operate to vest such an unbounded discretion in any oflScer. 
 Discretionary power is contrary to the genius of our laws and 
 institutions. To sustain a tax sale, where the officer, in the 
 exercise of his discretion, has disobeyed the rule laid down 
 by the statute for his government, is to transfer the legislative 
 power of the State to thq collector, and thus allow him to sell 
 
 land for taxes, not in the manner prescribed by the 
 * 50 written * law, but according to his private notions of 
 
 what is right, and would place at his discretion the 
 property of every citizen of the State. ^ 
 
 Again the estate of the purchaser is an acquisition by oper- 
 ation of law. The power is created by statute, the officer 
 authorized to make the sale is appointed by law, and the time, 
 place, and manner of sale are prescribed by the law. The 
 estate, therefore, depends upon the law for its validity, and 
 not upon the consent of the former owner. Now it is difficult 
 to perceive how any one claiming title to land, under a statute 
 which points out the manner of acquisition, can establish that 
 title in a court of justice without proving the existence of all 
 those acts which the law has prescribed as conditions precedent 
 to its validity. The law is the foundation of the title — it is 
 the power of attorney of the officer who makes the sale. 
 Therefore, a person claiming under the statute, must not only 
 show the power, but a compliance with all of its terms or 
 requirements. It is a general principle, applicable alike to 
 all political organizations, that every citizen is bound to take 
 notice, at his peril, of the law of the land ; that ignorance of 
 its existence is no excuse for disobeying its mandate, and that 
 however ambiguous it may be, consequences arising from an 
 erroneous construction of it cannot be averted, either at law 
 or in equity. 
 
 When, therefore, a party claims title under a public law, 
 he is not only bound to know the law, and give it a fair and 
 reasonable construction, but he is bound to see that all of its 
 substantial requirements have been complied with. "A spe- 
 cial authority must be strictly pursued, and every purchaser . 
 is to be presumed to know that special authority in all cases 
 where it is conferred and Hmited by statute." 2 The law has 
 
 1 Register v. Bryan, 2 Hawks, 17. 
 
 2 Dennipg V. Smith, 3 Johns. Ch. 344. See p. * 34. 
 
FOB THE NON-PAYMENT OP TAXES, ETC. 53 
 
 a twofold object. It was not designed simply for the purpose 
 of prescribing the authority of the officer to sell, " but also to 
 give to purchasers full information of the terms upon 
 which a title * could be acquired to land sold for the * 51 
 non-payment of taxes." It was meant to put bidders 
 at a tax sale upon inquiry, whether or not the land was 
 offered for sale according to law. If they do not examine, 
 and shall buy land exposed to sale for taxes against the law, 
 they do so at their own risk ; and it will be presumed against 
 them, that they know that the deeds given under such cir- 
 cumstances, are made in violation of official duty and of the 
 law.^ This is in accordance with the well-settled principle, 
 that whenever one man presents himself as the agent of 
 another, it is the duty of all who have any transactions with 
 him in his representative character, to inquire into the extent 
 of his authority, and they deal with him at their peril.^ The 
 fact that the agent is a public, instead of a private one, and 
 that his authority is conferred by a statute, instead of a writ- 
 ing upon parchment or foolscap, can make no essential differ- 
 ence in the application of the principle. 
 
 There is another rule equally well settled, that every per- 
 son claiming title to real estate, is chargeable with notice of 
 all defects apparent upon the face of his muniments of title.^ 
 In tax titles, the constitutional provisions regulating the tax- 
 ing power, the statute levying the tax, and prescribing the 
 manner of enforcing its collection, and the acts of those to 
 whom the execution of the power is intrusted, are all essen- 
 tial links in the chain of title, — all of thera are matters of 
 record, — and the purchaser is bound to take notice of all 
 •omissions or irregularities, which have taken place in the pro- 
 ceedings under which he claims the estate. He is, therefore, 
 to look to it at his peril. The maxim caveat emptor applies to 
 him with great force, (a) 
 
 Again, the consideration usually paid for a tax title, is 
 grossly inadequate. These sales " are attended with greater 
 sacrifice to the owners of land than any others. Purchasers 
 
 1 Moore v. Brown, 11 How. (IT. S.) 414. '^ IJ. J. Marsh. 287. 
 
 ' Battemore v. "White, 2 Gill & J. 444. 
 (a) See pp. * 65, 442 and note. 
 
54 NATURE OF THE POWER TO SELL LAND 
 
 seem to have but little conscience. They calculate 
 * 52 upon * obtaining acres for cents, and it stands them in 
 
 hand to see that the proceedings have been strictly reg- 
 ular." 1 In Moore v. Brown,^ Judge Pope says, " A strict con- 
 struction has always been given to tax titles. It is necessary 
 that, at least, the requisites of the law through which an indi- 
 vidual is divested of his title, should be substantially com- 
 plied with. We see the necessity of this rule in the case 
 under consideration. Three hundred and twenty acres of 
 land have been sold for less than twenty dollars. If such 
 sacrifices can be made where there is a departure from the 
 requirements of the law, there is no safety to the owners of 
 real estate." " 
 
 In Farnum v. Buffum,^ Judge Wilde remarks, " In a sale 
 like this, where a large and valuable property has been sold 
 for a mere trifle, a compliance with all the provisions of the 
 statute should be proved with great certainty in every par- 
 ticular." In Reeds v. Morton,* the court, in speaking of the 
 neglect of the tax purchaser to record his certificate, as re- 
 quired by the statute, say, " We do not feel ourselves called 
 upon to give reasons why this thing should have been done. 
 He who wishes to obtain an estate worth thousands, for less 
 than ten dollars, under and by virtue of the law, is not to be 
 permitted to ask why he should be required to do this, or to 
 do that. It is an answer that it is required by law. Ita lex 
 scripta est. He claims by the law, then by that law let his 
 pretensions be judged." And in Mayhew v. Davis,^ the court 
 remark, " The defendant claims to hold the land in contro- 
 versy, valued by an assessor at nine hundred and sixty dollars, 
 by virtue of a sale at which he paid less than five dollars for it. 
 This, then, is a claim of strict right, where a court would not 
 grant a new trial, nor would a chancellor enforce such an 
 
 U2iequal bargain." 
 *53 Another reason assigned for this strictness is, that 
 
 the statutes under which lands are sold for taxes, are 
 highly penal in their character ; so much so that a man may 
 
 1 Hughey v. Horrell, 2 Ohio, 231 ; s. c. 1-4 Ohio, Cond. 335. 
 
 2 4McL. 211. 3 4 Gush. 267. See also 2 Curtis C. C. 444. 
 4 9 Mo. 878. 5 4 McL. 213. 
 
FOB THE NON-PATMENT OP TAXES, ETC. 55 
 
 absolutely lose his whole estate for a few days' neglect in the 
 payment of a tax, which rarely exceeds the one-hundredth 
 part of the sworn valuation thereof. Now the rule is clearly 
 established, that penal laws of every description are to be 
 strictly construed, and nothing therein is to be taken by impli- 
 cation or intendment.^ That such statutes are strictly penal, 
 will be apparent upon a review of the authorities.^ 
 
 Another view may be taken of this subject. The execution 
 of a power relating to an estate, is the exercise of an act of 
 ownership over that estate. Such acts can only be justified 
 and sustained, where the consent of the owner, either express 
 or implied, has been previously obtained. This consent is evi- 
 denced by a written authority from the owner of the estate, or 
 positive law, to the enactment of which he is presumed to have 
 assented. But the disposition of mankind is to use great cau- 
 tion in permitting strangers to exercise such acts of owner- 
 ship * over their estates ; and in almost every instrument * 54 
 or statute conferring such power, restrictions are imposed 
 upon the donee, as to the mode of executing it. These restric- 
 tions are intended for the protection of those having an interest 
 in the property. The title, in such cases, is derived from the 
 power itself. The instrument made in execution of the power, 
 does not derive its validity from its capacity, as an independent 
 or distinct conveyance to pass the estate, which is the subject 
 of the power, but from its correspondence with the forms re- 
 quired by the creators of the power, to attend the execution 
 of it. The conveyance must bear upon its face an acknowledg- 
 ment of the power ; and for the purpose of upholding the act, 
 and preventing an intervening right from attaching to the 
 subject-matter of the power, the act done in pursuance of the 
 power relates back to the time when the power itself com- 
 menced its existence. 
 
 When, therefore, a person claims an estate, purporting to be 
 derived under a power, he must prove the existence of the 
 power, and a compliance with all of its requisitions. This rule 
 pervades all classes of powers, and is universal in its appli- 
 
 1 Yancy v. Hopkins, 1 Munf. 419, 437. 
 
 2 Smith's Com. cli. 18, § 738, p. 854, and eases there cited. But see Corn- 
 wall V. Todd, 38 Conn. 447 ; Hubbard v. Brainard, 35 Conn. 563. 
 
56 NATURE OF THE POWER TO SELL LAND 
 
 cation. In this country especially, all constitutional and 
 statutory powers are limited, and every act done by persons 
 assuming to act in an official capaicity, are nullities, unless 
 the power exists, and the mode of exercising it has been ad- 
 hered to by the officer. The rule applies to the legislature 
 itself. The Constitution of Illinois confers upon the General 
 Assembly the power to enact laws, but declares that no bill 
 shall become a law until it shall have been read three several 
 times in each house, and received the assent of a majority 
 of all the members elect; this assent to be manifested by 
 yeas and nays, to be entered of record upon the journals of 
 the respective houses. "Where these requirements were not 
 complied with, the act was held not to be a law of the land.^ 
 The judicial power is vested in the courts of justice, but they 
 
 are limited by law as to the subject-matter, &c., and the 
 * 55 mode of acquiring jurisdiction .is * prescribed by law. 
 
 If they render a judgment or decree against the citizen, 
 in a case over which they have no jurisdiction, or without 
 bringing the party into court in the manner prescribed by 
 law, the act is a nullity. The act of every executive officer, 
 from the President down to a town constable, is void where 
 he has no authority, or proceeds contrary to the mode pre- 
 scribed by the Constitution and laws. The security to the 
 citizen in the observance of the forms prescribed by law, 
 consists in the deliberation and solemnity which attend them ; 
 and the frequency of their occurrence is a monitor which 
 reminds the officer of the effect of his power, and the necessity 
 of a strict compliance with the terms of it. 
 
 Again, it may be laid down as a general principle, subject 
 to no exceptions, that the validity of every involuntary aliena- 
 tion of land, depends upon a strict compliance with all of the 
 substantial requisitions of the law by which they are author- 
 ized, such as the taking of private property for public use ; ^ 
 the extending of an execution upon the land of a debtor, 
 in the New England States ; ^ the sale of land by guardian, 
 
 1 Spangler v. Jacoby, 14 Bl. 297. See Cooley's Const. Lim. 80, 81, 139, 
 140. 
 
 2 Flatbush Avenue, 1 Barb. 286. 
 
 " Wellington v. Gale, 13 Mass. 483 ; Metcalf v. Gillet, 6 Conn. 400 ; Morton 
 V. Edwin, 19 Vt. 77 ; Sargent v. Peirce, 2 Met. 80. 
 
FOE THE NON-PAYMENT OP TAXES, ETC. 67 
 
 under an order of court,^ and also sales made by administra- 
 tors of the real estate of their intestate.'^ 
 
 The last and most convincing reason why every require- 
 ment of the law should be strictly complied with by the 
 officer, in the sale of land for the non-payment of taxes, is to 
 be found in the fact that " thus the law is written." Where 
 the words of a statute are plain and unambiguous, there is no 
 necessity for resorting to technical rules of construction, but 
 the legislative will, as expressed, must be obeyed.^ When 
 there is doubt and ambiguity in the language used, then 
 every thing which serves to assist in ferreting out the 
 intention of the * maker, may be resorted to. This is * 56 
 the point where interpretation commences. 
 
 There is another rule of law on this subject : that a statute 
 ought to be so construed, that no clause, sentence, or word 
 shall be superfluous, void, or insignificant, if it can be pre- 
 vented.* These two rules, that every word must have effect, 
 and that where the words are plain, there is nothing to con- 
 strue, put an end, in every case, to judicial discretion. The 
 legislature commands, and the judges must obey. It is aston- 
 ishing that these plain, common-sense maxims should ever 
 have been departed from by the courts in the application of 
 statute law, to cases brought before them for adjudication. 
 The intention of the legislature, it is true, must control in all 
 cases, but that intention is to be collected from the words of 
 the act. A sound construction must always be warranted 
 by the words, and never repugnant to them. Where the 
 legislature have used words of a plain and definite import, it 
 would be dangerous to put upon them a construction which 
 would amount to holding that the legislature did not mean 
 what they have expressed.^ This would be imputing to the 
 legislature, useless and frivolous couduct, which is never law- 
 ful in construing their acts.^ Judges are not to presume the 
 intention of the legislature, but collect it from the words of 
 
 1 Young V. Keogh, 11 III. 642. 
 
 2 Smith V. Hileman, 1 Scam. 323 ; Atkins v. Kinnan, 20 Wend. 241. 
 
 « 3 Scam. 161 ; 2 Pet. 662; 3 A. K. Marsh. 489; 1 Pick. 45 & 250; 9 Port. 
 266. 
 
 « 6 Bac. Abr. 380. 
 
 5 7 B. & C. 569 ; 6 id. 712, « 1 Pick. 482. 
 
58 NATURE OP THE POWEB TO SELL LAND 
 
 the act, and they have nothing to do with the policy of the 
 law. This is the true sense in which it is so often impres- 
 sively repeated, that judges are not to be encouraged to direct 
 their conduct " by the crooked cord of discretion, but by the 
 golden met-wand of the law ; " i.e., not to construe statutes 
 by equity, but to collect the sense of the legislature by a 
 sound interpretation of the language, according to reason and 
 grammatical correctness.^ The most enlightened and experi- 
 enced judges have, for some time, lamented the too fre- 
 * 57 quent departure from the plain and * obvious meaning 
 of the words of the act by which a case is governed, 
 and themselves hold it much the safer course to adhere to the 
 words of the statute, construed in their ordinary import, than 
 to enter into any inquiry as to the supposed intention of the 
 persons who framed the act.^ 
 
 " It is safer," says Mr. Justice Ashhurst, " to adopt what 
 the legislature have actually said, than to suppose what they 
 meant to say." ^ In the case of Hardin v. Owings,* an appeal 
 was taken from the Circuit to the Court of Appeals; the 
 appeal bond was executed by the appellant in the presence of 
 the deputy clerk, but the surety did not execute in the clerk's 
 ofQce, or in the presence of the clerk. The statute relating 
 to such appeals expressly required that the bond should be 
 executed in the office of the clerk of the inferior court. A 
 motion was made to dismiss the appeal, because the bond was 
 not executed in conformity with the law, which was sustained 
 by the court. Edwards, C. J. : " We are clearly of opinion 
 that the bond should be executed in the office, and to prove 
 this, nothing more would seem to be requisite than the plain 
 and unambiguous language in which this mode is prescribed 
 by the legislature. The legislative body is the supreme 
 power of the State, and whenever it acts within the pale of 
 its constitutional authority, the judiciary is bound by it ; and 
 it is not competent to the latter tribunal to dispense with a 
 regulation or requisition plainly prescribed by the former "(its 
 superior), or to say that this mode, that, or the other, is as 
 good as the one prescribed by the legislature ; for this, in 
 
 1 2 Dwarris, 703. 2 10 B. & C. 527. 
 
 8 1 Term, 62. 4 i Bibb, 214. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 59 
 
 fact, would be placing the judiciary above the legislature by- 
 enabling the former to nullify the acts of the latter, or to 
 supersede them by substitutes to which the legislature might 
 not have assented had the proposition been submitted to it. 
 If we can say, that though the legislature has required the 
 appeal bond to be executed in the office, it is sufficient 
 if executed out of the office before private * individuals, * 58 
 and afterwards be deposited in- the office, why might 
 we not also say, that though required to be executed in the 
 office of the inferior court, it is sufficient if executed in 
 the office of this court ? One set of judges might think the 
 former would be a sufficient compliance with the legislative 
 intention, another set, adopting the principle that they had a 
 right to depart from the words of the act, might think the 
 latter a sufficient compUance ; and a third set, adopting this 
 course of reasoning, viz., that as the legislature was compe- 
 tent to command, it ought to be obeyed, and having com- 
 manded the thing to be done in one way, all other ways 
 were excluded, they might think themselves bound to decide 
 upon the words of the act itself ; and thus, among them, pro- 
 duce that uncertainty which has hitherto, and with too much 
 justice, been the reproach of the law. Besides, therefore, 
 being a point of duty, it is much safer to make the law itself 
 the rule of action, when it is plain and intelligible, — it is 
 best calculated to produce uniformity of decision, and to 
 cause it to be understood by the mass of the people, on whom 
 it is designed to operate. In general, the law is plain enough 
 according to the letter of it ; men of very ordinary capacities 
 are capable of understanding it ; but there have been so many 
 subtle, refined, and artificial rules of construction devised by 
 ingenious lawyers, and adopted by supple courts, in explain- 
 ing a legislative act, or supplying the defect of a party in 
 bringing himself within its provisions, that in many instances 
 a man of good judgment and of considerable legal science, 
 cannot anticipate what decision courts will give on the plain- 
 est statute. There is not a lawyer but knows that the most 
 abstruse and doubtful part of legal science has arisen from 
 the cause -above mentioned. Witness the various and irre- 
 concilable decisions under the statute of limitations, the statute 
 
60 NATURE OP THE POWER TO SELL LAND 
 
 of frauds and perjuries, «fce. One judge has at one time 
 declared, that to admit certain constructions of a particular 
 statute, would amount -to a virtual repeal of it ; another judge, 
 of precisely the same grade, and sitting on the same judicial 
 seat, at another time has declared that the very same were 
 
 legitimate constructions, and fairly deducible from the 
 *59 statute * itself ; and thus have judicial decisions (the 
 
 evidence of the law) been rendered uncertain and vibrat- 
 ing according to the whim, caprice, or judgment of different 
 men, who all had an equal right to judge. They have made 
 the legislature mean any thing, every thing, and almost noth- 
 ing, as suited the particular case before them, and this will 
 ever be the case whilst this arbitrary field of discretion is 
 assumed and exercised by judges, and until the acts of the 
 legislature, according to their plain and obvious import, un- 
 embarrassed by mere technical and artificial rules, are made 
 the proper and governing rules of decision. If the law should 
 prove to be defective, inadequate to the object of it, or 
 oppressive in its operation, it is certainly more peculiarly the 
 province of the legislature than the judiciary, to supply or 
 remedy those defects. In the judiciary, the exercise of such 
 a power is not warranted by the Constitution, under which 
 we act ; it is contrary to it, and must, therefore, be an unjus- 
 tifiable assumption of power. 
 
 Opposed to all this reasoning, is the very convenient and 
 pliable common-law maxim, qui hceret in litera, hceretin cortice 
 (he who considers merely the letter of an instrument goes 
 but skin-deep into its meaning), a maxim which, under great 
 limitations, may be correct and not without its use, but 
 which, according to the expanded ground it has been made 
 to o'ccupy by some judges in England, is not only intrinsi- 
 cally incorrect, but of the most dangerous tendency, because 
 it renders perplexed the rules of decision, it enlarges an arbi- 
 trary discretion in judges, and encroaches on legislative au- 
 thority. It is congenial enough to arbitrary governments, 
 where the judiciary becomes the engine of the court ; in such 
 governments it furnishes the judges with great facilities in 
 subserving the views of the court, or others whose interest 
 they may be disposed to promote. Nothing is more easy 
 
FOE THE NON-PAYMENT OP TAXES, ETC. 61 
 
 than to decide to-day that such is the spirit of the law, such 
 was the intention of the legislature, such alone the evil in- 
 tended to be remedied ; in a short time the subject may pre- 
 sent itself in a point of view a little varied from the former 
 one ; and finally the judges may return to the law, and 
 enforce it according to the letter of it, * and nothing is * 60 
 more natural, and many times nothing is more just, than 
 the apology, ' humaniim est errare.'' But insomuch as the 
 principle is adapted to arbitrary governments, in just so 
 much it is uncongenial and dangerous to ours, and therefore 
 it ought to be circumscribed within a very narrow compass ; 
 to effect which, this court has recently, in several instances, 
 gone great lengths, and probably may find it necessary to go 
 still further. In the present case the rule prescribed by the 
 legislature is a plain and intelligible one ; the party who 
 claims the benefit of the law could have pursued it ; if he 
 did not choose to do so, the court ought not to aid his negli- 
 gence, and supply the defect by adopting a perplexed and 
 doubtful system of adjudication, and interposing an illegiti- 
 mate dispensing power over the acts of the legislature. The 
 legislature, as before premised, has declared that the bond 
 should be executed in the office ; it had the right so to 
 declare ; we have no power to nullify the act, or to super- 
 sede it by a substitute. We, therefore, must say 'tto lex 
 scripta est,' and the defendant, in this motion, must be bound 
 by it." 
 
 This reasoning is most convincing, and deserves to be ac- 
 companied with the judicious and sensible remarks of Judge 
 Hebard : " I am not very well satisfied with the summary 
 mode of getting rid of a statutory provision, by calling it 
 directory. If one positive requirement and provision of a 
 statute may be avoided in that way, I see no reason why 
 another may not."^ Mr. Justice Morton also remarks: 
 " Equitable constructions, though they may be tolerated in 
 remedial, and perhaps some other statutes, should always be 
 resorted to with great caution, and never extended to penal 
 statutes, or mere arbitrary regulations of matters of public 
 policy. The po*^er of extending the meaning of a statute 
 
 1 16 Vt. 72. 
 
62 NATURE OF THE POWER TO SELL LAND 
 
 beyond its words, and deciding by the equity, and not the 
 language, approaches so near the power of legislation, that a 
 wise judiciary will exercise it with reluctance, and only in 
 
 extraordinary cases." ^ 
 * 61 * This doctrine is daily gaining ground, and it is to 
 be hoped that the day is not far distant, when our courts 
 will adopt the maxim of the Missouri court : " Thus the law 
 is written, and we do not feel called upon to give reasons 
 why it is so." ^ The principle has been repeatedly applied in 
 the construction of statutes authorizing the sale of land for 
 taxes, as will be shown hereafter, in treating of each particu- 
 lar requirement of the revenue laws. It will thus be seen, 
 that the nature of the power, the character of the proceed- 
 ings, the spirit of the Constitution, the letter of the law, and 
 the true principles of interpretation, all concur in requiring 
 strictness in the execution of this class of powers. The 
 officer is the agent of the law, the statute is his warrant of 
 attorney, and he is bound to conform strictly to it. Let this 
 branch of the subject be dismissed with the remarks of the 
 court in Powell v, Tuttle : ^ " It is a familiar rule of law, that 
 a special authority must be strictly pursued. When such 
 authority is prescribed by statute, and when in its exercise it 
 operates to divest the citizen of his property, courts cannot be 
 too sedulous in confining it within the boundaries which the 
 legislature have thought fit to prescribe. At this day, and 
 in this country especially, the protection of private rights 
 demands this safeguard ; and he who wiU review the adjudi- 
 cations of our courts involving this principle, will be inter- 
 ested to observe, with what uniformity and unceasing jealousy 
 the exercise of such a power has been restricted to its own 
 specified limits." 
 
 In concluding this chapter, a few general remarks in regard 
 to the "degree of strictness required in these cases, may 
 not be deemed inappropriate. One judge remarks that the 
 proceedings must be " strictly regular."* Another, that "a 
 strict compliance with all the prerequisites of the statute is 
 
 1 22 Pick. 387, 2 Reeds v. Morton, 9 Mo. 878. 
 
 8 8 Comst. 401. 
 
 * Hughey V. Horrell, 2 Ohio, 231. 
 
FOB THE NON-PAYMENT OP TAXES, ETC. 63 
 
 considered necessary." i Another, that "great strict- 
 ness is required, * and every substantial requisite of the * 62 
 law must be shown to have been compUed with."^ 
 Another, that "it must appear that the provisions of law 
 preparatory to, and authorizing such sale, have been punctili- 
 ously complied with." ^ Another, that " a minute conformity 
 to every particular of the several acts of the assembly, is nec- 
 essary to pass the title."* Another, that without a " literal 
 performance " of the requirements of the law, the deed is 
 " mere waste paper." ^ Another, that " the authority must 
 be strictly pursued from the beginning to the end. If any 
 material link in the chain be wanting, the whole proceeding 
 will fall to the ground." ^ Another, that " in order to make 
 a good title to land under a sale for taxes, great strictness 
 has always been required in the observance of statute require- 
 ments. It has sometimes been said, that a literal compliance 
 with the statute provisions, by all the officers connected with 
 the proceedings, is a condition precedent to the passing of 
 any title. Perhaps the term literal, in its confined sense, is 
 rather too strong. A clear and strict compliance has always 
 been held indispensable, even in regard to matters which, but 
 for the statute, would appear to be of no importance." '^ 
 
 Another, that the person invested with the power to sell, 
 " must pursue with precision the course prescribed by law, or 
 his act is invalid." Again, the course prescribed " ought to 
 be exactly observed." ^ Another, that " a tax deed cannot be 
 read in evidence, without proof that the substantial require- 
 ments of the law have been complied with." ^ Another, that 
 " it is a condition precedent to the passing of any title, that 
 the proceedings of the officer should be in strict and literal' 
 compliance with the requirements of the statute." i" And 
 
 1 Isaacs V. Wiley, 12 Vt. 677 ; Smith v. Bodfish, 27 Me. 295. And see Parker 
 V. Overman, 18 How. (U. S.) 143. 
 
 2 Blakeney v. Ferguson, 3 Eng. 277 ; Ronkendorff u. Taylor, 4 Pet. 349. 
 
 3 Brown v. Veazie, 25 Me. 362 ; Phillips v. Phillips, 40 Me. 160. 
 
 * Young V. Martin, 2 Yeates, 312 ; Shearer v. Woodburn, 10 Barr, 511. 
 
 5 Bush V. Davison, 16 Wend. 554. 
 
 6 Doughty V. Hope, 3 Denio, 599. 
 
 ■! Langdon v. Poor, 20 Vt. 15. 8 Thatcher v. Powell, 6 Wheat. 119. 
 
 9 Games v. Stiles, 14 Pet. 322. 1» Judevine v. Jackson, 18 Vt. 472. 
 
64 NATURE OF THE POWER TO SELL LAND 
 
 * 63 * another, that every requirement of the law, " having 
 the semblance of benefit to the owner, must be strictly 
 complied with." ^ These quotations are extracted from the 
 general language of courts in giving their opinions in partic- 
 ular cases, and of course are to be understood with reference 
 to the subject-matter before them. The particular objections 
 taken by counsel, and sustained by the court in those cases, 
 will appear in their appropriate places hereafter. 
 
 This general language, however, serves to show " with what 
 uniformity and increasing jealousy the exercise of such a power 
 has been restricted to its own specified limits." ^ The princi- 
 ple fairly deducible from the entire field of discussion upon 
 this class of powers, is, that every requirement of the law, 
 whether substantial or merely formal in its character, and 
 having the semblance of benefit to the owner, which the leg- 
 islature have said shall attend the execution of the power, 
 ought to be strictly observed by the officers intrusted with its 
 execution, or no title will pass by the sale, (a) In the lan- 
 guage of Lord Ellenborough : " If the circumstances be unes- 
 sential and unimportant, except as they are required by the 
 creators of the power, they can only be satisfied by a strictly 
 literal and precise performance. They are incapable of ad- 
 mitting any substitution, because these requisitions have no 
 spirit in them which can be otherwise satisfied ; incapable of 
 receiving any equivalent, because they are in themselves of 
 no value." * Similar language is used by the Supreme Court 
 of Vermont, in reviewing the strictness required in tax sales : 
 " It is enough for us to inquire what the legislature have 
 
 1 Sharp V. Johnson, 4 Hill, 99 ; Corwin v. Merritt, 3 Barb. 343 ; Atkins v. 
 Kinnan, 20 Wend. 249 ; McDonough v. Gravier, 9 La. 646 ; Kneeland «. Mil- 
 waukee, 18 Wise. 411. Proceedings on tax sales are strictissimi juris. Kelsey v. 
 Abbott, 13 Cal. 609 ; Lochinan v. Clark, 14 id. 131. All the provisions of the 
 statute must in their substance be strictly pursued. Russell v. Mann, 22 id. 131 
 (see Moss v. Shear, 25 id. 44) ; in substance if not literally, Lain v. Cook, 15 Wise. 
 446. Statute to be rigidly pursued. Coney v. Cummings, 12 La. An. 748; 
 strictly, Stierlein v. Daley, 37 Mo. 483 ; strictly as to substantial requirements, 
 Scammon u. Chicago, 40 111. 146. The provisions of a municipal charter as to 
 mode of assessing and collecting taxes must be substantially pursued. Powell 
 V. Madison, 21 Ind. 335. 
 
 '^ Powell V. Tuttle, 3 Comst. 401. 
 
 (a) See Newell v. Wheeler, 48 N. Y. 486. 
 
 3 Hawkins v. Kemp, 3 East, 410. 
 
FOR THE NON-PAYMENT OF ITAXES, ETC. 65 
 
 said, supposing that their intentions were made known by 
 the terms they have used, and not indulge in any fanci- 
 ful conjectures as to their meaning, or to substitute some- 
 thing else in lieu of what they have enacted." i In 
 * noticing an omission of the officer, contrary to the lit- * 64 
 eral import of the law, the Supreme Court of Maine say, 
 " This may not have been productive of any inconvenience to 
 those interested in their doings, but it was a departure from 
 the line of duty marked out for them to pursue, which may 
 be regarded as, in strictness, affecting the authority of the 
 collector to make sale of the premises." ^ The Supreme Court 
 of Massachusetts, in speaking of one of the requirements of 
 law, say, " If we could discover neither the necessity nor use 
 of this provision of the law, it would not be for us to dispense 
 with it." 3 In Isaacs v. Wiley,* the collector failed to give a 
 bond as required by law, and for this defect in the proceed- 
 ings, the sale was held void ; the court remarking, " We hold 
 the giving of a bond, and such a bond as the statute requires, 
 to be indispensable to pass the title, not because we consider 
 that the public or the landholders have any indirect interest 
 even in the security which it affords, but because a strict 
 compliance with all the prerequisites of the statute is con- 
 sidered necessary, in this class of cases, in order to pass the 
 title." Perhaps the very strongest illustration of the strict- 
 ness required in these cases, is to be found in the case of 
 Brown v. Dinsmoor.^ There the question was whether, in 
 listing the land for taxation, the name of the owner, or the 
 description of the land, or both, should be inserted in the list. 
 Such was the language of the statute, that it was susceptible 
 of either construction ; and the court held, that the insertion 
 of both the name and description was necessary. Thus much 
 with regard to the degree of strictness required in tax sales. 
 
 1 Sumner v. Sherman, 13 Vt. 612. 2 Brown v. "Veazie,25 Me. 359. 
 
 3 Thurston v. Little, 3 Mass. 432. < 12 Vt. 677. 
 
 5 3 N. H. 103. 
 
66 OF THE ONUS PBOBANDI. 
 
 CHAPTER III. 
 
 OP THE ONUS PROBAND I. 
 
 In powers of this nature, a series of acts, preliminary in 
 their character, are required by law to precede the execution 
 of the power. Each and every step, from the listing of the 
 land for taxation, to the consummation of the title by the 
 delivery of a deed to the purchaser, is a separate and inde- 
 pendent fact. All of these facts, from the beginning to 
 the end of the proceeding, must exist ; and if any material 
 link in the chain of title be wanting, the whole falls to the 
 ground for want of sufficient authority to support it.' 
 
 The party claiming under the power, is chargeable with 
 notice of every irregularity in the proceedings of the officers. 
 He purchases at his peril, the maxim " caveat emptor,'^ being 
 rigidly applied to him.^ The reasons are obvious. The law 
 imputes to every purchaser, knowledge of all facts appearing 
 at the time of his purchase, upon the muniments of title, 
 which it was necessary for him to inspect in order to asser- 
 tain the sufficiency of it.^ More especially is this doctrine 
 applicable to the purchaser at a tax sale. For knowing the 
 land to have been sold under color of an authority given by 
 law to a public officer, who is not the proprietor thereof, 
 * QQ he is bound to * inquire and take notice whether that 
 officer, and all others whose agency is required by the 
 
 1 Blakeney v. Terguson, 3 Eng, 277 ; Brown v. Veazie, 25 Me. 362 ; Doughty 
 V. Hope, 3 Denio, 595; Varick v. Tallman, 2 Barb. 114, 115 ; Fitch v. Casey, 
 2 G. Greene (Iowa), 300 ; Polk v Rose, 25 Md. 153 ; Bucknall v. Story, 36 Cal. 
 67; Norris v. Russell, 5 Cal. 250; Beatty v. Mason, 30 Md. 416. 
 
 2 Lessee of Holt's Heirs v. Hemphill's Heirs, 3 Ham. 232 ; s. c. 1-4 Cond. 
 Ohio, 551 ; Denning v. Smith, 3 Johns. Ch. 344 ; Stead's Executors v. Course, 
 4 Cranch, 403 ; s. c. 2 Pet. Cond. 151 ; Yancy v. Hopkins, 1 Munf. 431 ; Games 
 V. Stiles, 14 Pet. 822; Wright, 53. See pp. * 51, 442, and note; Jenks v. 
 Wright, 61 Penn. St. 414 ; Crane v. Reeder, 26 Mich. 321. 
 
 3 Battemore v. White, 2 Gill & J. 444. 
 
OF THE ONUS PROBANDI. 67 
 
 law in the conduct of the proceedings, have proceeded with 
 regularity in the discharge of their duty (a). If the proceed- 
 ings are not in conformity with the law, the fact is as well 
 known to the purchaser as it was to the officer. The law, 
 at least, presumes it to be so. The statute was not passed 
 simply to inform the officer of his duty in the premises, and 
 limit him as to the mode of executing the power, but it was 
 also intended to give to the purchaser full information of the 
 terms upon which a title could be acquired to land, sold at 
 public vendue, for the non-payment of taxes in arrear upon 
 it. It was meant to put bidders at a tax sale upon inquiry, 
 whether or not the land was offered for sale accordiug to law. 
 If they do not examine, but buy against the plain and imper- 
 ative provisions of the statute, they do so at their own risk ; 
 and it will be presumed against them that they knew that 
 the deeds given under such circumstances, were made in 
 violation of official duty and of the law.^ The purchaser 
 claims his title under the authority of a public law, and is, 
 therefore, bound to take notice of all its requirements ; the 
 authority of the officer is special and limited, the law is his 
 warrant of attorney, and the buyer must see to it, that the 
 terms prescribed by the legislature — the creator of the power 
 — have been pursued by the agent. We have seen, that the 
 requisitions of this class of laws must be strictly pursued, 
 and no purchaser is blameless who buys without seeing that 
 they have been so.^ " A special authority must be strictly 
 pursued, and every purchaser is presumed to know that 
 special authority in all cases where it is conferred and limited 
 
 (a) Yancy v. Hopkins, 1 Munf. 431. Where land is sold by a deputy sheriff 
 for his principal for non-payment of taxes, and a conveyance made by the 
 deputy, it is indispensably necessary in order to give effect to such deed to 
 prove that one is the sheriff and the other his deputy. Rockbold v. Barnes, 
 3 Rand, 473 ; Hobbs v. Shumates, 11 Grat. 616 ; I'lanagan v. Grimmet, 10 Grat. 
 429. But see Wetherbee v. Dunn, 32 Cal. 106, holding it unnecessary before 
 introducing the deed to prove the oflBcial character of the person who executed 
 it (and this independent of the statute), and holding that the courts ought to 
 take judicial notice as to who fill the various county oflSces within their 
 jurisdiction, and the genuineness o£ their signatures. See pp. * 99, note 79, 
 note (2). 
 
 1 Moore v. Brown, 11 How. (U. S.) 414. 
 
 ^ Allen V. Smith, 1 Leigh, 231. 
 
68 OP THE ONUS PROBANDI. 
 
 by statute." ^ There is no great hardship in this. Experi- 
 ence and observation render it notorious, that the amount 
 * 67 paid by purchasers at tax * sales, is uniformly trifling in 
 comparison with the value of the property sold. " Acres 
 for cents," is the maxim, and cupidity the ruling passion, of 
 the speculators vpho attend tax sales. 
 
 Taxes ought to be paid, and that promptly. In the lan- 
 guage of Judge Scates : " The government must have reve- 
 nue, and it must be collected from all ; it must be enforced 
 from the unwilling and negligent by disposing of their prop- 
 erty to those who are willing to advance the money." ^ But 
 it must be remembered that all owners, whose names are per- 
 petuated upon the "list," are not wilfully or perversely 
 "delinquent." Oversight, accident, and misfortune, the dis- 
 honesty of agents, the neglect of the guardians of infants, and 
 the husbands of women owning separate estates, often inter- 
 fere to prevent the seasonable payment of taxes. In such 
 cases a sale takes place while the owner is unconscious of the 
 wrong. Shall the innocent owner be protected under these 
 circumstances ? Reasonable judges will answer the question 
 affirmatively. How protected ? Not by an immunity from 
 his duty to the government, but by requiring a rigid compli- 
 ance with the prerequisites of the law. The object of the 
 law is, to raise a revenue with the least possible sacrifice to 
 the citizen.^ Every member of society is presumed to have 
 assented to the public law by which his right of property is 
 subjected to the dominion of strangers. The manner in 
 which this power is to be exercised is specified in the law. 
 The same law which creates or confers the power, bridles its 
 execution. You may take my property to pay my debts, but 
 you must ascertain that debt by judgment, and a sheriff must 
 execute the power. You may take my land to build a rail- 
 road, but you must pay me the value of it. You may sell 
 my land for taxes assessed upon it, but you must do it in the 
 manner prescribed by the law. The citizen never assents to 
 the power, unless the safeguards attached to its exercise are 
 
 1 Chancellor Kent in Denning v. Smith, 3 Johns. Ch. 344. See French v. 
 Patterson, 61 Me. 210. 
 
 2 Hinman v. Pope, 1 Gilm. 141. 'Jackson v. Esty, 7 Wend. 148. 
 
OP THE ONUS PEOBANDI. 69 
 
 strictly observed. The delinquent, when his title is sought 
 to be divested by a tax sale, has a right to say to the 
 * purchaser, " True, I Jiave been negligent in the per- * 68 
 formance of my duty, — a cause of forfeiture has thereby 
 arisen, — but the officer has been equally negligent ; you also, 
 in not inquiring into the regularity of the proceedings before 
 purchasing ; my title has not been legally divested, and I 
 shall therefore insist upon my right according to the law of 
 the land." 
 
 To use the language of Chancellor Kent : " Sales of real 
 property by public officers, of one description or another, 
 have become so frequent, and have excited such active 
 cupidity, and such a spirit of speculation, that there is very 
 great danger of injustice, unless we support strictly the 
 checks and guards provided by law against abuse." ^ It is 
 far better, when an irregularity occurs in the proceedings, 
 that the purchaser should lose the inconsiderable amount of 
 his bid, than that the owner should forfeit a valuable estate. 
 [The purchaser is not entirely without remedy. By statu- 
 tory provision reimbursement is sometimes made.^] The 
 purchaser's title is one of strict right. Positive law is the 
 foundation of it. He deserves no indulgence from the courts. 
 There should be no leaning in his favor. On the contrary, 
 it is the duty of courts of justice to examine such sales nar- 
 rowly, and if they do not appear to be strictly conformable 
 to the law, to pass the merited censure upon them.^ In one 
 case where the counsel, contesting the validity of a tax sale, 
 raised many objections, the court in reviewing them and after 
 stating the degree of strictness which the law required in 
 such cases, say, " The counsel for the defendant in this 
 case may, therefore, be excusable, if not * commendable, *69 
 for the astuteness and searching manner in which he 
 has scrutinized the doings of these officers in the instance 
 before us." * 
 
 1 Denning v. Smith, 3 Johns. Ch. 344. 2 See p. *442 note. 
 
 ' Wilson V. Bell, 7 Leigh, 22 ; Cox v. Grant, 1 Yeates, 164 ; counsel for the 
 plaintiff ar^wenrfo in Thames Manufacturing Company v. Lathrop, 7 Conn. 550. 
 
 * Brown v. Veazie, 25 Me. 362. In McMillan v. Bobbins, 5 Ohio, 31, Judge 
 Hitchcock says, " I am aware that it is common to complain of tax laws, and 
 
70 OF THE ONUS PROBANDI. 
 
 * 70 * Upon whom shall the burden of proof rest under 
 such circumstances? Shall the purchaser at the tax 
 
 there is, perhaps, no part of legislation which is more difficult to perform satisfac- 
 torily, or in such a manner as to do equal and exact justice to all, than to frame 
 a revenue system. We are aware, too, that courts have heen astute to find defects 
 in tax sales ; so much so, that, in this State at least, it has become the general, 
 if not the universal opinion, that a title derived under such a sale cannot be 
 supported. Whether courts have done wrong in this, it is not for us to say. 
 The consequences, however, as members of the community, we cannot but 
 regard. That it has a direct tendency to encourage those who dislike to pay a 
 tax, in the neglect of the performance of this duty, there-can be no doubt." 
 
 In the dissent of Judge Scates to the decision of the Supreme Court in Hinman 
 V. Pope, 1 Gilm. 141, 142, he remarks: "The courts have adopted a rule of strict 
 construction in these cases of naked powers, requiring a party to show a strict 
 compliance with every prerequisite of law. This vigilance of the law upon naked 
 powers, is a substitute for that vigilance which interest always prompts in those 
 who execute a power coupled with an interest. But technical rules should have 
 their limit subservient to the public good. The government must have revenue, 
 and it must be collected from all ; it must be enforced from the unwilling and 
 negligent by disposing of their property to those who are willing to advance the 
 money. But it will be impossible to do so if technical rules are applied to defeat 
 their rights acquired under sales, upon all and every plausible pretext of error 
 that ingenuity can, from lime to time, suggest. The grounds of objection are 
 made plausible in these cases, by the great disproportion between the considera- 
 tion paid and the value of the property purchased. If the consideration was full 
 and adequate, these objections would frequently wear the aspect of a dishonest 
 resistance of right. If the public confidence is destroyed in ever acquiring a 
 title free from technical objection, tlie State will he unable to collect her dues, 
 as no one will advance, where the blunders of ignorance and negligence in the 
 executive officers, in not complying literally with the law, will be allowed to 
 defeat their rights. Legislation can hardly keep pace with ingenuity, so as to 
 remove or anticipate the grounds of objection. I should allow all substantial 
 departures from the law as valid objections." 
 
 In the case of Atkins v. Hinman, 2 Gilm. 452, 453, the late Chief Justice 
 Treat, now Judge of the United States Court, in the Southern District of lUinois, 
 after overruling various objections taken to a tax title, thus alludes to the subject 
 of this digression : " In dismissing the various objections taken to these proceed- 
 ings, I cannot forbear the remark that they are purely technical. The duty of 
 every citizen to contribute, in proportion to the value of his estate, towards the 
 support of the government which protects him in the enjoyment of his rights, 
 must be acknowledged by all. The present revenue laws are liberal in their 
 character ; the rate of taxation is uniform and reasonable. The tax-payer can 
 readily ascertain the amount he is required to pay. He has several months in 
 which to make payment, after his property is assessed. If he omit to pay, and 
 his land is sold, he has still the right to redeem in two years from the sale. If, 
 after all this delay, he suffers his title to be transferred to the purchaser, the loss 
 must be attributed to his gross disregard of his duties and interests, and not to 
 the fault or injustice of the law. He should not, then, be permitted to defeat the 
 
OP THE ONUS PROBANDI. 71 
 
 sale, or those claiming under him, be required to establish 
 affirmatively, that the officers acted strictly in conformity 
 
 title of the purchaser, by interposing mere technical objections. If allowed to 
 do it, he is enabled to take advantage of his own laches and wrong, not only to 
 defeat the claim of the purchaser, but to avoid altogether the payment of his 
 share of the public burden. Where all the material requisitions of the law have 
 been substantially complied with, courts should not hesitate to sustain rights, 
 fairly acquired under them. It is time that the object and design of these 
 enactments should be regarded. Judges should not be on the alert to discover 
 frivolous objections, and resort to mere technical rules to sustain them, in order 
 to defeat the claims of a purchaser. Such objections are generally insisted on, 
 and have, in some instances, been countenanced by tlie courts. They proceed 
 from a one-sided view of the subject. The allegation that the land is sacrificed 
 for a trifle, and the purchaser is acquiring acres for cents, is alone regarded, 
 while the obligations of the tax-payer, and the rights of the government, are not 
 considered. If the proceedings under these laws are to be subjected to mere 
 technical tests, taxes will remain unpaid, individuals will cease to bid at sales, 
 and thus the principal object of the laws may be frustrated. But if, on the other 
 hand, by the application of reasonable rules, some assurance is given that the 
 titles will be sustained, the taxes will be generally paid, the competition at the 
 biddings will be increased, and instead of whole tracts of land being sold to pay 
 the taxes due upon them, small portions only will suflSce." 
 
 It may be proper to remark, in this connection, that the Illinois opinions 
 above quoted, were upon the construction of a statute requiring a judgment and 
 execution against the delinquent, which declared the deed to be conclusive evi- 
 dence of several important facts, and prima facie evidence of all tlie rest ; which 
 allowed no one to contest the validity of a tax title but the former owner and 
 those claiming under him, and then only when it was shown that no other taxes 
 were due upon the land ; which permitted but four defences to the tax deed, to 
 wit : 1. That the taxes for which the land was sold, had been paid ; 2. Tliat the 
 land was not subject to taxation ; 3. That the land had never been listed and 
 assessed for taxation ; and 4. That the sale had been redeemed from ; which 
 dispensed with many technical objections which, under the former laws, were 
 regarded as substantial; which provided for an actual, fair, and uniform valuation 
 by sworn assessors ; and which was liberal in granting the privilege of redemption. 
 Again, the greater part of the lands in the State were then in the hands of non- 
 residents, who either perversely refused to pay taxes, — the land not being very 
 valuable, — or whose agents were not trustworthy, and the government really 
 labored under great difficulties in enforcing the collection of her revenues. But 
 a change has taken place in the condition of Illinois, and indeed of all the West- 
 em States. Railroads traverse the length and breadth of the State ; the lands 
 have become valuable ; they are either in the hands of actual settlers, or those 
 who are holding them for speculation ; the taxes are more promptly paid ; the 
 delinquent list in each county of the State, instead of requiring an entire news- 
 paper for its publication, has dwindled down until it can be compressed into a 
 single column ; indeed, it may be safely affirmed that the majority of delinquents 
 are now prevented by fraud, accident, or mistake, from paying their taxes 
 promptly. Hence the laxity of strictness adopted by the courts in early days, 
 
72 OP THE ONUS PROBANDI. 
 
 with the law ? or shall the owner of the land, whose title is 
 sought to be divested, be compelled to prove a negative ? It 
 is a general principle that the party who sets up a title must 
 furnish the evidence to support it. If the validity of a deed 
 depend upon an act in pais, the party claiming under that 
 deed is as much bound to prove the performance of that act, 
 as he would be bound to prove any matter of record on which 
 its validity might depend. It forms a part of his title ; it is 
 a link in the chain, which is essential to its continuity, and 
 which it is incumbent on him to preserve. These facts 
 should be examined by him before he becomes a purchaser, 
 and the evidence of them should be preserved as a necessary 
 muniment of title. ^ 
 
 It is easy for the purchaser to prove these facts. In many 
 cases, the negative would not admit of proof. The existence 
 of these acts in pais, is not to be made out by intendment, 
 they must be proved. It is not a case for presuming that 
 public oflBcers have performed their duty ; but what they 
 have in fact done must be shown. By the common law, 
 which views every invasion of the sanctity of property with 
 peculiar jealousy, an authority to divest the title of another 
 is to be strictly pursued, and as the maxim " omnia rite prce- 
 
 sumuntur," (a) is appropriate but to judicial proceed- 
 * 72 ings, no intendment in respect to the * exercise of it, is 
 
 to be made in favor of what does not appear ; so that 
 every act, the performance of which is made a condition of 
 the divestiture, must be shown by proof. Presumptions are 
 never made for the purpose of upholding the acts of a special 
 
 on account of the necessities of the government, and the hostility of the settlers 
 to non-resident proprietors — for decisions necessarily partake of the temper of 
 the times in which they are made — is no longer demanded. It Is now safer and 
 wiser, and more in accordance with the spirit of the age, to return to those strict 
 and unbending principles of law which were Intended for the security of private 
 property, and which the older States know so well how to appreciate. 
 
 1 Williams v. Peyton's Lessee, 4 Wheat. 77 ; s. c. 4 Pet. Cond. 394 ; Pope v- 
 Headen, 5 Ala. 433; Elliott v. Eddins, 24 Ala. 509; Jackson v. Esty, 7 Wend. 
 148; Brown v. Wright, 17 Vt. 97. 
 
 (a) But see Heft v. Gephart, 65 Penn. St. 518, and Cuttle v. Brockway, 
 24 Penn. St. 147, as to the application of this maxim In Pennsylvania under 
 their statute. 
 
OP THE ONUS PROBANDI. 73 
 
 agent, whether appointed for public or private purposes ; nor 
 can such a presumption be made in favor of a ministerial 
 officer, where recourse can be had to the authority under 
 which he acted, and to the thing itself that is done under it ; 
 for that would be to substitute confidence in the officer, for 
 the due performance of his duty.^ Indeed, it is said by 
 one judge that. " very few of these sales have been found 
 to be legal ; the presumption is, in fact, against their valid- 
 ity."2 
 
 Presumptions are seldom founded upon State necessity or 
 public policy. They are the result of the general experience 
 of a connection between certain facts or things ; the one being 
 usually found to be the companion or the effect of the other. 
 The connection, however, is not so intimate, nor so nearly uni- 
 versal, as to render it expedient that it should be absolutely 
 and imperatively presumed to exist in every case, all evidence 
 to the contrary being rejected ; but 3'et so general, and so 
 nearly universal, that the law itself, without the aid of a jury, 
 infers the one fact from the proved existence of the other, in 
 the absence of all opposing evidence. Such is the rule rela- 
 tive to disputable presumptions,^ the only class which it is 
 pretended should be indulged in for the purpose of maintain- 
 ing the validity of a tax title. 
 
 When it is remembered, that out of, at least, one thousand 
 causes of this description, which have found their way into 
 the appellate courts of the country, not twenty of them 
 have been * found to be legal and regular, on applying * 73 
 the test ; and that, if this is a fair criterion of the result 
 of the numerous nisi prius trials which have taken place 
 throughout the land, we may safely affirm that tax titles have 
 not been found to be so " generally and nearly universally " 
 valid, as to authorize the courts to presume them so in all 
 
 1 Huston V. Foster, 1 Watts, 478 ; Hole v. Eittenhouse, 6 Har. 305 ; Hall v. 
 Collins, 4 Vt. 316 ; Kinney v. Beverley, 2 Hen. & Munf. 318 ; Waldron v. Tuttle, 
 3 N. H. 340 ; s. c. 4 N. H. 371 ; Fitch v. Casey, 2 G. Greene (Iowa), 800 ; Jesse 
 V. Preston, 5 Grat. 120 ; Alvord v. Collin, 20 Pick. 418 ; Minor v. Natchez, 4 
 Smedes & M. 627 ; Pitman v. Brownlee, 2 A. K. Marsh. 210. See p. * 145. 
 
 2 Waldron v. Tuttle, 3 N. H. 340. 
 8 1 Greenleaf on Evidence, § 33. 
 
74 OP THE ONUS PROBANDI. 
 
 cases. There are a class of decisions, however, which lay 
 down the rule in support of a long possession under a tax 
 deed, that, upon the production of the deed, proof of the 
 possession under it, and of the performance of some of the 
 acts required by law of the officers, the evidence may be sub- 
 mitted to a jury, with instructions that if, upon the whole 
 case, they are satisfied that it is a reasonable presumption 
 that all of the facts existed which authorized the sale, they 
 might and should so find. These decisions will be examined at 
 large in the chapter entitled " Evidence." (a) 
 
 The recitals in a tax deed are not evidence against the 
 owner of the property, but the facts recited must be estab- 
 lished by proof aliunde ; ^ nor is the conveyance itself, because 
 of its solemnity, or upon any conceivable principle, frimA 
 fade, evidence that the prerequisites of the law had been 
 complied with by the various officers of the law, who con- 
 ducted the proceedings.^ The fact that they were regular 
 must be proved, and the onus prohandi rests, in all cases, upon 
 the purchaser, or those claiming under him. He must 
 * 74 show affirmatively, step * by step, that every thing has 
 
 (a) See p. * 518. 
 
 1 Keith V. Preston, 5 Grat. 120 ; Jackson v. Esty, 7 Wend. 148 ; Jackson v. 
 Shepard, 7 Cow. 88 ; Hall v. Collins, 4 Vt. 816 ; Brown u. Wright, 17 Vt. 97 ; 
 Mnssey v. White, 3 Greenl. 302 ; Smith v. Corcoran, 7 La. 46 ; Polk v. Rose, 25 
 Md. 153 ; Worthing v. Webster, 45 Me. 270 ; Varick v. Tallman, 2 Barb. 113; 
 Phillips V. Sherman, 61 Me. 548. The mere recital in a commissioner's deed, 
 on a sale of land for taxes, that it was made in pursuance of an order of court, 
 the order not being produced, is not evidence of the existence of such order 
 against others asserting an adverse claim. Miller v. Williams, 15 Grat. 226 ; 
 Walton V. Hale, 9 Grat. 194. See p. * 364. 
 
 '^ Nalle V. Penwick, 4 Eand. 585 ; Nancarrow v. Weathersbee, 6 Mart. 347 ; 
 Christy v. Minor, 4 Munf. 431 ; Holt v. Hemphill, 3 Ham. 232 ; Thompson v. 
 Gotham, 9 Ham. 170 ; Latimer v. Lovett, 2 Doug. 204 ; Emery v. Harrison, 1 Har. 
 317 ; Wescott v. McDonald, 22 Me. 402 ; Phillips v. Phillips, 40 Me. 160 ; Lessee 
 of Dunn v. Games, 1 McL. 319 ; Townsend v. Downer, 32 Vt. (3 Shaw) 183. In 
 Kentucky, a tax deed is held prima facie evidence of title, and the onus lies upon 
 the former owner to show irregularity in the sale. Currie v. Fowler, 5 J. J. 
 Marsh. 145 ; Terry v. Blight, 3 Men. 271 ; Graves v. Hayden, 2 Litt. 65 ; Blight 
 V. Banks, 6 Men. 206 ; Oldham t'. Jones, 5 B. Mon. 458 ; Bodley v. Hord, 2 A. K. 
 Marsh. 244 ; Allen v. Robinson, 3 Bibb, 326. [But the recitals, in such deed, of 
 facts which are not essential to the validity of the deed, and which the register 
 Is not presumed to know, are not evidence of such facts. Morton d. Waring, 18 
 B. Mon. 72.] 
 
OF THE ONUS PBOBANDI. 75 
 
 been done which the statute makes essential to the due exe- 
 cution of the power conferred upon the officers.^ (a) 
 
 The rule that the onus is upon those who claim under a 
 tax sale, is confined to controversies between the owner of 
 the tax title and the original owner of the land, or those who 
 claim under him, and is never applied in favor of an intruder 
 upon the land, a mere trespasser who cuts timber, or does 
 any other injury to the inheritance,^ (6) or a mere stranger 
 
 1 Jackson v. Shepard, 7 Cow. 88 ; Lafferty v. Byers, 5 Ham. 458 ; Dresback 
 V. McArthur, 7 Ham. 146 ; Scott v. Detroit Young Men's Society, 1 Doug. 119 ; 
 Latimer v. Lovett, 2 Doug. 204 ; O'Brien v. Coulter, 2 Blackf. 421 ; Love ». 
 Gates, 4 Dev. & Bat. 363 ; Jordan v. Rouse, 1 Jones, Law (N. C), 119 ; Harvey 
 0. Mitchell, 11 Foster, 575 ; Scott w.Babcock, 3 G. Greene, 133 ; Pope v. Headen, 
 5 Ala. 433 ; Elliott v. Eddins, 24 Ala. 508 ; Watson v. Stucker, 5 Dana, 581 ; 
 Terry v. Blight, 3 Mon. 270 ; Bishop v. Lovan, 4 B. Mon. 116 ; Allen v. Smith, 
 
 I Leigh, 231 ; Chapman v. Bennett, 2 Leigh, 329 ; Jesse v. Preston and Keith v. 
 Preston, 5 Grat. 205 ; Matthews v. Light, 32 Me. 805 ; Waldron v. Tuttle, 3 N. H. 
 340 ; Lessee of Dunn v. Games et cd., 1 McL. 319 ; Minor v. McLean, 4 McL. 
 138 ; Farmers' and Mechanics' Bank v. Bronson, 14 Mich. 373 ; Cruger v. Dough- 
 erty, 43 N. Y. 107 ; Ives v. Kimball, 1 Mich. 316 ; Scott v. Stearns, 2 Mich. N. p. 
 Ill ; Annan v. Baker, 49 N. H. 168 ; Hopper v. Malleson, 16 N. J. Eq. 382 ; State 
 V. Baxter, 36 N. J. Law, 191 ; Mayhew v. Davis, 4 MoL. 213 ; Jackson v. Esty, 
 7 Wend. 148 ; Beekman v. Bigham, 1 Seld. 366 ; Hall v. Collins, 4 Vt. 316 ; 
 Richardson v. Dorr, 5 Vt. 9 ; Bellows u. Elliot, 12 Vt. 569 ; Brown v. Wright, 
 17 Vt. 97 ; Frost v. Ross, 1 Watts & Serg. 501 ; Dikeman v. Parrish, 6 Barr, 210; 
 Morris v. Crocker, 4 La. 147 ; Reeves v. Towles, 10 La. 276 ; Baker v. Towles, 
 
 II La. 432 ; Emery v. Harrison, 1 Har. 317 ; Alvord <>. Collin, 20 Pick. 418 ; 
 Howe V. Russell, 36 Me. 115 ; Stevens v. McNamara, 36 Me. 176 ; Stead's Exec- 
 utors V. Course, 4 Cranch, 403 ; s. c. 2 Pet. Cond. 151 ; Williams v. Peyton, 4 
 Wheat. 77 ; RonkendorfE v. Taylor, 4 Pet. 349 ; Games v. Stiles, 14 Pet. 322 ; 
 Early v. Doe, 16 How. (U. S.) 610; Lyon v. Burt, 11 Ala. 295; Garrett v. Wig- 
 gins, 1 Scam. 335 ; Goewey v. Urig, 18 III. 242 ; Hill v. Leonard, 4 Scam. 140 ; 
 Fitch V. Pinckard, 4 Scam. 69 ; Hinman v. Pope, 1 Gilm. 131 ; Irving </. Brown- 
 ell, 11 HI. 402. See also, Keane v. Cannovan, 21 Cal. 291 ; Gavin v. Shuman, 
 23 Ind. 32 ; D'Antignac v. Augusta, 31 Geo. 700 ; Ellis v. Kenyon, 25 Ind. 134 ; 
 Savage v. Holyoke, 59 Me. 346 ; Beatty v. Mason, 30 Md. 415. 
 
 (a) Whether a tax deed be prima facie evidence of regularity, &c., or not, it 
 is equally competent first to prove the deed, and then follow it up with evidence 
 of the regularity of the proceedings, as it is to prove first the regularity and then 
 the deed, this being simply a question as to the order of proof, and in the absence 
 of an exception that the regularity of such proceedings was not proved at all, 
 the discretion of the court below on the subject will not be reviewed. Dubois 
 ./. Campau, 24 Mich. 360. 
 
 2 Bellows u. Elliot, 12 Vt. 569 ; Huston v. Foster, 1 Watts, 478 ; Foster v. 
 McDivit, 9 Watts, 341 ; Frost v. Ross, 1 Watts & Serg. 501 ; Dikeman v. Parrish, 
 
 (6) But see Johnson t'. Elwood, 53 N. Y. 434, contra. 
 
76 . OP THE ONUS PROBANDI. 
 
 showing no title or interest in the premises sold for taxes.^ 
 It has also been held, that where the purchaser seeks to 
 rescind his contract of purchase, and recover back the amount 
 
 of his bid from the tax collector, the burden of proof is 
 * 75 cast upon him to prove that the sale was * void, and 
 
 he could acquire no title to the land under it.^ Where 
 a vendee files a bill to rescind a contract for the purchase of 
 land lying in another State, upon the allegation that the land 
 is incumbered by a tax sale, the onus lies upon him to prove 
 that the law under which the sale took place was strictly 
 complied with.^ 
 
 The principle which casts the onus probandi upon the party 
 claiming under a tax title, is applied to all other cases. The 
 rule of the common law is, that he who affirms the existence 
 of a material fact must prove it, and the opposite party is 
 seldom, if ever, required to prove a negative.* Where a 
 party sets up title to land under a sheriff's sale, it is incum- 
 bent on him to show a judgment rendered by a court of com- 
 petent jurisdiction, and a valid execution issued thereon, as 
 well as to produce the sheriff's deed ; (a) for it is only in 
 satisfaction of judgments that the law, subjecting land to the 
 payment of debts, authorizes them to be sold. The sheriff 
 derives his authority to sell from the judgment and execu- 
 tion, and not by reason of any interest he has in the property. 
 Not to require the production of the judgment, is to say that 
 a man's estate may be divested without the judgment of his 
 peers or the law of the land. It is a principle of natural 
 
 6 Barr, 210 ; Dejarnett v. Haynes, 23 Miss. 600 ; Smith u. Bodfish, 27 Me. 289 ; 
 Eobinett v. Preston, 4 Grat. 141 ; Troutman .;. May, 9 Cas. (Penn.) 455. See 
 Hitchcox V. Rawson, 14 Grat. 526 ; Crura v. Burke, 1 Cas. (Penn.) 377 ; Jennings 
 V. McDowell, 1 Cas. (Penn.) 387 ; Jolinston v. Jackson, 70 Penn. St. 164; Wlieeler 
 V. Winn, 53 Penn. St. 122. 
 
 1 Wells V. Company, 48 N. H. 533. As to what is a sufficient title to recover 
 against a worthless tax title, see Rockland & V. Coal Co. v. McCalmont, 72 Penn. 
 St. 226. 
 
 2 Treat v. Orono, 26 Me. 217. See also Sawyer v. Vaughan, 25 Me. 337 and 
 p. * 442, note. 
 
 3 Watson V. Stucker, 5 Dana, 581. 
 
 < Hinman v. Pope, 1 Gilm. 131 ; Dranguet v. Proudliomme, 8 La. 83 ; Costigan 
 V. Mohawk & Hudson R.R. Co. 2 Denio, 609. 
 (a) Bolan v. Bolan, 4 Nev. 150. 
 
OF THE ONUS PROBANDI. 77 
 
 justice never to be lost sight of, that no person should be 
 deprived of his property or other rights, without notice and 
 an opportunity of defending them. Not to require the exe- 
 cution to be produced, is equivalent to deciding that the 
 judgment per se divests the title of the owner. Such is not 
 the law. The protection of property against rapacity and 
 fraud would be slight indeed, under the operation of such a 
 principle. To afford this very protection the rule of law was 
 established, that the existence of the execution, and the 
 judgment upon which it rests, are matters to be proved 
 affirmatively by the claimant under a sheriff 's deed, * by * 76 
 evidence aliunde. The judgment is the foundation of 
 his right to subject the land to the payment of his debt, and 
 the execution constitutes the authority of the sheriff to sell. 
 When he commences his action he assumes the affirmative 
 that a judgment has been rendered, and an execution issued 
 upon it, and the records and files of the court furnish him 
 with plenary evidence to sustain his title, if he has one.-' 
 
 So a person claiming under a decree in chancery, must pro- 
 duce the decree, in order to establish his title.^ Where an 
 heir claims title in ejectment, he must prove his pedigree, as 
 well as the seisin of his ancestors, before he can recover.^ 
 Where one claims title under a power of attorney, he must 
 produce and prove the warrant, as well as the deed executed 
 under it ; and where a party deduces title under any special 
 authority, the common law requires him to establish the fact 
 that the terms of the power have been complied with. 
 
 It may be said generally, that in order to sustain a convey- 
 ance executed by an attorney under a power, by an executor 
 under a will, by a sheriff under an execution, by a guardian 
 
 1 Hamilton v. Adams, 2 Mur. 162; Jackson v. Eoberts, 11 Wend. 425,433, 
 440; Natchez v. Minor, 4 Smedes & M. 602, 627, 631 ; ». c. 10 Smedes & M. 246; 
 Smitla V. Moreman, 1 Mon. 154 ; Dunn v. Meriwether, 1 A. K. Marsh. 158 ; Terry 
 V. Blight, 3 Mon. 270 ; Stevens u. Robertson, 3 Mon. 97 ; Weyand v. Tipton, 
 5 Serg. & Rawle, 332 ; Bowen v. Bell, 20 Johns. 338 ; Hinraan i/. Pope, 1 Gilm. 
 131; Smith v. State, 13 Smedes & M. 140; Dufour v. Camfranc, 11 Mart. 607; 
 Wheaton v. Sexton, 4 Wheat. 503; Ware v. Bradford, 2 Ala. 676; McEntire v. 
 Durham, 7 Ired. 151. 
 
 ^ Bledsoe v. Doe, 4 How. (Miss.) 13 ; Lyerly v. Wheeler, 11 Ired. 288 ; Wil- 
 liamson V. Bedford, 10 Ired. 198. 
 
 3 Tillinghast's Adams on Ejectments, 281, 282, fourth edition, 1854. 
 
78 OP THE ONUS PROBANDI. 
 
 or administrator under an order of court, by a master or com- 
 missioner under a decree of g- court of chancery, the power of 
 attorney, the will, the judgment, and execution, the order or 
 decree must be produced.^ Indeed, all essential links in 
 every chain of title, whether they are evidenced by records 
 or deeds, or rest merely in parol, must be affirmatively proved 
 
 by the party who sets up the title. The rule imposed 
 * 77 upon the tax * purchaser is, therefore, no departure 
 
 from the general principles Of jurisprudence. It mat- 
 ters not that it may be difficult for the purchaser to comply 
 with such a rule ; it is his business to collect and preserve all 
 of the facts and muniments upon which the validity of his 
 title depends. " The very nature of such titles, it seems to 
 me, ought to warn the purchasers to see that all of the pre- 
 requisites of the law are complied with ad unguem (to a 
 nicety). They often buy large and valuable tracts of land 
 for a mere trifle, and they ought always to expect that the 
 owner will attempt to recover them. This is notice, intrinsic 
 in the transaction, that they must be ready for defence, and 
 they ought, at once, to collect the proper evidences of com- 
 pliance with the law; these documents, being written or 
 printed, can be just as easily preserved as their deed." 
 
 No purchaser is blameless, who fails to preserve evidence 
 so essential to the validity of his title.^ The evidence upon 
 which he is compelled to rely is usually preserved upon the 
 records and among the files of some public office, and these 
 records and files are always accessible to him. If there is 
 any fact which the officers have neglected to insert in their 
 records or returns, and the purchaser apprehends the death 
 of his witnesses, the law has provided ample means by which 
 he can perpetuate any fact, in pais, material to the validity 
 of his title.^ If the officers charged with the duty, failed to 
 
 1 Jackson v. Roberts, 11 Wend. 425 ; Tolman v. Emerson, 4 Pick. 160. 
 
 2 Allen V. Smith, 1 Leigh, 231; Williams u. Peyton's Lessee, 4 Wheat. 77; 
 Varick v. Tallman, 2 Barb. 114, 115. 
 
 3 Reeds v. Morton, 6 Mo. 77, 78. Where the Court ordered a sale of land 
 that day reported by J. as delinquent, and that report was lost, and the report of 
 the sale did not clearly show what land, nor what or whose interest therein was 
 sold, it was held that the commissioner could not legally ascertain these facts 
 aliunde, and that his deed, the description in which was made from information 
 so obtained, was void. Miller v. Williams, 15 Grat. fVa.) 213. 
 
OF THE ONUS PROBANDI, 79 
 
 return or record the proceedings, if the records and files 
 become lost or destroyed, or the witnesses to the facts die, 
 the purchaser has no just cause of complaint against the law ; 
 he stands in the same predicament with all other suitors in 
 courts of justice, who have a clear right, but no evidence to 
 support and establish it. Suppose the burden of proof re- 
 versed, and the owner of the land required to prove the nega- 
 tive, in the case put of the neglect of the officers to return or 
 record their proceedings, or of the loss or destruction 
 of the records and files, he would occupy * the same * 78 
 hard position in which the law now places the pur- 
 chaser. 
 
 Titles acquired under tax sales, depend upon different 
 principles from those which are derived under government 
 grants. The laws for the sale of the public lands provide 
 many guards to secure the regularity of grants, to protect 
 the incipient rights of individuals, and also to preserve the 
 State from imposition. Officers are appointed to superintend 
 the business, and rules are framed prescribing their duty. 
 These rules are, in general, directory, and when all the pro- 
 ceedings are completed by a patent, issued by the authority 
 of the State, a compliance with these rules is presupposed. 
 That every prerequisite has been performed, is an inference 
 properly deducible, and which every man has a right to draw 
 from the existence of the grant itself. It would, therefore, 
 be extremely unreasonable to avoid a grant, iu any court, for 
 irregularities in the conduct of those who are appointed by 
 the government to supervise the progressive course of a title 
 from its commencement to its consummation in a patent. 
 Besides, the government is an independent source of title, 
 and grants her own lands. The patent is a title of record, 
 and issues under the great seal of State. It is, therefore, 
 properly held, that the patent is the completion of the title, 
 and establishes the performance of every prerequisite. How- 
 ever, the party claiming the land adversely to the patent, may 
 defeat the grant at law, by showing that the government 
 had no title to the land granted, or that the officer had no 
 authority to make the grant ; or he may avoid it in chancery, 
 by establishing fraud in the issuing of the patent, or showing 
 
80 OF THE ONUS PROBANDI. 
 
 an elder equity to the land in himself.^ The case is different 
 with tax titles. The title is a derivative one. The govern- 
 ment acts, by its agents, in hostility to and with a view of 
 subverting the title of the true owner. The agent acts under 
 a special authority. The title is not deducible of record, 
 •*79 but depends *upon a variety of acts in pais, the per- 
 formance of which are essential to the passing of the 
 •title of the rightful proprietor. For these reasons, a tax 
 deed cannot be read in evidence without proof of its execu- 
 tion, and that all of the requirements of the law have been 
 strictly complied with by the agents of the government.^ 
 Thus much for the common law, which devolves upon the 
 party claiming under the tax sale the burden of proving, that, 
 in all essentials, the officers have performed the duty en- 
 joined upon them by the law under which the proceeding 
 took place. 
 
 It is now proposed to show how far this rule has been 
 changed by legislative enactment in the several States.^ That 
 
 1 9 Cranch, 87; 5 Wheat. 293; 7 Wheat. 122; 3 Pet. 320, 340; 11 Wheat. 
 380; 2 Pet. 227; 7 Pet. 222; 10 Pet. 662; 4 Cranch, 421; 5 Cranch, 191; 
 .6 Cranch, 148; 9 Cranch, 164; 7 Wheat. 248; 6 Pet. 328; 13 Pet. 436; 14 Pet. 
 448; 15 Pet. 93; 2 How. (U. S.) 284. 
 
 2 Boardman v. Ford, 6 Pet. 342 ; Varick v. Tallman, 2 Barb. 115, 116 ; also 
 Hulick V. Scovil, 4 Gilra. 173, 175, holding that an auditor's deed is not a patent, 
 and that so far as delivery and acceptance are concerned an auditor's deed stands 
 on the same footing as any other deed between individuals. The Supreme Court 
 of Illinois had previously held that the registry law did not apply to a tax deed, 
 and that an auditor's deed was properly admitted in evidence without proof of 
 its execution, because in each instance it was a patent. Graves w. Bruen, 1 Gilm. 
 172 ; Ehinehart v. Schuyler, 2 Gilm. 523. Not only the existence of an assess- 
 ment, but its legality, must be shown. Sutton v. Calhoun, 14 La. Ann. 209. 
 
 3 In Robson v. Osborn, 13 Texas, 298, it was held, that under the Texas act 
 of 1848, making the assessors' deed prima fade evidence that the requirements 
 of the law have been complied with in making the sale, the purchaser at a tax sale 
 must prove the performance of all acts which are conditions precedent to the 
 power to sell, and after such proof, the burden was upon the adverse party to 
 prove that the requisitions of the law as to the time and mode of making the sale had 
 not been complied with. A tax deed under the Iowa Stat, of Jan. 15, 1841, loses 
 its character as prima facie evidence, when it is shown that in any essential partic- 
 ular the proceedings were irregular. Eayburn v. Kuhl, 10 Iowa, 92. See also 
 Scott V. Stearns, 2 Mich. N. P. Ill ; Biddleman v. Brooks, 28 Cal. 72. See 
 p. * 364. The fact that a tax deed is prima facie evidence of certain facts makes 
 it none the less obligatory to comply strictly with the law. The deed simply 
 shifts the burden of proof. Kelsey v. Abbot, 18 Cal. 609. See also 20 N. J. Eq. 
 
OP THE ONUS PROBANDI. 81 
 
 the legislature possesses competent power to change the com- 
 mon-law rules of evidence, and declare that the tax deed (or 
 
 190. The statute of California making such deeds prima facie evidence, does 
 not apply to deeds made before its passage. Keane v. Cannovan, 21 Cal. 292 ; but 
 see 20 N. J. Eq. 190 ; nor to deeds made after its repeal for taxes accruing while 
 it was in force, Burr v. Hunt, 18 Cal. 303; under the California statute (1854) it 
 was not necessary to recite in a tax deed the various acts showing a compliance 
 of the revenue officers with the conditions of the statute. Recitals of these acts 
 in the deed are prima fade evidence, but if not inserted may be proved aliunde. 
 Moss V. Shear, 25 Cal. 38 ; see also Wetherbee v. Dunn, 32 Cal. 106 ; nor is it 
 necessary before introducing the deed in evidence to prove that the person by 
 whom it was executed held the office of tax collector at the time when the sale 
 was made, Wetherbee v. Dunn, ubi sup. But see Flanagan d. Grimmet and 
 Hobbs D. Shumates, infra; and general recitals that the property was duly 
 assessed, and tliat the taxes were levied upon it according to law, are suffi- 
 cient to make the deed, prima facie evidence. O'Grady v. Barnhisel, 23 Cal. 287; 
 Brunn v. Murphy, 29 Cal. 326. But see Yankee v. Thompson, 51 Mo. 234 ; 
 49 Mo. 178, 302, 307. Sec. 15 of the Act to widen Kearney Street, prescribing 
 the mode of making an assessment roll, provides " that the mayor shall annex 
 his warrant and the same shall be thereupon collected in the manner then prescribed 
 by law for the collection of general taxes," &c. Held, that the law for the 
 collection of taxes is referred to for the purpose of designating the manner of 
 collecting only, and not what shall be collected nor the effect of the deed, and 
 therefore that a deed executed under a sale for non-payment of an assessment, is 
 not prima facie evidence of title. Bucknall v. Story, 36 Cal. 67. The recital in a 
 tax deed regular in form, under sec. 783, Bevision of 1860, prescribing the form 
 of the deed, that the certificate of the tax sale had been assigned to the grantee 
 in the deed, is sufficient to establish that fact. Stahl v. Boost, 34 Iowa, 475. See 
 p. * 377, note. Under sees. 139 and 140, p. 186, Gen. Stats., it is only a tax 
 deed made when the land sold has not been redeemed, which is prjma _/acie evidence 
 of title, and the party claiming under the tax deed must show that the land 
 had not been redeemed when the tax deed was made, before such tax deed can 
 be received as prima facie evidence of title under the sections named. Under 
 sec. 143, where land sold for taxes has been charged in the duplicate in any 
 other name than that of the rightful owner, the party relying upon a tax deed as 
 prima facie evidence of title must show that the taxes for which the land was sold 
 were due and unpaid at the time of the tax sale. Greve v. Coffin, 14 Minn. 345. 
 Where a tax deed recites that the land was sold on a certain day, that must be 
 presumed (in the absence of other evidence) to have been the date of the certifi- 
 cate of sale. Lindsay v. Fay, 28 Wise. 177. Under a statute directing the 
 execution of a deed to the purchaser at the sale, " reciting the circumstances 
 thereof and setting forth particularly and truly the amount of the purchase- 
 money," and providing that after the time of redemption has elapsed " the 
 regularity of the proceedings under which the purchaser at the sale claims title 
 shall not be questioned so as to affect such sale or title, unless such irregularity 
 appear on the face of the proceedings," held, that by " the circumstances of the 
 sale" which are to be recited in the deed is not meant all the steps to be taken 
 by the various officers, which preceded the sale, but the circumstances attending the 
 sale itself; that such deed need not recite that the land had been advertised, and 
 
 6 
 
82 OF THE ONUS PBOBANDI. 
 
 certificate of sale) (a) itself shall be received in all courts as 
 primd facie evidence that all (or any one or more) of the 
 prerequisites of the law have been complied with, and thus 
 
 that the recital of an insufficient advertisement is merely surplusage, and is not 
 an irregularity on the face of the proceedings which will avoid the deed; and 
 such a deed (if shown to have been executed by a duly qualified officer) furnishes 
 prima facie evidence of transfer of title, and the onus is cast upon the contesting 
 party to show by the face of the proceedings such irregularity as afiected the 
 validity of the deed. Flanagan v. Grimmet, 10 Grat. 421 ; Hobbs v. Shumatea, 
 11 Grat. 518. See p. *S81, note. In order to be prima facie evidence under 
 the Missouri statute, the deed must be duly acknowledged and recorded in 
 conformity with the statute relating to conveyances. Stierlin v. Daley, 37 Mo. 
 483 ; Dalton o. Fenn, 40 Mo. 109. See pp. * 370, 371. So in order that a tax 
 certificate under the Revenue Act of 1857 may be prima fade evidence of 
 right to possession, it must be executed, acknowledged, and recorded like a 
 deed, and even then it will not be evidence of such right after the expiration 
 of the two years allowed for redemption, after which a deed may be de- 
 manded. Dalton V. Fenn, svipra. Under the act approved Feb. 10, 1860, pro- 
 viding "that (subject to redemption) sales of land for taxes hereafter made 
 shall be valid to all intents and purposes, and that no sale shall be impeached 
 or questioned in any manner or for any cause saving fraud or mistake in 
 the assessment or sale of the same, or upon proof that the taxes have been 
 paid," held, that this statute does not relieve the assessor or collector from any 
 of the duties enjoined by the law of 1857 as to distraint of personal property, 
 demand of tax, &c., but does relieve the purchaser's title from all other infirmities 
 except such as arise out of " fraud or mistake in the assessment or the sale," 
 or wlien the " taxes have been paid before the sale ; '' that the declaration that 
 the " sale shall be valid to all intents and purposes " gives the title primd facie 
 vahdity, subject to be defeated for " fraud or mistake," &c., and as to these the 
 onus is on the defendant. Griffin v. Dogan, 48 Miss. 11 ; Meeks v. Whately, 
 48 Miss. 337. See also Belcher v. Mlioon, 47 Miss. 613. A tax deed executed 
 by a county clerk in pursuance of a sale of land for taxes by the county treas- 
 urer, witnessed and acknowledged, is primd facie evidence of title. Sprague 
 ». Pitt, McCahen, 212. Where lands are sold for taxes which include taxes 
 assessed under the drainage law of 1859 (Laws of 1859, p. 499), the deeds given 
 by the Auditor-General are primd facie evidence of regular proceedings in the 
 assessment and subsequent steps to a sale. Palmer v. Rich, 12 Mich. 414. By 
 the act of 1843 (Sess. Laws 1843, p. 79) sales for taxes were to commence on the 
 first Monday of October, and continue from day to day, &c. The auditor's deed 
 recited tlie sale to have been made Oct. 11 ; but this was held no evidence to 
 invalidate the sale ; and it was incumbent on the party objecting, to show a 
 non-compliance with the statute. Lacey v. Davis, 4 Mich. 140. A tax deed of 
 land sold under a special law (Hart. Dig., Art. 3119) at a different time from 
 that prescribed by the general law (Hart. Dig., Art. 3143) is not primd facie 
 evidence that the requisitions of the law have been complied with, though it would 
 be if the sale had been made under tlie general law. Kelly v. Medlin, 26 Texas, 48. 
 (a) A sheriff's certificate of sale for non-payment of taxes under 2 R. S. of 
 N. Y. 379, § 44, is presumptive evidence only of the facts therein contained; 
 and such certificate can legally contain only the facts required by statute. 
 Overing v. Foote, 48 N. Y. 290. 
 
OP THE ONUS PROBANDI. 83 
 
 shift the onus prohandi from the shoulders of the purchaser 
 to those of the owner, is conceded.^ And such deed has been 
 held to have the same effect in the courts of another State 
 than where the law jras enacted.^ 
 
 But that the legislature has the further power to 
 declare *the A&eA. conchisive evidence of title, is denied. * 80 
 A. is the owner, and in possession of a tract of land 
 worth two thousand dollars. It is sold at a tax sale, and B. 
 becomes the purchaser for five dollars ; he procures his deed, 
 and brings his action of ejectment against A. The defendant 
 relies upon one of three defences, which ordinarily are con- 
 ceded to be valid : 1. That the land was not subject to taxa- 
 tion ; or, 2. That it was never listed, valued, and assessed ; 
 or, 3. That the defendant paid the taxes before the sale. 
 Here the legislature steps in and deprives him of his defence, 
 by declaring that the tax deed shall conclude him upon all of 
 these points. Is such a law valid ? Is it true that the legis- 
 lature possesses such an arbitrary authority ? Is it true that 
 the law-making power, under the pretence of regulating rem- 
 
 1 Forbes v. Halsey, 26 N. Y. 53 ; Allen v. Armstrong, 16 Iowa, 508 ; Adams 
 V. Beale, 19 Iowa, 61 ; Amberg v. Kogers, 9 Mich. 332 ; Lacey v. Davis, 4 Mich. 
 140 ; Wright v. Dunham, 13 Mich. 414 ; Sibley v. Smith, 2 Mich. 486 ; Pillow 
 V. Roberts, 13 How. (U. S.) 472; Garrett v. Wiggins, 1 Scam. 335; Steadman v. 
 Planters' Bank, 2 Eng. 424-428 ; Morton v. Keeds, 6 Mo. 74 ; Dejarnett v. Haynes, 
 23 Miss. 600 ; Bussey v. Leavitt, 3 Fairf. 378 ; Hand v. Ballon, 12 N. Y. 543 ; Biscoe 
 V. Coulter, 18 Ark. 423 ; Delaplaine v. Cook, 7 Wise. 64 ; Lumsden w.Cross,10 Wise. 
 289 ; Turner v. Leomans, 14 Ohio, 207 ; Stanberry v. Sillon, 13 Ohio St. 571 ; Kay 
 V. Murdock, 36 Miss. 692 ; Abbott v. Lindenbower, 42 Mo. 162 ; s. c. 46 Mo. 291 ; 
 Grosbeck v. Seelej', 13 Mich. 229 ; Lamb w. Gillett, 6 McLean, 365 ; Bowman v. 
 Cockrill, 6 Kan. 311 ; Orono y. Veazie, 57 Me. 617; Stewart v. McSweeny, 14 Wise. 
 468 ; Whitney v. Marshall, 17 Wise. 174 ; Hobson v. Dutton, 9 Kan. 477 ; Clark 
 V. Conner, 28 Iowa, 315 ; Johnson v. Elwood, 53 N. Y. 435 ; Belcher v. Mhoon, 
 47 Miss. 620. See Cooley's Const. Lira. p. * 368. And this rule having been 
 established may be abolished even as to existing deeds. Hickox v. Tallman, 
 38 Barb. 608. In Louisiana it is declared in the State Constitution (Art. 118) 
 that " all deeds of sale made, or that may be made, by collectors of taxes, shall 
 be received by courts in evidence as prima fade valid titles." See Coco v. 
 Thienman, 25 La. An. 236. In this case, where the puj-chaser was in possession 
 under a recorded tax deed valid on its face, and the tax sale was treated as a 
 nullity by a creditor of the former owner, who levied his execution on the prop- 
 erty, and proposed to attack the tax title by proof of irregularities and defects 
 preceding the sale, it was held that the tax title could not be treated as a nullity, 
 and an injunction was allowed restraining the sale. 
 
 2 Watson V. Atwood, 25 Conn. 313. See also 22 N. J. Eq. 481. 
 
84 OF THE ONUS PROBANDI. 
 
 edies, can violate the obligation of contracts, and divest the 
 estate of the citizen ? May the legislature do that indirectly, 
 which it is forbidden to do by direct means ? Can it, under 
 the guise of taxation, or the appropriation of private property 
 to public uses, take the land of A., and give it to B. ? To 
 render the law in question valid, these inquiries must be 
 answered affirmatively. 
 
 The taxing power extends to the levy and collection of the 
 tax. Taxable property only is embraced by it, and the power 
 to collect cannot be extended so as to reach and divest the 
 property of one who has paid his tax promptly. It never was 
 intended that a party who had performed all of his duties to 
 the public, should be deprived of his property in this way. 
 The power of taxation, so far as it relates to the collection of 
 taxes, was designed to operate upon those only who should 
 wilfully or negligently omit the payment of taxes to which 
 they might be subject, and which should be legally assessed 
 upon their estates, and not upon those who should promptly 
 perform all of their constitutional obligations. The obliga- 
 tion is reciprocal ; if the citizen performs his duties to 
 * 81 the * government, that government should perfonn its 
 duties to the citizen. Among the first of these, is pro- 
 tection in his property, — not only from private force, cupid- 
 ity, and fraud, but from governmental plunder, — and it should 
 not be taken by the State, or its agents, without any fault or 
 omission of duty on his part. If the land was not liable to 
 taxation by reason of an exemption, if no taxes had been 
 assessed upon it, or if the taxes had been paid, the power of 
 sale never attached to it. To hold that the owner, under 
 such circumstances, is precluded from showing the fact, would 
 be a "monstrous doctrine." ^ 
 
 Judge Caton, in Curry v. Hinman,^ in construing a statute 
 which, according to the reading of it by the counsel for the 
 tax purchaser, deprived the former owner of the right to 
 prove that he had paid the taxes for which his land was sold, 
 says : " It would be nothing less, at least, than a moral fraud 
 to close the door against all defence to a void title, without 
 
 1 Rowland v. Doty, 1 Ear. Ch. 3; 11 ; Jackson v. Morse, 18 Johns. 441. 
 
 2 11 111. 428, 429. 
 
OP THE ONUS PROBANDI. 85 
 
 any fault or negligence on the part of the owner. If he pays 
 his taxes within the time prescribed by law, he is as blame- 
 less as if he had paid them the instant they became due. To 
 say nothing of the power of the legislature thus, in effect, to 
 divest an innocent man of his property and give it to another, 
 the monstrous injustice of such a law is too glaring to admit 
 of that construction, if one more just and reasonable can be 
 given to it." Again: " We should be very loth to say that 
 the legislature intended to create a .permanent disability, 
 which the party, by no possibility, could remove. That 
 would be doing indirectly, what they could not do directly. 
 To debar an innocent party altogether of the privilege to 
 prosecute or defend a right in the courts of justice, is equiva- 
 lent to taking the right from him altogether. The latter they 
 cannot constitutionally do ; the former we will not presume 
 they intended to do." Where the State has no power to sell 
 the land for taxes by reason of the facts suggested, and 
 yet do so, convey * to another citizen, and declare that * 82 
 his deed shall be conclusive evidence of a fee-simple 
 title, it is, to all intents and purposes, the taking of the land 
 from A., the former owner, and giving it to B., the pretended 
 purchaser. This, as Judge Caton. remarks, " the legislature 
 cannot constitutionally do." This is not the lex terrce meant 
 by the Constitution.^ 
 
 1 See Cooley's Const. Lim. pp. *368, 369; 48 N. Y. 491 ; 8 Nev. 341 ; 9 Geo. 
 354; 16 Mass. 330; 5 Paige, 146, 160 ; 2 Kent's Com. 840 ; 2 Pet. 653 ; 3 Yerg. 
 41; 11 Wend. 149, 151 ; 19 Wend. 659; 5 Barb. 483; 18 Wend. 56*57; 4 Hill, 
 140; 1 Bay, 252; 4 Barb. 71, 75; 2 G. Greene (Iowa), 26, 27; 2 Yerg. 606; 
 Abbott V. Lindenbower, 42 Mo. 162; White a. Flynn, 23 Ind. 46; Allen v. 
 Armstrong, 16 Iowa, 508 ; Corbin v. Hill, 21 Iowa, 70 ; Grosbeck v. Seeley, 
 13 Midi. 329 ; Case v. Dean, 16 Mich. 13 ; Wright v. Cradlebaugh, 8 Nev. 349. 
 See further 19 Ind. 470; 45 Barb. 212 ; Adams v. Beale, 19 Iowa, 66. But there 
 is no constitutional objection to making a tax deed conclusive as to non-essentials. 
 Thus the assessment of land, and the delivery of tax books, and collection of 
 taxes, and return of delinquent tax lists, in the particular time and manner 
 required by law ; the assessment of all the land in the county ; the issue of 
 precept for the sale of land ; the sale of land at the court-house door, and in the 
 smallest subdivisions, are not essential prerequisites of the lawful exercise of the 
 taxing power of the State ; and the act concerning tax deeds cannot be declared 
 unconstitutional, because it makes the deed conclusive evidence that these things 
 had been rightly done. They were matters of form which could be taken against 
 defendant by default. Abbott v. Lindenbower, ubi sup. In Abbott v. Linden- 
 
86 OP THE ONUS PROBANDI. 
 
 Whatever may be the decision upon the question of power, 
 when it properly arises, the moral injustice and impolicy of 
 
 bower, 46 Mo. 291, the same case in 42 Mo. 162, was explained as meaning 
 simply that certain things were essential to the valid exercise of the taxing 
 power, and that the want or omission of them might be shown in evidence, 
 notwithstanding the statute ; but that decision did not attempt to specify all the 
 things that were so essential, to anticipate all possible objections to every tax 
 sale ; that the ruling of the Supreme Court, when the case was formerly before 
 them, did not invalidate the tax deed nor wholly destroj^ its statutory effect. 
 By admitting certain defences, notwithstanding the statute, the Court held in 
 effect that the deed as to such defences should be considered as prima fade 
 instead of conclusive evidence of the facts involved in them. So in McCready ». 
 Sexton, 29 Iowa, 356, it was held that a statute making a tax deed conclusive 
 evidence of the regularity of all prior proceedings was unconstitutional so far as 
 respects the essential, jurisdictional prerequisites for the exercise of the taxing 
 power ; viz. : 1. The listing and assessing of the property ; 2. The levy of the tax ; 
 
 3. The tax warrant or an express statutory provision authorizing the sale ; and 
 
 4. The sale under the authority conferred by the tax warrant or by the statute 
 itself directly ; that as to non-essentials or non-jurisdictional matters it was 
 constitutional ; but that though void in part it would be upheld to the extent of 
 the legislative power, and that the word ' ' conclusive " would as to such essential 
 prerequisites be considered as stricken out and the deed held to be prima facie 
 evidence only of them. To the same point, see Hurley v. Woodruff, 30 Iowa, 
 260; Bulkley u. Callanan, 32 Iowa, 461; Powers v. Fuller, 30 Iowa, 476. 
 While as to the fact of an assessment, levy, or sale a tax deed is not conclusive 
 evidence; it is as to the manner thereof. Bulkley v. Callanan, stipra ; Eima t>. 
 Cowan, 31 Iowa, 125. And if a d^ed shows that the sale was made in a manner 
 which under some circumstances would have been proper, those circumstances 
 will conclusively be presumed to have existed. Ware v. Little, 35 Iowa, 234. See 
 also Jeffrey v. Brokaw, 35 Iowa, 505 ; Smith v. Cleveland, 17 Wise. 556. In Bulk- 
 ley V. Callanan, supra, evidence to show tliat the land was assessed in "eighths," 
 instead of in quarter-section tracts as sold, was rejected; and in Rimaw. Cowan, 
 supra, it was^held that tax deeds showing land sold in parcels, alleged to have been 
 sold in bulk, were conclusive upon that point. In Hurley v. Powell, 31 Iowa, 64 
 (following Parker v. Sexton, 29 Iowa, 421), held, that a tax warrant is not an 
 indispensable prerequisite to the validity of a tax sale (the power to sell being 
 derived from the statute directly: Rev. § 763), and therefore the lawmaking 
 the deed conclusive evidence that the requirements of the statute in that respect 
 were complied with, is constitutional. For like reasons the deed is conclusive 
 evidence that the requirements of the statute (Rev. § 771) respecting the certifi- 
 cate and affidavit of due publication were complied with. Hurley v. Powell, 
 supra ; see also Smith v. Cleveland, supra. So as to due notice of sale. Allen 
 ji. Armstrong, 16 Iowa, 508. So that the treasurer did his duty in endeavoring 
 to collect the tax by distress and sale of the personal property of the delinquent 
 tax-payer before selling the real estate. Stewart v. Corbin, 25 Iowa, 144. So. 
 a deed cannot be invalidated by showing that the town assessor neglected to add 
 the word "assessor" to his signature to the certificate appended to the assess- 
 ment roll ; that the town treasurer, in his return of delinquent lands to the county 
 treaisurer, omitted to insert the year for which the taxes were unpaid in a blank 
 
OF THE ONUS PROBANDI. 87 
 
 such legislation, cannot be denied ; and it will be seen upon 
 an examination of the authorities, that when such arbitrary 
 power has been exercised by the legislature, the courts have 
 given a strict construction to the law, and not extended its 
 unjust operation beyond the very words of the statute.^ By 
 the act of February 19, 1827, the Illinois Legislature declared 
 that the deed should " vest a perfect title in the purchaser, 
 unless the land shall be redeemed according to law, or the 
 former owner shall show that the taxes for which it was sold, 
 had been actually paid according to law, or that the land was 
 not legally subject to taxation." 
 
 In Garrett v. Wiggins,^ the Supreme Court of that State, in 
 giving a construction to this statute, state the rule of the 
 common law as to the burden of proof, and the strictness 
 required in this class of cases, concede the power of the leg- 
 islature to alter these rules, admit that it has done so to some 
 extent in this very instance, that under this statute, several 
 preliminary facts to a legal sale by the auditor, are to be 
 inferred by his conveyance, and the responsibility of proof 
 shifted from the purchaser to the original owner, but the 
 court deny that this statute will, "by any fair construction, 
 warrant the opinion that the auditor, selling land without 
 authority, could, by his conveyance, transfer the title 
 of the rightful owner." They *say that to consummate * 83 
 his authority, the law imperatively requires him to pub- 
 lish notice of the time and place of sale, that the publication 
 
 left for that purpose ; that the return was not made till Feb. 10, though required 
 to be made on or before the last Monday of January ; or that the deed recites 
 that the tax sale took place on the twelfth of April, while it appears from the 
 certificate of sale and notice to redeem that it was ma,de on the eleventh. Smith 
 V. Cleveland, supra. Under a statute providing that the title conveyed by any 
 deed of lands for the non-payment of taxes should not be invalidated or in any 
 way affected or avoided by any error previously made in assessing, listing, 
 taxing, selling, or conveying said land, held, that a tax deed executed by a deputy 
 is conclusive of the existence of the contingency under which the statute author- 
 izes a deputy to perform the duties of the clerk, though the fact is not recited 
 therein ; and such a deed cannot be impeached by showing that the taxes for 
 which the land was sold were excessive in amount, the tax deed being conclusive 
 evidence of theregularity of the tax proceeding. Huey v. Van Wie, 23 Wise. 613. 
 
 » Moulton V. Blaisdell, 24 Me. 283 ; Gavin v. Shuman, 23 Ind. 32; Stierlein 
 V. Daley, 37 Mo. 483. 
 
 ■i 1 Scam. 335. 
 
88 OP THE ONUS PROBANDI. 
 
 of this notice is not one of those facts which can be inferred 
 from his conveyance, and that without proof of this fact, the 
 auditor's deed is not evidence of the regularity and legality 
 of the sale, and consequently conveyed no title to the pur- 
 chaser.^ 
 
 The Michigan statute of April 13, 1827, declares, that the 
 tax deed shall vest in the purchaser " an absolute estate in 
 fee-simple," &c., and be " conclusive evidence that the sale 
 was regular according to the provisions of this act." On the 
 construction of this statute the Supreme Court of that State 
 have twice held that the tax deed was only conclusive evi- 
 dence that the sale itself was made, at the time and place, 
 and was conducted by the person and in the manner pre- 
 scribed by law ; but that it was still inadmissible in evidence, 
 unless accompanied by proof that the taxes had been legally 
 assessed and returned, and that all of the proceedings, ante- 
 rior to the sale, had been in strict conformity with the 
 requirements of the statute.^ (a) 
 
 1 See also Goewey v. Urig, 18 111. 238. 
 
 2 Scott V. Detroit Young Men's Society, 1 Doug. (Mich.) 121 ; Latimer v. 
 Lovett, 2 Doug. (Mich.) 204 ; Eowland v. Doty, 1 Har. Ch. 3. As to amount of 
 evidence necessary to rebut the prima facie presumption arising from a deed under 
 the Michigan statute (R. S. 1846, p. 118, § 109), see Wright v. Dunham, 13 Mich. 
 414 ; it is not enough to show facts from which an inference of irregularity might 
 be drawn, but none of which are inconsistent with the existence of other facts 
 which, if proved, would establish the correctness of the proceedings. Ibid. See 
 also Lacey v. Davis, 4 Mich. 158 ; Sibley v. Smith, 2 Mich. 497. To overcome 
 the presumption arising from the auditor's deed, some substantial error affecting 
 injuriously the owner of the land must be shown. Case v. Dean, 16 Mich. 12. 
 But when testimony is introduced affording reasonable ground for presuming 
 such error in the proceedings prior to the deed, then the burden of proof is cast 
 upon the holder of the tax deed. Ibid. A tax deed is prima facie evidence that 
 the land was taxable ; but this is rebutted by the production of the patent 
 executed after the assessment of the tax to the party claiming adversely to the 
 tax deed or his grantor ; it then devolves upon the tax-title claimant to show 
 that the patentee in fact acquired a taxable interest in the land before the date 
 of the patent. Eaton w. North, 20 Wise. 449. See p. * 365. 
 
 (a) So where the fourteenth section of the Charter of Joliet (Private Laws, 
 1857, p. 215) declared that a deed on a sale for city taxes and special assessments 
 should be prima facie evidence of certain facts, and conclusive of others, among 
 the latter of which was the one that tlie sale was conducted in the manner required 
 by law ; and the charter prescribed no mode of selling except under the order 
 of the council, having left all other things to be regulated by the city ordinances, 
 the same as to the mode of assessments, advertisement, and other necessary steps, 
 
OP THE ONUS PROBANDI. 89 
 
 One of the New York statutes declares, that the comptrol- 
 ler's deed shall be " conclusive evidence of the regularity of 
 the sale ; " but the courts of that State hold this relates solely 
 to the auction and notice of sale, and does not dispense with 
 proofs of the other prerequisites of the law ; in other words, 
 the deed is evidence of the regularity of the comptroller's sale, 
 but not of his power to sell (or convey).^ Another statute 
 of that State declai-ed, that the deed " shall vest in the 
 grantee an absolute estate in fee-simple." These words were 
 held to be merely descriptive of the estate which the 
 purchaser would acquire * under the statute, where the * 84 
 authority of the officer to sell has been established by 
 proof that all the requirements of that statute had been fully 
 complied with.^ 
 
 The Tennessee statute of 1844 declared a deed made in 
 pursuance of a "public sale for t&Jies" primd facie evidence 
 of the prerequisites of the law. A party claimed under a 
 town corporation tax sale. The Supreme Court of that State 
 held that a corporation tax deed was not within the law. 
 Judge Turley says, " Corporation taxes are not public, but 
 private taxes, and are, therefore, not embraced within the 
 provisions of the act of 1844 ; but are left, as to the remedy 
 for collection, as it existed prior to the passage of the statute, 
 and in case of a sale of real estate for effectuating that pur- 
 pose, subject to all of the rigid strictness of construction which 
 existed in the cases of sales for the collection of State and 
 county revenue, previous to its passage." ^ The Indiana 
 
 held, that in all these matters the person claiming under the deed must prore that 
 by-laws were adopted for the purpose by the city, and had been pursued in making 
 the sale. Holbrook v. Dickinson, 46 111. 285. 
 
 ' Doughty V. Hope, 3 Denio, 595 ; s. c. 1 Comst. 79 ; Westbrook v. Willey, 
 47 N. Y. 460 ; Bunner v. Eastman, 50 Barb. 642 ; Tallman v. White, 2 Comst. 
 69 J Striker v. Kelly, 2 Denlo, 329, 331; Varick v. Tallman, 2 Barb. 117, 118; 
 Beekman v. Bigham, 1 Seld. 366. See also Holbrook v. Dickinson, 46 111. 285 ; 
 People V. Mayor, 10 Wend. 393. 
 
 2 Jackson v. Morse, 18 Johns. '441 ; Tallman v. White, 2 Comst. 69 ; Varick 
 V. Tallman, 2 Barb. 118, 119 ; Rowland v. Doty, 1 Har. Ch. 3. 
 
 ' Shoalwater v. Armstrong, 9 Humph. 217. Under the Tennessee statute 
 (Act of 1844, ch. 92, § 1), enacting that " it shall be sufficient to make such sale 
 valid and communicate good title to the purchaser, that the land so sold lies in 
 the county in which it has been reported for non-payment of taxes thereon ; that 
 it has been duly reported; that an order of sak has been awarded, and that the sale 
 
90 OP THE ONUS PEOBANDI. 
 
 statute of 1824 provided that the collector's deed " shall be 
 primd facie evidence of the regularity of the sale ; " and the 
 Supreme Court of that State decided, in construing this 
 statute, that the deed furnished no evidence that the tax had 
 been legally assessed, or that it had not been duly paid, or 
 that the land was not exempt from taxation, but that the 
 deed y«as primd facie evidence of the regularity of the proceed- 
 ings so far as the acts of the collector are concerned, and not 
 of the precedent acts necessary to clothe him with authority 
 
 to sell.i • 
 
 The Illinois act of February 26, 1839, prescribed the form 
 of the collector's deed, and declared that " deeds, as executed 
 
 by the collector as aforesaid,^ shall be primd facie evi- 
 * 85 dence : " 1. * That the land was subject to taxation ; 2. 
 
 that it had been listed and assessed in the time and 
 manner required by law; 3. That the taxes were unpaid; 
 and 4. That no redemption had taken place. " And shall be 
 conclusive evidence : " 1\ That the land was advertised in the 
 manner and for the length of time required by law ; 2. That 
 the land was sold for taxes as stated in the deed ; 3. That 
 
 of the said land was duly adoertised ; to establish which facts the sheriff's deeds 
 reciting their existence, shall be prima facie evidence," &c., it must appear by the 
 recitals of the deed that all the facts necessary to give the court jurisdiction exist ; 
 and if a deed does not recite among other necessary facts that the land was duly 
 reported for non-payment of taxes, it is a nullity. Hightower v. Freedle, 5 Sneed, 
 312. Under the latter part of said section, providing that " all judgments or 
 orders of sale shall be conclusive, unless the person wishing to show the irregu- 
 larity of the same can prove that the taxes were duly paid before such judgment 
 or order of sale was rendered," held, Totten, J. dissenting, that the j udgment and 
 order of sale are conclusive against a plaintiff seeking to recover land sold for 
 taxes, unless he first shows that he had duly paid the taxes for which the sale 
 was made. Thorp v. Hart, 2 Sneed, 569. 
 
 1 Parker v. Smith, 4 Blackf 70; Doeu. Himelick, 4 Blackf 71, note; s. c. 4 
 Blaekf 494. See Gavin v. Shuman, 23 Ind. 32 ; White v. Flynn, id. 46 ; Wilson 
 V. Lemon, id. 433. [A similar construction was given to a similar statute (Ter. 
 Rev. St 1839, § 23, p. 44) in Wisconsin. Bridge v. Bracken, 3 Cliand. 75. The 
 Wisconsin statute enacts that the deed shall be prima facie evidence of the regu- 
 larity of all the proceedings, from the valuation of the land by the assessors 
 inclusive, up to the execution of the deed. Revised Statutes, 1849, ch. 1 5, p. 109 ; 
 ed. of 1858, ch. 18, p. 127 ; Delaplaine v. Cook, 7 Wise. 53.] See Stewart v. 
 McSweeny, 14 Wise. 468; Whitney v. Marshall, 17 id. 174. 
 
 - A tax deed, under the act of 1835, in regard to road tax, is not covered by 
 the general provision making tax deeds p-imd facie evidence. Skinner v. Fultoa, 
 39 111. 484. 
 
OF THE ONUS PEOBANDI. 91 
 
 the grantee in the deed was the purchaser ; and 4. That the 
 sale was conducted in the manner required by law. The 
 same statute required the collector to demand the tax of 
 the owner, if not paid, to seize his goods and chattels, and sell 
 the same for the non-payment of the tax. If no goods and 
 chattels could be found, the collector was required to report 
 the delinquents to the Circuit Court, and demand a judgment 
 against their lands, giving previous notice, by publication in 
 a newspaper, of the time and place of making such application. 
 The Court were directed to enter judgment upon such appli- 
 cation, and the law then required the clerk, within five days 
 after the adjournment of the court, to issue a precept to the 
 sheriff or collector, under the seal of the court, which should 
 consist of the collector's report, and the order of the court 
 thereon, which the law declared " shall hereafter constitute 
 the process on which all lands shall be sold for taxes." The 
 Supreme Court of Illinois, in the case of Hinman v. Pope,^ 
 decide in construing this statute, that a party claiming title 
 under a sale for taxes, must produce a judgment rendered by 
 a court of competent jurisdiction, and a valid precept to the 
 collector, before he can read his deed in evidence ; that the 
 deed is not evidence of these facts, because the law has not 
 so declared.^ A decision will now be noticed in conflict 
 
 ' 1 Gilra. 131. 
 
 2 See p. *210, 211 ; Miller v. 'Williains, 15 Grat. 226. See also Dukes v. Bow- 
 ley, 24 111. 210 ; Bailey t,. Doolittle, id. 577 ; Buck v. Delafield, 55 111. 31 ; 
 Wilding V. Homer, 50 111. 50 ; Holbrook v. Dickinson, 46 111. 285 ; Wil- 
 liams V. Underbill, 58 111. 137. Nor is this rule changed by the act of 1861, 
 requiring defendant to tender redemption money before he can interpose a 
 defence to the tax deed. Williams v. Underbill, supra. So under the revenue 
 law of Nevada, providing that "any deed derived from the sale of real property 
 under this act shall be conclusive evidence of the title, except as against actual 
 frauds or prepayment of the taxes by one not a party to the action or judgment," 
 a tax deed admitted to hav& been executed by the tax collector was held to be 
 inadmissible as evidence of title without proof of a judgment and order of sale. 
 Bolan V. Bolan, 4 Nev. 150. See also People v. Doe, 31 Cal. 220. The recital 
 of a judgment in the tax deed is a mere assertion of the tax collector, and not 
 competent to prove the existence of the judgment. Bolan v, Bolan, supra. 
 Where a statute provided that it shall be suflScient to make the sale valid 
 and communicate a good title to the purchaser, that the land sold lies in 
 the county in which it has been reported delinquent ; that it has been duly 
 reported ; that an order of sale has been awarded, and that the sale of said 
 
92 OP THE ONUS PROBANDI, 
 
 with these authorities, and unsupported by an}-^ fair rule of 
 construction. 
 
 It is the case of Rhinehart v. Schuyler ,i which was an action 
 of ejectment by the defendant in error, claiming title under 
 an auditor's deed, bearing date November 8, 1833, and purport- 
 ing to be made in pursuance of a sale for taxes, under 
 * 86 the revenue * law of Illinois, approved January 19, 1829, 
 which provided, " That it shall not be necessary for any 
 purchaser of lands so sold for taxes, to obtain, keep, or produce 
 any advertisement of the sale thereof, but his deed from the 
 auditor of public accounts shall be evidence of the regularity 
 and legality of the sale, until the contrary shall be made to 
 appear." The Court held, that the deed was primd facie evi- 
 dence that all of the prerequisites of the law had been com- 
 plied with by the auditor. The only reason assigned for this 
 judgment is, that the language of the law "is so plain and 
 palpable, that he who runs may read and understand it." 
 With due respect to the judge who drafted this opinion, there 
 are several reasons why the profession in other States cannot 
 regard it as a precedent. It is directly opposed to the New 
 York, Michigan, Indiana, and Tennessee cases above cited; 
 it is in conflict with the spirit of the decisions of the Supreme 
 Court of Illinois, in the cases of Garrett v. Wiggins and Hin- 
 man v. Pope ; it is repugnant to the principle fairly deducible 
 from all of the decisions hereinbefore referred to, inasmuch 
 as they all proceed upon the ground, that the common-law 
 rule must be adhered to, except so far as the very words of 
 the statute may have changed it ; and this upon the principle, 
 that aU statutes in derogation of the common law, must 
 
 land has been duly advertised ; and to establish these facts the sheriff's deed 
 reciting their existence shall be prima facie evidence, which facts, and the further 
 fact that he sold the lot under a regular order of sale or venditioni exponas that 
 issued to him, veere recited in the deed, but where a great lapse of time had 
 intervened between the sale and the execution of the deed, and the officer exe- 
 cuting the deed (the successor of the one who made the sale) testified that he 
 knew nothing of the facts recited therein, held, that this state of facts was suffi- 
 cient to rebut the presumption created by tlie statute ; that the recital of the 
 issuing of the order of sale or venditioni exponas was no evidence of that fact j 
 that, there being no writ of venditioni exponas under which the lot was sold, the 
 sale was for that reason void. Bandolph v. Metcalf, 6 Cold. 409. 
 1 2 Gilm. 473. 
 
OP THE ONUS PROBANDI. 93 
 
 be strictly construed. The court in that case, instead of 
 adhering to this maxim, extend, by implication, the words of 
 the legislature beyond the case actually provided for. The 
 provision is, that the deed shall be evidence of the " regularity 
 and legality of the sale," and not of the authority to sell, — 
 both of which are necessary to its validity. A sheriff's deed 
 is evidence of the regularity of the sale, and yet the courts 
 invariably require the purchaser to show a judgment and 
 execution. For what purpose ? To establish the authority 
 of the sheriff to sell. So in this case, the deed is evidence of 
 the regularity of the sale, but the tax purchaser must also 
 establish the authority of the auditor to sell, by proving those 
 facts, without which it has no existence. The grammatical 
 construction of the whole provision sustains this course of 
 reasoning. " It shall not be necessary for the purchaser 
 to produce the * advertisement of the sale, but his deed * 87 
 shall be evidence of the regularity of the sale." It does 
 not dispense with proof of the listing and valuation of the 
 land, and the assessment of the tax, but merely with the produc- 
 tion of the advertisement. It is by construction that the clause 
 can even be extended to the time, place, and manner of sale, 
 and the person by whom it is made. 
 
 The Ohio act of March 2, 1846, section 4, provides, that 
 where any lands have been or shall thereafter be sold for taxes, 
 the purchaser may recover possession by action of forcible 
 entry and detainer, and that the evidence of the title of the 
 purchaser, &c., shall not be set aside, or impeached by evidence 
 of any irregularity or informality in levying the tax, or in any 
 of the proceedings previous to such sale. The Supreme 
 Court of that State, in deciding upon the validity of a tax title, 
 in an action of ejectment, refused to be controlled by the 
 statute, saying, " This particular section of the statute has 
 reference to proceedings in forcible entry. and detainer, and 
 there is nothing in it which requires that its principles should 
 be extended to other cases. This is not a proceeding of that 
 kind, and of course this statute has nothing to do with it." 
 Another statute of that State prescribed the form of the audi- 
 
 1 Hannel v. Smith, 15 Ohio, 134. 
 
94 OP THE ONUS PROBANDI. 
 
 tor's deed, and declared that such deeds should be received 
 in all courts as primd facie evidence of a good and valid title 
 to the purchaser. In Carlisle v. Longworth,i the form pre- 
 scribed by the legislature had not been followed by the auditor, 
 and the court held, that only such deeds as were executed in 
 the form and manner prescribed, were entitled to this legisla- 
 tive immunity from the rigor of the common law. 
 
 In the case of The People v. the Mayor, &c.,^ the facts 
 were, that a law of New York, instead of selling the fee, 
 
 directed the sale of a leasehold interest in the land, and 
 * 88 declared that the * lease " should be conclusive evidence 
 
 of the regularity of all the proceedings," of the corpora- 
 tion on a sale of the premises embraced in it. The relator 
 had purchased at one of these sales, and the time of redemp- 
 tion had expired. He applied for his lease which was refused, 
 the law not having been complied with in publishing the 
 requisite notice after the sale and before the expiration of 
 the period of redemption. He thereupon moved the court 
 for a mandamus against the officer, which was denied, the 
 court saying, " Should we compel the execution of the lease, 
 the purchaser's title might be protected [referring, of course, 
 to the section of the law which made the lease conclusive 
 evidence of title in the purchaser], but we are not inclined 
 to exert this high power of the court to give strength and 
 validity to a title which appears clearly defective on the 
 merits, and which, without this statutory support, cannot be 
 sustained." ^ Thus the current of authorities runs strongly 
 
 1 5 Ohio, 229. And this rule was expressly affirmed in Jones v. Devore, 
 8 Ohio St. 430. An auditor's deed duly executed under the act of Feb. 23, 1824, 
 is prima facie evidence of title in the purchaser, and may be put in evidence with- 
 out preliminary proof in respect to the regularity of listing, advertising, and sale 
 of land. Stanberry u. Sillon, 13 Ohio (n. s.), 571. See p. * 79, note. 
 
 2 10 Wend. 898. 
 
 3 A comptroller's tax deed, if conclusive of regularity, is only so as to the 
 sale itself and not as to prior proceedings, and still less subsequent steps. 
 Bunner w. Eastman, 50 Barb. 639. See p. * 83 and note 1. The case of People 
 V. Mayor, supra, was decided upon the point that the relator had not a legal right 
 to the lease demanded, the corporation not having complied with the condition 
 subsequent as to publication of the requisite notice (it not having been published 
 six calendar months before the expiration of the period of redemption), it being 
 
OF THE ONUS PEOBANDI. 95 
 
 in favor of the reasonable principles of the common law, and 
 wherever an innovation has been made by statute upon those 
 principles, the courts have discountenanced it so far at least, 
 as to confine the operation of the statute within the bounds 
 prescribed by its words.^ They give effect to the intent of the 
 legislature, as manifested by the language used, disregarding 
 the spirit of the rule prescribed, by refusing, in every in- 
 stance, to give an equitable construction to the' statute. This 
 strictness is commendable, and sustained by reason and au- 
 thority in analogous cases. There are two cases yet to be 
 noticed before leaving this subject. 
 
 The Ohio act of January 29, 1827, declares, that the tax- 
 deed " shall convey to the purchaser, &c., a good and valid 
 title to the land so sold, and shall be received in all courts in 
 this State, as good evidence of title, &c., nor shall the title 
 conveyed by said deed, be invalidated or affected by any error 
 previously made in listing, taxing, selling, or conveying said 
 land." In Gwynne v. Neiswanger,^ it was held by the Su- 
 preme Court of that State, that under this statute the deed 
 raised a conclusive presumption that all of the proceedings 
 anterior to its execution and delivery, were in strict con- 
 formity with the requirements of the statute, the Court using, 
 however, the following qualifying language : " The objections 
 which are raised by the defendant are objections which do 
 not go to any substantial defect in the proceedings. They 
 are rather to matters of form than of substance." 
 
 * The Arkansas statute of 1838,^ provided, that the * 89 
 "auditor's deed shall vest in the purchaser all the right, 
 title, interest, and estate of the former owner in and to such 
 land, and also all the right, title, interest, and claim of the 
 State thereto ; and shall be evidence in all courts of this 
 State, of a good and valid title in such grantee, his heirs and 
 assigns, and that all things required by law to make a good 
 
 held that the requirement as to publication of notice six months before 
 the expiration of the period of redemption meant calendar instead of lunar 
 months. 
 
 1 See 48 N. Y. 491. 
 
 2 18 Ohio, 400. 
 
 ' See the late Arkansas statutes on this subject in Goold's Digest of Arkansas 
 Statutes, ch. 148. 
 
96 OF THE ONUS PROBANDI. 
 
 and valid sale, were done both by the collector and auditor." 
 In the case of Steadman v. Planters' Bank,^ which was an 
 ejectment to recover land sold under this statute for the non- 
 payment of taxes, the plaintiff offered his tax deed in evi- 
 dence. The Circuit Court excluded it, upon the ground that 
 the deed was not evidence of any fact not recited in it." On 
 error, the Supreme Court reversed the judgment of the Cir- 
 cuit Court, holding that the statute under which the deed 
 was executed changed the common law, and made the deed 
 evidence of the regularity of all the proceedings of the col- 
 lector and auditor.^ And although the language of later 
 statutes in Arkansas is somewhat different from that of 1838, 
 the decisions are harmonious that such deed is primd facie, 
 and only primd facie, evidence of the regularity of the proceed- 
 ings ; ^ and although the deed contains recitals of every 
 prerequisite prescribed by the statute, yet if the land was 
 misdescribed in the advertisement of the tax sale, the deed is 
 invalid.* The statute also enacts, that a deed in the usual 
 form should be " sufl&cient evidence of the authority under 
 which said sale was made, the description of the land, and 
 the price at which it was purchased." It was held in Parker 
 V. Overman,^ that the term " sufficient " meant merely primd 
 facie, and was not conclusive. But this clause means, that 
 such deed shall be primd facie evidence that the steps 
 * 90 prerequisite * to the sale, and which constitute the au- 
 thority of the officer to sell, have been regularly taken, 
 as well as of the description of the land, and the price at 
 which it was purchased ; and that the party impeaching the 
 deed must prove irregularities, in order to invalidate the 
 
 1 2 Eng. 424, 428. And this rule and case was distinctly approved in the 
 case of Bettison v. Budd, 17 Ark. 556. See Twombley v. Kimbrough, 24 Ark. 
 459, holding that a tax deed is evidence of the truth of its own recitals. 
 
 2 In California, the collector's deed seems to be primd facie evidence of reg- 
 ularity of all proceedings, at least where there are general recitals of compliance 
 with the law. O'Grady v. Barnhisel, 23 Cal. 287. 
 
 3 See Hogins v. Brashears, 13 Ark. 242 ; Merrick v. Hutt, 15 Ark. 338 ; Biscoe 
 V. Coulter, 18 Ark. 423 ; Roberts v. Pillow, 1 Hemp. 624 ; 13 How. (U. S.) 472 ; 
 Thomas v. Lawson, 21 How. (U. S.) 332. 
 
 * Patrick v. Davis, 15 Ark. 363. 
 5 18 How. (U. S.) 142. 
 
OP THE ONUS PBOBANDI. 97 
 
 sale.i By a deed " in the usual form " under that act, is 
 meant a deed which substantially recites the material steps 
 which the law requires to constitute a valid tax sale, includ- 
 ing a proper description of the land, the price paid, with words 
 granting the land to purchasers, &c., and if it fail to recite 
 any fact material to the sale, the party relying on the deed 
 must prove that fact aliunde? If the deed recites that the 
 owner of the land was a non-resident, it is primd facie evi- 
 dence of that fact^ the deed being regular on its face.^ 
 
 The New York statute of April 10, 1850, declares, that 
 the tax deed " shall be presumptive evidence that the sale, 
 and all proceedings prior thereto, from and including the as- 
 sessment of the land, and all notices required by law to be 
 given previous to the expiration of the two years allowed to 
 redeem, were regular according to the provisions of this act, 
 and all laws directing or requiring the same, or in any man- 
 ner relating thereto." * 
 
 1 Bonnell v. Roane, 20 Ark. 114. See Merrick v. Hutt, 15 Ark. 838. 
 
 2 Budd V. Bettison, 17 Ark. 546 ; Gossett v. Kent, 19 id. 602 ; Bonnell v. Roane, 
 20 id. 114 ; so under the California statute, of 1854 ; Moss v. Shear, 25 Cal. 38 ; 
 Wetherbee v. Dunn, 32 Cal. 106. See Hightower v. Freedle, 5 Sneed, 312 ; Long 
 V. Burnett, 13 Iowa, 29. 
 
 3 Hunt V. McFadgen, 20 Ark. 277. 
 
 * See Bunner v. Eastman, 50 Barb. 639, when the tax deed was given in 1845 
 (p. * 88, sup. note). The legislature may take away from deeds already executed 
 their statutory character as prima facie proof, the grantee having no vested right 
 in rules of evidence. Hickox v. Tallman, 38 Barb. 608. 
 
 In Iowa, the statute (§ 74 of the act of April 3, 1860) provides that the county 
 treasurer's deed " shall vest in the purchaser all of the right, title, interest, and 
 estate of the former owner, in and to the land conveyed ; " that " it shall be primd 
 facie evidence in all courts of the following facts : 1. That the property con- 
 veyed was subject to taxation ; 2. That the taxes were not paid ; 3. That the 
 property conveyed was not redeemed ; and shall be conclusive evidence of the fol- 
 lowing facts : 1. That the property had been listed and assessed at the time and 
 in the manner required by law ; 2. That tlie taxes were levied according to law ; 
 3. That the property was advertised for sale in the manner and for the length of 
 time required by law ; 4. That the property was sold as stated in the deed ; 
 5. That the grantee was the purchaser ; 6. That the sale was conducted as 
 required by law ; 7. That all the prerequisites of the law were complied with by 
 all the officers, from the listing and valuation of the property, up to the execu- 
 tion of the deed, both inclusive, and that all things whatsoever required by law 
 to make a good and valid sale, and to vest the title in the purchaser, were done, 
 except in regard to the three points named in this section wherein the deed shall 
 be prima, facie evidence only." An action was brought to recover possession of 
 
 7 
 
98 OP THE ONUS PROBANDI. 
 
 certain lots, plaintiff claiming under a tax deed. The defendant offered to show 
 that the advertisement was insufSeient, and that in it the lands were described 
 as being delinquent for the year 1839 instead of 1859. He also offered to show 
 that the assessor assessed this property before he was qualified, and that after 
 qualifying he did not reassess it. 
 
 The only question was, therefore, on the constitutionality of the ahore provi- 
 sions. Held, that so far as the above objections were concerned, it was consti- 
 tutional, and defendant was by it precluded from his said objections ; sed, doubt- 
 ful whether the rest of the law was constitutional. Allen v. Armstrong, 16 Iowa, 
 508. See Corbin v. Hill, 21 Iowa, 70. See p. 82 and note 1. 
 
ELECTION AND QUALIFICATION OF OFFICERS, ETC. 99 
 
 CHAPTER IV. 
 
 OP THE ELECTION AND QUALIFICATION OF THE SEVERAL OFFICERS 
 WHO HATE ANY THING TO DO WITH THE EXECUTION OF THE 
 POWER. 
 
 It is a general principle of law, that whenever a right is 
 claimed under the proceedings of one who purports to have 
 acted in an official capacity, the fact that he who did the act 
 upon which the right is based, was a public officer, must 
 appear. This is especially applicable to a case where a title 
 to real estate is to be divested under the authority of a statute, 
 and through the intervention of a public officer. The statute 
 being the authority, and the officer the agent, to execute it, 
 and no one being empowered to do the act except the person 
 specially designated in the law for that purpose, it follows that 
 a stranger to the power cannot execute it. The power is 
 conferred upon the officer, not the man. It is an official not 
 a personal trust. It does not rest upon confidence, but upon 
 official responsibility. 
 
 Hence, the only security of the proprietor of the estate, is 
 in the official character of the person to whom the power is 
 committed. This security mainly depends upon the responsi- 
 bility of the officer to the government, the sanctity of his 
 oath of office, and his liability to those whose rights are vio- 
 lated by his wrongful acts. It may, therefore, be safely 
 affirmed as a general rule, that the party claiming title under 
 a tax sale must show that the acts required to be done under 
 the statute, in order to divest the title of the former owner, 
 were performed by the officers of the law, and not simply by 
 persons who assumed to act in an official capacity. The 
 citizen is entitled * to all the protection against fraud, * 92 
 rapacity, and abuse of authority in the sale of his prop- 
 erty, which official responsibility can secure.^ It therefore 
 
 1 Birch u. Fisher, 13 Serg. & Rawle, 208 ; Paysoa v. Hall, 30 Me. 319. 
 
100 OP THE ELECTION AND QUALIFICATION 
 
 becomes an important question to ascertain who is an oificer, 
 within the meaning of this rule. A resort to general princi- 
 ples is necessary., in order to determine the question, espe- 
 cially as the authorities are conflicting. An office is defined 
 to be, a public charge or employment ; and he who performs 
 the duties of that office is an officer.^ There is no such thing 
 known to the law as an office de facto?' nor can there exist 
 such an anomaly as an officer de jure, and one de facto, in the 
 possession of an office, at the same time.^ But it very fre- 
 quently happens that one has the title, while another is in 
 possession of the office under a claim of right. The distiuc 
 tion between an officer de jure — one who is de facto such — 
 and a mere usurper, is well known and clearly settled, and 
 the consequences naturally arising from these distinctions 
 are equally well settled. An officer de jure has the legal 
 title to, and is clothed with all the power and authority of the 
 office. He has a title against the world, to exercise the 
 functions of the office, and receive the fees and emoluments 
 appertaining to it. He is responsible to the government and 
 injured parties, when he abuses his trust or transcends his 
 authority. And his acts, when within the scope of that 
 authority, cannot be questioned by the citizen or any depart- 
 ment of the government.* An officer de facto, is one who 
 comes in by the forms of an election or appointment, but in 
 consequence of some informalitj'^, omission, or want of quali- 
 fication, or by reason of the expiration of his term of service, 
 cannot maintain his possession, when called upon by the 
 government to show by what title he claims to hold the 
 
 office. He is one, who exercises the duties of an office 
 * 93 under claim and color of right : being distinguished * on 
 
 the one hand from a mere usurper, and on the other, 
 from an officer de jure, (a) The mere claim to be a public 
 
 1 United States v. Maurice, 2 Brock. 102 ; s. o. Marsh. Decisions, 470. 
 
 2 Hildreth v. Mclntire, 1 J. J. Marsh. 206. 
 
 3 Boardman v. Halliday, 10 Paige, Ch. 223. 
 
 4 McGregor v. Balch, 14 Vt. 428. 
 
 (a) See Schenk v. Peay, 1 Dill. C. C. 268; where it is held that one 
 appointed to an office without authority, and who never performed any official 
 duty as such officer, and never had the reputation of being such officer, is not an 
 officer dejure or de facto. 
 
OP THE SEVERAL OFFICERS, ETC. 101 
 
 officer, or the performance, of a single, or even a number of 
 acts in that character, will not constitute an officer de facto : 
 there must be some color to the claim, under an election or 
 appointment, or an exercise of official functions, and an ac- 
 quiescence on the part of the public for a length of time, 
 which would afford a strong presumption of a colorable right.^ 
 The definition of Lord EUenborough is probabl}- more accu- 
 rate and expressive than any other : " An officer de facto is 
 one, who has the reputation of being the officer he assumes 
 to be, and is yet not a good officer in point of law." ^ He 
 who intrudes himself into an office which is vacant, or ousts 
 the incumbent, without any color of title whatever, and as- 
 sumes to execute the duties of the office, is a mere usurper, 
 and his acts are void in all respects.^ 
 
 The consequences naturally arising from the distinction 
 between an officer de jure and one de facto are well settled. 
 An officer de jure is clothed with all the power and authority 
 appertaining to the office, and his acts, within the limits of his 
 authority, cannot be questioned anywhere ; while the acts of 
 an officer de facto are valid so far only as the rights of the 
 public or third perons, having an interest in such acts, are 
 concerned. Neither the title of such an officer, nor the valid- 
 ity of his acts as such, can be indirectly called in question in 
 a proceeding to which he is not a party. The effect of this 
 rule is, to render the acts of an officer de facto as valid and 
 effectual as though he was an officer de jure. The interests 
 of the community imperatively require the adoption of such 
 a rule. The affairs of society could not be conducted upon 
 any other principle ; without it, there would be an 
 entire failure of justice. * To deny validity to the acts * 94 
 of such officers, would lead to confusion and insecurity 
 
 1 McGregor v. Balch, 14 Vt. 428 ; Aulanier v. The Governor, 1 Texas, 653 ; 
 Plymouth v. Painter, 17 Conn. 585 ; Tucker v. Aiken, 7 N. H. 140 ; Margate 
 Pier V. Hannam, 3 Barn. & Aid. 266; s. o. 5 Eng. Com. Law, 278 ; Wilcox o. 
 Smith, 5 Wend. 234. 
 
 2 The King v. The Corporation of Bedford Level, 6 East, 368. Eor a gen- 
 eral review of the English and American authorities, and a comprehensive defi- 
 nition of an officer de facto, see State v. Carroll, 38 Conn. 449. 
 
 3 Tucker v. Aiken, 7 N. H. 140. 
 
102 OP THE ELECTION AND QUALIFICATION 
 
 in public as well as private affairs, and thus oppose tlie true 
 policy of every well-regulated State. 
 
 Besides, it would be unreasonable and oppressive to compel 
 those transacting business with a public officer, before they 
 put faith in his official acts, to go into a minute examination 
 of all the evidences of his title to the office, and see that he 
 has complied with all the necessary forms of law. It would 
 constitute every citizen a judge of official titles. He must 
 look to the Constitution to see that the officer was ehgible 
 to an election or appointment — to the statute to ascertain 
 when, where, and how the election or appointment is required 
 to be made — and to the poll books and archives of the State 
 for the purpose of ascertaining the facts ; and then determine 
 at his peril the mixed question of law and fact involved in the 
 ascertainment of official character. 
 
 Again, when the controversy comes up collaterally, the 
 officer whose title and acts are drawn in question, is not a 
 party to the record, nor can he be legally heard in the dis- 
 cussion of the issue, although the decision would as effect- 
 ually decide his title to the office, as if he were a party. 
 This would be judging a man unheard, contrary to the prin- 
 ciples of natural justice and the policy of the law. The only 
 appropriate mode of testing his title is by an information in 
 the nature of a writ of quo warranto, in which, after notice 
 and an impartial hearing, be will be ousted from the office, if 
 it turn out that he has been exercising official functions with- 
 out the warrant of law. Until then, he holds the office by 
 the sufferance of the State, and the silence of the govern- 
 ment is construed by the courts as a ratification of his acts, 
 which is equivalent to a precedent authority. When the gov- 
 ernment acquiesce in the acts of such an officer, third persons 
 ought not to be permitted to question them. 
 
 From considerations like these has arisen the distinction 
 between the holding of an office de facto and de jure. It is 
 therefore an established principle in our system of jurispru- 
 dence, that the acts of an officer thus having color of title, in 
 the exercise of the ordinary and accustomed functions 
 * 95 of his * office, are valid in respect to those persons who 
 
OF THE SEVERAL OFFICERS, ETC. 103 
 
 may be interested in his acts; while as respects himself, 
 those acts are invalid.^ It Avill be observed, that the author- 
 ities do not proceed upon the ground that the claim of an 
 individual to be a public officer, and his acting as such, is 
 meiely primd facie evidence that he is an officer dejure; but 
 the principle they establish is this ; that an individual coming 
 into office by color of an election or appointment, is an officer 
 de facto, and his acts in relation to the public or third persons 
 are valid, until he is ousted by quo warranto, although it is 
 clearly made to appear that his appointment or election was 
 illegal. His title shall not be inquired into collaterally .^ 
 
 The rule, it will be perceived, is designed simply to protect 
 the public, by preventing a failure of justice, and the great 
 public mischief which might otherwise be justly apprehended. 
 It gives to the officer de facto no immunities whatever, con- 
 fers upon him no rights, and shields him from no responsi- 
 bility. When sued for moneys received by him colore officii, 
 he cannot avoid liability hj showing that he was only an 
 officer de facto,^ The same rule applies where an action is 
 brought against him for malfeasance, misfeasance, or non- 
 feasance in office.* On the other hand, when he attempts 
 to enforce a legal right which appertains solely to official 
 character, for instance, the fees of office conferred by law, 
 his right as an officer de jure is put in issue, and he can- 
 not recover without proving a legal title to the functions' 
 and emoluments of the office.^ And when he justifies 
 
 1 Plymouth v. Painter, 17 Conn. 585; Wilcox v. Smith, 5 Wend. 234; 
 McGregor v. Balch, 14 Vt. 428 ; Schlencker v. Eisley, 3 Scam. 483 ; Parker v. 
 Baker, 8 Paige, Ch. 429 ; The People v. Collins, 7 Johns. 551 ; M'Instry v. Tan- 
 ner, 9 Johns. 135 ; Burke v. Elliott, 4 Ired. 355 ; Gilliam v. Reddick, 4 Ired. 368 ; 
 Brush V. Cook, Brayt. 89 ; Gilmore v. Holt, 4 Pick. 257 ; M'Kim v. Somers, 1 
 Penn. 297 ; Adams v. Jackson, 2 Aik. 145; Hoagland v. Culvert, 1 Spenc. 387 ; 
 Farmers & Merchants' Bank v. Chester, 6 Humph. 458 ; Fowler v. Behee, 9 
 Mass. 231 ; Douglass v. Wickwire, 19 Conn. 489 ; Pritchett v. The People, 1 
 Gilm. 529. 
 
 2 Wilcox V. Smith, 5 Wend. 234. 
 
 ' United States v. Maurice, 2 Brock. 96. 
 
 * Petterman v. Hopkins, 5 Watts, 539. 
 
 * Id. But in a " suit by a collector of taxes to recover a tax, it is sufScient 
 evidence of his authority thus to sue, prima facie, for him to show that he has 
 acted as such officer in regard to that tax ; and it is then open for the defendants 
 to show that he is not duly authorized. ' All who are proved to have acted as 
 
104 OP THE ELECTION AND QUALIFICATION 
 
 * 96 * an act complained of, purporting to be done in his 
 official capacity, it is necessary for him to aver and 
 prove in his defence, not only that he was an acting officer, 
 but that he was an officer in fact and by right, duly elected 
 or appointed, commissioned, and qualified to act as such. 
 The reason is, that the officer himself is bound to know 
 whether he is legally an officer, and if he attempts to exercise 
 the functions of an office, without authority, he acts at his 
 peril .^ 
 
 We have thus seen, that the acts of an officer de facto are 
 valid, except only in cases of direct injuries to their fellow- 
 citizens.2 Such then is the rule, the exceptions, and the rea- 
 sons upon which they are founded. Is there any thing in the 
 nature of the power to sell land for the non-payment of taxes, 
 or in the legal character of those to whom the power is con- 
 fided, which prevents the application of the rule in question 
 to their acts? They exercise a special statutory power — one 
 not coupled with an interest in the thing upon which the 
 power operates. This is true of every power with which a 
 public officer is clothed. Take the case of a sheriff or coro- 
 ner selling land under execution. They act under a special 
 authority. Their right to sell depends upon the existence of 
 a judgment rendered by a court having competent juris- 
 diction, the issuing of a valid execution thereon, and its 
 direction to the proper official personage to whom the law 
 has intrusted the power of sale. Yet, in this class of cases, 
 it has been repeatedly held, that, if the sale is made by 'an 
 officer de facto, it is valid and effectual to divest the title of 
 the judgment debtor. Are not aU those upon whom the law 
 confers the power to list the land, assess the tax, and enforce 
 its collection, officers ? Chief Justice Marshall says, that 
 " An office is a pubHc charge or employment, and he who 
 performs the duties of that office is an officer." There 
 97 is nothing, then, in the nature of the * power, or in the 
 
 such (that is, as public officers) are presumed to have been duly appointed, until 
 the contrary appears.' " Kent, Collector v. Atlantic De Laine Co., 8 R. I. 305 ; 
 McGahey v. Alston, 2 M. & W. 211 ; 1 Greenl. Ev. § 92. 
 
 ' Schlencker o. Risley, 3 Scam. 483; Blake v. Sturtevant, 12 N. H. 567 ; 
 Cummings v. Clark, 15 Vt. 663 ; Colburn v. Ellis, 5 Mass. 427. 
 
 2 Commonwealth v. Fowler. 10 Mass. 801 ; People v. Collins, 7 Johns. 554. 
 
 * 
 
OP THE SEVERAL OFFICERS, ETC. 105 
 
 l«gal character of the persons who are deputed by law to 
 exercise it, which withdraws . their acts from the operation 
 of the rule that the acts of an officer de facto are valid ; and 
 the reason is equally applicable to the acts of all officers. 
 
 In Bucknam v. Ruggles,^ which was a writ of entry, the 
 validity of a levy on land, made by a deputy sheriff de facto, 
 was drawn in question ; and the counsel who argued against 
 the validity of the act, attempted to draw a distinction, limit- 
 ing the rule to the acts of such officers as might be styled 
 political, and who exercise a portion of the sovereign power. 
 To this the court replied : "None of the books will warrant 
 such a limitation. The rule as laid down extends to all pub- 
 lic officers ; nor can we discern any reason for restraining it." 
 
 Upon a review of the authorities, it will be seen, that while 
 the general rule is conceded, that the acts of an officer de 
 facto are valid, whenever third persons are interested in the 
 act, yet many of the authorities affirm that the great strict- 
 ness uniformly exacted in the divestiture of estates, under 
 the taxing power of the government, demands an exception 
 to the rule, and requires proof that those who purport to act 
 in an official capacity in the conduct of these sales, were offi- 
 cers de jure ; in other words, that a regular election or 
 appointment, and a compliance with all the conditions prece- 
 dent, which must be shown by the officer himself when his 
 title is questioned in a quo warranto — such as the taking of 
 the oath of office, (a) the execution of an official bond, &c., must 
 be clearly proven by the party claiming title under the tax 
 sale ; and that the usual presumptions cannot be indulged in 
 by the courts when the proof of official character is wanting.^ 
 
 1 15 Mass. 180. 
 
 (a) The following transcript of a record : " Oxford, ss., March 3, 1862, per- 
 sonally appeared William Woodsum, and took the oath necessary to qualify him 
 to discharge the duties of clerk of the town of Peru for the ensuing year, accord- 
 ing to law, before me, Samuel Holmes, Moderator. A true copy of certificate, 
 William Woodsum, Town Clerk," held to be sufficient evidence of compliance 
 with R. S. ch. 3, § 17 ; and that the oath prescribed in sec. 14 was administered. 
 Greene v. Lunt, 58 Me. 618. 
 
 2 Birch u. Fisher, 13 Serg. & Rawle, 208 ; Pike v. Hanson, 9 N. H. 491 ; 
 Ainsworth v. Dean, 1 Foster, 400 ; Proprietors of Cardigan v. Page, 6 N. H. 182 ; 
 Payson v. Hall, 30 Me. 319; Coit v. Wells, 2 Vt. 318; Isaacs v. Wiley, 12 Vt. 
 674 ; Alvord v. Collin, 20 Pick. 418. 
 
106 OP THE ELECTION AND QUALIFICATION 
 
 On the other hand, the Supreme Court of New Hamp- 
 * 98 shire, * in Tucker v. Aiken,^ remark, that " the general 
 principle undoubtedly is, that the acts of an officer de 
 facto are valid, so far as the public or the rights of third per- 
 sons are concerned ; and that the title of such an officer can- 
 not be inquired into in any proceeding to which he is not a 
 party. But proceedings founded upon the assessment and 
 collection of taxes have been supposed to form an exception 
 to this rule ; or rather a different rule has been supposed to 
 be applicable to such proceedings. The principle is expressly 
 laid down, that in order to maintain a title to land sold for 
 taxes, or to justify a distress, every substantial regulation of 
 the law must be shown to have been complied with. And it 
 seems to have been understood that this principle included 
 and required proof of the due election and qualification of all 
 officers concerned in the assessment and collection of the tax. 
 There seems to be no sound distinction between the acts of a 
 collector de facto in making a distress or sale of land in order 
 to satisfy a tax, and those of a sheriff in the seizure and sale 
 of property under attachment or execution." That such a 
 distinction exists, is practically denied by the authority of 
 other cases.^ 
 
 It must be confessed, that the reason of the rule giving 
 effect to the acts of an officer de facto, and the weight of 
 authorities, do not sanction a departure from the general prin- 
 ciple which controls in all other cases ; and the better opinion 
 is, that where a tax is assessed, and the proceedings are con- 
 ducted by officers de facto, the sale will be maintained. But 
 where a mere usurper or intruder into an office, connected 
 with such proceedings, executes any part of the authority 
 given by law to officers de jure and de facto, his acts are nulli- 
 ties, and no title can be acquired under the sale. A minute 
 examination of the adjudged cases will, doubtless, be more 
 acceptable to the profession than any general statements 
 
 ' 7 N. H. 131 1 Smith v. Messer, 17 N. H. 420. 
 
 2 Sheldon v. Coates, 10 Ohio, 278 ; Downer v. Woodbury, 19 Vt. 329 ; Hale 
 V. Gushing, 2 Greenl. 218; Spear v. Ditty, 8 Vt. 419; Adams v. Jackson, 2 Aik. 
 145 ; Ronkendorff v. Taylor, 4 Pet. 349. See also Allen v. Armstrong, 16 Iowa, 
 515. 
 
OF THE SEVERAL OFFICERS, ETC. 107 
 
 of reasons and conclusions which may be deduced from 
 them. 
 
 *In Ronkendorff v. Taylor,^ where the sale was under * 99 
 the charter and ordinances of a municipal corporation, 
 and in which the Court lay down the rule of strictness as the 
 basis of inquiry in this class of cases, it was held, that in 
 order to maintain the sale, it was not necessary for the party 
 claiming title under it, to prove the appointment of the 
 assessor who listed and valued the land, but the Court would 
 presume, from the fact that he acted as assessor, and was 
 recognized by the authorities of the corporation as such, that 
 he was legally appointed.^ 
 
 In Hale v. Cushing,^ the validity of a tax sale under the 
 act of Congress was questioned. The act required the as- 
 sistant assessor to be sworn, and a certificate of the fact re- 
 turned and filed in the collector's office. This was not done, 
 but it was proven by the assessor himself that he was sworn 
 prior to entering upon the duties of his office. The Court 
 held the requirements directory, and that an omission to con- 
 form to it ought not to prejudice the rights of the purchaser ; 
 and further, there being no record of the oath, the testimony 
 of the assessor himself was competent evidence to establish 
 the fact that he was sworn. 
 
 On the other hand, in Pike v. Hanson,* which was an 
 action of trespass — the defendant justified as a collector of 
 taxes, under an assessment and warrant to collect — it ap- 
 peared, that the assessor had not taken and subscribed the 
 oath required by statute before making the assessment. The 
 court held, that the collector could not justify upon this state 
 of facts, remarking that " this provision of the statute cannot 
 be deemed merely directory. It was designed for the protec- 
 
 1 4 Pet. 349. 
 
 ^ That, independent of the statute by which, if properly acknowledged, it is 
 admissible without further proof, it is not necessary before introducing a tax 
 deed in evidence to prove that the person by whom it was executed held the 
 office of tax collector at the time when the sale was made, see Wetherbee v. 
 Dunn, 32 Cal. 106. See also Campbell v. Dewick, 20 N. J. Eq. 189. See pp. * 66, 
 note (a) ; 79, note 3. 
 
 3 2 Greenl. 218. 
 
 * 9 N. H. 491. In this case' it is to be observed that the question arose directly 
 in a suit against the officer, and not collaterally between third parties. 
 
108 OF THE ELKCTION AND QUALIFICATION 
 
 tion and security of the citizen, whose rights are in some 
 degree in the discretionary power of the assessors. The 
 legislature intended, by the oath thus formally to be taken 
 and subscribed by the assessors, to guard as far as 
 * 100 possible against all abuse of this discretion, and * we 
 cannot dispense with so important a requisition." 
 This doctrine was reaffirmed in Ainsworth v. Dean/ and a 
 sale of land for taxes held void because there was no evidence 
 that the assessment was made under the sanction of an oath. 
 And in Birch v. Fisher,^ the evidence showed only that the 
 persons who made the assessment were recognized as officers 
 by the county commissioners, and that they acted as such. 
 The sale was held void. By the Court : " Will it be pre- 
 tended that such an assessment would be valid, or that a sale 
 under it would confer any right ? An assessment by persons 
 neither elected nor sworn, woiild be an assessment, not by 
 officers de facto, but by intruders, who came in without color 
 of authority. The evidence offered was the book of the 
 county commissioners, showing the names of the assessors ; 
 and the certificate of the clerk, that he had searched the files 
 for the election returns, and the official oaths of the assessors, 
 and found none. The election returns ought to have been 
 produced, or their existence established and absence accounted 
 for. The evidence offered was not the best that could have 
 been produced." 
 
 In New Hampshire, the law required that the appointment 
 of the collector must be in writing and recorded. This re- 
 quirement was not conformed to, and the collector's sale held 
 void for that reason.^ In another case, it did not appear, 
 from the return of the selectmen, who called the town meet- 
 ing at which the collector was appointed, and a portion of 
 the tax raised, when or where the notice was posted up. On 
 the back of the warrant, notifying and warning the free- 
 holders, was this certificate : — 
 
 "March 12, 1822, lawfully posted a true copy of the with- 
 in articles. 
 
 _ ' ' } Selectmen." 
 
 S. Cole, ) 
 
 1 1 Foster, 400. 2 13 Serg. & Rawle, 208. 
 
 3 Ainsworth v. Dean, 1 Foster, 400. 
 
OF THE SEVERAL OFFICERS, ETC. 109 
 
 The sale was held void. The Court say that " when 
 meetings * are warned by seleetmein, they must make * 101 
 a proper return of their doings, (a) They stand in 
 that business in place of constables, and their return must 
 show, not simply that notice has been given, but that such 
 notice as the statute directs, has been given. They are 
 public officers authorized by law to warn town meetings. It 
 is their duty to make a return of their doings. If they make 
 a false return, they are liable to an action in favor of him who 
 may thereby be injured. And in our opinion, their return 
 is, in this instance, the only evidence which can be admitted 
 to prove what they have done. In our opinion, much greater 
 mischief will result from giving countenance to the careless 
 and imperfect returns which have already been made, than 
 from holding a legal and sufficient return to be essentially 
 necessary in all cases. It is neither safe nor expedient to 
 leave the title to real estate to depend, in any case, upon the 
 uncertain and fading memory of mortal man. It is not the 
 policy of this State to do so. All conveyances, by one man 
 to another, must be in writing ; when an execution is ex- 
 tended upon land, there must be a return in writing, other- 
 wise it is without effect ; when lands are sold for taxes, the 
 former owner ought to be able to learn from the records of 
 the proceedings, whether his title has been lost. He ought 
 not to be put to the expense of a lawsuit to learn whether 
 his land has been legally sold. It is, in our opinion, much 
 better that a few titles should now fail for this defect, than 
 that all titles of this description should be left in doubt and 
 uncertainty."^ 
 
 It was held in Payson v. Ha]l,2 that in order to maintain 
 title under a tax sale, it is not sufficient to show, that the per- 
 son making the sale had been chosen collector, and acted in 
 that capacity, but to render the sale valid, it is indispensable 
 that he take the oath of office prescribed by law. The reason- 
 
 (a) The certificate of the sheriff that he has posted notices of election in ten 
 public places in the township, held not to be defective for not specifying the 
 places ; held, further, that such certificate is prima, facie evidence that notices 
 have been posted in ten public places in the township. Detroit, Eel E. &o., 
 R.R. u. Bearss, 39 Ind. 603. 
 
 1 Proprietors of Cardigan i;. Page, 6 N. H. 182. 2 30 Me. 319. 
 
110 OP THE ELECTION AND QUALIFICATION 
 
 ing of the Court was, that " One injured by the misconduct 
 of a collector of taxes, cannot be protected by a resort to his 
 
 ofScial bond for redress, that being given for the secu- 
 * 102 rity of the town * alone. He must be permitted to 
 
 avoid the acts of one assuming, without lawful author- 
 ity, to be a collector, or be in many cases without a remedy; 
 if a person without election or legal qualification could act as 
 a collector of taxes, and as such make sale of an estate, and 
 the production of a deed made by him in that capacity were 
 to be considered as effe-ctual without proof of his election and 
 qualification, there would be no effectual security for the 
 faithful discharge of his duties. Such was not the intention 
 of the legislature. The party is required to produce the col- 
 lector's deed, not the deed of a person assuming, without 
 right to act in that capacity. The tax-payer is entitled to 
 have his interests protected in the sale of his property by the 
 obligations imposed by the official oath." ^ 
 
 The same doctrine was maintained in New Hampshire ; ^ 
 but the propriety of it is questioned in a later case.^ And in 
 Adams v. Jackson,* which was an action of ejectment, where-' 
 in the plaintifF claimed title under a tax-deed made by a con- 
 stable, the appointment of the constable was shown, but the 
 proof was defective as to whether he took the oath of ofiBce. 
 The inferior court held the sale invalid, but the judgment 
 was reversed. In Coit v. Wells,^ which was an action of 
 ejectment, the defendant claiming under a collector's sale, 
 for a special road tax, levied by the commissioners of high- 
 ways, it appeared, that the collector did not give bond until 
 the day of sale, and the only evidence of that fact was a receipt 
 by the commissioners, dated the day of the sale, acknowl- 
 edging that they had received " such a bond as the law re- 
 quires." The statute required that the collector, before 
 
 ' By law the board of assessors cannot consist of less than three persons, who 
 shall be qualified by taking the oath prescribed, and when it does not appear 
 that more than two were thus qualified and acted, the tax assessed by them is 
 iUeat»l. Williamsburg v. Lord, 51 Me. 699. See p. * 111, note ; p. * 113. 
 
 2 Proprietors of Cardigan v. Page, 6 N. H. 182. See likewise Jaquith v. 
 Putney, 48 N. H. 140. 
 
 3 Tucker v. Aiken, 7 N. H. 131. 
 
 * 2 Aik. 145. 5 2 Vt. 318. 
 
OF THE SEVERAL OFFICERS, ETC. Ill 
 
 entering upon the duties of his office, should give bond vrith 
 security to the commissioners, in at least double the amount 
 of the tax, conditioned that he would faithfully discharge the 
 duties of his office. Sale held void. By the Cotrt : " The 
 bond is to be the security that the money received shall 
 * be paid to the commissioners, and go to subserve the * 103 
 objects of the tax, that the land-owners may not pay 
 their money, and yet fail of the roads, which are intended to 
 operate to their benefit, by adding value to their lands. Now 
 the collector, as soon as he receives his rate bill and warrant, 
 proceeds to receive the money for the taxes, and advertises 
 his sale. These are official acts, and he must give bond 
 before he commences these acts, or his sales are void. In 
 such cases the advertisement is not the act of the collector, 
 but of the individual, and is of no validity." 
 
 So in Isaacs v. Wiley,^ where the defendant claimed title 
 under a sale for taxes, it appeared, that the collector who 
 made the sale had not given such a bond as the law required, 
 and the sale was held a nullity, the Court saying, " The argu- 
 ment which has been attempted, that as the bond is for the 
 security of the committee alone, any bond to their acceptance, 
 should be held a compliance with the statute, is not a little 
 plausible, but at the same time is unsatisfactory. We hold 
 the giving of a bond, and such a bond as the statute requires, 
 to be indispensable to pass the title, not because we consider 
 that the public, or the landholders, have any indirect interest 
 even in the security which it affords, but because a strict 
 compliance with all the prerequisites of the statute is con- 
 sidered necessary, in this class of cases, in order to pass the 
 title." 
 
 On the other hand, it was objected in Spear v. Ditty ,2 that 
 the collector's bond was insufficient, because the penalty was 
 not equal to double the amount of the tax originally laid. 
 By the Court : " It is difficult to perceive how this irregu- 
 larity, if it be such, can have any reasonable bearing upon 
 the right of the plaintiff. The object of this bond is not the 
 security of the land-owner, against an illegal enforcement of 
 the tax, but it is to insure a proper accountability for the tax 
 
 1 12 Vt. 674. 2 8 id. 419. 
 
112 OF THE ELECTION AND QUALIFICATION 
 
 after it is collected. It is not one of those safeguards, inter- 
 posed between the tax-gatherer and the tax-payer, but 
 
 * 104 has reference to the public * interest, in due accounta- 
 
 bility for, and expenditure of the tax. When this 
 object is effected, the purpose of the law is answered. It is 
 only necessary that it should be in double the amount of the 
 tax on the tax bill delivered to the collector. That is the 
 case here. Part of the taxes may have been worked out. 
 If otherwise, the law is directory." Downer v. Woodbury ^ 
 was an action of trespass against the collector, who, in his 
 plea, alleged that he had given bond, but did not describe 
 or make profert of it. On the trial it was proved that the 
 defendant had acted as collector, and the court presumed 
 that he had given bond as required by law. 
 
 Again, in Hale v. Cushing,^ which was an action of entry 
 sur disseisin, the tenant claimed under a tax-deed made by 
 a collector of the direct tax, levied under the act of Congress, 
 and it did not appear that the collector had given bond. 
 Sale held valid. By the Court: "The bond was intended 
 for the security of the United States ; but as regards the 
 purchaser under a sale by the collector, and the original 
 owner of the land sold, it is a subject of no importance." 
 The statute of Ohio provided, that before receiving the tax 
 duplicate, the collector should give bond, &c., and if he 
 failed to do so before the first Monday in August, a collector 
 should be appointed by the county commissioners ; and the 
 law further provided, if he neglected to file such bond within 
 the time- prescribed, the clerk of the Common Pleas Court 
 was directed to withhold the duplicate, which constituted 
 the authority of the collector. 
 
 In Sheldon v. Coates,^ which involved the validity of a tax 
 sale, it appeared that the collector did not file his bond until 
 September 10, 1805, that the duplicate was delivered to him on 
 the twentieth of the same month, and that no new appointment 
 of a collector had been made by the county commissioners. 
 Upon this point the sale was sustained. By the Court: 
 " In this case, as the bond was executed before any 
 
 * 105 * appointment had been made of a collector, by the 
 
 il9Vt. 329. 3 2 Greenl. 218. See p. * 266, note. MO Ohio, 278. 
 
OP THE SEVERAL OFFICERS, ETC. 113 
 
 county commissioners, although not within the time pre- 
 scribed, it would be against the whole current of the decisions 
 of this court, in similar cases,^ to hold that the acts of the 
 collector were void or voidable upon that ground. "(a) 
 
 1 5 Ohio, 136; 10 id. 51. 
 
 (a) In Arkansas, the sheriff being required by the statute to file an 
 affidavit on or before a certain day in order to qualify him to fulfil the duties 
 of assessor on pain of forfeiting his office, it was held that his failure so to 
 do vitiated the assessm^t. Parker v. Overman, 18 How. (U. S.) 137,; but see 
 Scott V. Watkins, 22 Ark. 556, and Twombly v. Klmbrough, 24 Ark. 474, 
 contra. In Iowa, an assessor who files his bond and takes the oath of office 
 and enters upon the discharge of his duties is an officer de facto, and a party 
 prosecuted for refusing to verify such assessor's return of his taxable property 
 cannot escape liability by showing that such bond was informal or any other 
 irregularity in qualifying such assessor, and tlie assessor in such prosecution 
 may show his qualification by his own oath. ViTashington v. Miller, 14 Iowa, 
 584. That the qualification of an assessor is one of the non-essential facts of 
 which the tax deed may constitutionally be made conclusive evidence, see Allen 
 V. Armstrong, 16 Iowa, 508. Under see. 13, art. xi. Const, of California, pro- 
 viding that " Taxation shall be equal and uniform throughout the State. All 
 property in this State shall be taxed in proportion to its value to be ascertained 
 as directed by law ; but assessors and collectors of town, county, and State 
 taxes shall be elected by the qualified electors of the district, county, or town 
 in which the property taxed for State, county, or town purposes is situated," 
 held, that a tax in order to be valid must rest upon an assessment made in the 
 mode prescribed by law by an assessor elected by the qualified electors of the 
 district, county, or town in which the property is taxed for State, county, or 
 town purposes ; and an assessment made by an assessor elected by the qualified 
 electors of the city and county of Sacramento is not a sufficient basis for the 
 levy of a tax in the city of Sacramento for city purposes. People v. Hastings, 
 29 Cal. 449 ; Eeily v. Lancaster, 39 Cal. 358. 
 
114 OF THE LISTING AND VALUATION OF THE LAND. 
 
 CHAPTER V. 
 
 OP THE LISTING AND VALUATION OP THE LAND. 
 
 A LISTING and valuation of the land for taxation, within the 
 time, and in the manner required by law, is essential to the 
 validity of a tax title, (a) This is a prerequisite which can- 
 not, under any circumstances whatever, be dispensed with. 
 In a double sense, it is an indispensable prerequisite : first, 
 to satisfy the plain and unequivocal demands of the statute ; 
 and second, to give life and energy to the statute itself. It 
 is the basis upon which all the subsequent proceedings rest. 
 All of our constitutions require, either in express terms, or 
 by necessary implication, that taxes shall be uniform and 
 equal in their operation ; in other words, that each and every 
 citizen shall pay a tax in proportion to the value of his es- 
 tate. (5) A periodical listing and valuation of all the prop- 
 
 (a) An assessment and its validity must be sliown in order to sustain a tax 
 sale. Brady v. Offut, 19 La. Ann. 184. An illegal assessment of real property 
 imposes no obligation on the owner to pay the tax levied thereon, and creates 
 no lien on the real estate so assessed. People v. Pearls, 37 Cal. 259. An entry 
 in a book proved to-be the assessments for a township, and coming from the 
 commissioners' office, to the following effect : " No. 3888 ; quantity, 1100 acres ; 
 name of warrantee, John Olden ; valuation, $1,650," coupled with a resolution 
 of the commissioners fixing the rate of county taxes, and a day for appeals, was 
 held sufficient evidence of an assessment under the act of 1815. Wells v. Smyth, 
 55 Penn. St. 159. The want of an assessment in fact is not a mere irregularity, 
 and is not cured by the act of 1815. McReynolds v. Longerberger, 57 Penn. 
 St. 13. 
 
 (6) While a statute which, in terms or by necessary implication, authorizes 
 the omission from taxation for corporate purposes, of real or personal prop- 
 erty within the limits of a municipal corporation, so as to destroy the uniformity 
 in respect to persons and property within the jurisdiction thereof required by 
 the constitution, would be void, yet such omissions by ministerial officers, as 
 when the assessor fails to list and assess all property subject to taxation, 
 whether made wilfully or from carelessness, cannot be taken advantage of to 
 defeat a recovery for taxes against property which has been assessed. Such 
 officers may make themselves amenable to the law for misconduct in office, 
 
OF THE LISTING AND VALUATION OP THE LAND. 115 
 
 erty within the jurisdiction of the taxing power, is therefore 
 absolutely necessary, in order to carry into practical effect 
 this constitutional requirement. To hold otherwise, would 
 be to pronounce the revenue laws unconstitutional and void, 
 and deprive the citizen of all manner of protection against 
 unjust and oppressive taxation. The listing and valuation of 
 the property usually precedes the levy of the tax ; indeed, 
 this is universally true whenever the tax is levied by a county, 
 town, or municipal corporation acting under the authority of 
 the legislature. The taxes necessary for the support of the 
 State government are fixed by public law ; but inferior juris- 
 dictions are limited in their power of taxation. The purpose 
 for which the tax is raised is specified in the law, and the 
 maximum rate of the levy is established, beyond which they 
 cannot go. The practical operation of each levy, and 
 the * absolute necessity of a list and valuation, may be * 107 
 thus illustrated. Suppose that by the lists returned 
 from each county, it appears that the aggregate valuation of 
 all the land in the State is one hundred million of dollars. 
 The legislature direct the assessment of five mills, for State 
 purposes, upon each dollar's worth of property embraced in 
 the list. The assessor performs the ministerial duty of chargr- 
 ing the tax thiis levied upon each parcel of land in the list, 
 according to its appraised value. Upon this valuation, the 
 produce of the State tax would be five hundred thousand 
 dollars. Again, a county is authorized to levj^ a tax, to meet 
 its current expenses, not exceeding the rate of five mills to 
 the dollar. The list of that county shows an aggregate valu- 
 ation of one million of dollars. The produce of such tax, 
 taking the maximum rate, would be five thousand dollars^ 
 
 but they cannot thus stop the wheels of government. Dunham v. Chicago, 
 55 111. 361. See also Scliofield v. Watkins, 22 111. 66 ; Merritt v. Farris, 22 111. 
 803; People v. McCreery, 34 Cal. 482; Smith v. Smith, 19 Wise. 615; 16 
 Wise. 1. See pp. *6, and note (a), 409, note. But where the omission is 
 intentional, it has been held to vitiate the assessment. Weeks v. Milwaukee, 
 10 Wise. 242; Kneeland v. Milwaukee, 15 Wise. 454; Hersey v. Milwaukee, 
 16 Wise. 185 ; Smith v. Smith, ubi sup. A reduction of valuation of part of land 
 in a town, leaving the rest of the land at the old valuation, if innocently made, 
 and not injuriously affecting the party objecting, will not vitiate the tax. 
 Kelley b. Corson, 11 Wise. 1. 
 
116 OF THE LISTING AND VALUATION OF THE LAND. 
 
 In each case the citizen is bound to contribute according to 
 the valuafon of his estate. One is the owner of property to 
 the amount of ten thousand dollars, while another owns but 
 one thousand dollars' worth. The former will be charged 
 one hundred dollars for State and county taxes, and the 
 latter but ten ; and the sum thus chargeable to each is set 
 opposite to the description of his estate in the list. 
 
 It will thus be seen, that the listing and valuation of the 
 land is the basis of the assessment of the tax, and that each 
 citizen is directly interested in the list. By it alone can the 
 legality of the tax be tested ; this is his only security against 
 an unequal tax. 
 
 Again, in most of the States, a duplicate of this list is de- 
 livered to the collector, and this constitutes his authority to 
 demand the tax, distrain the goods, and sell the land of the 
 delinquent. Besides, the collector is charged with the tax ac- 
 cording to the . list, and the list is the basis of his settlement 
 ■with the State and county. Thus the listing and valuation 
 constitute the security of the citizen, the foundation of the 
 assessment, and all the subsequent proceedings, the authority 
 of the officer to collect the tax, and the basis upon which the 
 settlements of the collecting officers are made ; ^ and without 
 alisting and valuation the tax deed conveys no title. (a) 
 * 108 * The ordinary signification of the term list, is a roll 
 or catalogue. In its technical sense, it means a com- 
 plete enumeration of the owners of property in a collection 
 district, together with a description and valuation of their 
 property, made periodically, with a view to equality and uni- 
 
 ' Graves v. Bruen, 11 111. 431 ; Tibbetts v. Job, 11 id. 453 ; Schuyler v. Hull, 
 11 id. 462; Job v. Tibbetts, 5 Gilm. 376 ; Nalle v. Fenwick, 4 Rand. 591 ; Kinney 
 V. Beverley, 2 Hen. & Munf. 318; Lessee of Holt's Heirs o. Hemphill's Heirs, 
 3 Ham. 232 ; s. c. 1-4 Ohio Cond. 551 ; Lessee of Dresbaek </. McArthur, 6 & 7 
 Ohio, 307 ; Thurston v. Little, 3 Mass. 429 ; Games v. Stiles, 14 Pet. 322 ; Adam 
 .;. Litchfield, 10 Conn. 127 ; Whittelsey v. Clinton, 14 id. 72 ; Ferris v. Coover, 
 10 Cal. 589 ; Woolfolk v. Fonbene, 15 La. Ann. 15 ; Braly v. Seaman, 30 id. 610 ; 
 Van Rensselaer v. Whitbeck, 7 N. Y. 517 (see Parish v. Golden, 35 N. Y. 465). 
 
 (a) People v. Hastings, 29 Cal. 449 ; Scott v. Stearns, 2 Mich. N. P. 111. The 
 making of a certified copy by an assessor of an assessment roll made by another 
 assessor in a previous year, is not an assessment of property ; and under sec. 13; 
 art. xi. Const, of California (see p. * 105, note (a)) the legislature cannot by law 
 fix the assessed value of property. People v. Hastings, supra. 
 
OP THE LISTING AND VALUATION OP THE LAND. 117 
 
 formity in the levy of taxes. It is variously called tax list, 
 rate bill, assessment roll, according to the laws and usages of 
 the respective States, (a) 
 
 In Homer v. Cilley,^ a novel state of facts existed, to which 
 this definition was applied. The New Hampshire statute re- 
 quired the collector, on or before a particular day, to make 
 out and deliver to the deputy Secretary of State, a copy of his 
 
 (a) Under sec. 20, Revenue Act of California of 1861, providing that the 
 assessment roll shall be substantially in the form given in that act, held, that an 
 assessment roll in which the columns are arranged in a different order or under 
 different headings, indicating the contents of the columns, from the form given 
 in the statute (as " "Value Personal," " Value Real"), may, nevertheless, be a 
 substantial compliance with the statute ; that a roll in which the name appears 
 in the proper place and column is not invalid because it extends beyond the line 
 of that column. People v. Sierra B. Q. M. Co., 39 Cal. 511. The rate per cent 
 being fixed and a valuation of the land returned constitutes an assessment ; 
 the work of calculating and carrying out the sum due on each tract is merely 
 clerical. Heft v. Gephart, 65 Penn. St. 518. See also Hubbard v. Winsor, 
 15 Mich. 146. The land was made debtor by being returned assessed and valued 
 and the rate per cent fixed. Determinin ; .he amount was a mere mathematical 
 process. Heft v. Gephart, 65 Penn. St. 518. The fact that the collector's "copy 
 of the corrected assessment roll" under sec. 26, Act 49, 1843, does not contain 
 copies of the certificates of the assessors and chairman of the board of supervisors 
 in the original assessment roll does not avoid the proceedings. Tweed v. Metcalf, 
 4 Mich. 590. See also 2 Mich. 487 ; 7 Barb. 133. Where an unauthorized 
 alteration has been made in the assessment roll, but the original roll remains 
 legible, it is valid and in force as though no alteration had been made. State v. 
 Manhattan Company, 4 Nev. 318. 
 
 1 14 N. H. 85. See "Wells v. Burbank, 17 N. H. 393, 407 ; "Wells v. Company, 
 47 N. H. 256. Under the statute of 1831, ch. 32, providing that the treasurer of 
 the State, when any taxes are or shall be proportioned to any unincorporated 
 place having so few inhabitants as to be incapable of choosing town ofiicers, shall 
 assess the proportion of such place and commit the same to the sheriff of the 
 county with a warrant under his hand and seal empowering the sheriff to collect 
 the same ; and providing further that unless the treasurer is certified under the 
 band of the clerk of the proprietors that such place Is divided amon proprietors, 
 with a copy of such division or partition so as to enable him to tax the several 
 owners of the same, he shall assess the whole in one sum : Held, that the 
 treasurer had authority to issue a warrant for the collection of a tax upon an 
 unincorporated place having no inhabitants ; that no formal assessment was 
 necessary for the purpose of levying the proportion of an unincorporated place 
 which had not been divided among the proprietors ; that the treasurer's warrant 
 for the collection of the proportion of such place as ascertained by acts of the legis- 
 lature subsequently enacted is a sufficient assessment ; and that said warrant, 
 filed in the office of the secretary of state is a sufficient " list " for that purpose. 
 Wells ^. Burbank, 17 N. H. 393 ; Wells v. Company, 47 N. H. 235. See also 
 40 N. H. 173. 
 
118 OF THE LISTING AND VALUATION OF THE LAND. 
 
 tax list ; the deputy was required to retain the list, and re- 
 ceive taxes for a Umited time, and it was then to be returned 
 to the collector. Until this was done, the collector possessed 
 no power to advertise and sell the land. The supposed list 
 embraced a single parcel of land, in an unincorporated and 
 uninhabited place, called " Dame's Gore," the owner of which 
 was a non-resident of the State, the only character of delin- 
 quents to whom the above-recited statute applied. It was 
 insisted that the list ought to be produced to show the author- 
 ity of the collector to sell the land ; but it was contended by 
 the counsel who maintained the validity of the sale, that inas- 
 much as the tax was against a single parcel of land, and not 
 against divers persons and tracts, the collector had no Kst, 
 and therefore no copy could be produced. But the Court 
 replied : " The signification thus given to the term ' list of 
 taxes,' is quite too confined. Although the term ' list ' or- 
 dinarily signifies a roll or catalogue, yet a roll does not always 
 contain a number of names, or several particulars. There can 
 
 be no doubt that this collector was as much bound to 
 *109 return a copy of the non-resident taxes, where * there 
 
 was only one tract taxed as non-resident, as where there 
 were fifty. There was a list of taxes in the first case, within 
 the meaning of the statute, as much as in the last, and so in 
 the present case." 
 
 As the list is the foundation of all the proceedings, it is the 
 duty of the purchaser at the tax sale, or those claiming under 
 him, except where the onus probandi has been changed bylaw, 
 to produce the original, or, in case of its loss or destruction, a 
 duplicate or counterpart ; if there should be no duplicate, then 
 an examined or sworn copy, and if there is no duplicate or 
 examined copy, then parol evidence may be given of its con- 
 tents.^ Parol evidence, in such a case, is looked upon by the 
 courts with a suspicious eye, and will never be admitted until 
 other means of establishing the truth have failed. Perhaps 
 upon principle, such evidence ought not to be received at all. 
 Independent of the policy of the law, to require a complete 
 
 1 Nalle a. Fenwick, 4 Rand. 591 ; Doe ex dan. Kelly v. Craig, 5 Ired. 129 ; 
 McCall V. Lorimer, 4 Watts, 351. See Wells v. Company, 47 N. H. 256. See 
 p. * 512. 
 
OF THE LISTINO AND VALUATION OF THE LAND. 119 
 
 record of the proceedings to be made and preserved, for the pro- 
 tection of the interests of the purchaser and former owner, 
 the temptation to a fraudulent suppression or destruction of 
 the missing document is so great, and the extreme improba- 
 bility of any one connected with, or cognizant of the proceed- 
 ings, being able to recollect the distinct facts connected 
 with the listing and valuation of each tract of land, upon a 
 list embracing all of the taxable lands in a county or other 
 district, renders it extremely unsafe for either party to resort 
 to this species of evidence. 
 
 Besides, in nearly every State, duplicates of the list are re- 
 quired to be filed, or the original recorded in some public of&ce, 
 the original or a copy is usually retained by the assessors and 
 another duplicate is in variably placed in the hands of the col- 
 lector for the time being ; and it would therefore seem impossi- 
 ble, unless in a case of a general conflagration of the records 
 and files of all public offices connected with the proceed- 
 ings or the fraud of one of the parties interested in * the * 110 
 list, that a necessity should ever arise for the introduc- 
 tion of such evidence. However, in support of a long posses- 
 sion, such evidence might very properly be submitted to a jury. 
 
 When the original, its counterpart, or examined copy, is 
 produced, the first inquiry will naturally be, is it an official 
 document ? And this will depend upon the fact, whether the 
 person or persons who made it, had authority, under the law, 
 to take a list and make a valuation of the taxable property 
 within the district where it purports to have been , made. 
 When the list is made out by an officer de jure, the official 
 character of the document, of course, cannot be gainsaid. 
 When made by a usurper or intruder into the office, it is 
 equally certain that it is unofficial and void to all intents and 
 purposes.^ But when made by an officer de facto, especially 
 one who is so regarded, because he has neglected to take the 
 oath of office prescribed by law, i. e., that he will make a 
 true and perfect list of, and fairly and impartially value, the 
 lands which are liable to assessment within his district, the 
 official character of the document is more questionable than 
 any other act performed during the whole course of the pro- 
 1 Birch V. Rsher, 13 Serg. & Eawle, 208. 
 
120 OF THE LISTING AND VALUATION OP THE LAND. 
 
 ceeclings. It is not only the substratum of the whole series 
 of acts to be performed, — the incipient step in the divestiture 
 and acquisition of title, — but it would seem that an official 
 valuation under the sanction of the oath of office, is the only- 
 security the tax-payer has against illegal taxation. It is con- 
 ceded that the authorities are in conflict upon this point, and 
 the subject may be dismissed by a reference to the preceding 
 chapter, which relates exclusively to the election and qualifica- 
 tion of officers. («) 
 
 Where authority is conferred by the statute, upon several 
 persons, to list and value lands for taxation, all should convene 
 together, because the advice and opinions of all may be useful, 
 though all do not unite in the decision ; but it is not essential 
 that all should concur in the judgment — the act of a major- 
 ity will be binding. This is in accordance with the general 
 
 principles of law. Where a private authority is dele- 
 * 111 gated to * several persons, all must join in its execution ; 
 
 while in matters of public concern the act of the major- 
 ity is conclusive. In matters purely ministerial, such as the 
 listing of the land, there is no difficulty in procuring the con- 
 currence of all, because there is nothing concerning which 
 they can differ ; but where the judgment is to be exercised, 
 as in the valuation of the lands upon the list, the incon- 
 venience in requiring unanimity is extreme, and but for the 
 rule which sanctions the act of the majority in such cases, 
 there would oftentimes be a failure of justice, and great injury 
 to the government would necessarily ensue. Where the list 
 is signed by a majority only of the number, the presumption 
 of law is, that all were consulted ; but where the evidence 
 shows that all did not convene and consult together, the hst 
 will be held invalid. ^ 
 
 (a) Seep. * 95. , 
 
 1 Douglity V. Hope, 3 Denio, 594 ; Ex parte Baltimore Turnpike Company, 
 5 Bin. 481; Kinney v. Doe ex dem. Laman et al. 8 Blackf. 350; Middletown 
 V. Berlin, 18 Conn. 189 ; Powell v. Tuttle, 3 Comst. 396. See Lowe v. Weld, 
 52 Me. 588. So in Cooley v. O'Connor, 12 Wal. (U. S.) 391, as to certificate of 
 sale. But where the board by law consists of three, and only two are chosen 
 and qualified, the acts of the two are invalid. Williamsburg v. Lord, 51 Me. 
 §99. Where a statute provided a board of three tax commissioners to assess 
 taxes on real estate, and in case of their non-payment to sell and deliver posses- 
 sion of the property to the purchaser, and three commissioners were appointed, 
 
OF THE LISTING AND VALUATION OF THE LAND. 121 
 
 In Middletown v. Berlin,i an assessment list of the district 
 of Westfield, in the town of Middletown, for the year 1835, 
 made up and signed by Luther Bowers, assessor, and by him 
 lodged in the town clerk's office, was offered in evidence to 
 establish the legality of a tax. In this connection it appeared, 
 that there was a board of assessors in that town, consisting of 
 five persons, duly chosen, qualified, and acting, and there was 
 no evidence showing that the assessment had ever been seen, 
 heard of, or sanctioned by the board. It further appeared, 
 that the town was divided into districts, and that it was the 
 usage of the town for each assessor to act independently of 
 the others. The statute required the board of assessors to act 
 in making the assessment. This evidence was excluded by 
 the court below, and a verdict rendered accordingly — motion 
 for a new trial in the Supreme Court, and overruled. By 
 the Court : " The assessment lists of the several towns are the 
 only rule and basis upon which counties, towns, and other 
 communities, can levy taxes. These must be legal, or the 
 taxes laid and apportioned upon them, cannot be. This 
 was not the act of the board, which * consisted of five * 112 
 persons, and this purports to be the act of one of them 
 only. The rule governing the execution of public and private 
 powers, has long been settled. A power conferred upon two 
 or more persons, by individuals, for private purposes, must 
 be executed by all ; but an authority imposed by law for 
 public purposes, may be executed by a majority, if all have 
 been legally notified to act. It is believed that no case can 
 
 but only two acted or qualified, held, that there was no board of commissioners 
 ever in existence, two not constituting a board ; and that the action of two out 
 of the three in making a sale for taxes where the third took no part in, and knew 
 nothing of, the transaction was void ; that in order to render their action valid all 
 must be present and participate, or have an opportunity to participate, in tlie pro- 
 ceedings, although some may dissent from the action determined on. Held, further, 
 that a subsequent statute declaring in the future tense "that a majority of a 
 board of tax commissioners shall have full authority to transact all business and 
 to perform all duties required by law to be performed by such board, and no 
 proceeding of any board of tax commissioners shall be void or invalid in conse- 
 quence of the absence of any one of said commissioners," refers to the exercise 
 of the power granted for the future to a majority of the board, and does not cure 
 defects in title arising out of past transactions. Sehenck v. Peay, 1 Woolworth 
 (U. S. C. C.) 175. See also s. c. 1 Dill. (U. S. C. C.) 267. See pp. « 102, note (1), 
 and* 113. » 18 Conn. 189. 
 
122 OP THE LISTING AND VALUATION OP THE LAND. 
 
 be found, Avhich will justify the performance of a duty re- 
 quired of an aggregate body, by one only, as has been at- 
 tempted here. Assessors are the officers of the law, and 
 must obey the law ; and no direction of the town, or long- 
 continued usage, can justify a departure from the law." 
 
 In Kinney v. Doe et dem. Laman et al.^ which was an ac- 
 tion of ejectment to recover a town lot, the defendant rehed 
 upon a tax title acquired under a sale for county taxes, due 
 upon the lot in question, for the year 1822 ; and in attempt- 
 ing to prove the regularity of the proceedings, offered in evi- 
 dence the assessment roll of county taxes for that year, signed 
 by the lister, without proving that the valuation had been 
 made by the lister and two householders, as required hy the 
 act of 1820. This evidence was rejected by the Circuit 
 Court, and an exception taken to the ruling. The judgment 
 was affirmed. Blackford, J. : " We think the decision of 
 the court is right. The evidence was not admissible without 
 proof that the assessment had been legally made. It could 
 not be legally made, so far as the valuation of town lots was 
 concerned, except .by the lister and two householders ap- 
 pointed by him.2 The assessment roll, therefore, was inad- 
 missible, &c., without proof that the lots had been valued 
 by the lister and two householders." 
 
 The list must be verified by the official signature of the 
 officer charged by law with the duty of making it.^ The 
 object of this rule is the identification of the document as an 
 official act, executed by the authority of the law ; and its 
 spirit is answered only, when the official character of 
 * 113 the person making * it is established, and the document 
 appears upon its face to be an official act, attested by 
 the signature of the proper officer. The reasons and illustra- 
 tions of this rule will more fully appear hereafter.* 
 
 In Johnson v. Goodridge,* where the law directed the selec- 
 tion of three assessors, and required them to " make perfect 
 
 1 8 Blackf. 350. 
 
 2 Acts 1820, p. 150. 
 
 3 Where the list was required to be verified by the oath in writing of the 
 tax-payer, and it was not so verified, a sale based on such assessment was held 
 invalid. Davis v. Fames, 26 Texas, 296. 
 
 « Ch. 18,p,*848. « 15 Me. 29. 
 
OP THE LISTING AND VALUATION OF THE LAND. 123 
 
 lists under their hands," the facts were, that a list of lands 
 belonging to resident and non-resident proprietors, was made 
 by two of the assessors. It contained several pages, the first 
 and second of which embraced the lands of non-residents ; the 
 residue of the pages contained the lands of residents. The 
 only authentication of the list was at the commencement of 
 the first page, in these words : — 
 
 " To Jonathan Goodridge, collector : Fine tax on the high- 
 ways, for 1832, assessed on the estates of non-residents, by 
 
 Wentworth Tuttle, ) Assessors of 
 Isaac Holt, \ Canaan." 
 
 The listing and assessment were held void. The Court say, 
 " All that can reasonably be required is to accomplish the 
 object designed by the statute, which is, that the lists should 
 bear upon them the official sanction of a majority of the assess- 
 ors, evidenced by their signatures. If a majority sign the 
 lists in such a manner as to show that the intention was 
 thereby to give them their official sanction, that may be 
 sufficient, on whatever part of the lists it be made. But the 
 intention or object of the signature must clearly appear. It 
 must be a signing for the purpose of special authentication. 
 It is difficult to say that any more of these lists, than the 
 pages bearing the assessment upon non-residents, are so au- 
 thenticated. The assessors limit their signatures to taxes on 
 the estates of non-residents, and the words ' non-residents,' 
 being a proper description of certain portions of the tax lists, 
 cannot be rejected as words without meaning." 
 
 * In Sibley v. Smith,^ where the statute required the * 114 
 assessment roll to be signed by the assessor, and it was 
 omitted, the sale based upon it was held void. The statute of 
 Maine required the assessors to " make perfect lists of their 
 assessments, under their hands, &c., and commit the same to 
 the collector, with a warrant under their hands and seals, 
 
 1 2 Gibbs (Mich.), 498; Scott v. Stearns, 2 Mich. N. P. 111. The Michigan 
 act of 1812, unlilje tlie Revised Statutes of 1838, did not require assessment rolls 
 to be signed by tlie assessor. Their signature to the certificate attached is all 
 the authentication required. Lacey v. Davis, 4 Mich. 141. 
 
124 OF THE LISTING AND VALUATION OF THE LAND. 
 
 &c." In two cases, the lists were not so signed, but the 
 warrants in the same paper book were ; and the Court held, 
 that a signing of the list was an essential requisite, that it 
 must bear upon its face evidence of its official sanction, and 
 until thus signed was an incomplete and void act — " an un- 
 finished proceeding." ^ In an action upon the collector's 
 bond, where the lists were in his possession, the Court pre- 
 sumed that they had been duly authenticated by the official 
 signatures of the assessors.^ And under an act of the Penn- 
 sylvania legislature, which declared " that no irregularity in 
 the assessment, shall be construed to affect the title of the 
 purchaser, but the same shall be declared good and legal," 
 the Court held a sale valid where the assessor had neglected 
 to sign the roll.^ 
 
 The power of the assessor is limited and special. It is con- 
 fined to estates lying within his district, (a) It follows, there- 
 fore, that if he list and value lands not within his town or 
 county, his jurisdiction is exceeded, ^nd the proceeding, to 
 that extent, is void.* The Ohio statute^ made it the duty of 
 
 1 Colby V. Russell, 8 Greenl. 227 ; Foxcroft v. Nevens, 4 id. 72. 
 
 2 Kellar v. Savage, 20 Me. 199. 
 
 3 Townsen v. Wilson, 9 Barr (Penn.), 270. 
 
 (a) Each county under the tax laws of Pennsylvania assesses and taxes all 
 the lands found witliin its boundaries ; and there is no law for the taxation of 
 unseated border lands by entireties in adjoining counties. It Is the duly of an 
 assessor finding land lying partly in his own county and partly in another to 
 ascertain its character, whether seated or unseated ; and where a tract lay in 
 Centre county, and by division of the county part was thrown into Clearfield, 
 and was there sold as unseated for taxes, hdd, that the fact that taxes for the 
 whole tract had been assessed and paid in Centre county did not relieve the part 
 in Clearfield from sale. Patton v. Long, 68 Penn. St. 260. Where in Wisconsin 
 a county was divided after land therein was assessed for taxes and returned 
 delinquent, and before they were sold, and by such division the land was included 
 within the new county, a sale and deed for such taxes made by the proper officers 
 of the old county was held to be valid under sects. 1, 2, 3, 16, 18, and 25, ch. 22, 
 Laws of 1859, providing that all lands returned to the county treasurer, and 
 upon which the taxes shall not be paid within the limited time, shall be subject 
 to sale, and that the treasurer shall advertise and sell all such lands, &c., there 
 being no words in the statute requiring the sale, conveyance, or other acts after 
 the assessment and return to be done within the county where the lands lie. 
 Austin V. Holt, 32 Wise. 478. 
 
 < Thurston v. Martin, 2 'Sumn. 497. See Tobey v. Haggerty, 23 Ark. 370 ; 
 
 « 1820, § 9. 
 
OF THE LISTING AND VALUATION OF THE LAND. 125 
 
 the county auditor to call on each resident owner of land 
 within his county, and take a list of all his lands subject to 
 taxation within the county ; with a proviso, that " all lands 
 lying within the Virginia Military District, which shall 
 be divided by county lines, so as * to leave parts of said * 115 
 tracts in two or more counties, shall.be listed by the 
 proprietor in the county where he lives." Another section ^ 
 made it the duty of the auditor, on the failure of the owner 
 to furnish a list, to enter the land from the best information 
 in his power. 
 
 In the case of the Lessee of Hughey v. Horrell et al.,^ which 
 was an ejectment wherein the defendant relied upon a tax 
 title, it appeared that the land in question was divided by the 
 line between Madison and Pickaway counties, and the owner 
 lived upon that parb of the land which lay in Pickaway. The 
 county auditor of Madison entered the land upou his list, in 
 the name of Prichard, the real owner. The sale was held 
 void. The Court said, that " as the land in question was in 
 the Virginia Military District, and divided by a county line, 
 and as Prichard, the proprietor in whose name it was listed, 
 resided in the county of Pickaway, the auditor of Madison 
 was not authorized to enter it on his list. It was made the 
 duty of the proprietor to enter it in the county in which he 
 lived, and on his failure to do so; it ought to have been entered 
 by the auditor of Pickaway. It is evident, therefore, that 
 this land has not been entered in conformity with the statute, 
 and that it has been sold by an officer who was not author- 
 ized by law to make the sale." 
 
 The New York statute enacted, that " where the line • be- 
 tween two towns divides any occupied lot or farm, the same 
 shall be taxed in the town where the occupant lives, provided 
 
 Winslow V. Morrill, 47 Me. 411. See People v. Pearls, 37 Cal. 259. See 
 p*228. A certificate duly signed by the assessors "that the foregoing pages 
 contain an inventory of polls and estate, real and personal, liable to be taxed 
 in" a town named, sufficiently indicates that the real estate described above lay 
 in such town. Greene v. Lunt, 58 Me. 518. A sale for taxes by the treasurer 
 cannot convey title beyond the then ascertained lines of his county, and subse- 
 quent changes of the county line cannot enlarge the right of the purchaser 
 Smith V. Brotherline, 62 Penn. St. 461. 
 
 1 Sec. 13. '■' 2 Ohio, 231 ; 1-4 Ohio Cond. 335. 
 
126 OP THE LISTING AND VALUATION OF THE LAND. 
 
 he or she live on the lot." In Saunders v. Springsteen,^ it 
 appeared that the defendant in error was the owner and occut 
 pant of a farm, covering parts of two lots numbered twenty- 
 six and thirty-four. This farm was divided by the town line 
 between Lewiston and Cambria, the division line of the towns 
 being also the dividing line between said lots. The dwelling- 
 house of the defendant in error was upon the part of the farm 
 
 in Cambria, his barn was in the town of Lewiston. 
 * 116 The entire farm was assessed * in Cambria in 1826, and 
 
 the assessor of Lewiston, with a full knowledge of the 
 facts, also assessed that part of the farm lying in his town, 
 upon which a tax was collected. It was held that the last 
 assessment was void. 
 
 Under the curative act of Pennsylvania it was held, that 
 where lands were listed for taxation in the wrong county, the 
 sale was nevertheless valid.^ This decision does not appear 
 to give a fair construction to the act, the language of which 
 was, " that no irregularity in the assessment shall be construed 
 to affect the title of the purchaser." The evident intention 
 of the legislature, as manifested by the words they used, and 
 the spirit of the provision, was to cure a defective assessment, 
 where the assessor had jurisdiction, but proceeded irregularly 
 in the exercise of it, and not to declare that to be an assess- 
 ment which was a nullity fOr want of authority to make 
 it. (a) Suppose a mere usurper makes the assessment, and 
 the fiscal agents of the county or town recognize it, and cause 
 the list to be placed in the hands of the collector de jure, 
 who proceeds to collect the taxes and sell the lands of de- 
 linquents upon such a list. Could it be pretended that there 
 was any vitality in such a proceeding ? Surely not ; it is 
 simply no assessment at all, and when the courts declare it to 
 be valid under the curative act, they go one step beyond the 
 
 ' 4 Wend. 429. 
 
 2 Montgomery v. Meredith, 5 Har. (Penn.) 42. See 66 Penn. St. 237. The 
 omission in an assessment roll of some word or character to designate what the 
 figures in the column headed " valuation " were intended to represent, is one 
 of the defects which are remedied by the 44th section of the Revenue Act of 
 1853 ; .Hill v. Figley, 25 111. 156. See " dollar mark," p. *202, note, 
 
 (a) See p.* 118, note (b). 
 
OP THE LISTING AND VALUATION OP THE LAND. 127 
 
 legislature. The latter, presupposing that an assessment has 
 been made in point of fact, but presuming that irregularities 
 have taken place in the course of the proceedings, declare it 
 valid ; while in the former, the courts, usurping the functions 
 of an assessor de jure, make one, and by judicial legislation 
 pronounce it legal. The same may be said of the case where 
 land is listed which does not lie within the territorial jurisdic- 
 tion of the assessor. The assessment is said to be in the nat- 
 ure of a judgment and execution against the delinquent 
 tax-payer, and constitutes the warrant of the collector to sell. 
 Yet, in the Pennsylvania case, the court give to a pretended 
 assessment a validity which the judgment of the highest 
 court of the land does not possess. Where a superior 
 * court of general jurisdiction has not authority in the * 117 
 particular case, its judgments are simply nullities. 
 
 The Illinois statute of 1827 required that all lands belong- 
 ing to residents of the State should be listed in the county 
 where the owner resided. The act of 1829 declared, that the 
 list should be completed by the first day of July, annually, 
 and by the same act the county clerk was directed to transmit 
 to the auditor of State, a list of aU lands in his county which 
 had not been listed there by the fifteenth day of July, and all 
 such lands thus returned were to be sold by the auditor as 
 non-resident lands. The statute also, according to the deci- 
 sions of the Supreme Court, made the auditor's deed primd 
 facie evidence, amongst other things, that the land was regu- 
 larly listed for taxation. 
 
 In Messinger v. Germain,^ it appeared, that the sale was 
 made by the auditor, January 16, 1830, upon the authority 
 of a list returned the preceding year, by the clerk of St. Clair 
 county, where the land in question lay. For the purpose of 
 showing that the land was not legally listed and sold, it was 
 proven, that at the time of the auditor's sale, one of the own- 
 ers resided in the county of St. Clair, and the other in Jo 
 Daviess county, Illinois. Upon this state of facts, the Court 
 held, first, that they would presume that the owners had failed 
 to list in the counties where they respectively resided ; and. 
 second, that proof that on the day of sale one of the parties 
 
 1 1 Gilm, 631. 
 
128 OF THE LISTING AND VALUATION OP THE LAND. 
 
 resided in St. Clair, furnished no legal presumption that he 
 resided there when the list of non-resident lands was trans- 
 mitted by the clerk to the auditor. 
 
 In many of the States, the law requires the listers to return, 
 file, or lodge the original, or an attested copy of the list, or an 
 abstract thereof, with some public officer designated, on or 
 before a certain day named.^ The object of this requirement 
 is to enable the tax-payer to inspect the list, and take such 
 steps as he may deem necessary for the purpose of correcting 
 upon appeal, motion, or otherwise, any errors in the listing 
 
 and valuation which have taken place to his preju- 
 * 118 dice, (a) It has been * repeatedly held, that a failure 
 
 on the part of the listers to perform this duty, renders 
 the list and all of the proceedings founded thereon void. ^ (6) 
 Thus in Kinney v. Beverley,^ where the law required a listing 
 and assessment of the land for taxation, and a return of the 
 
 1 See 58 Me. 529. 
 
 (a) A notice requiring persons to present tlieir objections to an assessment 
 to the assessors instead of to the chairman of tlie board, as required by law, is 
 void. Adriance v. McCafferty, 2 Robertson (N. Y.), 153. So where the notice 
 was required to be published in papers appointed corporation papers, and publi- 
 cation was made after the appointment had expired, there having been no 
 renewal, it was held void. Ibid. Although notice be not given as required by 
 statute that the assessment roll is in the hands of the clerk of the board of 
 equalization, and of the time of the meeting of the board, if a party appears 
 before the board he cannot object that notice was not given. State v. Western 
 Union Telegraph Company, 4 Nev. 338. In this case the tax complained of was 
 upon personal property. 
 
 2 See Pittsfield u. Barnstead, 40 N. H. 477 ; Wheeler v. Mills, 40 Barb. 644; 
 17 N. H. 393. 
 
 (6) In Wilcox V. Humphry (U. S. C. Ct., 6th Circuit & W. Dist. of Mich., 
 Aug. 26, 1873), held, that under the Michigan statute the omission to list, assess, 
 or value lands by the third Monday of May, at which time the assessor is required 
 by statute (1 C. L. of 1871, § 986) to be present at his office to hear and deter- 
 mine upon objections to assessments, is fatal to the validity of the taxes subse- 
 quently levied upon such land, any such subsequent listing and assessment being 
 unauthorized and void ; that when the nature of the act to be performed is such 
 that the designation of time must be considered as a limitation upon the power 
 of the officer to act, the statute is mandatory ; that while curative statutes may 
 remedy mere irregularities in making out assessments, they are not allowed to 
 legalize the act of an official acting without jurisdiction and affecting the sub- 
 stantial rights of the tax-payer to challenge the correctness of the assessed value 
 of his estate. This case is reported at length on page xxxvi. Auditor-General's 
 Report (Mich.), 1873. See pp. * 116, 260. 
 
 3 2 Hen. & Munf. 318-344. 
 
OP THE LISTING AND VALUATION OF THE LAND. 129 
 
 list to the auditors, and this requirement was not complied 
 with, the assessment and sale founded thereon were held to 
 pass no title to the purchaser. So where the law required the 
 assessment roll to be accepted in writing on the back thereof 
 by the board of commissioners, signed and attested by their 
 clerk, and the only entry on the back of an assessment roll 
 was that it was " examined by the board, and ordered to be 
 filed with the clerk," this was held not an acceptance of 
 the roll, and parol testimony of the acceptance being held 
 incompetent, the tax sale was held invalid. ^ And the omis- 
 sion of the deed to recite that the assessment roll was ac- 
 cepted, is evidence by implication that it was not accepted, 
 in those States where the recitals in the deed are made 
 primd facie evidence of the existence and regularity of all the 
 prior proceedings.^ 
 
 The statute of Connecticut required the assessors, after 
 completing the list, to return an abstract thereof to the town 
 clerk, on or before the first day of December annually. The 
 clerk was directed to submit, when requested, to the inspec- 
 tion of every person liable to pay taxes, the abstract thus re- 
 quired to be returned. A board of relief was consLituted to 
 hear appeals from the doings of the assessors, and having 
 given ten days' notice, the board were required to meet on 
 or before the first Monday in January, to determine the ap- 
 peals made to them. Another act was passed in May, 1829, 
 providing " that where assessors have heretofore neglected 
 or omitted to sign or return an abstract of the assessment 
 lists of their respective towns by them made,'and to lodge the 
 same in the town clerk's office, by the first day of De- 
 cember in any year, &c., such assessment * lists shall * 119 
 not, for such causes, be considered or adjudged void 
 but all taxes which have been heretofore, or shall be here- 
 after, laid and imposed according to such assessment lists, 
 may, notwithstanding, be levied and collected." 
 
 The case of the Thames Manufacturing Company v. Lath- 
 rop et al.,^ which was an action of trespass de bonis asportatis 
 
 1 Kaybum v. Kuhl, 10 Iowa, 92. 
 
 2 Long V. Burnett, 13 Iowa, 29. See p. * 90, note 2 ; p. * 79, note 3, supra. 
 
 » 7 Conn. 550. 
 
 9 
 
130 OF THE LISTING AND VALUATION OP THE LAND. 
 
 against the selectmen of Boziah, to test the validity of a town 
 tax, was pending and undetermined at the time of the pas- 
 sage of the last-named statute. In justification, the defend- 
 ants proved that the town of Boziah had voted a tax upon the 
 list of 1827. The list was duly made out, but an abstract of 
 it was not left with the town clerk until the twentieth day of 
 December, 1827. After the first day of that month, the plain- 
 tiffs repeatedly called at the clerk's oiBce to inspect the list, 
 but an abstract of it was not there. The board of relief met, 
 after due notice, on the last Monday in December, but the 
 plaintiffs did not attend its sittings, or apply for relief against 
 the assessment. The defendants also produced the rate bill, 
 based upon the said assessment, in which the plaintiffs were 
 taxed sixty-five dollars and eighty-five cents ; also a warrant 
 to collect the tax, which was delivered to the collector, under 
 which the goods in question were seized and sold in satisfac- 
 tion of the tax. Upon this evidence the inferior court charged 
 in favor of the plaintiffs, who had a verdict, and the defend- 
 ants moved for a new trial for misdirection. The Supreme 
 Court overruled the motion, and rendered judgment upon the 
 verdict, holding, 1. That the general law requiring the ab- 
 stract to be lodged with the town clerk by the first day of 
 December, was an imperative and not a directory require- 
 ment ; 2. That the act of 1829 should be confined to the levy 
 and collection of taxes which had been previously laid upon 
 defective assessment lists, but which remained unlevied and 
 uncollected when the law took effect, and to assessments 
 which might thereafter be made. That it could not extend 
 
 to assessments on which taxes had already been levied 
 * 120 and collected, so as to affect actions of * trespass then 
 
 pending ; in other words, the retrospect of the statute 
 operated upon assessments and collections in fieri, and not 
 upon those which were executed and closed. 
 
 Chief Justice Hosmer, in delivering his opinion, remarks 
 upon the first point as follows : " This direction is imperative, 
 and is alone alterable by the legislature. The Court must take 
 the law as they find it, and cannot say that a return after De- 
 cember the first is valid, unless they assume the character of 
 law-makers. The reason of this legislative provision is appar- 
 
OP THE LISTING AND VALUATION OP THE LAND. 131 
 
 ent. It is for the general benefit of every inhabitant of our 
 towns, that each may inspect the list of his estate, and if he 
 believes that injustice has been done him, that he may appeal 
 for its correction to the board of review. ' That a time for the 
 return of the lists should be limited, the general convenience 
 demands; and that it should be sufficiently early for univ€irsal 
 inspection, and preparation for a future hearing before the 
 board of review, is perfectly obvious. On this principle the 
 legislature fixed the first of December as the ultimate period 
 of return. That the return should be punctually made, is 
 indispensable. A different principle would nullify the law, and 
 produce the general inconvenience arising from an unlimited 
 return. No person, in such case, could know when he might 
 inspect his list ; and if the return was late, no time, either 
 for reflection or preparation for a review, could be had. If 
 the legislature, in a charter of incorporation, had authorized 
 the laying of taxes upon lists returned to a public office at a 
 specified time, the necessity of a strict observance of the 
 limitation would not admit of a question.^ The case before 
 us is strictly analogous to the one supposed. The general 
 law is an enabling act to all our towns ; it has prescribed the 
 subjects of taxation, and the mode, and as there is no author- 
 ity to tax, except what is conferred by the law, it must be 
 strictly observed. An illegal and void assessment is no assess- 
 ment at all ; it is a nullity, and authorizes no person to act 
 under or enforce it." 
 
 * A similar decision was made by the Supreme Court * 121 
 of IlUnois in the case of Marsh v. Chesnut.^ The revenue 
 law required the assessor to complete his assessment, and re- 
 turn the same to the clerk of the county commissioners' court, 
 on or before the first day of May, and it authorized parties 
 interested to apply at the ensuing June term of that Court, 
 for the purpose of having the valuation of their property re- 
 duced. The list was not returned until June 3, which was 
 the day of the sitting of the court. Treat, C. J. : " The ob- 
 ject of this provision is manifest. It is, that the owner shall 
 have ample time and opportunity to ascertain the valuation 
 
 1 2 Cranch, 127 ; 3 B. & A. 1 ; 5 Taunt. 792; 5 Conn. 560. 
 
 2 14 lU. 223. See also Brown v. Hogle, 30 lU. 119 . 
 
132 OP THE LISTING AND VALUATION OF THE LAND. 
 
 put upon his property by the assessor, and if deemed excessive, 
 to make application to the court for the correction of the 
 error. It was the intention of the legislature, that at least 
 one month should intervene between the return of the assess- 
 ment and the sitting of the court having the power to revise 
 the doings of the assessor. This interval of time is allowed 
 the owner to inspect the return, and prepare for the hearing 
 of his objections to the assessment. This requisition of the 
 statute is clearly imperative. It is made for the benefit of the 
 owner, and cannot be dispensed with without his consent. 
 A failure to observe it may seriously injure him. The courts 
 have no power to declare it to be directory merely. Such a 
 decision would virtuall}" deprive a party of the protection 
 which the legislature designed to afford him. Under such 
 a construction of the law, the return might not be made until 
 the court had adjourned, or at so late a day that he would 
 have no opportunity, either to examine the assessment, or 
 make preparation to have it reviewed by the court. In either 
 case he would lose the benefit of an appeal from the assess- 
 ment, for the statute expressly provides that no application 
 to reduce the valuation shall be made after the June term of 
 the court. When this assessment was made, the law required 
 the coimty commissioners' court to commence its session on 
 
 the first Monday of June ; and the first Monday of 
 *122 June, 1839 (the year the * assessment was made), was 
 
 the third day of that month, so that the return of the 
 assessor was not, in fact, made until the term of the court 
 had commenced. The defendant had, therefore, no previous 
 opportunity to inspect the return and prepare an application 
 for a reduction of the assessment. We have no doubt that 
 this direction to the assessor was intended to be compulsory, 
 and that a failure by him to comply with it, renders the assess- 
 ment invalid as against the owner of the land. The proceed- 
 ings prescribed by the revenue laws are of a special and 
 summary character, and contrary to the course of the common 
 law. The result may often be to deprive a man of his prop- 
 erty without any actual knowledge by him of the proceed- 
 ings against it. It is a sound and inflexible rule of law, that 
 when special proceedings are authorized by statute, by which 
 
OF THE LISTING AND VALUATION OP THE LAND. 133 
 
 the estate of one man may be divested and transferred to 
 another, every material provision of the statute must be com- 
 plied with. The owner has the right to insist upon a strict 
 performance of all the material requirements ; and especially 
 of those designed for his security, and the non-observance of 
 which may operate to his prejudice. On this principle alone, 
 the direction to the assessor to make his return by a given 
 day, is. compulsory, and its performance is indispensable to 
 the validity of the assessment. Without a valid assessment, 
 the subsequent proceedings necessarily fall for the want of a 
 basis upon which to rest. The case of the Thames Manu- 
 facturing Company v. Lathrop, 7 Conn., 550, is directly in 
 point." (a) 
 
 Another branch of this case arose upon the construction of 
 the two following statutes. 1. The act of February 8, 1849, 
 which provided, that all assessments for the year 1848 and 
 prior years, " which were not completed within the time re- 
 quired by law, be, and the same are hereby declared to be as 
 good, valid, and effectual, as if they had been made and re- 
 turned in strict conformity to law." 2. The act of February 
 15, 1851, which declared, that when any assessor had thereto- 
 fore or should thereafter fail " to complete or iinish his assess- 
 ment in the time required by law, such failure shall not vitiate 
 such assessment, but the same shall be legal and valid 
 as if the * same had been completed in the time required * 123 
 by law." It was insisted that these acts cured the de- 
 fect in the assessment ; but the court, doubting the power 
 of the legislature to pass retrospective laws of this character, 
 proceed to say, " but they may be so construed as not to em- 
 brace cases like the present, and, at the same time, full effect 
 
 (a) To the same point see Sanderson v. La Salle, 57 111. 441, where, upon an 
 application for judgment, &c., the objection that the assessment was not returned 
 within the time prescribed by the ordinance was held fatal to the application. 
 Also held, that the act of 1853, which provided that the failure to return the 
 assessment in time should not vitiate, did not cure the omission in this case, as 
 that act had no relation to assessments for corporate purposes, they being regu- 
 lated by the revenue law of the municipality. Sanderson v. La Salle, supra. 
 So a sale of land for taxes in 18-54 is invalid, if it is not shown that the assessor 
 complied with the provisions of sec. 428 of the Code of 1852, in giving notice of 
 his attendance in each precinct, to assess taxes. Rivers v. Thompson, 43 Ala. 
 633. See p. »265, note. 
 
134 OP THE LISTING AND VALtlATION OP THE LAND. 
 
 be given to their provisions. We think it was the intention 
 of the legislature to legalize assessments that had not been 
 perfected within the time prescribed, and upon which further 
 proceedings were to be had ; and not to interfere with assess- 
 ments where nothing remained to be done under them. This 
 was the full scope and design of these statutes." 
 
 The case of Billings v. Detten ^ arose upon the construction 
 of the 21st section of the act of March 3, 1845, which required 
 the assessment to be completed and returned by the first Mon- 
 day of August, and the 26th section of the same act, which 
 authorized an application by the owner for a reduction of the 
 assessment at the September term, and not afterwards. The 
 assessment in question was for the year 1845, and was not 
 returned until October 30. The defence relied upon the same 
 curative acts above recited, and the special act of February 5, 
 1849, v/hich read thus : " That the assessment of property for 
 taxation in the county of Madison, State of Illinois, for the 
 years 1845, 1846, and 1847, be, and the same are hereby 
 legalized, any neglect or inability on the part of the assessor 
 or assessors of said county to make and return the assessment 
 for either or all of said years within the time required by law, 
 to the contrary notwithstanding." The land in controversy 
 lay in the county of Madison. The Court held, that this case 
 was distinguishable in no respect from the preceding one, and 
 rendered judgment against the tax title. 
 
 An accurate and a pertinent description of the land embraced 
 in the list is essential to its validity. (a) The object of this re- 
 
 1 15 111. 218. 
 
 (a) See Hubbell v. Weldon, Hill & Denio, 139, 58 Me. 533. In St. Peter's Church 
 V. County of Scott, 12 Minn. 395, held, that the provision of sec. 27 of Laws of 
 1860, p. 26, and Laws of 1861, pp. 21, 22, requiring that if part of a lot is listed, 
 the return shall state the number of feet on the principal street on which it abuts, 
 does not apply to the annual return required by sec. 22 of the act ; and that on 
 a return under the latter section, in the absence of specific provision affecting the 
 question, any description which is sufficiently definite and certain to ascertain 
 the premises is good ; thus " S^ of lots 9 and 10 in Block 49, Shakopee City," 
 held sufficiently definite. Under the New Jersey statute (Nix. Dig. 952, pi. 92) 
 requiring a designation of the real estate assessed by such short description as 
 will be sufficient to ascertain the location and extent thereof, abbreviations may 
 be used so long as they are intelligible and leave no uncertainty as to the prop- 
 erty upon which the imposition is intended to be placed ; the following descrip- 
 tion was accordingly held sufficient: "Joseph L. Alden, No. 16, Front street, 
 
OP THE LISTING AND VALUATION OP THE LAND. 135 
 
 quirement is, to enable the owner to ascertain from the 
 * list itself, that the tax charged against him has been * 124 
 assessed upon his land, and not upon that oi a stranger. 
 Besides, the list is the foundation of all the subsequent pro- 
 ceedings. Each document, wherein the land is designated, 
 must necessarily depend upon the list for the accuracy of its 
 description. A false or mistaken description in the list, runs 
 through the warrant to collect, the advertisement, return, 
 certificate, and deed.^ And even when an error is discovered, 
 and corrected in either of the subsequent documents, a defect- 
 ive listing is not cured by the amendment. It follows that 
 unless a true description is contained in the list, the officer 
 has no guide in advertising, selling, and conveying the land ; 
 the former owner cannot know that his land is in jeopardy, 
 and be able to save it by paying the tax ; nor can the pur- 
 chaser at the tax sale find and locate the land after his pur- 
 chase.^ 
 
 In the case last cited the Court say, " In an assessment of 
 taxes, it is indispensably necessary that the lands should be 
 designated or described in such a manner, as may lead the 
 owners thereof to a knowledge of their being assessed ; other- 
 wise it is impossible that they can or ought to be considered 
 as knowing, and therefore delinquent, on account of the non- 
 pajTnent of taxes, since thej' have no means afforded by the 
 assessors, such as are clearly required by the several acts of 
 assembly on the subject, of knowing or ascertaining that their 
 lands are assessed. To deprive them of the right to their 
 lands, by a sale of them for taxes, without their having the 
 requisite means afforded them of knowing and ascertaining 
 that they have been assessed, would not only be unjust, but 
 iniquitous in the extreme." (a) A description sufficiently 
 
 real estate, H. L. and stable." State v. Mayor, 36 N. J. Law, 288. But " Knapp 
 and MuPherson or R. P. association ; number of acres, 2. Valuation of real 
 estate, §50,000. Amount taxable, 150,000," is not a sufficient description within 
 said statute. State v. Townsliip of Union, 36 N. J. Law, 309. 
 
 1 See Yeuda v. Wheeler, 9 Texas, 408. > 
 
 2 Brown v. Dinsmoor, 3N. H. 103; Tallman v. White, 2 Comst. 66; Douglas 
 V. Dangerfield, 10 Ohio, 152 ; Turney v. Yeoman, 16 Ohio, 24; Currie v. Fowler, 
 5 J. J. Marsh. 145 ; Dunn v. Balyea, 6 Watts & Serg. 475. 
 
 {(i) When city lots are assessed for taxation, not according to the legally 
 recorded plat of the proprietors, but by some subsequent plat made and caused 
 
136 OF THE LISTING AND TALUATION OF THE LAND. 
 
 certain to convey land between man and man, and which, if 
 contained in an agreement to convey, would authorize a court 
 
 of equity to decree a specific execution, will not answer 
 * 125 in the proceedings * to enforce the collection of a 
 
 tax. In the case of private transactions, the courts, in 
 construing the document, endeavor to collect the intention of 
 the parties, and give that intention effect, (a) If a latgnt 
 
 to be recorded by tlie city or a stranger, without the consent or knowledge of 
 the owner, the assessment is invalid. Merton v. Dolphin, 28 Wise. 456. But a 
 tax deed cannot be invalidated on the ground that the plat referred to in the 
 description of the land is not a legal one, binding on the proprietors, if such plat 
 Vf as in proper form, duly recorded , and has been habitually treated as valid by 
 the taxing officers with the knowledge of the land-owners, and no steps have 
 been taken to vacate or correct the record. Finney v. Boyd, 26 Wise. 366 ; see 
 also Janesville v. Markoe, 18 Wise. 856, holding a similar description on an assess- 
 ment roll sufficient. See also Simmons v. Johnson, 14 Wise. 523 (an execution 
 sale) ; Villas v. Reynolds, 6 Wise. 214 ; but see also Johnstone v. Scott, 11 Mich. 
 232. Where a part of a lot or block is dedicated to public uses, the part not 
 dedicated may properly be designated by the number or name previously given 
 to the whole. Ortman v. Giles, 9 Kansas, 324. Under the Nevada statute pro- 
 viding that lands shall be " described by metes and bounds or by common 
 designation or names ; if situated within the limits of any city or incorporated 
 town, described by lots or fractions of lots ; if without said limits, giving the 
 number of acres as near as can be conveniently ascertained and the location and 
 township where situated," two contiguous lots owned by the same individual 
 in a city may be jointly assessed ; and the block and number are a sufiScient 
 description. Wright v. Cradlebaugh, 3 Nev. 341. 
 
 (a) Ch. 53, General Laws of 1866 of Wisconsin, provides as follows : " In all 
 advertisements, certificates, papers, or proceedings relating to the . . . assess- 
 ment and collection of taxes and proceedings founded thereon, . . . any descrip- 
 tion of lands which shall indicate the land intended with ordinary and reasonable 
 certainty, and which would be sufficient between grantor and grantee in an 
 ordinary conveyance, shall be sufficient." Under this statute a tax deed 
 purporting to convey the " north twenty feet " of a certain lot the boundary 
 lines of which deflected twenty-five degrees from the cardinal points of the 
 compass, said lot being one hundred and twenty feet in depth along its northerly 
 boundary and sixty feet wide along its westerly boundary, the northerly and 
 westerly boundaries being usually called the "north" and "west" \mes respec- 
 tively, and said lot being assessed in the year for whose taxes the deed was given 
 in two portions described as the " north twenty feet " and the " south forty feet," 
 was held sufficient. Also held, that the ambiguity, if any, was a latent one, and 
 explainable by parol evidence, such as evidence showing the sense in which the 
 phrase " north twenty feet " was usually understood and applied among real 
 estate dealers, conveyancers, &c., in bargaining, selling, &c., fractional lots in the 
 plat referred to. Jenkins v. Sharpf, 27 Wise. 472. In People v. Crockett, 33 Cal. 
 150, it was held, that in describing a tract which consists of a specific quantity 
 granted by the Mexican government to be selected within the boundaries of a 
 larger tract, if the assessment is as definite as the case will admit, and such as 
 would pass the property in a deed, it is sufficient. 
 
OP THE LISTING AND VAI^UATION OF THE LAND. 137 
 
 ambiguity exists in the description, parol evidence is resorted 
 to for the purpose of explaining it, and giving to the intention 
 of the parties complete operation ; and where the estate in- 
 tended to be conveyed, is sufficiently described in the deed 
 or other writing, the addition of a circumstance, false or mis- 
 taken, will be rejected as surplusage, in order to carry that 
 intention into effect. [But in a tax deed words necessary to 
 identify the land will not be supplied by intendment, (a) nor will 
 
 (a) In Orton v. Noonan, 23 Wise. 102, to sustain his claim of title to " a part 
 of the nortli-west qr, of sec. 9 T. 7. E 22 east, described as lot 3 and bounded 
 on the north by lands of Wolcott, east by land of Scliarb, south by land of 
 Worthly, and west by lands of Webber, being 5i acres," plaintiff relied on a tax 
 deed for " part of N. W. i, lot 3. N. by Wolcott, E. by Scharb, S. by Worthly, 
 W. by Webber — 5 25-100 acres, of S. 9, T. 7. E. 22." Held, that the words 
 "being," "known as," or "described as" will not be supplied by intendment be- 
 tween " N.W. i " and " lot 3," and the deed is void for uncertainty. So in Curtis 
 V. Supervisors of Brown County, 22 Wise. 167, where there were two additions to 
 a town called respectively " A's addition " and " A's second addition," and cer- 
 tificates of tax sales and tax deeds were made of lots of specified numbers in 
 "A's addition," there being lots so numbered in " A's second addition," but not in 
 the other, held, that parol evidence could not be received to show that " A's second 
 addition" was meant; and the certificates and deeds were invalid. In Delorme 
 V. Ferk, 24 Wise. 201, held, that the description of the land in a tax deed as a 
 certain specified lot in "block No. 19 to the village," &c. (instead of "in the 
 village," &c.), would probably have rendered the deed invalid for uncertainty 
 before the passage of ch. 63, Laws of 1866, providing that " In all advertisements, 
 certificates, papers, or proceedings relating to the sale or forfeiture of school, 
 swamp, or university lands, or the assessment and collection of taxes and pro- 
 ceedings founded thereon, as well heretofore as hereafter, any description of 
 lands which shall indicate the land intended with ordinary and reasonable cer- 
 tainty, and which would be suflSeient between grantor and grantee in an ordinary 
 conveyance shall be sufiicient ; " but since that act such description held to be 
 sufiicient. In Greene v. Lunt, 58 Me. 518, the following descriptions were held 
 insufficient : " Part of the two river lots joining N. Walker's and Pettingill farm, 
 lots 1 and 2, Eange 1, 100 acres ; " "A piece of land north-westerly of and 
 adjoining S. G. Waits' land, lot 5, range 3, 6 acres ; " " One-half of lot north- 
 westerly of Luther Jackson's farm, lot 2, range 2, 50 acres ; " " The lot joining 
 W. B. Walton's farm, lot 1, range 2, 55 acres ; " "A piece of land between A. J. 
 Churchill and J. H. Weymouth, part of lot 7, range 3, 27 acres ; " " One-lialf 
 Island opposite S. Holmes', 15 acres ; " "A part of E. A. Pollard's farm, lot 6, 
 range 5, 25 acres ; " " Part of lot joining Josiah Hall's, lot 1, range 5, 40 acres ; " 
 " The lot being southerly and joining J. P. Hopkins' and S. E. Newell's wood- 
 land, lot 3, range 4, 60 acres ; " " Half of lot westerly from J. S. Holmes' farm 
 and adjoining it, lot 4, range 2, 50 acres ; " "A piece of land easterly of Worthly 
 Pond, joining W. Harlen's farm, lot 7, range 5, 8 acres." And the following were 
 held sufficient ; " The island opposite "N. Walker's, and above Alden's Ferry ; " 
 " Second lot from S. Holmes', lot 4, range 3, 100 acres ; " " Second lot from 
 
138 OP THE LISTING AND VALUATION OF THE LAND. 
 
 any part of the description be rejected as surplusage, (a)] In 
 these tax proceedings the owner of the estate has nothing to 
 do, — he intends nothing ; the government is acting, through 
 its agents, in hostility to him, and with a view of enforcing 
 the collection of a tax from him. If the officers undertake to 
 list for him lands lying in one place, for those which lie in 
 another, or have no existence at all, they intend to do what 
 
 D. L. Conant's land, lot 3, range 3, 85 acres ; " "Larry Farm on the hill formerly 
 owned by S. Roberts, being part of lot 1, in ranges 3 and 4, 75 acres;" and 
 " Second lot from J. Lunt's, lot 6, range 3,100 acres." This decision was under 
 R. S. ch. 6, § 150, requiring a notice to be given by the collector "designating 
 the name of the owner if known, the right, lot, and range, the number of acres 
 as near as may be, . . . and such other short description as is necessary to 
 render it certain and plain." 
 
 (a) But see Gilman v. Riopelle, 18 Mich. 164, in which case the description 
 in the tax deed was as follows : " Tlie following described land situated in the 
 county of Wayne, to wit : that part of private claim sixty-one, lying east of the 
 north brancli of the River Ecorse, in township 3, south of range 11 east, contain- 
 ing twenty acres and seventy-four one-hundredths of an acre, more or less." 
 The record in the case showed that the parcel described contained something 
 like eighty acres of land. The plaintiff claimed that it was clearly the intention, 
 in making the tax sale, to sell only twentj' and seventy -four one-hundredth acres, 
 and that it was impossible to locate this in any particular part of the larger 
 quantity ; but the Court held that " inasmuch as definite and permanent 
 boundaries are given, the deed must be held to convey all the land within those 
 boundaries, notwithstanding the quantity is much greater than that mentioned. 
 This on the familiar principle that the incorrect portion of the description is to 
 be rejected where that wliich remains is suflScient, and that definite permanent 
 monuments are to control distance and quantity." It was also objected in the 
 same case that this description was insuflScient for purposes of assessment, 
 because not being "the subdivision of any section authorized by the United 
 States for the sale of public lands," it was necessary (under subdivision 2, 
 sec. 16, S. L., 1843, p. 66) to "state the name or number of the lot or tract, or 
 by what other lands it is bounded ; " but it was held that the description was 
 sufficient ; that the requirement that the premises shall be described by the 
 lands which bound tliem has reference to those cases in which the tract is not 
 known by name or number. In this case the number of the lot a part of which 
 was sold, and definite and well-known boundaries which at each end separate 
 the part sold from the remainder, are given, which is sufficient. See p. *283, 
 note. In French v. Patterson, 61 Me. 203, it is held that it is sufficient if the 
 assessors so describe the land of non-residents taxed by them, as to identify it 
 with reasonable certainty, and the following description was held sufficient 
 within that rule : " Orrin Emerson, or unknown, about 175 acres, 4"' range, 17 
 school district, part of the Craig Lot, value $875, amount of tax $16.93." 
 The same rule was also applied to tlie adveriisement of sale. But tlie de- 
 scription of the real estate assessed must be certain, or refer to something by 
 which it may be made certain ; and the following description was held insufficient 
 within that rule : " 2 acres of land, house, boom, and privileges, shore of lots one 
 and two." Inhabitants of Orono v. Veazie, 61 Me. 431. 
 
OP THE LISTING AND VALUATION OP THE LAND. 
 
 139 
 
 the law under which they profess to act, does not permit.^ 
 The rule is laid down, that a listing is fatally defective and 
 
 1 Tallman v. White, 2 Comst. 66 ; Lessee of Perkins r. Dibble, 10 Ohio, 433 ; 
 see also Griffin v. Creppin, 60 Me. 271. The opposite docti-ine was asserted in 
 Blakely v. Bestor, 13 111. 708. The list described the locus in quo as " 20 feet on 
 Main street, by 72 feet deep, commencing 40 feet from the alley, undivided one- 
 half lot 6, block 7, Peoria." The following plan will show the precise location 
 of the land, according to the decision : — 
 
 N. 
 
 ^ 
 
 HAKRISON STREET. 
 
 
 
 1. 
 
 
 10. 
 
 
 
 2. 
 
 
 
 
 9. 
 
 t 
 
 U 
 
 
 
 
 
 
 s 
 
 
 
 
 
 » 
 
 
 
 
 
 
 'H 
 
 H 
 
 
 
 in 
 Id 
 
 
 
 o 
 
 Eh 
 39 
 
 (0 
 
 3. 
 
 
 
 8. 
 
 3 
 
 41 
 
 S 
 
 
 
 < 
 
 
 
 
 < 
 
 a 
 
 
 
 
 
 
 H 
 
 
 
 
 
 
 K 
 
 
 i. 
 
 
 
 
 7. 
 
 n 
 
 
 
 
 
 
 ^ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 c 
 
 
 
 
 5. 
 
 
 
 <£ 
 5 
 
 c 
 
 9 
 O 
 
 6. 
 
 
 
 MAI 
 
 N STR 
 
 EET. 
 
 
 fc^ 
 
 All of the subsequent proceedings omitted the depth of the lot ; namely, " by 
 72 feet deep." The sale was held valid ; the Court saying, " It is the duty of 
 courts to give effect to the intent of parties, if it can be done consistently with 
 the rules of law. In an ordinary deed, when twenty feet of a lot on a particular 
 street is conveyed, it is understood to mean a strip of land twenty feet wide 
 and running back the w'hole distance of the lot, be the same more or less. The 
 construction must be the same in a tax deed. The doctrine of strict construction, 
 as applied to the execution of naked statutory powers, has no application to 
 a question like this." This decision does not appear to he supported by any 
 authority, no reasons are assigned for it, and it is directly in conflict with the 
 cases relied upon in the text. 
 
140 OP THE LISTING AND VALUATION OF THE LAND. 
 
 void, if it contain such a falsity in the designation or descrip- 
 tion of the land listed, as might probably mislead the owner, 
 and prevent him from ascertaining by the notices, that his 
 land is to be sold or redeemed. Such a mistake or falsity 
 defeats one of the obvious and just purposes of the law, — 
 that of giving the owner an opportunity of preventing the 
 sale by paying the tax.^ Thus, in the case last cited, the 
 deed and list contained this description of the land in ques- 
 tion : " All that certain piece of land situated in the county 
 of Onondaga, &c., being what was taxed and returned to the 
 comptroller's office from the town of Salina, as that part of 
 block twenty-nine, in the village of Lodi, which is bounded 
 west by David S. Colvin's, thence north to lands of 
 
 * 126 Philo D. Mickles & Co., east by lands of Levi * Chap- 
 
 man, and south by Foot street." This was a true 
 description of the lot in all respects, except the name of the 
 village where it lay. There was a tract of land three-fourths 
 of a mile distant, called Lodi, laid off into lots and blocks, 
 
 but never incorporated as a village, and, in fact, an- 
 
 * 127 nexed to Syracuse ; and it * was further proved, that 
 
 there was no lot or block in Lodi which answered to 
 the description in the list and deed. The Court held the sale 
 void, saying, " In this assessment there was a fatal falsity in 
 describing the parcel of land to be taxed. It was described 
 as situate in Lodi, whereas it lay in Syracuse. A land-owner 
 exercising ordinary diligence in searching the volume of 
 advertisements to ascertain whether his lands are to be sold 
 for taxes, or are to be redeemed after sale, looks under the 
 appropriate head, that is to say, under the name of the tract 
 or place where his lands lie, and not elsewhere. He might, 
 therefore, be misled and deceived by such a mistake as was 
 made in this case ; because, for land lying in the village of 
 Syracuse, he would look under that head, and not under that 
 of Lodi. If, instead of looking at the advertisement, the 
 owner, in the present case, had addressed a. note to the comp- 
 troller's office, inquiring whether block number twenty-nine, 
 in the village of Syracuse, was returned for unpaid taxes, and 
 liable to be sold, he would undoubtedly have received an 
 1 Tallman v. Wliite, 2 Comst. 66. And see Yeuda v. Wheeler, 9 Texas, 408. 
 
OP THE LISTING AND VALUATION OF THE LAND. 
 
 141 
 
 answer in the negative, because the lot in question would not 
 be found returned and entered in its proper place. It is plain 
 that the misdescription would probably mislead, and it is, 
 therefore, fatal to the validity of the assessment." 
 
 In Lafferty's Lessee v. Byei-s,^ the land was thus listed : — 
 
 Name. 
 
 No. of Entry. 
 
 Original 
 Proprietor. 
 
 Original 
 Quantity. 
 
 Watercourse. 
 
 Acres. 
 
 Bate. 
 
 Tax. 
 
 Haines, John. 
 
 4401 
 
 Haines, John. 
 
 170 
 
 Mad Kiver. 
 
 73 
 
 2 
 
 89.22 
 
 The Court instructed the juiy, that the description con- 
 tained in the list was so imperfect, that no valid sale of the 
 land in question could be made under it. On motion for a 
 new trial, this ruling was sustained, the Court saying, " In 
 this case, the whole original entry was listed by its then 
 owner, Haines, and, perhaps, was sufficiently described by its 
 number and watercourse ; but ninety-seven acres had 
 been transferred to another * name, leaving seventy- * 128 
 three acres still standing to Haines. What seventy- 
 three acres ? In common or separate ? If separate, in what 
 part of the lot does it lie ? The answers to these questions 
 materially affect the price. Without them no such informa- 
 tion is communicated to the public as is calculated to produce 
 a fair competition, and no prudent man will offer its value in 
 his bid. The description, therefore, is not adapted to pro- 
 mote a fair sale, and it must be holden insufficient." 
 
 In the Lessee of Massie's Heirs v. Long et al.,^ the defend- 
 ant claimed title to part of out-lot number forty-three, in the 
 town of Chillicothe. The list, in one part, set forth a tax 
 upon " part of out-lot forty-three," in another, " one acre out, 
 of out-lot forty-three." The listing was in the name of 
 Edward Long. Parol evidence was offered to show that the 
 " one acre " named in the list was on the north quarter, where 
 Long resided. The evidence was rejected. The Supreme 
 Court held : 1. That the description was too vague and uncer- 
 tain ; and 2. That parol evidence was inadmissible to locate 
 the land. 
 
 1 5 Ohio, 458. 
 
 2 2 Ohio, 287 ; s. c. 1-4 Ohio Cond. 364. 
 
142 
 
 OP THE LISTING AND VALUATION OP THE LAND. 
 
 In Treon's Lessee v. Emerick,^ the description in the list, 
 or duplicate, was as follows : " Sixty acres, part of the north 
 half of Section 13, Town. 3, Range 4, &c.," and the sale was 
 held void. 
 
 [In Stewart v. Aten,^ the description upon the duplicate 
 was " 150 acres, part of Section 36, N. W. corner," was held 
 defective, unless the 150 acres were situate in the N. W. cor- 
 ner of the section, and in a square form ; and a sale of a rec- 
 tangular plat in that corner was held invalid. And in Head 
 V. James,^ the description " north and west part S. E. J Sec. 
 4, T. 4, R. 12, acres 50," in the assessment and sale, was 
 considered so entirely void as to create no cloud upon the 
 title, and not a subject of proceedings to annul in a court of 
 equity.]* 
 
 In Douglas v. Dangerfield,^ the facts were, that 
 
 * 129 Theodoric * Bland entered 1333^ acres of land, on 
 
 part of military warrant number 209, the number of 
 
 the entry being 1122. It was entered for taxation upon the 
 
 list, thus: 
 
 Present 
 Owner. 
 
 ■St 
 
 ■3 1 
 
 §1 
 
 It 
 
 SI 
 
 Watercourse. 
 
 SI 
 
 
 •d gS gj 
 
 111 
 
 Remarks on the day of 
 sale by the Auditor. 
 
 Bland, Theo. 
 Dangerfield, W. 
 
 1122 
 1122 
 
 Bland, T, 
 Same. 
 
 1,3m 
 
 1,333| 
 
 Rattlesnake. 
 Same. 
 
 485 
 848 
 
 S285 
 $513 
 
 D. 0. M. 
 
 6 28 5 
 11 25 
 
 Sold to R. Donglaas. 
 Same. 
 
 On the duplicate between these two entries, there were 
 numerous other names. It would seem, that after the entry 
 
 1 6 & 7 Ohio, 161. In Detroit Young Men's Society v. Mayof, &c., 3 Mich. 
 172, the following description in an assessment and tax roll was held void for 
 * uncertainty : — 
 
 " Young Men's Society — Gov. & J. P. \ 
 
 Jeff. Av. N 45 feet — "W pt lot 11 sec. 1 [ B. 2." 
 & E pt lot 10 see. 1. ) 
 
 ■^ 5 Ohio St. 257. 3 13 y^lsc. 641. 
 
 * The State conveyed to A the south-west corner of township No. 6, contain- 
 ing about 5,700 acres, and conveyed the balance of tlie township, about 10,000 
 acres, to B, through whom it was afterwards divided among sundry owners. 
 The lots were assessed as " S. W. J range 4, No. 6," and " f range 4; No. 6," 
 and the assessment was held void for uncertainty. Adams v. Larrabee, 46 Me. 
 516. Where the description in an advertisement is " f of block 4 in," &c., the 
 proceedings are void for uncertainty. Bidwell v. Coleman, 11 Minn. 78. 
 
 5 10 Ohio, 152; see also Atwell v. Zeluff, 26 Mich. 121. 
 
OP THE LISTING AND VALUATION OP THE LAND. 143 
 
 by Bland, he sold 846 acres of the land to Dangerfield, which 
 accounts for the fact that the land was listed in the name of 
 each. The sale was held void. By the Court : " In the case 
 before the Court, there was an entire survey of 1333^ acres.. 
 Of this survey, 485 acres were charged on the duplicate with 
 taxes as the property of Theodoric Bland, and was so adver- 
 tised for sale. In what part of the tract was this 485 acres 
 located ? We are not informed, either by the duplicate, or by 
 the advertisement. It is altogether uncertain. The same 
 remark may be made with respect to the 846 acres, taxed in 
 the name of Dangerfield. The complainants attempt to avoid 
 this difficulty by assuming that this defect is caused by the 
 sale, alleging, that as both tracts constitute the whole survey, 
 and as both were sold to one person, there can be no diffi- 
 culty about the location. If, however, there was error in the 
 duplicate and advertisement, that cannot be cured by a sub- 
 sequent sale and purchase. The two parcels must have been 
 sold separately, or the sale would be void, and the case must 
 be decided as it would have been had the sales been made to 
 different individuals. This case is like that of Lafferty v. 
 Byers, in which the sale was held void, and upon the author- 
 ity of that case we hold this sale to be void." 
 
 In Perkins v. Dibble,^ the land was thus listed : — 
 
 Owners. 
 
 Range. 
 
 Town. 
 
 Section. Lot. 
 
 Acres. 
 
 Tax. 
 
 Jos. Yeomans. 
 
 3 
 
 18 
 
 1 
 
 9 and 9 
 north part. 
 
 nnn D. 0. M. 
 1°0 3 49 5 
 
 * The map in the county auditor's office showed how * 130 
 the land described in the list was located, and was ad- 
 mitted in evidence, subject to- objection. The Court, after 
 stating that upon the facts there would be no difficulty in 
 finding the land, had it been conveyed by a similar descrip- 
 tion in a deed, proceed to say, " But although this description 
 might be sufficiently certain in a deed, it does not follow that* 
 it is sufficiently certain to maintain a sale for taxes. In order 
 that such sale may be sustained, it is necessary that all the 
 requisitions of the law under which they are made, should 
 
 J 10 Ohio, 433. 
 
144 OF THE LISTING AND VALUATION OP THE LAND. 
 
 have been complied with, and any departure from these 
 requisitions will defeat the sale. Such has been the uniform 
 decision of this Court." The law under which this sale was 
 made is the act of February 3, 1835, section ten of which 
 required the assessor to take a list of all taxable property, &c., 
 and for that purpose it was made his duty to visit each house 
 in the county, &c. ; and section eleven provided, that the 
 list " shall particularly set forth the name of the owner or 
 owners, the number of acres of land in each particular tract, 
 lot, section, or subdivision thereof, the range, township, sec- 
 tion, quarter section, tract, lot, or part thereof, or the num- 
 ber of the entry, location, survey, or watercourse, as the 
 nature of the general or particular surveys may require, so as 
 completely to designate or identify the same." The Court, in 
 giving to this law a construction, arrived at the conclusion, 
 that the listing of the land in controversy was not in con- 
 formity to the law, and pronounced judgment accordingly, 
 saying, " The great object here is to have the lists so made 
 out as to designate and identify the land, and the different 
 modes of division in the different parts of the State referred 
 to, whatever that division may be, whether into entries and 
 survej'^s, or into townships, sections, quarter sections, tracts, 
 or lots ; the number of acres in each division or subdivision 
 must be separately and particularly set forth. If the owner 
 
 of the land does not furnish a list, it is made the duty 
 * 131 of the assessor to make it * out ; and having taken 
 
 these lists, and having affixed a value to the property, 
 it is his duty to return an abstract of the same to the county 
 auditor. From this abstract returned, the county auditor 
 was to make out a tax duplicate. That there should be no 
 mistake, the thirty-ninth section of the act describes the 
 forms which shall be made use of by the officers, whose duties 
 are prescribed in the act. These forms show that, both in 
 'the list and in the duplicate, the precise number of acres in 
 each particular tract, or lot, or part thereof, must be particu- 
 larly set forth. In the case now before us, this was not done ; 
 the description is, one hundred acres in the north part of two 
 lots. It does not show the number of acres in each particular 
 lot, and is not in this respect in conformity with the law. 
 
OP THE LISTING AND VALUATION OP THE LAND. 145 
 
 No case precisely like the one before us has ever been decided 
 by the Court, but adopting the principle by which we have 
 been governed in cases somewhat analogous, we must hold 
 that this tax sale was void, and that the deed made in pursu- 
 ance thereof conveyed no title." 
 
 In Ttirney v. Yeomau,^ which was a bill in chancery for a 
 partition, the facts were that survey numbered 988, calling 
 for one thousand acres, was patented by the United States to 
 Hector McNeal and Joseph and Robert Wilkins, as tenants 
 in common. The plaintiff claimed title to an undivided third 
 of said survey, being the interest of the said McNeal, under 
 and by virtue of a sale thereof for taxes, made July 8, 1833. 
 The land was listed for taxation as three hundred and thirty- 
 three acres in the original survey of one thousand, without 
 specifying in what part of the survey it lay.^ The law under 
 which the sale took place made the deed primd facie evidence 
 of the regularity of all the proceedings. The Court held the 
 listing void, and that no title passed to the purchaser. Read, 
 J., delivered the opinion : " The only question necessary to 
 be considered in this case is, whether the land sold was suffi- 
 ciently described in the listing for taxation, to pass the title 
 under the sale, &c. It is sought to cure the defec- 
 tive description in the listing, by * the description and * 132 
 recitals in the deed, &c. If the description and recit- 
 als in the tax deed were of absolute force, and could not be 
 contradicted, the complainant would be entitled to the relief 
 sought, under the statute which authorizes the purchaser at 
 tax sales, of an individual interest, to have partition among 
 the tenants in common. But the late decision of this Court, 
 which gives effect to tax deeds without other proof to sup- 
 port them, by virtue of the statute which declares they shall 
 be primd facie evidence of title, does not prevent said sale 
 from being questioned and set aside, by showing that the 
 requisition of the statute authorizing and prescribing the 
 mode of tax sales, had not been complied with. It merely 
 changes the onus of proof. If the description in the listing, 
 then, be not sufficient, it may be shown to destroy the deed ; 
 nor can such defect be cured by the description and recitals 
 
 1 16 Ohio, 24. 3 See infra, pp. * 283, * 356. 
 
 10 
 
146 OF THE LISTING AND VALUATION OF THE LAND. 
 
 in the deed, or other proof. The land listed for taxation 
 .must be described with sufficient certainty to point out what 
 particular lands, and the description in the deed is limited to 
 the description in the listing. Now it might be contended, 
 with much reason and force, that it being the duty of the 
 owner to list his land for taxation, he ought not to be per- 
 mitted to question a tax. deed, by showing that he failed to 
 perform his duty, by giving a wrong or vague description. 
 It would have been well in the first instance, perhaps, to have 
 held this doctrine, but the opposite principle has always been 
 observed, and been too frequently asserted to be disturbed, 
 except by legislative interference, whicii would give it only a 
 prospective effect. The land is not described in the listing 
 as land held in common, not as an undivided interest of 333 
 acres in the original survey 'of 1000, but simply as 333 acres 
 somewhere in the original survey of 1000, without specifying 
 in what part of such survey. It is precisely the same as the 
 case of Lafferty v. Byers,^ which was a listing of 73 acres, in 
 a survey of 170.. It was held not to be .sufficiently c'ertain; 
 and numerous decisions support the same principle, and 
 * 133 it never has been otherwise decided. We hold, * there- 
 fore, that the tax deed is invalid, because the land was 
 not sufficiently listed for taxation." 
 
 In Hannel v. Smith,^ the description was, " 30 feet between 
 Chestnut and Elizabeth streets; value $210 — tax for 1841, 
 $5.25." By the Court: "It is admitted, that according to 
 numerous decisions of this Court, heretofore made upon this 
 subject, this description is defective ; but it is claimed that 
 these decisions are all wrong and that this Court have been 
 led into error by following the decision of the Supreme Court 
 of the United States, in the case of Stead's Executors v. 
 Course ; and the opinion of Judge Marshall, in that case, has 
 been commented on with no little severity. It may be that 
 the counsel is right, and that the Supreme Court of the United 
 States, and this Court, are all wrong. But we generally feel 
 that we are pretty well fortified, if our decisions are sustained 
 by the authority of the highest Court in the Union, &c. But 
 aside from the decisions of this Court, is the description of 
 
 1 5 Ohio, 457. s 15 Ohio, 134. 
 
OP THE LISTING AND VALUATION OP THE LAND. 147 
 
 the land, as entered upon the duplicate, sufficient? The law 
 requires ' a pertinent description of the property, so as to 
 identify the same.' The number of the lot is not given. It 
 is not stated whether it is an entire' lot, or a part of the lot. 
 It does not appear whether it is thirty feet front, or thirty 
 feet square. And if thirty feet front, it is not stated upon 
 what street it fronts. There is, .in fact, nothing in the de- 
 scription by which the land can be identified." ^ 
 
 In Richardson v. State,^ which was a suit for taxes, under 
 a statute requiring the intervention of judicial proceedings 
 in the collection of taxes, the list described the land as " 56 
 acres in the southeast quarter of Section 8, Township 12, 
 Range 13 ; " and the description was held too imperfect to 
 authorize a judgment against the land. 
 
 In Currie v. Fowler,^ which was an ejectment by the 
 appellee against the appellant, the former claimed under a 
 tax deed. The law required that the list should men- 
 tion the watercourse * upon which the land was situ- * 134 
 ated. The land in question was entered as lying upon 
 the waters of " Big Boone," while the list described it as 
 lying upon the borders of " Bank Lick." The Court held 
 the sale void. " The design of the law in requiring the own- 
 ers of the land to state the watercourse upon which it was 
 situated, in his list of taxable property, was twofold : 1. To 
 identify the tract, and to enable the sheriff in his advertise- 
 ment to describe it accurately, if it became necessary to sell 
 it. 2. To enable those who might be disposed to purchase, 
 to fi.nd it by the description, ascertain its value, and regulate 
 their bids accordingly. The sheriff advertised and sold five 
 thousand acres on Bank Lick, and gave his certificate accord- 
 ingly. When the surveyor thereafter surveyed " Big Boone," 
 
 . 1 So where neither number of square nor of lot, nor name of street, is given, 
 the assessment does not sufficiently identify tlie land under the Louisiana statute 
 of 1847. Woolfolk V. Fonbene, 15 La. Ann. 15. An assessment on " Balance 
 of land on Rancho A., 10,090 acres at four dollars per acre, $40,360," was held 
 valid, it appearing by the assessment roll that the part of the ranch not so assessed 
 was comprehended within the plat of a town, certain lots in which were assessed 
 on the same list to the same owner. Patten v. Green, 13 Cal. 325. 
 2 5 Blackf. 51. " 5 J. J. Marsh. 145. 
 
148 OP THE LISTING AND VALUATION OF THE LAND. 
 
 and the sheriff afterwards conveyed the land thus surveyed, 
 they departed from the law, and so far their acts conveyed 
 no title. We know of no precedent for getting over a vari- 
 ance in the watercourse, and we are not disposed to make 
 one. Bidders and purchasers have no right to complain, 
 when they purchase land upon one stream, that they must 
 find it there, or not get it at all. We are not disposed to 
 help them out of their speculations, although we will give 
 them full justice by presuming that all was right, until the 
 contrary appears. If in the present case, the sheriff had 
 advertised laud for sale as being land lying on Big Boone, 
 persons might, for any thing known to us, have attended the 
 sale, and paid the taxes for half the quantity claimed by 
 Fowler. It was the sheriff's duty to advertise, however, in 
 pursuance of the auditor's transcript, and to sell accordingly ; 
 the error consists in going to a different quarter of the coun- 
 try afterwards, to hunb the land." 
 
 In Lachman v. Clavk,i a description of the property as " a 
 ranch, commonly known as ' Clark's Ranch,' situated on the 
 Auburn road, two miles south of Grass Valley, in Nevada 
 county. State of Califonia," was held insufficient, the statute 
 requiring that land outside of a city or incorporated town 
 
 should be described by metes and bounds ; the number 
 * 135 of acres as * nearly as possible, and the locality and 
 
 township, should be given.^ 
 
 1 14 Cal. 131. 
 
 2 So " house and lot north side of Commercial street, formerly owned by 
 Belle Creole, also brick store nortli side of Commercial street, and second from 
 the corner of Pine and Commercial, including lot and all the appurtenances, seven 
 thousand dollars," there being at the top of the page containing description the 
 •words, " Nevada County, Nevada Township, Nevada City," is fatally defective 
 in failing to give metes and bounds, or lots and fractions of lots. Kelsey u. 
 Abbott, 13 Cal. 609. So a tax deed describing the property as " A lot on Dupont 
 street, 137 feet and 6 inches from the north-west corner of Washington street, with 
 the improvements thereon, 12 X 100," is void for uncertainty in the description. 
 Keane v. Cannovan, 21 Cal. 291 ; see also 38 Cal. 224. " The unsold portion" 
 " of eleven square leagues of land, known as Los Mokelamos," is fatally defective. 
 People V. Pico, 20 Cal. 695. " Block No. 25 less a lot, belonging to Bryant, 
 70 X 137J, in the S. E. corner," held sufficient. Wetherbee v. Dunn, 32 Cal. 106. 
 So four hundred acres of land situated on the V. & J. road in township No. 1 of 
 the county of A. and State of C, and commonly known as the " New York 
 
OF THE LISTING AND VALUATION OP TKtE LAND. 149 
 
 In Brown v. Dinsraoor,i the statute provided, " that the 
 selectmen, &c., shall make out in writing under their hands, 
 and deliver the same to the several collectors, &c., a list of all 
 such assessments, and insert therein the name of the owner, if 
 known, otherwise the name of the original proprietor, and the 
 number of acres taxed, and the number of the lot and range ; 
 and the proportion of each assessment to each lot or tract of 
 land taxed, shall be set against said lot or tract of land in the 
 list aforesaid ; and if any building of a non-resident shall be 
 taxed, the number of the lot, or other description of the land 
 whereon it stands, shall be mentioned in said list. And if 
 the name of the owner and the original proprietor of any land 
 be unknown, the quantity of land, the number of the range 
 and lot, if lotted, otherwise such description of the land taxed 
 as it is usually known by, being inserted in said list, shall be 
 a sufficient description of said land." The land in contro- 
 versy lay in Chester, the former owner resided in London- 
 derry, and was inserted in the list as a non-resident proprietor, 
 but his land was not described in the list. It was contended 
 by those who argued against the validity of the tax sale, that 
 
 Rancho," was held sufficient under Revenue Act of 1857, under which the 
 assessment of lands outside of a city or incorporated town need not describe the 
 land by metes and bounds. High v. Shoemaker, 22 Cal. 363 ; and that it is 
 sufficient to describe the tract by its name merely, see People v. Leet, 23 Cal. 161. 
 So where a tract of land was commonly known and described as the " vacant 
 strip," and was so assessed for taxation, a de'Scription in a tax deed of a part 
 thereof sold for taxes as the " north one-third of the north half of the vacant 
 strip," held sufficient, and this where the northerly and southerly boundaries 
 (which were parallel) deflected largely from a due east and west line. Whitney 
 V. Gunderson, 31 Wise. 359. Blocks of land not subdivided are properly assessed 
 and described for taxation by blocks; if they have been subdivided, still that 
 description is sufficient, when they are assessed to the owner. People v. Culver- 
 well, 44 Cal. 620 ; see also People ^. Morse, 43 Cal. 534. In People v. Flint, 
 39 Cal. 670, the following description was held insufficient : — 
 
 " 81.160 acres grazing land, value $32,464 
 
 18.193 
 
 $50,657." 
 
 So "Los Mariposa or Fremont Grant" (describing it by metes and bounds), 
 "less the town lots sold in Bear Valley and Mariposa," held insufficient. People 
 V. Mariposa Co. 31 Cal. 196, " Steam mill in South Lansing " held a sufficient 
 description in an assessment roll in Shaw v. Orr, 30 Iowa, 355. 
 1 3 N. H. 103. 
 
150 OP THE LISTING AND VALUATION OP THE LAND. 
 
 where the owner is known, the statute requires no descrip- 
 tion of the land taxed ; that it is only in cases where the 
 owner is unknown, that the number of the lot and range, or 
 some description of the land, is required to be inserted. The 
 other side contended that not only the name of the owner, or 
 original proprietor, if known, must be inserted, but also the 
 number of acres taxed, and the number of the range and lot. 
 The Court, in deciding the question, say, that " such is the 
 language of the statute, that it maybe construed either way," 
 and conclude that the name of the owner and a description 
 of the land was the true construction, and the list was held 
 
 void because the range and lot were not set forth. 
 * 136 * In Ainsworth v. Dean,^ the listing and subsequent 
 
 proceedings were held void ; the facts of the case, the 
 statute, and reasoning of the Court sufficiently appear in the 
 following extract from the opinion delivered in the cause : " It 
 is defective, because neither the number of the lot, nor of the 
 range, is inserted," though it appears that the land was lotted. 
 The land is described as ' sixty-eight acres, part of the gov- 
 ernor's right.' This description is altogether too indefinite. 
 Tlie statute provides, that the description must be such ' as 
 the land may readily be known by,' and this description does 
 not answer such a requirement." 
 
 In the Bank of Utica v. Mersereau,^ there was a sale of 800 
 acres of land, to be laid out in a square form, as nearly as 
 might be, in the north-west corner of 2,401 acres, in township 
 one, assessed to John Garrettson, and described in the assess- 
 ment list as "bounded on the south by Joshua Mersereauand 
 others, west by the town line, north by Rathborn and the town 
 line, and east by the Tioga river." There was no proof that 
 Rathborn ever owned any land in the township, according to 
 the call in the list and deed, and the description was held void 
 for uncertainty. 
 
 Under the curative act of Pennsylvania, which declares that 
 "no irregularity in the assessment" shall invalidate the sale, 
 it has been held, that an imperfect description, but one calcu- 
 lated to inform the owner that his land has been assessed, will 
 
 1 1 Foster, 400. 
 
 2 S Barb. Cli. 528. 
 
OF THE LISTING AND VALUATION OP THE LAND. 151 
 
 be regarded as sufBcient.^ And in Williston v. Colkett,^ (a) 
 a tract of land described in a warrant as containing 999 acres, 
 and which was originally assessed to the warrantee, and 
 described by the number of the warrant, the name of the war- 
 rantee, and the number of acres, was reduced in quantity by a 
 sale to 600 acres. Mann, who was the purchaser from the 
 warrantee, neglected to list his portion of the tract ; the 
 assessor * inserted it in the list as unseated land, and * 137 
 described it as containing 200 acres, and Mann recog- 
 nized this listing by paying taxes upon his portion for two 
 years ; and the court held, that (the number of acres being 
 simply descriptive) as he had neglected to list the land, and 
 had taken advantage of the mistake in the quantity for two 
 years, the defect must be regarded as cured by the statute.* 
 
 1 Strauch v. Shoemaker, 1 Watts & Serg. 175 ; Miehew v. McCoy, 7 Watts & 
 Serg. 390; Dundeu v. Snodgrass, 6 Har. (Penn.) 151. The California statute, 
 which gives a new remedy by civil action for taxes already due, and provides 
 that any informality in the levy or assessment shall not be set up in defence, is 
 constitutional. People v. Seymour, 16 Cal. 332. 
 
 2 9 Barr, 38. 
 
 (a) The unseated land sets contemplate taxation by single tracts following 
 the title of the owner, and neither the assessors nor a stranger can by division 
 of an entire tract without the knowledge of the owner affect his title ; and where 
 an entire tract is divided and returned without the consent of the owner and 
 both parcels are taxed, it is a double assessment. An intruder had one hundred 
 and fifty acres marked off without the consent of the owner, and it was assessed 
 as such and sold for taxes, hdd, that the purchaser acquired no title. Reading 
 V. Finney, 73 Penn. St. 467, and cases there cited. 
 
 3 See also Brown v. Hays, 66 Penn. St, 235 ; Reading v. Finney, 73 Penn. St. 
 467 ; Glass . o. Gilbert, 58 Penn. St. 290, in which latter case it is held that 
 although there be no other element of description, if the name in which it is 
 assessed has become linked to the land by some known claim of title or pos- 
 session, it is a source of identification, and will support the assessment. An 
 assessment of a certain number of acres of land without any otlier description 
 or means of identity, in the name of a person unknown in connection with any 
 title or possession of the land, will not support a sale of the land as unseated for 
 taxes. Philadelphia u. Miller, 49 Penn. St. 440. This case was explained to 
 mean that an assessment is void only when it wholly fails to lead to identification. 
 Glass V. Gilbert, 58 Penn. St. 290; Lyman v. Philadelphia, 56 Penn. St. 488; 
 see also Brotherline v. Hammond, 69 Penn. St. 128, in which the name " Dan'l 
 Kladder " was held not idem sonans with " Dan'l Kritler," and not sufScient to 
 identify the tracts. The land must in some way be identified from something 
 appearing in the assessment. Lyman v. Philadelphia, supra. See p. *144, 
 note. Where the owner of unseated land returns a description of it for taxa- 
 tion, and it is so assessed for two years, and then the assessment is so changed in 
 
152 OP THE LISTING AND VALUATION OF THE LAND. 
 
 Where, in the description, initial letters, abbreviations, and 
 figures were used, thus : " E. i S. W. I, section 24, town 3, 
 south of range 7 west, 80 acres, &c.," the proceeding was 
 held regular.^ 
 
 The validity of the listing oftentimes depends upon the 
 character of the land. Each State being governed by its own 
 peculiar local policy, lands are divided into classes, a legal 
 character is assigned to each, and the assessors are directed 
 to list them accordingly. Sometimes a particular class is 
 exempt from sale, and the tax made a charge upon the per- 
 son or goods of the owner. It maybe laid down as a general 
 rule, that wherever a confusion of these different classes takes 
 place," and the requirements of the statute are disregarded by 
 the officers charged with the duty of listing, the land, the pro- 
 ceeding will be held illegal and void. 
 
 In Pennsylvania, lands are divided into two classes for the 
 purposes of taxation, — seated and unseated ; in other words, 
 vacant and occupied lands. These are never blended together, 
 but separate lists are required. Lands which. are occupied are 
 placed upon the seated lists ; those which are vacant are listed 
 as unseated, (a) . No change can be made of the land from one 
 list to the other, without the joint act of the owner and the 
 county commissioners and assessors. No lands can be sold 
 unless they are unseated in point of fact, and regularly listed 
 as such. The remedy of the State, for taxes due upon the 
 seated list, is against the occupant alone. No lien exists upon 
 the land itself, and where no personal property of the owner 
 or occupant can be found, the tax is lost. In such cases the 
 assessor has no authority to list the land, the collector has no 
 power to sell it, and the purchaser is chargeable with 
 * 138 notice of the fact that the * land is occupied, and pur- 
 chases at his peril.2 [But by act of 1844, seated lands 
 
 name and quantity that the owner cannot recognize the tract, a sale is void. 
 Brettaugh v. Locust Mt. Coal Co. 7 Am. Law Eeg. (n. s.) 109. See infra, 
 p. * 144, note. 
 
 1 Sibley u. Smith, 2 Gibbs (Mich.), 503. See Act No. 169, Sess. Laws of 
 Mich, of 1869, § 23, sub. 7. 
 
 (a) In Pennsylvania unseated land is debtor for taxes, and maj' be sold, no 
 matter who may'be the owner or in whose name assessed. Reading v. Finney, 
 73 Penn. St. 467. 
 
 2 Young V. Martin, 2 Yeates, 312 ; Owens v. Vanhook, 3 Watts, 260; Patter- 
 
OF THE LISTING AND VALUATION OP THE LAND. 153 
 
 may also be sold for taxes, actual notice ^ of the sale being 
 given bjr the treasurer of the county to the owner ; and the 
 latter has one year from such time, in vi^hich to redeem.^ 
 But this act did not include road taxes. They are still a per- 
 sonal charge on the owners.^] 
 
 The policy of this system of taxation is thus explained in 
 Burd t>._ Ramsay : * " The selling of lands for the trifling amount 
 of taxes usually due upon them, is always attended with incon- 
 venience and vexation to the owners, who are often involved 
 in trouble and expense by the sheer neglect of the collectors, 
 who seldom make a personal demand. This, and not the 
 amount to be paid, has been the cause of the repugnance con- 
 stantly evinced to acts of Congress laying a land tax, which 
 have always contained a provision for the sale of the land 
 itself. Our State legislature, on the contrary, have ever been 
 guided by the wise policy of not looking to the land in that 
 class of cases which necessarily afford a reasonable probability 
 of obtaining the tax from the person or chattels of the owner. 
 They seem to have supposed, that on every tract of land in 
 actual occupancy, sufficient personal property would be found 
 to satisfy the demand, by distress, &c." A tract of land 
 ceases to become unseated as soon as it is occupied with a 
 view to permanent use, and that occupancy may be said to 
 commence with the moment of entry for the purpose of clear- 
 ing the land.® As soon as a person enters upon an unseated 
 tract of land, whether under title, claim of title, as a tenant 
 
 son V. Blackmore, 9 Watts, 104 ; Commissioners v. Smith, 10 Watts, 391 ; McKee 
 u. Lamberton, 2 Watts & Serg. 107 ; Hookenbury v. Snyder, 2 Watts & Serg. 
 240 ; Cranmer v. Hall, 4 Watts & Serg. 36 ; Larimer v. McCall, 4 Watts & Serg. 
 133 ; Smith v. McGrew, 4 Watts & Serg. 338. 
 
 i This notice must be precise and full ; an unoflScial and unauthorized notice 
 is no notice. Broughton v. Journeay, 51 Penn. St. 31. 
 
 2 Miller u. Gorman, 2 Wright (Penn.), 309. See Broughton v. Journeay, 
 51 Penn. St. 31. Under this act land was placed on the seated list by owner, 
 and sold as seated, after it had in fact become unseated. Held, that the sale 
 was void ; sales of seated land under this act pass title only when the land is in 
 fact seated. Hathaway v. Elsbree, 54 Penn. St. 498. A return of land as 
 " unimproved " describes unseated land. Ibid. 
 
 3 See Arthurs v. Smathers, 2 Wright (Penn.), 40. 
 * 9 Serg. & Eawle, 109. 
 
 5 Wallace u. Scott, 7 Watts, 248 ; Milliken v. Benedict, 8 Barr, 169 ; Biddle 
 V. Noble, 68 Penn. St. 289. 
 
154 OF THE LISTING AND VALUATION OF THE LAND. 
 
 of the owner, or an intruder, and becomes a resident upon it, 
 or without becoming a resident, improves and occupies 
 * 139 it in such a way as to * furnish upon the land the means 
 of making and levying the taxes by distress, it must be 
 considered in law'as seated and no longer liable to be assessed 
 with taxes, and sold for them if they remain unpaid. The 
 officers need not inquire, nor are they bound to kngw, by 
 what authority he has entered upon and taken possession of 
 the land.i Residence without cultivation, or cultivation with- 
 out residence, or both combined, will constitute a seating of 
 the land ; ^ and where the land is actually possessed by resi- 
 dence thereon, it cannot be sold for taxes, whether the occu- 
 pier has personalty sufficient to pay the tax or not.^ One in 
 possession of a portion of a tract of land, having title or claim- 
 ing title to the whole, is, in judgment of law, an occupant of the 
 entire tract, and the vacant portions of it cannot be listed and 
 sold as unseated.* [And the cultivation of several acres fixes 
 the denomination of the whole, and charges the person of the 
 cultivator so as to render a sale for taxes illegal, (a) But 
 where a number of adjoining tracts warranted to different 
 persons were conveyed in one body by courses and distances, 
 all the warrants being recited, and were assessed in different 
 tracts in the names of the respective warrantees and sold sep- 
 
 1 Campbell v. Wilson, 1 "Watts, 503 ; Larimer v. McCall, 4 Watts & Serg. 
 133; s. c. 4 Watts & Serg. 351. That the land is decreased in value by the 
 lumbering or mining, &c., done upon it does not alter the case. George v. 
 Messinger, 73 Penn. St. 418 ; Lackawanna Iron Co. a. Fales, 55 Penn. St. 90. 
 Cultiration is sufficient without regard to the value of the product or its 
 adec[uacy to discharge the taxes. George v. Messinger, supra. 
 
 2 Kennedy v. Daily, 6 Watts, 269 ; Wilson v. Watterson, 4 Barr, 214 ; Hath- 
 away V. Elsbree, 54 Penn. St. 498 ; George v. Messinger, 73 Penn. St. 418, and 
 cases there cited. 
 
 3 Campbell v. Wilson, 1 Watts, 503. 
 
 < Campbell v. Wilson, 1 Watts, 503 ; Larimer v. McCall, 4 Watts & Serg. 133, 
 351; Ellis t,. Hall, 6 Har. (Penn.) 292; Mitchell u. Bratton, 5 Watts & Serg. 
 451 ; Biddle v. Noble, 68 Penn. St. 279. 
 
 (a) Biddle u. Noble, 68 Penn. St. 289, citing Sheaffer v. McCabe, 2 Watts, 
 421 ; Nash d. Barr, 5 id. 441. And where the owner, by articles reciting that 
 M. owns an improvement on which he now resides, &c., agrees to sell him 
 two hundred acres of a larger tract, so as not to interfere with the claim of any 
 other settler, held, that this does not so define the land as to sever it from the 
 remainder of the tract so as to leave the remainder unseated. Biddle v. Noble, 
 supra. 
 
OP THE LISTING AND VALUATION OF THE LAND. 155 
 
 arately for taxes, and on one saw-mills had been erected by 
 the owners of the whole, from which timber was to be sup- 
 plied for manufacture at the mills, it was held that this did 
 not constitute the whole one seated tract ; that the tax laws 
 as to unseated lands treat them entirely in reference to the 
 original warrants, when not otherwise directed by the own- 
 ers, (a)] And the quantity occupied is immaterial, so that 
 the intent is manifest to take and hold possession of the entire 
 tract. [And the character of a tract as seated is not changed 
 by the running of a new county line, which throws a portion 
 of the woodland into the new county; and the woodland 
 thus cut off cannot be assessed as unseated.'^ So the im- 
 provement of part of a tract of land under a lease, whereby the 
 tenant is to have the use of that part only, will render the 
 whole tract seated, and prevent its being sold for taxes as 
 " unseated " land.^ So a clearing, over the line of a tract, by 
 an intruder, with full knowledge of its position, but without 
 any act indicating an intention to claim a part of the tract to 
 the exclusion of the residue, does not destroy the entirety of 
 the tract, but the whole thereby becomes seated ; and its 
 subsequent assessment and sale as unseated conveys no title.^] 
 But where one, with or without color of title, takes posses- 
 sion of unseated lands belonging to another, and desig- 
 nates the extent of his claim, * or the portion he means * 140 
 to occupy, by lines marked upon the ground, and con- 
 fines himself within such lines, his possession will not be 
 taken to extend beyond such lines, so as to give the character 
 of seated to the rest of the tract.* An accidental or tempo- 
 rary suspension of the actual occupancy of land does not 
 authorize a sale of it as unseated.^ The occupant may aban- 
 
 (a) Heft V. Gephart, 65 Penn. St. 510. -Portions of distinct warrants, becoming 
 united in fact by purchase, may be returned and assessed in this new form by 
 whatever designation their owner may choose, and be sold as a unit. Heft v. 
 Gephart, supra; Harper v. McKeehan, 3 W. & S. 238. 
 
 1 ElHs V. Hall, 6 Har. (Penn.) 292 ; explained in Patton v. Long, 68 Penn. 
 
 St.- 263. 
 
 2 Green v. Watson, 10 Casey (Penn.), 332. 
 
 3 Jackson u. Fletcher, 1 Grant's Cas. 459. And see Jackson v. Sassaman, 
 5 Casey (Penn.), 106. 
 
 * Mitchell V. Bratton, 5 Watts & Serg. 451. 
 
 s See Arthurs v. Smathers, 2 Wright (Penn.), 44, 
 
166 OP THE LISTING AND VALUATION OP THE LAND, 
 
 don his claim, and thus discharge his person and personal 
 property from liability for the tax. (a) But it must be 
 evinced by acts which leave no doubt of his intention ; in 
 other vfords, it must be an entire and total abandonment of 
 his claim, and not a mere suspension of his possession, — no 
 animus revertendi must exist in the mind of the occupant.^ 
 The owner of the claim, or occupant, cannot abandon the 
 possession of a part of an entire tract, which was, prior to the 
 time of the alleged abandonment, regarded and listed as seated 
 land : to constitute any portion of it unseated, and authorize 
 its transfer to that list, there must be an abandonment of the 
 entire tract.^ It is presumed, however, that where there is a 
 claim to an entire parcel, and the occupant is in possession of 
 only a portion, and he abandons that occupancy, the whole 
 claim becomes unseated. The point has not been decided, 
 but as a partial occupancy, under claim of title to the whole, 
 gives a constructive possession to all, the reasonable inference 
 is, that when he abandons the actual possession, the construc- 
 tive possession, based upon it, goes along with it. Where 
 the facts are admitted, or clearly proved, the question 
 whether there has been an abandonment, is one of law ; where 
 the facts are disputed or doubtful, it is a question of fact ex- 
 clusively within the province of a jury, under the direc- 
 * 141 tion of the Court, as in other cases.^ The cases * are 
 uniform as to the consequences of an abandonment. It 
 discharges the owner and his personalty from liability, ren- 
 ders the land unseated, creates a lien upon it for the tax, 
 which can only be enforced by a sale of the land itself.* Where 
 
 (a) The non-payment of taxes by the owner is not an abandonment ; the 
 doctrine of abandonment applies only to imperfect titles held by warrant and 
 survey, and not to land held by perfect title. Hoffman v. Bell, 61 Penn. St. 444. 
 
 1 Harbeson v. Jack, 2 Watts, 124 ; McKibbin v. Charlton, 2 Har. (Penn.) 128; 
 Sheaffer v. M'Kabe, 2 Watts, 421 ; Fish u. Brown, 5 Watts, 441 ; Milliken v. 
 Benedict, 8 Barr, 169 ; Keating v. Williams, 5 Watts, 382 ; Kennedy v. Daily, 
 6 Watts, 269. 
 
 2 Patterson v. Blackmore, 9 Watts, 104. 
 
 3 Wilson V. Watterson, 4 Barr, 214 ; Gibson v. Robbins, 9 Watts, 156 ; Forster 
 V. M'Divit, 5 Watts & Serg. 359. 
 
 4 Harbeson w. .Jack, 2 Watts, 124; MoKibben v. Charlton, 2 Har. (Penn.) 
 128 ; Sheaffer v. M'Kabe, 2 Watts, 421 ; Fish v. Brown, 5 Watts, 441 ; Gibson 
 V. Robbins, 9 Watts, 156 ; Forster v. M'Divit, 5 Watts & Serg. 359 ; Wilson v. 
 Watterson, 4 Barr, 221 ; Kennedy v. Daily, 6 Watts, 273. 
 
OF THE LISTING AND VALUATION OF THE LAND. 157 
 
 the owner of a parcel of seated land, in clearing and improving, 
 encroached upon an adjoining unseated proprietor a few feet 
 or yards, it was held, that the encroachment would not deprive 
 the latter of its legal character, as unseated ; but the Court 
 intimated an opinion, that an encroachment of several acres 
 would.^ It would seem to be simply a question as to the inten- 
 tion of the intruder ; if he entered upon the adjoining tract 
 for the purpose of acquiring a right in hostility to the owner, 
 he would become seated upon the land ; if he encroached 
 under a mistaken belief as to the extent of his boundaries, his 
 entry could not give character to the land encroached upon, as 
 seated.^ It is evident that the quantity occupied is immaterial, 
 where the intention is manifest to take possession of the entire 
 tract.^ Where one is possessed of a part, claiming title to the 
 whole, and the tract is divided afterwards by the organization 
 of a new county, and the vacant part of the tract is in the new 
 county, this does not change the character of the land as 
 seated.* Where the original tract contains four hundred acres, 
 a portion of which is occupied and listed as seated lands, and 
 afterwards the owner sells one hundred acres of the tract, over 
 which his occupancy did not extend, the portion sold loses its 
 character of seated land.^ But where an unseated tract de- 
 scends to several heirs, and some of them sell and convey their 
 undivided interest in the land to a stranger, who enters 
 and * occupies, the whole of the tract will be regarded * 142 
 as unseated.® The question whether lands are seated 
 or unseated, is a question of fact for a jury.'^ Where the land 
 is unseated at the time of the assessment, but becomes seated 
 
 1 Pish V. Brown, 5 Watts, 441 ; Campbell v. Wilson, 1 Watts, 503. 
 
 ^ See 'Forster v. M'DiTit, 5 Watts & Serg. 369 ; Jennings v. McDowell, 1 Cas. 
 (Penn.) 387. 
 
 3 Ellis V. Hall, 6 Har. (Penn.) 292. * Ibid. 
 
 6 Campbell v. Wilson, 1 Watts, 503. Where a tract had been divided and 
 part was seated and part unseated, and the whole was assessed together and sold 
 for taxes, although the assessment was irregular, the sale passed a title to the 
 part unseated, and the irregularity in assessment was such as would be cured 
 by sec. 4 of the Act of March 13, 1815. Dietrick v. Mason, 57 Penn. St. 40. 
 
 6 Erwin v. Helm, 13 Serg. & Eawle, 151. 
 
 ' Kosenburger v. SehuU, 7 Watts, 390. The credibility of witnesses, though 
 uncontradicted, is for the jury ; unless the facts are admitted, it is the province of 
 the jury to determine under proper instructions whether land is seated or not. 
 Madara v. Eversale, 62 Penn. St. 165. 
 
158 OP THE LISTING AND VALUATION OP THE LAND. 
 
 before a sale takes place, a sale of it as unseated will be sus- 
 tained.^ Where unseated land is assessed upon the seated list, 
 it cannot be sold.^ And where the land is cultivated, it can- 
 not be assessed as unseated, though the owner does not reside 
 on it. And the assessor is not authorized to return it as such, 
 if there be marks of cultivation without residence, which puts 
 him upon inquiry ; without the clearest signs of abandonment.^ 
 [And absence from the land for a little more than a year, has 
 been held insufficient abandonment to render the land taxable 
 as unseated land.*] So, if a tract of land which is, in point of 
 fact, unseated, be assessed as seated land, with the knowledge 
 and assent of .the owner, and the commissioners of the county, 
 it must be taken as seated so far as regards the assessment and 
 collection of the taxes ; and a sale of it for taxes, as unseated, 
 would be void. Land which is, in fact, unseated, and which 
 has been assessed as seated, by an arrangement with and with 
 the knowledge and consent of the owner, and the commission- 
 ers of the county, may, whenever it suits the interests or 
 convenience of the county, upon giving reasonable notice to 
 the owner, be transferred from the seated to the unseated list; 
 but the assessor has no right to transfer such lands to the 
 unseated list without reasonable notice to the owner (when 
 practicable), and if he do so, a sale of it for taxes will be 
 void.^ (a) [But ordinarily where the owner has abandoned 
 
 1 Robinson v. Williams, 6 Watts, 281 ; Murray v. Guilford, 8 Watts, 548. 
 
 2 Milliken v. Benedict, 8 Barr, 169. 
 2 Wilson V. Watterson, 4 Barr, 214. 
 
 * Arthurs v. Smathers, 2 Wright (Penn.), 44. 
 
 5^ Milliken v. Benedict, 8 Barr, 169. And see Commercial Bank v. Wood- 
 side, 2 Har. (Penn.) 404; Ste'wart v. Trevor, 56 Penn. St. 374; Bechdle v. 
 Lingle, 66 Penn. St. 38 ; Larimer v. McCall, 4 W. & S. 133 ; Bank v. Woodside, 
 2 Har. (Penn.) 404. 
 
 (a) But where unseated land had been on the seated list for many years, but 
 had been on no list for three years including 1861, and on the triennial assessment 
 it was returned as unseated, and sold in 1864 for the taxes of 1862 and 1868, held, 
 that under the circumstances this was an original assessment, and not a case re- 
 quiring notice to the owner. The assessment of unseated lands on the seated list 
 does not change its character so as to render it incapable of sale for taxes. An 
 owner claiming a right to be notified that his land is on the unseated list must 
 have reason to expect that it was on the seated list. Bechdle v. Lingle, 66 Peun. 
 St. 38. But under the 41st section of the Act of April 29, 1844, for the sale of 
 seated land, where unseated land, then temporarily occupied, was at the request 
 
OF THE LISTING AND VALUATION OP THE LAND. 159 
 
 the possession or occupation of land so that it has in 
 fact, become unseated, it may be * transferred to the * 143 
 unseated list, without notice to the owners ; since they 
 must be already aware of the fact.^ And it has been expressly 
 declared, that an abandonment must be entire, unlimited, 
 intentional, and, so long and so clear as to show there is no 
 ground to suppose an intention to resume the occupation, be- 
 fore a town lot, once seated, is liable to be treated as unseated ; 
 unless taxed as such, with notice to the owner.^ ] 
 
 The same rule of strictness, in relation to the listing of 
 lands according to the legal character assigned to them by 
 law, is adopted by the courts in Maine, and it is held, that 
 unless they are listed in conformity with the law, the sale is 
 void. Thus, in Barker v. Hesseltine,^ where the law required 
 " unimproved lands of non-resident proprietors " to be assessed 
 accordingly, and the land in question was listed as the prop- 
 erty of " a noia-resident proprietor unknown," but, in point 
 of fact, belonged to a resident of the town where the prop- 
 erty was situate, and the deed under which he claimed title 
 was duly recorded before the assessment was made ; the Court 
 held the listing and sale void, (a) Other cases in the same 
 court reiterate the principle.* The same doctrine is con- 
 ceded by the Supreme Court of Illinois, in the construction 
 of the statute of 1829, which subjected the land of non- 
 residents only, to assessment and sale ; holding, that where 
 the land listed belonged to residents of the State, all of the 
 
 of the owner placed on the seated list, and taxes so paid for it for several years, 
 such land would not, therefore, remain as seated after the termination of such 
 occupancy until the owners choose to return it as unseated, and if sold before 
 such change as seated, the owner would not be estopped from denying that it 
 was seated. Hathaway v. Elsbree, 54 Penn. St. 498. 
 
 1 Arthurs v. Smathers, 2 Wright (Penn.), 44; Laird v. Hiester, 12 Har. 452, 
 explaining the remarks reported in some of the earlier cases. 
 
 2 Negley v. Breading, 8 Casey (Penn.), 325. 
 
 3 27 Me. 354. 
 
 (a) So in Michigan a provision of law which requires that resident and non- 
 resident real estate shall be separately assessed must be observed, or the 
 assessment will be invalid, and a sale for unpaid taxes not thus assessed will 
 convey no title. Raynor v. Lee, 20 Mich. 384. As to when the condition of 
 the land becomes fixed for purposes of collection of taxes, see p. * 281, note. 
 
 * 22 Me. 402; 24 Me. 283, 386 ; 19 Me. 100. 
 
160 OP THE LISTING AND VALUATION OF THE LAND. 
 
 proceedings are void.^ So in Maine, where land belonging 
 to a resident was assessed as non-resident land, the assessment 
 was held void.^ A similar decision was made in Massachu- 
 setts.^ 
 
 In many of the States the statutes require the land to be 
 
 listed in the name of the owner (a) or occupant of the 
 * 144 land ; (J) in * others the law only directs the name of 
 
 the owner to be inserted, when known. The spirit 
 of this requirement is, to give to the owner additional means 
 in the examination of the tax list, to ascertain whether his 
 land has been assessed ; the law presuming that every sane 
 person will remember his name, if he is unable to distinguish 
 
 1 Messinger v. Germain, 1 Gilm. 631. 
 
 3 Lunt V. "Wormell, 19 Me. 100. 
 
 3 Rising V. Granger, 1 Mass. 48; see also 2 Yeates, 312; 9 S. & R. 109; 
 p. * 144, note. 
 
 (a) An answer to a sufficient complaint in a suit for taxes brought against 
 both the property assessed and the alleged owner, which denies only that the 
 personal defendant was at the time of the assessment the owner of the property 
 or any part thereof, without further denying all claim, title, or interest therein, is 
 not such a denial as by sec. 42 of the Revenue Act is permitted to be made, and 
 raises no issue as to the liability of either defendant. People v, Pearis, 37 Cal. 
 259. In a suit to collect a tax, if it be shown that the land on which the tax 
 was assessed did not belong to the defendant, but to other persons in the actual 
 occupation thereof, holding the title under recorded deeds, this fact establislies 
 a legal fraud which vitiates the entire assessment against the defendant. 
 People V. Castro, 39 Cal. 65 ; see also Milwaukee Iron Co. v. Town of Hubbard, 
 29 Wise. 51. 
 
 {b) And in such case, if not listed in the name of the "owner or occupant," 
 the assessment is void. Mann v. City of Utica, 44 How. Pr. R. 834 ; Milwaukee 
 Iron Co. V. Town of Hubbard, 29 Wise. 56. Under the Wisconsin statutes 
 defining the property rights of married women, the husband, by merely residing 
 with his wife on her separate property, does not become the occupant thereof, so 
 that it can be assessed to him for taxation. Hamilton v. Fond du Lac, 26 Wise. 
 496. Where an ordinance directed the expense of paving to be raised by 
 assessments upon the owners and occupants of lots fronting on the streets, &c., 
 to be paved, and the surveyor was required to state the names of the owners and 
 occupants so assessed in a written report or assessment roll, hdd, that an assess- 
 ment upon " St. Peter's and St. Paul's Cathedral," the roll neither describing 
 the lots nor naming the owners or occupants, is void. Lefevre v. Mayor, &c., of 
 Detroit, 2 Mich. 586. The possession which, under 1 R. S. 389, §§ 1, 2, 3, would 
 justify their assessment to the occupant, where the owner resided in another 
 town, must be the possession of persons themselves liable to taxation. Fellows 
 V. Denniston, 23 N. Y. 420. The meaning of term " occupant " is discussed in 
 4 Mich. 686. 
 
OF THE LISTING ANB VALUATION OP THE LAND. 161 
 
 his land by the description contained in the list. In Louisi- 
 ana, where the statute required the name of the owner to be 
 inserted, and the list stated that he was " unknown," it was 
 held defective and void.^ (a) 
 
 1 Carmichael v. Aiken, 13 La. 205. See Yeuda v. Wheeler, 9 Texas, 408 ; 
 State V. Township of Union, 36 N. J. Law, 309. Where a part of a city lot 
 belongs to one and a part to another, each part must be assessed to the proper 
 owner, if known. Knox v. Huidekoper, 21 Wise. 527. The law required the 
 assessor in the assessment "roll to set opposite each tract the name of the 
 owner or the word " unknown " it the owner was not known, but the assessor, 
 though informed what part of a certain tract belonged to R. and what to S., 
 assessed the whole to S. It seems that a sale based on such assessment 
 was void. State ex rel. Roe v. Williston, 20 Wise. 228. "Formerly owned 
 by B." insuflacient. Kelsey v. Abbott, 13 Cal. 609. In Missouri, notwith- 
 standing the prohibitions of the act touching tax deeds (Adj. Sess. Acts, 
 1863-4, p. 89, §§ 21, 22; Gen. Stats. 1865; p. 127, §§ 111, 112), evidence is 
 admissible for the purpose of showing that the land had not been assessed nor 
 judgment rendered in the name of the real owner, or of any former owner, or of 
 any tenant or occupant of the land, and the defect is a vital one. A deed con- 
 veying the title under proceedings against a person who had no title or interest 
 whatever in the land, and was in no manner the representative of the owner, 
 if any title could pass, would have the effect to take the property of one man 
 without due process of law and give it to another. Abbott u. Lindenbower, 
 42 Mo. 162 ; s. c. 46 Mo. 291 ; Hume v. Wainscott, 46 Mo. 145. A New York 
 corporation, having its principal oflBce and business in that State, owned and 
 occupied real estate in B. in this State, which became taxable Oct. 1. Sept. 11 
 the corporation having been adjudged bankrupt the real estate in B. was assigned 
 to an assignee who took possession Sept. 27 ; but the assignment was not recorded 
 in the land records in B. till Dee. 19 ; in November no tax list having been handed 
 in, the assessors not knowing of the assignment filled out a list in the name of 
 the corporation, putting said real estate therein and adding ten per cent to the 
 actual valuation, such additional valuation being authorized in the case of resi- 
 dent tax-payers who fail to file their lists : Held, that the list was lawfully made 
 in the name of the corporation, the assessor having the right to rely upon the 
 records of the town for Information in regard to the ownership of the property ; 
 but that the corporation could not be regarded as a resident tax-payer, and that 
 therefore the ten per cent valuation was unlawfully added. Jones v. Bridgeport, 36 
 Conn. 283. In Pennsylvania, a sale of unseated lands for taxes will pass the title, 
 though assessed in a wrong name or by a wrong number, if otherwise designated 
 so as to be capable of identification, and so as not to positively mislead the owner. 
 See Miller v. Hale, 26 Penn. St. 432 ; Russel o. Werntz, 24 Penn. 337; Phila- 
 delphia V. Miller, 49 Penn. St. 440; so in Maryland, O'Neal v. Virginia, &c., Co. 
 18 Md. 1 ; in California, O'Grady v. Barnhisel, 23 Cal. 287 ; Bruiin v. Murphy, 
 29 Cal. 326. See Bidleman v. Brooks, 28 Cal. 72. See p. * 137, note 3. 
 
 (a) In Oberich v. Oilman, 31 Wise. 500, while it was conceded that the tax 
 deeds under which respondent claimed were fatally defective by reason of the 
 omission from the assessment roll of the name of the owner, or of the word 
 " unknown " set opposite the lots in controversy, still it was stated to be per- 
 il 
 
162 OP THE LISTING AND VALUATION OP THE LAND. 
 
 Under a similar statute in New York, it was held, that 
 where the land was described in the list as belonging to " the 
 widow and heirs of A. B., deceased," this was a sufficient 
 compliance. So the use of the firm name, where the land 
 was owned by partners. But in the same case the Court said, 
 that where the land belonged to a single individual, it was 
 proper and necessary that the name of that individual should 
 be inserted in the list,^ and accordingly the assessment of land 
 to a person who is neither the owner nor occupant is void. 
 [In Noble v. Indianapolis,^ an assessment "to the heirs of N." 
 was held good, although they had made partition of the estate, 
 and some had been sold to third parties, but the deeds had 
 not been recorded. So an assessment " to the estate of J. B. 
 Coles." ^ In Coombs v. Warren,* which was a writ of entry, 
 
 fectly well settled that equity would not relieTe against the tax in such a case. 
 In Arkansas the statute declares that "no sale of any lands or town lots for the 
 payment of taxes shall be considered invalid on account of its having been 
 charged on the tax book in any other name than that of the rightful owner, if 
 such land be in other respects sufficiently described in the tax book and the 
 taxes for which the same is sold be due and unpaid at the time of such sale." 
 Digest, 889. The sale is valid if regular in other respects, and the taxes were 
 due and unpaid, no matter in whose name the land may have been assessed and 
 advertised. Merrick v. Hutt, 15 Ark. 331. It is no objection that the lands 
 were assessed to non-residents who had no title thereto, and not to the owners 
 who reside in the county and had sufficient personal property to pay the taxes ; 
 nor in such case that the collector sold the land without first demanding the 
 taxes or resorting to the personalty. Kinsworthy v. Mitchell, 21 Ark. 145; 
 Garibaldi v. Jenkins, 27 Ark. 456. 
 
 1 Wheeler v. Anthony, 10 Wend. 346. In Cruger v. Dougherty, 1 Lansing, 
 464, an assessment for rents received in leases in fee under Laws of 1846, p. 466 
 (required to be assessed to the person or persons entitled to receive the same), was 
 made under a description as follows : " The K. patent : J. K. and others, legal 
 heirs of J. K., late of the city of New York, deceased, or their heirs or assigns, 
 for rents reserved in the town of K. in the county of D.," &c., held, that the 
 assessment being to a person deceased and others not named, or their heirs or 
 assigns, and each rent not being specified, the same was void. Affirmed in 
 43 N. Y. 107. Whitney v. Thomas, 23 N. Y. 281 ; Newell v. Wheeler, 48 N. Y. 
 486 ; Chapman v. Brooklyn, 40 N. Y. 872 ; Crooke o. Andrews, 40 N. Y. 647. 
 But where tax was assessed to Henry D. V. while the real name was William 
 H. v., it being proved that the person intended was known as Henry in the 
 town, the assessment was held valid. Van Voorhis v. Budd, 39 Barb. (N. Y.) 
 479. So the omission of the word " mining " from the corporate name of the 
 "Sierra Buttes Quartz Mining Company" AeW not to vitiate an assessment. 
 People V. Sierra B. Q. M. Co. 39 Cal. 511. 
 
 '■i 16 Ind. 56. And see 4 Pet. 849. 
 
 3 State V. Jersey City, 4 Zab. 108. 4 84 Me. 89. 
 
OP THE LISTING AND VALUATION OF THE LAND. 163 
 
 the demandant claimed under a mortgage, and the tenant 
 under a tax title. The statute required the land to be listed 
 in the name of the " owner or possessor." The land in ques- 
 tion was listed in the name of the demandant, a mortgagee 
 of the premises, who never was in possession. The Court 
 held, that the mortgagor was the owner, and that as the prop- 
 erty was not listed in his name the proceedings were void. 
 
 The Virginia statute required the commissioners of taxes 
 to " take an account, in writing, of the quantity of land be- 
 longing to all persons within their counties, and also 
 the name of the * proprietor or proprietors thereof, * 145 
 and ascertain the value of the same." In a case where 
 the land was listed in the name of the widow of an intestate, 
 instead of the heir, the list was held void.^ 
 
 So where the statute of Massachusetts directed an assess- 
 ment in the name of the " occupant or tenant," and it was 
 listed ir^ the name of the landlord, the list was held void.^ 
 It was also held by the Court of Appeals in Kentucky, in 
 construing the act of Congress levying a direct tax, that an 
 assessment in the name of a person in possession under a parol 
 contract, instead of the rightful proprietor, was void.^ In 
 Alvord V. Collin,* under the peculiar phraseology of the stat- 
 ute, it was held, that a listing of unimproved lands, belonging 
 to a non-resident proprietor, in which he was wrongly desig- 
 nated, was valid, whereas, in the listing of improved lands 
 belonging to residents, the defect would have been fatal. 
 The decision was placed upon the ground that, in the former 
 instance, the tax was a charge upon the land itself, while in 
 the latter, it was simply a charge upon the person and goods 
 of the delinquent. 
 
 In those cases where the statute requires the assessor to list 
 the lands in the names of the owners respectively, if known, 
 the principle to be deduced from the authorities is, that it 
 is the duty of the assessors to ascertain the true name,^ (a) 
 
 1 Yancy v. Hopkins, 1 Munf. 419. 
 
 2 Martin v. Mansfield, 3 Mass. 419. 
 
 3 Johnson v. Mclntire, 1 Bibb, 295. * 20 Pick. 418. 
 
 s But calling his name Packard, instead of Packer, has been held not material. 
 Pierce v. Richardson, 37 N. H. 307. 
 
 (a) But the exclusion of the assessor's return, offered for the purpose of 
 
164 OP THE LISTING AND VALUATION OP THE LAND. 
 
 that if they omit the name in the list, or state that the owner 
 is unknown, the presumption is that the officer did his duty, 
 and that the owner was in point of fact unknown ; but where 
 it is shown that the name of the original owner was known 
 to the officer, the list will be held invalid, because the stat- 
 utes expressly declare that the name of the owner shall be 
 
 inserted when it can be done.^ 
 * 146 * Where an entire tract of land is assessed to one 
 
 who owns only a portion of it, the listing is illegal. 
 Thus in Barker v. Blake,^ it appeared that one Treat, in the 
 
 showing that the land was not listed in the name of the owner, but of another, 
 will not he held erroneous unless accompanied or followed by a, proposal to 
 introduce proof showing that the latter was not in fact the owner. Sully v. 
 Kuehl, 30 Iowa, 275. 
 
 ' The Proprietors of Cardigan v. Page, 6 N. H. 182 ; Smith v. Messer, 17 N. H. 
 420 ; Nelson c. Pierce, G N. H. 194 ; Ainsworth v. Dean, 1 Foster, 400 ; Brown 
 1;. Veazie, 25 Me. 359; Merritt v. Thompson, 13 111. 716; Shimmin v. Inman, 
 26 Me. 228. So if in the list of non-resident taxes land is taxed in the name of 
 an individual, it is to be presumed, till the contrary appears, that the name thus 
 inserted is that of the owner or original proprietor. Jaquith v. Putney, 48 N. H. 
 138. 
 
 2 30 Me. 483 ; State v. Williston, 20 Wise. 228 ; Crane v. Janesville, 20 Wise. 
 305 ; Orton u. Noonan, 25 Wise. 677; Siegel v. Outagamie Co. 26 Wise. 70. So 
 an assessment against A under one aggregate value, of lots owned by him, and of 
 otliers neither owned nor occupied by him, is void ; and under the Wisconsin statutes 
 defining the rights of married women this rule applies where such other lots are 
 owned by A's wife ; and a tax assessed in violation of this rule is not rendered 
 valid by a subsequent statute which merely declares that certain assessments (of 
 which this is one) shall be valid " notwithstanding any omission, defect, or irreg- 
 ularity " in the proceedings, this being something more than an omission, defect, 
 or irregularity. Hamilton v. Pond du Lac, 25 Wise. 490 ; see also Roby v. Chicago, 
 48 111. 130, where it was held that the purchaser at a tax sale of a fraction of a lot, 
 whether great or small, is entitled on application to the proper officers to have such 
 fraction listed and assessed separately, in order that he may pay the taxes thereon. 
 See also People v. Sliimmins, 42 Cal. 121. The San Pablo Rancho was assessed 
 as an entirety to a large number of owners ; some of the owners individually paid 
 taxes upon 13,598 acres, leaving 4,338 acres owned by numerous persons upon 
 which the taxes were unpaid. Judgment was rendered that the lien for so much 
 of the tax as was delinquent should be enforced by a sale of so much as was 
 necessary of the undivided interest of 4,338 acres, witliout designating to what 
 particular persons this undivided interest was assessed : Held, to be erroneous. 
 Where land is so assessed as an entirety to numerous persons, without designating 
 the interest of any one of them, it can be regarded in no other light than as an 
 assessment to them as copartners, joint tenants, or tenants in common, and not 
 as owners or claimants in severalty ; and if such an assessment be admitted to be 
 unexceptionable and legal, it would be the duty of the Court, in giving judgment, 
 to ascertain by its judgment what particular undivided interests in the land 
 
OF THE LISTING AND VALUATION OF THE LAND. 165 
 
 year 1831, was the owner of lot 10, Sumner Street, Bangor ; 
 that in April, 1832, he conveyed four feet of the south side 
 of the lot to one Baldwin, and a division fence was thereupon 
 erected between them, and this fence was kept up afterwards ; 
 that in September, 1832, Treat conveyed the residue of the 
 land to one Taylor ; that in 1886 the title of Taylor, by mesne 
 conveyance, became vested in Barker ; the whole lot was as- 
 sessed to Barker, and the assessment was held void. By the 
 Court : " It is quite clear that the assessors had no right to 
 assess to him his neighbor's land, jointly with that which he 
 owned in severalty, and such assessment, and the collector's 
 sale and deed in pursuance of them, were utterly void." (a) 
 [So under a statute (St. of 1861, c. 167) requiring assessors 
 to describe by name or otherwise " each and every lot of land 
 owned by each person," and to give the number of acres or 
 feet in each lot of land, and the value of the same, where two 
 parcels, Nos. 1 and 2 owned by Packard, and Nos. 64 and 66 
 owned by the heirs of Jennings, were included in one joint 
 valuation and assessment, and, by an informal computation, 
 Packard's share of the joint tax was ascertained and paid 
 by him, and the collector directed to enforce the unpaid bal- 
 ance of the joint tax against the land of Jennings, it was held 
 that no lien attached to either parcel for the whole or any 
 part of the joint tax, and as no title could be derived under 
 a sale of land for taxes other than through the lien given by 
 statute, the tax title must fail. (6)] 
 
 Where one oAvns several tracts or parcels of land, they must 
 be listed and valued separately, else the proceedings will be 
 void.^ Thus in Shimmin v. Inman,^ the statute required the 
 
 were delinquent, and to exonerate from the Ifen of the delinquent taxes the 
 interests of those who had already paid their proportion of the general burden. 
 People V. Shimmins, supra. 
 
 (a) If the assessor, in assessing a city lot owned and occupied by the owner 
 as a single lot, arbitrarily divides the same, and assesses one part to the owner and 
 another part to unknown owners, tlie assessment to the unknown owners is ille- 
 gal; and a tax deed upon a sale of the land so assessed is void. Biddleman u. 
 Brooks, 28 Cal. 72. 
 
 (6) Jennings v. Collins, 99 Mass. 29. 
 
 1 In Russell v. AVerntz, 12 Har. (Penn.) 337, it was held th.it the assessment 
 of two contiguous tracts, owned by the same person as one tract, was an unim- 
 portant irregularity under the curative provisions of the act of 1815. 
 
 3 26 Me. 228. 
 
166 
 
 OF THE LISTING AND VALUATION OF THE LAND. 
 
 assessors to set forth in their lists " the number of acres of 
 unimproved land which they may have taxed on each non- 
 resident proprietor of lands, and the value at which they 
 have estimated the same." The lots in controversy were thus 
 listed : — ' 
 
 Name of Owner. 
 
 No. of 
 lots. 
 
 Range or 
 Division. 
 
 No. of 
 Acres. 
 
 Value. 
 
 State and 
 County Tax. 
 
 Town Tax. 
 
 Total. 
 
 Wm, Shimmin, 
 
 or 
 
 TInknown. 
 
 16 
 17 
 18 
 
 On Penobscot 
 Kiver. 
 
 210 
 
 S240 
 
 S0.61 
 
 $3.22 
 
 S3.83 
 
 The Court held the list illegal, saying, " A fair con- 
 * 147 struction of * the statute requires, that each lot should 
 
 be valued and assessed separately. The lots may be 
 owned by different persons ; and if a joint valuation and 
 assessment were allowed, one owner could not ascertain the 
 amount of tax on his own land, or pay it, or redeem the land 
 when sold, without paying the tax on all the other lands 
 assessed with it. Although, in this case, the several' lots 
 appear to have been owned by one person, that fact cannot 
 dispense with the law, or excuse a deviation from it." 
 
 And in Willey v. Scoville's Lessee,- the land was thus listed, 
 taxed, advertised, and sold : — 
 
 CLETELAND TEN-ACEB LOTS. 
 
 Owner's name. 
 
 Range. 
 
 Town. 
 
 Lots. 
 
 Acres and Rate. 
 
 Tax. 
 
 1 Unknown 
 heirs. 
 
 12 
 
 7 
 
 ( 32 84 85 
 ] 38 39 10 
 ( 41 42 43 
 
 Second Rate. 
 90 
 
 $ c. m, 
 4 83 5 
 
 Grimke, J. : " The proceedings in this case show a defect 
 which is very common in tax sales. Lot 32 (the one in con- 
 troversy) was listed and advertised for sale, with eight others 
 of the same ten-acre lots, by the following description : the 
 first and second columns contain the range and township, the 
 third enumerates the nine lots by their number, and the fifth 
 contains an apportionment in gross of the tax for which they 
 
 1 9 Ohio, 43. 
 
OP THE LISTING AND VALUATION OF THE LAND. 167 
 
 were delinquent. The law requires that the auditor should 
 so list and advertise the land, as to furnish the owner with a 
 description of the land subject to taxation, and that the sale 
 shall be advertised and conducted in conformity with that 
 rule. In this instance there was an assessment in gross of 
 the whole amount of the tax chargeable upon the nine lots, 
 and yet each lot was put up and sold to pay the tax on it 
 separately. The land is not treated as an entire tract in the 
 list, advertisement, or sale, but is so treated in the ap- 
 portionment of the tax. Now * it is evident, that the * 148 
 course pursued should be consistent with itself. If the 
 lots might be treated as separate and distinct parcels of land, 
 then the tax charged upon them should have corresponded 
 with the fact in the description ; or, if they should be treated 
 as one entire tract, then, although the assessment of the tax 
 in the advertisement as one aggregate sum would have been 
 correct, the description of the land would itself be erroneous, 
 and so also would the sale under it. In either case the title 
 is defective, and the Court were right in ruling out the evi- 
 dence." 
 
 The statute of Illinois provides, that each tract of land 
 shall be listed, valued, and assessed separately.^ This does 
 not mean that an entire tract must be subdivided into the 
 smallest legal subdivisions of which it is susceptible, but sim- 
 ply that two or more tracts disconnected from each other, so 
 as not to be embraced within the same general description, 
 shall not be assessed together. Thus " the S. 1-2 Sec. 5, 
 T. 3 N., R. 4 W.,"2 and " S. W. and S. E. Sec. 9, T. 8 N., 
 
 1 Under the California statute of 1857, city lots must be assessed separately ; 
 and if assessed in gross and sold for the aggregate tax, the sale is void. Terrill 
 V. Groves, 18 Cal. 149. But in Terrill v. Groves the sale was made upon the 
 assessment roll alone ; where it is made upon a judgment, the fact that the 
 assessment is made in solido and not separately will not avoid the judgment, 
 order of sale, and deed. Anderson v. Kider,'46 Gal. 134 ; Mayo v. Foley, 40 Cal. 
 282. Bat the lands of tenants in common may be jointly assessed under act of 
 1860. People v. McEwen, 23 Cal. 54. An assessment of personal property and 
 improvements in real estate, assessed to a person other than tlie owner of the 
 real estate (under the Revenue Act of 1861), which does not separately value 
 and set down in separate columns the value of the different parcels and descrip- 
 tions of property, is not in compliance with the statute, and therefore invalid. 
 People V. Sierra B. Q. M. Co. 39 Cal. 511. 
 
 2 Atkins V. Hiuman, 2 Gilm. 443. 
 
168 OP THE LISTING AND VALUATION OP THE LAND. 
 
 R. 8 E.," ^ were held respectively to be a compliance with the 
 statute. 
 
 Lastly, to make a complete and perfect list, the land must 
 be valued in the manner and upon the principles prescribed 
 by law. («) It has already been shown, that where the law 
 required the lister to join with him two householders in mak- 
 ing the valuation, which he neglected to do, the proceeding 
 was held void.^ All fixed and permanent improvements upon 
 the land, which constitute in judgment of law a part of the 
 freehold, must be valued with the land, or the valuation wUl 
 be void.^ The constitution of Illinois provided, that the mode 
 of levying a tax should be by valuation, so that every person 
 should pay a tax in proportion to the value of his property. 
 The revenue law of February 19, 1827, provides, that lands 
 
 " are hereby declared subject to taxation, and for that 
 * 149 purpose are hereby * divided into classes, valued, and 
 
 taxed as follows : Lands of the first quality shall com- 
 pose the first class, shall be valued at four dollars, and taxed 
 at the rate of two cents per acre ; lands of the second quality 
 shall compose the Second class, shall be valued at three dol- 
 lars, and taxed at the rate of one and a half cents per acre ; 
 lands of the third quality shall compose the third class, shall 
 be valued at two dollars, and taxed at the rate of one cent 
 per acre." This statute further provided that the owner or 
 his agent should list his land in the class to which it belonged, 
 in the auditor's oflBce, accompanied by an affidavit that the list 
 
 1 Spellmau v. Curtenius, 12 III. 410. 
 
 (a) See p. * 107, note (a) ; p. * 116, note 2. An assessment is void if there be 
 no valuation. Garwood v. Hastings, 38 Cal. 216 ; see also People v. San Francisco 
 Savings Union, 31 Cal. 132. Where the assessors made no return of valuation 
 of unseated lands, and the commissioners, in accordance with a visage of long 
 standing in the county, assessed a tax upon such lands at the uniform valuation 
 of one dollar per acre, held, that the return of the assessor without valua- 
 tion or his omission to return them at all should not exempt the lands from 
 taxation, and did not render invalid a lawful tax assessed upon them by the 
 commissioners. It was at most an irregularity cured by the provisions of the 
 act of 1815. Hess v. Herrington, 73 Penn. St. 438. 
 
 ^ Kinney v. Doe, 8 Blackf. 350. 
 
 8 Fitcli V. Pinckard, 4 Scam. 69. See Parker v. Winsor, 5 Kan. 375. But a 
 gross valuation of the improvements, without specific description, is sufficient 
 under the California statute. People v. Rains, 23 Cal. 127. See p. * 148, note 1 ; 
 p. * 5, note 1. 
 
OP THE LISTING AND VALUATION OP THE LAND. 169 
 
 contained a true classification ; one listing only was required, 
 and the auditor was authorized to charge the tax annually 
 upon such classification, till the owner furnished a new list. 
 If the owner failed to list, the auditor was authorized to do 
 so. It will be perceived that this valuation was an arbitrary 
 one. Improved land worth twenty dollars an acre could be 
 valued no higher than four dollars, and taxed at the rate of 
 two cents per acre, while lands of a merely nominal value 
 were assessed at the rate of one cent per acre. The constitu- 
 tionality of this law was maintained by the Supreme Court of 
 Illinois, upon the ground of necessity, expediency, and con- 
 temporaneous construction, all of which were doubtful and 
 dangerous reasons to assign in favor of the validity of a legisla- 
 tive valuation of land for the purposes of taxation.^ If such 
 a principle is adhered to, there is an end of equality and 
 uniformity in the operation of the taxing power under our 
 constitutions, except so far as representative responsibility 
 may secure them.^ The law which authorized this 
 classification * and the amendments thereto, made the * 150 
 deed primd facie evidence of title, or at least the 
 Courts so held.^ 
 
 Upon the strength of these cases, affirming the constitution- 
 
 1 Khinehart v. Schuyler, 2 Gilm. 473 ; Bruce v. Schuyler, 4 Gilm. 221. 
 
 2 The legislature of Maryland imposed a tax of a specific sum upon each 
 county in the State, without basing the assessment upon any actual valuation 
 of taxable property. The constitutionality of this law was questioned, but the 
 Supreme Court of that State held, that before such a law could be pronounced 
 unconstitutional, it must appear clearly that the persons taxable were not made 
 to contribute according to their actual worth in real and personal property ; that 
 in the absence of evidence they would presume that the tax was laid according 
 to the provisions of the constitution, and that the legislature divided the tax 
 among the counties according to the valuation of property in such local juris- 
 diction, and had such evidence before them as guided their judgment in that 
 particular. Waters v. State, 1 Gilm. 302. The constitution of Florida required 
 " the General Assembly to devise and adopt a system of revenue, having regard 
 to an equal and uniform mode of taxation, to be general throughout the State," 
 Under this clause the legislature passed an act dividing the land into three 
 classes, and required the owner to list it in the class to which it belonged, and 
 the law was held constitutional. Levy v. Smith, 4 Flor. 154. 
 
 2 Maxcy v. Clabaugh, 1 Gilm. 26 ; Vance v. Schuyler, 1 Gilm. 160 ; Graves 
 1'. Bruen, 1 Gilm. 167 ; Messinger u. Germain, 1 Gilm. 631 ; Tliompsou v. 
 Schuyler, 2 Gilm. 271 ; Khinehart v. Schuyler, 2 Gilm. 473; -Bruce v. Schuyler, 
 4 Gilm. 221 ; Job v. Tebbetts, 5 Gilm. 376 ; Irving v. Brownell, 11 111. 402. 
 
170 
 
 OP THE LISTING AND VALUATION OP THE LAND. 
 
 ality of the law of 1827, and that the deed was primd facte 
 evidence of title, numerous recoveries were had in the courts 
 of Illinois upon deeds acquired under that and similar laws ; 
 at length efforts were made to prove that the lands sold under 
 those laws had never been listed for taxation in conformity 
 with the legislative classification or valuation. The first 
 attempt was made in Graves v. Bruen.i The defendant in 
 error relied upon a tax deed made in pursuance of a sale for 
 the taxes of 1832. The plaintiff in error offered in evidence 
 the deposition of the auditor for the time being, with a diagram 
 of the listing attached as a part thereof, of which the follow- 
 ing is a copy : — 
 
 " Lands lying between the Illinois and Mississippi Rivers, patented by the United States 
 'o individuals, for their military services, and taxed by the State of Illinois." 
 
 Patentees. 
 
 R. L. J, Austin. 
 
 Present 
 Owners, 
 
 M. Bruen. 
 
 N. E, 
 
 Section. 
 
 Townsliip. 
 
 Range. 
 
 131 S. 7 W. 
 
 The auditor deposed that the land in question was 
 * 151 listed in * the manner shown in the diagram, for the 
 year 1832, and that there was no other evidence of its 
 having been listed in any other manner ; that it did not appear 
 whether it was listed by the owner or auditor ; that there was 
 no distinction made in the diagram between the lands of resi- 
 dents and non-residents ; that it was his belief that the land 
 in question was listed in the second class. E. H. Buckley, 
 Esq., was called as a witness for the plaintiff in error, for the 
 purpose of explaining the diagram, who deposed that the 
 diagram was correctly copied from a large book shown to him 
 by the auditor, as a tax book for the Illinois Military Bounty 
 Land District ; that the caption was correctly copied from the 
 first page of the book ; that the heading of the columns, and 
 entries opposite said tract of land, were copied from the page 
 on which the land was entered, and which was many pages 
 from the first ; that there was no heading to the fifth column 
 
 1 1 Gilm. 167. 
 
OF THE LISTING AND VALUATION OF THE LAND. 171 
 
 of the diagram, on the page from which he copied it ; that he 
 was not certain that there was none at the commencement of 
 the book, but thought there was not. It will be perceived, 
 on examination of the diagram, that the quantity, quality, or 
 class of the land, does not appear, and that the rate of taxa- 
 tion is not uniform, so that the valuation is nowhere ascer- 
 tained by inspection of the list, even by inference. This 
 evidence was rejected by the Court below, and the judgment 
 affirmed in the Supreme Court. Scates, J. : " Although the 
 diagram shows that some of the columns are blank, yet non 
 constat, but the proper heading would be found in all cases 
 by tracing the columns back to the first heading. The entries 
 of dates, numbers, quantity, &c., are not necessarily repeated. 
 The blank in the column refers back to the first entry, and 
 the loose and indefinite proof offered, being calculated to mis- 
 lead the jury, was properly rejected by the Court." 
 
 A more successful attempt was made to overthrow the deed 
 in Job V. Tebbetts.^ There a deposition of the auditor was 
 offered, and rejected by the Circuit Court, which purported to 
 contain all the information appearing upon the files 
 and records * of his office, and the columns were traced * 152 
 back to the first page, and the class, quantity, or value, 
 nowhere appeared. The Supreme Court reversed the judg- 
 ment, holdiug that the deposition was competent. Treat, C. 
 J. : " Whether it (the deposition) established what the de- 
 fendant sought to prove, we do not undertake to say, but in 
 our opinion, the proof was pertinent to the point in issue, and 
 should not have been excluded from the jury. The case of 
 Graves v. Bruen, although an. extreme case, is not in point. 
 There the deposition was partial and incomplete in its state- 
 ment of facts, and did not pretend or purport to contain all 
 of the evidence in the office, relative to the matter in question. 
 Here' the auditor assumes to give all the information in his 
 office concerning the matter in issue, and there is nothing on 
 the face of the deposition, or in the case, to show that any 
 thing material is withheld. If it does not, in fact, furnish all 
 the evidence in the office, the deficiency can be supplied in 
 another deposition, or by transcripts of the record." 
 
 1 5 Gilm. 376. 
 
172 OF THE LISTING AND VALUATION OF THE LAND. 
 
 In Graves v. Bruen,i which came before the Court a second 
 time upon additional evidence, which explained the fifth col- 
 umn, and showed that no other listing of the land had ever 
 been made, and gave all of the evidence to be had upon the 
 question, in the auditor's office, the Court held : 1. That the 
 listing and valuation was a prerequsite which must exist. 
 2. That the evidence showed no classification of the land, 
 and is sufficient to rebut the primd facie character of the 
 deed. 
 
 The same principles, upon a similar state of facts, were re- 
 aifirmed by the Court in Schuyler v. Hull : ^ and the case of 
 Job V. Tebbetts : ^ having been remanded for a new trial, upon 
 similar evidence, and the jury having found against the tax 
 title, Tebbetts prosecuted an appeal, but the Supreme Court 
 sustained the verdict.* These decisions made void 
 * 153 every tax * title in Illinois, from the formation of the 
 State government down to and inclusive of the year 
 1838. It may be laid down as a general rule, that a valua- 
 tion being essential, the statute must be strictly pursued in 
 making and returning it, or the proceedings based upon it 
 will be illegal and void.^ (a) In Michigan the certificate of 
 the assessors of taxes must state that the real estate has been 
 estimated at its " true cash value," or the sale is invalid [and 
 a certificate stating that they have estimated the real estate 
 " at a sum which for the purposes of assessing we believe to 
 be the true value thereof" is fatally defective.] ^ Usage can 
 
 J 11 111. 431. 2 11 in. 462. 
 
 8 5 Gilm. 376. 4 11 m. 453. 
 
 5 Thurston u. Little, 3 Mass. 429 ; Thayer v. Stearns, 1 Pick. 482. 
 
 (a) Under the Illinois statute (§§ 6, 8, Eevenue Law of 1858, Scates's Stat- 
 utes, p. 1050) requiring persons "to make out, sign, and deliver to the assessor 
 when required a certified statement of all their personal property," &c., and 
 providing that " if any person shall give a false and fraudulent list, or shall 
 refuse to deliver to the assessor when called on for that purpose a list of his 
 taxable property, as required by law, the assessor, as a penalty therefor, shall 
 assess the property of such person at double its value," htld. that the assessor 
 has no power to double the true valuation of the property of an estate in conse- 
 quence of the fraud of the executor thereof, nor the value of any real estate 
 listed. Leper v. Pulsifer, 37 111. 110. 
 
 " Clarke v. Crane, 5 Mich. 151 ; see also Van Rensselaer y. Witbeek, 8 Seld. 
 517 ; 35 N. Y. 462. An assessment of town lots which does not give their cash 
 valuation either in gross or detail, is radically defective. Hurlbutt v. Butenop, 
 
OP THE LISTING AND VALUATION OP THE LAND. 173 
 
 in no case justify a departure from the requirements of the 
 law in this respect, where they are plain and unambiguous.^ 
 The assessment of a tax by one corporate body, based upon 
 a valuation made under the authority of another, is unauthor- 
 ized and void.2 
 
 27 Cal. 50 ; and mere figures against the lots, without any words to explain their 
 meaning, are not enough. Braly v. Seaman, 30 Cal. 610 ; Hurlbutt v. Butenop, 
 ubi sup. An agreement among the assessors of a district to assess all property at 
 about one-third its value, if faithfully carried out, works no injustice, and equity 
 will not interfere. Dean v. Gleason, 16 Wise. 1. 
 
 i Thurston v. Little, 3 Mass. 429. 
 
 2 Granger v. Parsons, 2 Pick. 392. 
 
174 OP THE LEVT OP THE TAX. 
 
 CHAPTER VI. 
 
 OP THE LEVY OP THE TAX. 
 
 The levy of a specific sum of money, upon each tract of land 
 embraced in the list, by the proper authority, is another essen- 
 tial link in the chain of a tax title, without which the pur- 
 chaser acquires no rights whatever. By this assessment the 
 amount which every citizen is bound to pay for the public 
 benefit is definitely fixed ; and to it he is compelled to resort, 
 for the purpose of ascertaining how much money he must pay 
 to that public, as his share of a common burden, and thus 
 prevent a sale of his property. It is the authority upon which 
 the collector proceeds to demand and enforce the collection 
 of the tax, — he has no other means of ascertaining the sum 
 assessed against an estate, — and in this respect it may be 
 regarded as analogous to an execution, issuing upon a judg- 
 ment. It is the guide of the owner and officer in redeeming 
 the land after the sale. Again, it is evident that the tax must 
 be due and unpaid, in order to authorize a sale of the land 
 upon which it was assessed. This can only be shown by proof 
 that the land was not only listed and valued, but that the tax 
 charged against it for the current year was in fact levied by 
 competent authority, (a) and in the time and manner pre- 
 scribed by law. When such evidence is produced, the pre- 
 sumption is that the tax thus levied is unpaid, upon the same 
 
 (a) An unauthorized tax is void. See 58 Me. 529; Norris v. Russell, 5 Cal. 
 249; Allen v. Peoria, &c., R.R. Co. 44 111. 85. The designation of a percentage 
 on a definite sum is as certain as though the amount were calculated. Hubtard 
 V. Winsor, 15 Mich. 146 ; see also p. * 108 (6). Where the charter required the 
 common council (as a condition precedent to the raising of a tax) to declare by 
 entry on their minutes what portion of the expense of a certain improvement 
 should be assessed to the owners of premises to be benefited thereby, and specify- 
 ing the amount to be assessed, &c., held, that this duty could not be delegated to 
 commissioners to perform, as the determination of these facts was vital to the 
 levy; and that the tax so levied was void. Schofield v. City of Lansing, 
 17 Mich. 437. 
 
OP THE LEVY OP THE TAX. 175 
 
 principle that a promissory note is evidence of a continuing 
 debt, until its extinguishment by payment is estab- 
 lished.^ 
 
 * The onus prohandi is upon the party claiming under * 155 
 the sale .2 Nor is there any difficulty in making proof 
 of this fact, if it ever existed. The state tax is fixed by a 
 public statute ; the list will show the valuation of the land, 
 and by computing the percentage of tax fixed by the law 
 upon that valuation, it can be seen in an instant whether the 
 tax is a legal one or not. When the tax is levied by a county, 
 city, town, or other corporation, a record is invariably re- 
 quired to be made of the order ; and the books themselves, or 
 certified or sworn copies thereof, are admissible in evidence, 
 and upon an inspection of the list, and a comparison of it with 
 the law and the order, the legality or illegality of the tax will 
 appear.^ 
 
 The tax, of course, must be levied by the tribunal or per- 
 sons to whom the power is delegated. And it is held in New 
 Hampshire, that the levy of a tax at a town meeting not legally 
 warned, is illegal and void.* In North Carolina, the justices 
 of the county constitute the County Court, with power to levy 
 taxes. The number of justices corresponds with the number 
 of districts in the county, except where their number has been 
 reduced by death, resignation, or otherwise. The law required 
 a majority of the whole body to be present when a tax was 
 levied. In a case where the record showed that twenty-two 
 were present, the Court intended they were a majority.^ 
 
 1 Pentland v. Stewart, 4 Dev. & Bat. 386 ; Keeves v. Towles, 10 La. 276 ; 
 Baker v. Towles, 11 La. 432 ; Carmichael v. Aiken, 18 La. 205 ; Nancarrow v. 
 Weathersbee, 6 Mart. (La.) 347 ; Winchester v. Cain, 1 Robinson, (La.) 421 ; 
 • Nalle V. Fenwick, 4 Hand. 591-594 ; Lessee of Holt's Heirs v. Hemphill, 3 Ham. 
 232 ; 8. c. 1-4 Ohio Cond. 551 ; Lessee of Dresback v. McArthur, 6 & 7 Ohio, 307; 
 Garrett v. White, 3 Ired. Eq. 181 ; Smith v. Corcoran, 7 La. 46 ; Bratton v. 
 Mitchell, 1 Watts & Serg. 310 ; Conrad v. Darden, 4 Yerg. 807. 
 
 '■* Mason u. Roe ex dem. Woods, 5 Blaokf. 98 ; Nalle v. Fenwick, 4 Rand. 594; 
 Pentland v. Stewart, 4 Dev. & Bat. 386 ; Mayhew v. Davis, 4 McL. 213 ; Mix 
 V. Whitlock, 1 Tyler, 30. 
 
 ' Nalle V. Fenwick, 4 Rand. 594 ; Doe ex dem. Weed v. McQuilkin, 8 Blaokf. 
 335; The Proprietors of Cardigan v. Page, 6 N. H. 182; Spear v. Ditty, 8 yt. 
 419. 
 
 * The Proprietors of Cardigan v. Page, 6 N. H. 182 ; Nelson v. Pierce, 6 id. 
 194; Lisbon v. Bath, 1 Foster, 319. 
 
 s State V. Mcintosh, 7 Ired. 68. 
 
176 OF THE LEVY OF THE TAX. 
 
 The exercise of the power to levy taxes, by the fiscal agents 
 or officers of a county, city, town, &c., is not a judicial, 
 * 156 but a * municipal act, and is discretionary within the 
 limits prescribed by law, and the order of the tribunal 
 levying the tax cannot ordinarily be reviewed on certiorari, 
 or otherwise. If the assessment be made in violation of law, 
 it is a void act, the collector, in enforcing its collection, is a 
 trespasser, and the purchaser acquires no title at the sale.^ 
 
 The Illinois statute of February 26, 1839, authorized and 
 empowered the County Commissioners' Court to levy a tax for 
 countj'- purposes, not to exceed one half per cent upon every- 
 one hundred dollars' worth of real or personal property, and 
 then provided, " which tax shall be levied by said county com- 
 missioners at their June term in each and every year." ^ (a) 
 In several instances the county commissioners failed to levy 
 the tax until the December term following. In such cases is 
 the tax legal ? This will depend upon the question, whether 
 this provision is imperative — a limitation, in point of time, 
 upon the power of the commissioners — or merely directory. 
 Under a directory statute, a duty should be performed at the 
 time specified, for the sake of uniformity, and because the 
 legislature have so ordered it, but it may be valid if per- 
 formed afterwards ; (6) while under a peremptory law, the act 
 must be done at the precise time specified, or it is void.^ The 
 general rule undoubtedly is, that where a statute directs a 
 Court or officer to perform a duty, or exercise a power, at or 
 within a specified time, without any negative words restrain- 
 
 1 Marr v. Enloe, 1 Yerg. 452 ; County Court of Obion v. Marr, 8 Humph. 
 63i. That if the assessment roll is not complete and in a condition to be 
 delivered to the board of supervisors, they have no jurisdiction to issue a warrant 
 for the collection of taxes. See Van Kensselaer v. Witbeck, 7 N. Y. 517 ; but 
 see Parish v. Golden, 35 id. 465. 
 
 2 Laws, 1838-9, p. 11, § 20. 
 
 (a) In McLaughlin v. Thompson, 55 111. 249, under sec. 8 of the Revenue Law 
 of 1845 (R. S. 438), providing that the County Commissioners' Comt shall have 
 power to levy a tax for county purposes of not more than four mills on each 
 dollar's wortli of property, and that the county tax shall be levied at the March 
 term of such Court and collected with the State revenue, held, that this section 
 is peremptory in requiring such tax to be levied at the March term of said Court; 
 and if levied at the June term, the levy and all subsequent proceedings under it 
 would be void. 
 (6) Wells V. Burbank, 17 N. H. 406. 
 
 3 Webster v. French, 12 111. 302. See p. » 118, note (6). 
 
OP the' levy of the tax. 177 
 
 ing the doing of it afterwards, the naming of the time will be 
 considered as directory, and not as a limitation of authority.^ 
 But a negation of authority, at any other than the time speci- 
 fied, need not exist in words ; it may arise by implication, from 
 a view of all the provisions of the statute, manifesting an in- 
 tent, on the part of the legislature, to restrain and limit 
 the execution of the power, or * the performance of the * 157 
 duty in point of time.^ Look at the provisions of the 
 act in question. At the March term of the Court, the com- 
 missioners were required to appoint assessors and collectors 
 for the ensuing fiscal year.^ The assessment was to be com- 
 pleted and returned on or before May 1.* Appeals from the 
 assessment were to be taken and heard at the June term.* 
 The clerk of the County Commissioners' Court was required to 
 return to the auditor of State, the. aggregate amount of State 
 tax assessed in his county, immediately after the June term 
 of his Court annually, and by the first day of July.* On the 
 second Monday of August, annually, or as soon thereafter as 
 the collector should be sworn into office, the assessment roll 
 was to be delivered by the clerk of the County Commissioners' 
 Court, to the collector.^ The collectors were required, as soon 
 as the lists of taxable property were thus delivered to them, 
 to proceed and collect the taxes, by demand of the owner, and 
 distress of his goods.* A lien upon the goods of the delinquent 
 was created after demand and refusal, but not to continue to 
 exist " longer than to the expiration of the year for which the 
 taxes are due." ^ Personal property was not to be seized until 
 twenty days after the demand of the tax, and no sale to take 
 place until fifteen days' notice of the time and place, when 
 and where it was to be made.^" If the first distress was insuffi- 
 cient, a second seizure and sale was authorized, upon giving 
 like notice." The State and county taxes were directed to be 
 collected together.^^ ^t the end of each month, the collector 
 
 1 Pond 17. Negus, 3 Mass. 230; 6 Wend. 486; St. Louis County Court v. 
 Sparks, 10 Mo. 117; Walker u.Chapraan, 17 Ala. 126. 
 
 z Marsh v. Chestnut, 14 III. 223; Billings v. Detten, 15 id. 218; Thames 
 Manufacturing Co. v. Lathrop, 7 Conn. 550. 
 
 3 Sees. 5 and 12. * Sec. 11. « Sec. 12. » Sec. 13. 
 
 1 Sec. 14. « Sec. 16. » Sec. 16. '" Sec. 17. 
 
 n Sec. 17. " Sec. 20. 
 
 12 
 
178 OF THE LEVY OF t6e TAX. 
 
 was required to pay over to the county treasurer, all taxes col- 
 lected during the preceding month.^ The collector was made 
 responsible for all State and county taxes charged upon his 
 list, unless he used diligence to collect them, and failed in his 
 
 efforts.^ The law required final settlements to be made 
 * 158 with the auditor and County * Commissioners' Court, in 
 
 March, annually.^ And the collector was required to 
 report the delinquent list, and demand judgment against the 
 lands embraced in it, at the first term of the Circuit Court to 
 be held after his settlement was made.* 
 
 It would seem, upon a review of these various provisions, 
 that the statute was imperative, and not merely directory, in 
 requiring the County Commissioners' Court to levy the county 
 tax at their June term. 1. The tax list could not be placed 
 in the hands of the collector on the second Monday in August, 
 if there was a failure to levy the tax at the June term, because 
 the next term of the County Commissioners' Court would not 
 be held until September. In consequence of this neglect, less 
 time would be allowed to the coUecbor to enforce the payment 
 of the taxes upon his list, against delinquents, than was con- 
 templated by the legislature, and yet he would be held respon- 
 sible for a failure to use the utmost diligence. He is entitled 
 to the full time designated in the law. 2. If the time given 
 the collector should prove insufficient, the State would, never- 
 theless, lose her lien upon the goods and chattels of the de- 
 linquent. 3. The county would be deprived of its monthly 
 resources, by reason of the neglect of the commissioners to 
 levy the tax in season. 4. The State might be delayed in the 
 collection of her revenues, inasmuch as they were required to 
 be collected along with the county levy, or separate lists for 
 the State and county taxes must be delivered to the collector, 
 which would be contrary to the requirements of the statute. 
 5. There would be no uniformity in the revenue system, and 
 embarrassment to all concerned would be the consequence. 
 Lastly, as the basis of the county levy is the assessment roll, 
 which the law requires to be completed and returned to the 
 clerk of the Court, on or before the first day of May, and which 
 
 ' Sec. 21. 2 Sjc. 24. 
 
 3 Sees. 21, 22, 28. « See. 25. 
 
OP THE LEVY OP THE TAX. 179 
 
 is held to be imperative,^ no reason can exist for delaying the 
 levy after the June term. 
 
 The power to levy the tax is a limited one, and if the 
 limits * prescribed by the law are transcended, the levy * 159 
 is void.2 In Kemper v. McClelland,* which was an eject- 
 ment by the defendant in error against the plaintiff in error, 
 the latter claimed title under a tax sale. The land in contro- 
 versy lay in Hardin county ; the statute attached Hardin to 
 Logan county "for all the purposes of taxation," and limited 
 the power of the county commissioners in fixing the amount 
 per centum which they might levy, and made the amount de- 
 pend upon the aggregate value of all the property listed for 
 taxation. Thus, when the aggregate value was one and a half 
 million of dollars or upwards, the road tax should not exceed 
 one mill upon the dollar ; when less, it should not exceed three 
 mills upon the dollar of such valuation ; and where the aggre- 
 gate value should be five hundred thousand or more, and less 
 than one million, the county tax should not exceed three mills 
 on the dollar ; and when less than five hundred thousand, such 
 tax should not exceed five mills upon the dollar. Avery, J. : 
 " When the power of the commissioner is so limited, a tax of 
 any greater amount is unauthorized and void. In every case, 
 where an individual tax is upon trial shown to be greater than 
 the amount authorized, a sale of the land for the. payment of 
 such tax will be deemed void ; and certainly a general tax 
 must be void when no power exists for levying it. It only 
 remains to look at the' proof and see if the present is such a 
 case. The proceedings of the commissioners show that a tax 
 of four and a half mills was imposed for county purposes ; the 
 certificate of the auditor of Logan county shows that the val- 
 uation for the two counties for the year 1830 was upNvards of 
 five hundred and thirty-seven thousand ; that it was over five 
 hundred thousand is taken for granted in the argument. The 
 tax could not, therefore, legally exceed three mills. As it was 
 in this case four and a half mills, the tax sale in controversy, 
 and the deed made in pursuance of it, were void." 
 
 1 Marsh v. Chestnut, 14 111. 223 ; Billings v. Detten, 15 id. 218. See Brown 
 V. Hogle, 30 id. 119. 
 
 2 West School District of Canton v. Merrills, 12 Conn. 437. 
 » 19 Ohio, 824. 
 
180 OP THE LEVY OP THE TAX. 
 
 Where the inhabitants of a school district voted to 
 
 * 160 raise a * tax of $250, and the assessors charged upon the 
 
 list a tax of $285.01, the proceeding was held illegal.^ 
 
 In Mason v. Roe, ex. dem. Woods,^ which was an action of 
 ejectment by the defendant in error against the plaintiff in 
 error, for a lot in Connersville, the plaintiff in error relied 
 alone upon a title, under a sale of the lot for county taxes 
 assessed thereon for the year 1831 ; but he failed to prove that 
 the board doing county business had fixed the amount which 
 should be collected on the value of town lots in that year ; and 
 the question was whether proof of such an act of the board was 
 essential to the validity of the title of the plaintiff in error. 
 By the Court : " We see no difficulty in this case. The assess- 
 ment was made under the statute of 1825. By that statute it 
 was the duty of the board doing county business to determine 
 the amount of the tax to be collected on town lots for county 
 purposes. The board had the exclusive authority to determine 
 the amount of the tax ; and unless they did determine it, there 
 was no legal tax on the lot in dispute. The defendant, there- 
 fore, failed to prove any legal claim to the lot." In Doe ex. 
 dem. Weed et al. v. McQuilkin,^ the defendant claimed title to 
 the premises in controversy, under a sale for the following 
 taxes named in the assessment roll, viz. : State tax $1.60, 
 county tax ,80, road tax $1.50, costs 58, total $1.48, but 
 offered no proof of the levy of the county tax by the board of 
 commissioners, and the court held that his title was not proved 
 to be valid. 
 
 If land be sold for the non-payment of divers taxes, one of 
 which is illegal, and the residue legal, the sale is void : (a) the 
 
 1 Joyner v. Third School District in Egretnont, 3 Cush. 567. 
 
 2 5 IBlackf. 98. s 8 id. 385. 
 
 (a) As where it included a sum for an agricultural society which could only 
 be legally levied upon a sworn certificate being made, that at least one hundred 
 dollars had been raised by the society itself, which certificate had not been made. 
 Hall V. Kellogg, 16 Mich. 135. Where the State, county, and township taxes are 
 blended in one column, any material excess in one will render the taxes in such 
 column void, and a sale based on such tax invalid. Case v. Dean, 16 Mich. 12. 
 And where such column is excessive by just the amount of another tax which 
 should have been stated in «, different column, but does not purport to be 
 included in the levy at all, this will not help the defect. Ibid. And where the 
 supervisor could by law assess only for such township expenses as were certified 
 by the town clerk, and such certificate for a part only of the sum assessed was 
 
OP THE LEVY OF THE TAX. 181 
 
 land must be liable for all the taxes for which it was sold In 
 such cases all of the proceedings to collect are necessarily void, 
 as it is impossible to separate and distinguish, so that the act 
 should be in part a trespass, and in part innocent.^ In El- 
 well V. Shaw, * it appeared that there were five distmct * 161 
 
 found, it was held that it was not to be presumed that there had bean eertificatea 
 for the residue, but the contrary, and that the sale was void, thougli the excess 
 caused in the tax was only fifteen cents on one parcel of land, and six on anotlier. 
 Ibid. An erroneous footing by the board of supervisors of the valuations of the 
 personal property, or an estimate of the aggregate valuation of the real estate, 
 different from that at which it was equalized, will not avoid tlie tax unless it has 
 a tendency to increase the burden upon the land in question. Ibid. And that 
 the supervisors, in equalizing the valuations of real estate adopted an erroneous 
 footing of the valuations of the real estate made by the supervisor, is immaterial, 
 as the subject of equalization of real estate is wliolly within their jurisdiction, 
 and their decision conclusive. Ibid. If any indistinguishable or inseparable 
 part or proportion of an entire assessment is illegal, the whole assessment is 
 illegal. Hubbard v. Brainard, 35 Conn. 563 ; 38 Conn. 290. But in Iowa the 
 rule, that an illegal excess vitiates the sale, has been changed by statute (Re- 
 vision of 1860, §§ 753, 755, 762), so that if any portion of the tax is legal tlie 
 sale will be upheld. Rhodes v. Sexton, 33 Iowa, 640 ; Eldridge v. Kuehl, 27 Iowa, 
 160 ; Parker v. Sexton, 29 Iowa, 421 ; Sully v. Kuehl, 30 Iowa, 275 ; Hurley v. 
 Powell, 31 Iowa, 64. And this act is constitutional. See Parker v. Sexton, supra. 
 But where judicial proceedings intervene, and a tax is so levied that tlie legal tan 
 be separated from the illegal, judgment may be rendered for the taxes legally 
 assessed. People v. Nichols, 49 111. 617 ; State v. Allen, 43 111. 456 ; Allen v. 
 Peoria, &c., R.R. Co. 44 111. 85 ; Laflin v. Chicago, 48 111. 449. In California, 
 where judicial proceedings intervene, if a judgment for a tax enforces a lien on 
 real estate by sale thereof not only for the tax on the land, but also for a personal 
 tax, and the latter is erroneous, not being a lien on the land till after the judg- 
 ment is docketed, a sale under the judgment is not void, nor can it for that rea- 
 son be impeached in an action brought to set it aside. Reeve v. Kennedy, 43 
 Cal. 643 ; see also Jones v. Gillis, 45 Cal. 641 ; 46 Cal. 17. In Dietrick v. 
 Mason, 57 Penn. St. 40, where a tract had been divided, and part was seated 
 and part unseated, and the whole was assessed and sold together for taxes, 
 held, that at most such an assessment was only an irregularity such as would be 
 cured by sec. 4 of the Act of March 13, 1815, and the title to the unseated portion 
 would after the expiration of the time of redemption pass to the purchaser. 
 
 1 Elwell V. Shaw, 1 Greenl. 335 ; Torrey v. Millbury, 21 Pick. 70 ; Bangs v. 
 Snow, 1 Mass. 188, 189 ; Drew v. Davis, 10 Vt. 606 ; Thurston v. Little, 3 Mass. 
 429, 433 ; Dillingham v. Snow, 5 id. 547 ; Stetson v. Kempton, 13 id. 283 ; Libby 
 V. Burnham, 15 id. 144; Doe v. McQuilkin, 8 Blackf. 338; s. c. 8 id. 581; 
 Hayden v. Foster, 13 Pick. 492; Alvord v. Collin, 20 id. 418; Kemper v. 
 McClelland, 19 Ohio, 324 ; Lacey v. Davis, 4 Mich. 140 ; Hardenburgh v. Kidd, 
 10 Cal. 402 ; Schenk v. Peay, 1 Dill. C. C. 268; Pierce v. Schutt, 20 Wise. 423 ; 
 Bucknall v. Story, 36 Cal. 72; McLaughlin v. Thompson, 55 111. 249; Buell <.. 
 Irwin, 21 Mich. 145 ; 2 Mich. N. P. 116 ; 23 Wise. 590 ; Hall v. Kellogg, 16 Mich. 
 140; 11 Minn. 825; 2 Curtis, C. C. 443. 
 
182 OF THE LEVY OP THE TAX. 
 
 taxes assessed, and committed to the collector in separate 
 bills for the non-payment of all which the land in con- 
 troversy was sold. The only objection made to the validity 
 of the sale was, that in one of these assessments the overlayr 
 ings exceeded, by ten dollars and thirteen cents, the amount 
 authorized by statute. The sale was held void. The Court say, 
 " The counsel for the tenant relies principally upon the au- 
 thority of Colman v. Anderson,^ but the assessment there 
 objected to, was made prior to the statute limiting the over- 
 layings to five per cent. Anterior to this statute a practice 
 had arisen, which had been universally acquiesced in, to ex- 
 ceed, in the aggregate of the assessment, the entire amount 
 authorized ; partly to obviate the perplexity to which assessors 
 were subjected, in consequence of the fractions in the assess- 
 ment of taxes upon the polls and estates of the inhabitants 
 of the respective towns, and partly to meet abatements and 
 mistakes, and to insure the collection of the whole sum 
 ordered to be assessed. With a view to sanction and to limit 
 this discretion, the legislature at length interposed, and gave 
 to assessors a latitude fully adequate, to enable them to dis- 
 charge with ease the duties imposed upon them. To suffer 
 them to exceed this limit, would be to subject the citizens to 
 the payment of taxes, to the imposition of which they had 
 never assented, and to create uncertainty in the amount, in 
 violation of the manifest provisions of the statute." 
 
 A still stronger case in support of the rule laid down, is 
 that of Huse v. Merriam.^ 
 
 There the assessment was .^226 62 
 
 The levy was |215 00 
 
 Overlayings, 5 per cent 10 75 225 75 
 
 Excess $ 87 
 
 * 162 * It was insisted that the proceeding was void, because 
 the assessor had exceeded the levy and overlayings au- 
 thorized by statute, eighty-seven cents. The answer was " de 
 minimis non curat lex/' Mellen, C. J. : " It is contended that 
 the sum of eighty-seven cents, over and above the five per cent, 
 is such a trifle as to fall witliin the range of the maxim, ' de 
 minimis, ^c' but if not, that still this small excess does not 
 » 10 Mass. 115. 2 2 Greenl. 375. 
 
OF THE LEVY OP THE TAX. 183 
 
 vitiate the assessment. The maxim is so vague in itself, as to 
 form a very uncertain ground of proceeding or judging ; and 
 it may be ahnost as difficult to apply it as a rule in pecuniary 
 concerns, as to the interest which a witness has "in the event 
 of a cause ; and in such case it cannot apply. Any interest ex- 
 cludes him. The assessment was, therefore, unauthorized and 
 void. If the line which the legislature has establislied, be 
 once passed, we know of no boundary to the discretion of 
 assessors." ^ 
 
 Where the tax is less than the amount authorized by law to 
 be levied, it would seem clear that the sale ought to be main- 
 tained, as the error does not prejudice the owner in any respect. 
 In the Lessee of HoUister v. Bennett,^ it was objected that too 
 much tax was charged. The Court made an estimate, and it 
 appeared that the tax really due was 81 1^ cents, while it was 
 charged with only 81 cents and 2 mills, being half a mill less 
 than was due. The Court then say, " To the amount of taxes 
 and penalties should have been added the interest, which was 
 not done, so that the lot, instead of being charged with too 
 much as was supposed by counsel, was charged with too little." 
 
 If a tax is levied for an illegal purpose, it cannot be sus- 
 tained. The power of taxation is one of the highest attributes 
 
 1 Kimball u. Ballard, 19 id. 601 (an illegal excess of five per cent held to 
 avoid tax sale). So in Warner v. Outagamie Co. id. 611 (five per cent excess 
 held to avoid sale) ; Wells v. Burbank, 17 N. H. 393. In this case (Wells v. Bur- 
 bank) an excess of nine cents on the assessment was held to vitiate the tax; 
 bat one dollar fees for the warrant, irrespective of the legality or illegality of 
 the charge, was held not to vitiate the sale. But in O'Grady v. Barnhisel, 23 
 Cal. 296, it was held, that a small mistake made by the collector in computing 
 the amount of taxes and costs, by which the property was sold for a small 
 sum (five and one-half cents) more than the amount actually due, did not 
 avoid the sale, particularly when it was not made to appear that the owner 
 of the land suffered any injury by the mistake. This decision, however, was 
 made under a statute (§ 32, Act of 1857) providing that every tax levied under 
 its provisions should be " a judgment against the person and a, lien against the 
 
 . property assessed," &c., which "shall have the full force and eflfect of an execution 
 against all property of the delinquent," the Court holding that the legislature in- 
 tended by this provision to apply the same legal rules to these sales as govern 
 sales to enforce judgments in ordinary legal proceedings. See Kelley v. Cor- 
 son, 8 Wise. 182, which was an action for damages for taking a horse, on a 
 warrant for collection of taxes, where the taxes as carried out exceeded by 
 $8.50 the amount required to be levied ; excess held to be so trifling as to be 
 disregarded. 
 
 2 9 Ohio, 83. 
 
184 OP THE LEVY OP THE TAX. 
 
 of sovereignty. It cannot be enforced against the citizen unless 
 it is clearly and distinctly authorized by law. It is important 
 that it should be known, that the power of the majority over 
 the property,' and even the persons of the minority, is limited 
 by law to such cases as are clearly provided for and defined 
 by the statute which confers the taxing power. Hence, 
 * 163 whenever * money is raised by taxation, the purpose for 
 which it is levied ought to appear upon the face of 
 the proceeding, and if that purpose is illegal there can be 
 no authority to collect the tax, the officer who attempts to en- 
 force it will be liable in trespass, and the purchaser can acquire 
 no title to the property seized and sold to satisfy it. Thus the 
 levy of a tax for the support of a ministry, or to defend the 
 town against a public enemy, is not warranted by a law con- 
 ferring power to lay and collect taxes to " defray necessary 
 town charges." ^ 
 
 In the assessment of taxes, the state, county, city, road, 
 school, and other taxes authorized by law to be levied and 
 Collected, ought to be kept separate, and not blended together. 
 The reason is obvious. They are imposed by different 
 authorities, and for different objects. One tax may be levied 
 by competent authorit}'', and for a lawful purpose, whUe 
 another may be altogether unwarranted. When any tax- 
 payer thinks proper, he has a right to look into each one of 
 these taxes separately, and have its legality determined by the 
 appropi'iate tribunal. This cannot be done where the different 
 taxes are confounded together, and the identity of each is 
 thus destroyed. A confusion of the several taxes cannot 
 take place without invalidating the entire assessment.^ 
 
 The State has a lien upon land for taxes actually levied, 
 and also for such as were properly chargeable upon the. land, 
 but by i;eason of the neglect of the officers intrusted with the 
 duty of assessing it, the land was omitted in the list of a 
 pa];ticular year, (a) " Back taxes," as they are called, may ' 
 
 1 Lisbon v. Bath, 1 Foster, 319; Bussey v. Gilmore, 3 Greenl. 191 ; Stetson 
 V. Kempton, 13 Mass. 272. 
 
 2 State V. Falkinburge, 3 Green, L. 320; Camden & Amboy R.R. Co. v. 
 Hillegas, 3 Har. 11. 
 
 (a) And a, sale of the land by the assignees of a bankrupt does not divest 
 the lien Of the State upon the land for taxes due upon it, even though sold by 
 
OF THE LEVY OP THE TAX. 185 
 
 therefore be assessed and collected with the taxes of the cur- 
 rent year, although the land upon which they are chargeable 
 has passed into the hands of a bond fide purchaser, (a) This 
 
 the assignee free of incumbrance. Stokes v. State, 46 Geo. 412. In Indiana, the 
 taxes for poll and personal property against the owner of the land while so 
 owner, as well as the taxes on the land, are a lien upon such land. Bodertha v. 
 Spencer, 40 Ind. 353 ; Isaacs v. Decker, 41 Ind. 413 ; and the real estate is liable 
 for these taxes, even though his title be afterwards extinguished by the foreclosure 
 of a mortgage thereon of older date than his purchase. Isaacs v. Decker, supra. 
 
 (a) In Tallman v. Janesville, 17 Wise. 71, it was held that the legislature had 
 power to provide for the reassessment of a tax which had been declared void as 
 violating the constitutional rule of uniformity ; see also Cross v. Milwaukee, 
 19 Wise. 509. But see the rule laid down in Dean v. Borchsenius, 30 Wise. 236, 
 247 ; see also Cooley's Const. Lim., pp. 209, 371, 382, and cases cited. So where 
 a special tax on adjoining lot owners for improvements is invalid by reason of 
 some defect of power in the municipal autliorities, it is competent for the legislat- 
 ure to provide for its reassessment, provided the tax be such as the legislature 
 might originally have ailthorized had it seen fit. May v. Holdridge, 23 Wise. 
 93 ; see also Dean v. Charlton, 23 Wise. 590 ; Mills v. Charleton, 29 Wise. 400 ; 
 Evans v. Sharp, 29 Wise. 564 ; State v. Newark, 34 N. J. Law, 236 ; Howell v. 
 Buffalo, 37 N. Y. 267; DiU v. Roberts, 30 Wise. 178; Dean v. Borchsenius, 
 30 Wise. 286 ; Dean v. Charlton, 27 Wise. 522. But ch. 132, Laws of 1868, 
 providing that where any tax or assessment has been set aside and declared 
 void by any Court " in consequence of any irregularity in any of the proceedings 
 in levying it," or " of any omission to comply with the forms of law " under 
 which it was made, it may be reassessed, &c., does not apply to a case where tlie 
 tax itself was not authorized by law. Dean v. Charlton, supra. In the absence 
 of proof on the subject, it will be presumed that the taxes whose reassessment 
 is provided for were adjudged void for some defect which the legislature can 
 constitutionally cure ; but this presumption may be overcome by proper proof 
 {e.g., as that they were for a private purpose). Dill v. Roberts, supra. So in 
 Michigan the same presumption of regularity exists in relation to the reassess- 
 ment of rejected taxes, by the board of supervisors under sec. 81, Act 49, of 
 1843. Tweed v. Metcalf, 4 Mich. 590. Such statutes being in derogation of 
 individual rights should be strictly construed. Dean u. Charlton, 27 Wise. 522. 
 In this connection it may be remarked that, " Curative statutes may cover any 
 mere irregularity in the course of proceeding for the enforcement of a lawful 
 demand ; but they can never cure a want of jurisdiction either in tax pro- 
 ceedings or those of any other description." Hart v. Henderson, 17 Mich. 218; 
 People c. Goldtree, 44 Cal. 323; see also People v. McCreery, 34 Cal. 432; 
 and People v. San Francisco Savings Union, 31 Cal. 132, holding that an 
 assessment good in substance is the basis of taxation, and that its absence 
 cannot be remedied by legislation, though irregularities in assessment may 
 be so remedied. If the legislature has antecedent power to authorize a tax, 
 it can cure by » retroactive law an irregularity or want of authority in levying 
 it, though thereby a right of action which had been vested in an individual 
 should be divested. Grim v. Weissenberg School District, 57 Penn. St. 433; 
 see also Wilson v. Buckman, 13 Minn. 441 ; State v. Eeed, 2 Vroom, 133 ; 
 Tucker v. Justices, 84 Geo. 370. But the legislature cannot do by a curative or 
 
186 OP THE LEVY OP THE TAX. 
 
 power grows out of the necessities of the government and 
 the nature of a tax lien, which admit no property in 
 * 164 the citizen while a tax remains * unpaid, and regard 
 the land as a pledge — perpetual in its character — to 
 pay the debts and current expenses of the government. It 
 would be a violation of principle to hold that a public right 
 shall be lost, by the mere delay or neglect of the public agent 
 to enforce it ; and in the absence of a statute expressly limit- 
 ing the time within which it may be done, back taxes may 
 be collected at any time. The State is never guilty of laches. 
 In many"cases the statute expressly provides that assessments, 
 and reports of delinquents, shall be made not only of taxes 
 for the current, but for " the preceding year or years." 
 Where such is the language of the law, the right to collect 
 back taxes is clear.^ 
 
 The legislature have power to delegate to municipal corpora- 
 tions, and other local tribunals or bodies, authority to levy 
 and collect taxes for specified purposes, and to determine the 
 
 retrospective act what it could not have previously authorized. National Bank 
 V. City of lola, 9 Kan. 696 ; see also Cooley's Const. Lim., p. * 371; 23 Wise. 
 367 ; 44 How. Pr. R. 334. A statute providing that " All levies of taxes here- 
 tofore made by any incorporated city in this State, whether the assessments 
 have been made by the city assessor or copied from the assessments for State 
 and county revenue, be, and the same are hereby, legalized," was held consti- 
 tutional, and to cure such irregularities as the basing the assessment upon the 
 valuation of the wrong year, and the failure of the assessor to return his lists in 
 due time. Musselman v. Logansport, 29 Ind. 533. 
 
 1 Parham v. Decator Co. 9 Geo. 352; Swan v. Knoxville, 11 Humph. 130; 
 State V. Pemberton, Dud. 15 ; Paden v. Aikin, 7 Watts & Serg. 456 ; Curry ». 
 JFowler, 3 A. K. Marsh. 504 ; Edward v. Beard, Breese, 41 ; Madison Co. v. 
 Bartlett, 1 Scam. 70, 71 ; Hayden v. Foster, 13 Pick. 492. But no tax is due until 
 assessed, and where land is sold for back taxes before a year from the assessment, 
 the sale was void under the Pennsylvania statute, which only authorized sale 
 where taxes had been due and unpaid one year. See Miller v. Hale, 26 Penn. St. 
 432. Wliere certain property (rents accruing from perpetual leases) had in 1864 
 been in fact assessed but to a person not the owner, and upon petition duly made 
 to the assessors the same property was put on the roll for 1865, and assessed to 
 the true owner, and a tax levied upon it for 1864, held, that under the act of 1865 
 (p. 818, §§ 1, 2) this was such an " omission in the assessment roll " of 1864 as 
 made its reassessment valid ; and that (the statute authorizing the entry of such 
 omitted property "whenever it shall appear to them" that it has been so 
 omitted, &c.) such reassessment might be made by the assessors after the time 
 fixed by law for completing their roll for public inspection. Overing v. Foote, 
 43 N. Y. 290. 
 
OP THE LEVY OF THE TAX. 187 
 
 extent of territory whicli shall constitute a tax district.^ 
 While this doctrine is unquestionable, a municipal corporation 
 or other inferior organization possesses no power to levy taxes 
 not expressly authorized by its act of incorporation. ^ Where 
 they are thus authorized, they must, in the exercise of the 
 power, conform to the principles and requirements of the 
 constitution.^ And where, by charter, such corporation had 
 power to " assess and collect taxes according to law," the 
 general law in force at the time of the assessment and collec- 
 tion of the particular tax, was held to be the one intended, 
 and not the law in force at the time of the enactment of the 
 charter ; otherwise the corporation would be excluded 
 from a participation in the improvements * of the * 166 
 system of taxation which might be made from time to 
 time.* 
 
 Where a county or other local corporation levy a tax 
 which is illegal, and the citizen pays the tax to one who has 
 a formal authority to collect it, the payment is not voluntary, 
 but compulsive, and an action will lie against the collector to 
 recover it back, (a) unless he has paid it over to his superiors, 
 in which event the action must be brought against the 
 corporation.^ [But in no case can the State be compelled to 
 
 1 Shaw V. Dennis, 5 Gilm. 405 ; Fitch u. Pinckard, 4 Scam. 69 ; Thomas v. 
 Leland, 24 Wend. 65; Norwich v. Co. Commissioners, &c. 13 Pick. 60; Sawyer 
 V. City of Alton, 3 Scam. 127; Vanderbilt v. Adams, 7 Cow. 349; Trustees of 
 Paris V. Berry, 2 J. J. Marsh. 483 ; Hope v. Deadrick, 8 Humph. 1. 
 
 - Asheville v. Means, 7 Ired. 406. 
 
 ' Hope V. Deadrick, 8 Humph. 1. 
 
 * Ontario Bank v. Bunnell, 10 Wend. 186. 
 
 (o) Greenbaura v. King, 4 Kan. 332; 35 Conn. 563; 38 Conn. 274; 26 Mich. 
 118; 21 Mich. 483; 15 Wal. (U. S.) 75; 56 Bl. 160; 45 N. Y. 676; 29 Iowa, 
 310; 25 Mich. 4-56; 7 Minn. 140, 267; 57 Penn. St. 433; 45 Vt. 202; 44 Vt. 
 325; 28 Wise. 583; 25 Wise. 594; 22 La. Ann. 440; 28 Wise. 583; see also 
 8 Kan. 431 ; 5 Kan. 412. In Bucknall v. Story, 46 Cal. 598, after reviewing the 
 authorities, it is said that " The illegality of the demand paid constitutes of 
 itself no ground for relief. There must be in addition some compulsion or 
 coercion attending its assertion, which controls the conduct of the party making 
 the payment." It may be said in general that there must be some actual or 
 threatened exercise of power possessed, or supposed to be possessed, by the party 
 exacting or receiving the payment over the person or property of the party making 
 the payment, from which the latter has no other means of immediate relief than 
 by advancing the money. See also 46 Cal. 535. 
 
 s Sumner v. Dorchester, 4 Pick. 361; Joyner v. Third School District of 
 
188 OF THE LEVY OP THE TAX. 
 
 refund a tax voluntarily paid, upon a claim of technical 
 illegalitj' in the assessment, provided the property on which 
 it was paid was legally taxable.] (a) But the fact that a tax 
 is unconstitutional, or otherwise illegal, is no defence to a 
 collector who refuses to pay over the tax after he has col- 
 lected it.^ 
 
 It is said, that a statute authorizing the levy and collection 
 of taxes, if ambiguous or uncertain as to the amount of the 
 levy, should be liberally construed by the Courts, and the 
 leaning should be in favor of the larger sum.^ - On the other 
 hand, the rule is laid down, that statutes imposing taxes or 
 burdens upon the citizen, must be strictly construed, and the 
 subjects of taxation, and the amount of the tax, must clearly 
 appear. (5) And in Dwarris,^ it is said to be a well-settled 
 rule of law, " that any charge upon the subject must be im- 
 posed by clear and unambiguous language. Where there is 
 any ambiguity found, the construction must be in favor of the 
 public, because it is a general rule, that where the public are 
 to be charged with a burden, the intention of the legislature 
 must be explicitly and distinctly shown." This would seem 
 to be the safer rule to adopt. Upon this point Chief Justice 
 Ruffin remarks : " I do not think that a strained construction 
 
 is allowable of an act which levies money from the 
 * 166 citizen. The amount of the levy, * the subject of it, 
 
 and the method of raising it, ought to be so plainly 
 pointed out as to avoid all danger of oppression by an erro- 
 neous interpretation ; and where there is a fair doubt, the 
 
 Egremont, 3 Cush. 567 ; Dakotah v. Parker, 7 Minn. 273 ; but see Greenbaum 
 V. King, 4 Kan. 832 ; see also Shoemaker v. Grant County, 36 Ind. 175, as to 
 the State's being a trustee, and the remedy against tlie State being only in an 
 appeal to the law-making power to make the necessary appropriations. 
 
 (a) People v. Miner, 46 111. 374; Stephenson Co. v. Manny, 56 111. 160 ; 58 Me. 
 390. 
 
 1 Waters v. State, 1 Gill, 302; Moore v. Alleghany City, 6 Har. (Penn.) 65. 
 
 2 Martin c. Tax Collector, 1 Speer's Law, 343 ; Bleight v. Auditor, 2 Mon. 
 27 ; Burger v. Carter, 1 McMull. 4-21. 
 
 (6) But sea Cornwall v. Todd, 38 Conn. 447; Hubbard v. Brainard, 35 Conn. 
 563. Rule of liberal construction fixed by statute in Tennessee. See 6 Cold. 
 407. 
 
 ' Dwarris on Stats. 749 ; Butler, arguendo in Ontario Bank u. Bunnell, 
 10 Wend. 186 ; Sewall v. Jones, 9 Pick. 414 ; Savannah v. Hartridge, 8 Geo. 
 30. 
 
OF THE LEVY OP THE TAX. 189 
 
 citizen should have the benefit of it." ^ It is also laid down 
 as a rule in the construction of this class of laws, that they 
 ought not to be so construed as to subject the property of 
 any person or corporation to double taxation, unless it is 
 clearly authorized by the words of the law.^ (a) 
 
 1 State I'. Bank of Newbern, 1 Dev. & Bat. Eq. 218. 
 
 2 Bank of Georgia u. Savannah, Dud. 132; Savings Bank v. Portsmouth, 
 52 N. H. 17 ; 46 N. H. 398, and cases there cited ; 35 Conn. 7. 
 
 (a) As to what constitutes double taxation, see 38 Cal. 461 ; 40 Cal. 127. 
 
190 OP THE AUTHORITY TO COLLECT THE TAX. 
 
 CHAPTER VII. 
 
 « 
 
 OP THE AUTHORITY TO COLLECT THE TAX. 
 
 The authority to collect the tax, is a separate and distinct 
 thing from the authority to sell the land, in case the owner 
 proves delinquent, although the same officer usually exercises 
 both powers, (a) When the lands in a collection district have 
 been duly listed and valued, and the tax due upon each tract 
 has been assessed, a list of such lands is placed in the hands 
 of the collector, whose duty it is to proceed, after a day 
 named, to demand the tax of each resident owner, and in case 
 of the neglect or refusal of such owner to pay, to seize the 
 goods, or imprison the body of the delinquent, in satisfaction 
 of the tax ; and in the event that neither the body nor goods 
 and chattels can be found, it is then made the duty of the 
 collector, either to return a list of the delinquents to some 
 other officer, or himself to proceed, in conformity with the 
 law, to make sale of the lands embraced in his list, upon 
 which the taxes remain due and unpaid. This authority is 
 variously denominated the "list," "duplicate," "invoice," 
 or " warrant to collect," (6) according to the peculiar legisla- 
 
 (a) If there is no statute authority to sell the land, the sale is void. 
 Whitney v. Thomas, 23 N. Y. 283. 
 
 (6) The supervisor's warrant to the township treasurer to collect taxes in 
 Michigan need not run in the name of the People of the State of Michigan. 
 Tweed v. Metcalf, 4 Mich. 588 ; Wisner o. Davenport, 5 Mich. 501. Such 
 warrant, if unsigned, is void. Tweed v. Metcalf, supra. In Iowa a tax warrant 
 to the treasurer is not essential to the validity of a tax sale, the treasurer deriving 
 his authority to sell the real estate directly from the statute. Rhodes v. Sexton, 
 33 Iowa, 540; Parker v. Sexton, 29 Iowa, 421 ; Sully v. Kuelil, 80 Iowa, 275; 
 Johnson v. Chase, 30 Iowa, 308; see also Hurley v. Powell, 31 Iowa, 64. The 
 statute provided that in case of the absence, Inability, or interest of the county 
 judge, tlie county clerk should fill his place, and that " the record of the pro- 
 ceeding must show the fact and the cause " of such substitution. The county 
 clerk, acting as judge, signed the tax warrant, and the record did not show the 
 absence, inability, or interest of the judge. It was held by a divided Court that 
 this did not invalidate the warrant. Corbin v. Hill, 21 Iowa, 70. A county 
 
OP THE AUTHORITY TO COLLECT THE TAX. 191 
 
 tion or usage of each State. It has already been shown that 
 the listing, valuation, and levy of the tax, which usually 
 appear upon one document, called the list, is in the nature 
 of a judgment.^ Upon the same principle, it may be said 
 that a copy of the list, duplicate, invoice, or warrant to col- 
 lect, is analogous to an execution, and constitutes the only 
 authority of the officer to proceed and collect the tax, by a 
 demand, or seizure of the body or goods, in case payment is 
 not made of the tax charged.^ Without a legal docu- 
 ment of this nature, * delivered by the officer of the * 168 
 law designated for that purpose, the collector has no 
 authority to proceed to enforce payment of the taxes. His 
 demand, seizure of the body or goods, his return, and all of 
 his other acts, will be nullities, and lay no foundation for the 
 advertisement and the sale of the land, by the officer intrusted 
 by law with those duties.^ It must not only be made and 
 delivered by the proper officer, but it must be placed in the 
 hands of the collector de jure or de facto, and not in those of 
 a mere usurper.^ However, if an officer de facto seize the 
 body or distrain the goods of the tax-payer, he will be liable 
 
 treasurer when called upon to issue a warrant for the collection of taxes, may 
 show in defence jurisdictional defects in the assessment, but not mere irregular- 
 ities. People V. Halsey, 53 Barb. 647. 
 
 1 See also Aldrieh v. Aldrich, 8 Met. 102. 
 
 2 Pentland v. Stewart, 4 Dev. & Bat. Eq. 886 ; Van Kensselaer v. Witbeck, 
 7 N. Y. 517 ; see also Gossett v. Kent, 19 Ark. 002. 
 
 3 Hannel „. Smith, 15 Ohio, 134; Holt's Heirs v. Hemphill, 3 Ham. 232; 
 State V. Woodside, 8 Ired. 104 ; Barnard v. Graves, 13 Met. 85 ; Homer v. Cilley, 
 14 N. H. 85 ; Chandler v. Spear, 22 Vt. 388 ; Dennis v. Shaw, 6 Gilm. 405 ; Allen 
 V. Scott, 13 111. 80 ; Bassett v. Porter, 4 Gush. 487 ; Chase v. Sparliawk, 2 Foster, 
 134 ; Moore v. Alleghany City, 6 Harr. (Penn.) 55 ; Abbott v. Yost, 2 Denio, 86 ; 
 Downing v. Roberts, 21 Yt. 441 ; Sheldon v. Van Buskirk, 2 Comst. 473 ; Downer 
 V. Woodbury, 19 Vt. 329; Brackett v. Whidden, 8 N. H. 19; Dillingham v. Snow, 
 5 Mass. 558 ; Wheeler v. Anthony, 10 Wend. 346 ; Hathaway v. Goodrich, 5 Vt. 
 65; King v. Whitcomb, 1 Met. 328 ; Upton v. Holden, 5 id. 860; Van Kensselaer 
 u. Witbeck, 7 N. Y. 517 ; but see Parish v. Golden, 35 id. 465. If the assessors 
 have proceeded legally an informal certificate or affidavit ought not to be regarded 
 as fatal to the jurisdiction of the supervisors to levy the tax, and the Court will 
 not presume that the assessors have neglected any duty, from their mere omission 
 to certify it in their affidavit indorsed on the assessment roll. If tlie affidavit 
 contains substantially the matters required by statute, it is sufficient ; and if the 
 omitted part is material, it may be supplied and corrected. Parish v. Golden, 
 ubi sup. 
 
 * Vide ch. 4. Burgess i: Pue, 2 Gill, 11 ; Hartley v. State, 3 Kelly, 233. 
 
192 OP THE AUTHORITY TO COLLECT THE TAX. 
 
 as a trespasser ; and every citizen against whom a tax has 
 been assessed has such an interest in the tax list as will 
 authorize him to become a relator, in an information in 
 the nature of a quo warranto, to inquire by what authority the 
 intruder exercises the powers, and performs the duties of the 
 office of collector.! jjot only must the authority to collect, 
 be made by, and delivered to the proper legal officer, but the 
 copy, invoice, or abstract of the assessment roll, or the war- 
 rant to collect, must be duly authenticated, with a view to 
 their identity as official documents.^ 
 
 The statute of North Carolina required the clerk of the 
 County Court to record the annual return of delinquents, and 
 to deliver to the sheriff a fair and accurate copy of the re- 
 turns, in alphabetical order, designating, in such copy, 
 * 169 the separate * amount of taxes accruing from each spe- 
 cies of property, and extending the aggregate due from 
 each individual. In Doe ex. dem. Kelly v. Craig,^ the plain- 
 tiff claimed title to the premises in question, under a tax sale 
 held in September, 1838, on unlisted land for the taxes of 
 1836. To prove the liability of the land for the double tax, 
 because it was not listed by the owner, the sheriff produced a 
 book, which he swore had been delivered him by the clerk, as 
 the copy of the tax list returned to the Court, on which he 
 was to collect the tax for that year. To that book the de- 
 fendant objected, because it was not authenticated as a copy 
 of the tax list, by a certificate of the clerk, or otherwise. The 
 evidence was admitted, and upon inspection it appeared, that 
 the land in controversy was not contained in the copy fur- 
 nished by the clerk to the sheriff, but it had been entered in 
 another part of the book by the sheriff himself, as property 
 not listed by the owner, and liable to double tax. The plain- 
 tiff, then, to prove the amount of the double tax, offered the 
 sheriff to prove that in 1837 he saw, either in the clerk's office, 
 the original tax list, or in the hands of his own predecessor, a 
 paper purporting to be a copy of that tax list, made out by 
 the clerk, in which the lot in question was listed by the owner, 
 
 1 Commonwealth v. Browne, 1 Serg. & Rawle, 382; Blake v. Sturtevant, 
 12 N. H. 067 ; Sehlencker v. Kisley, 3 Scam. 483. 
 •■! Vide c\\. 18. Chase v. Sparhawk, 2 Foster, 134. 
 3 6 Ired. 129. 
 
OP THE AUTHORITY TO COLLECT THE TAX. 193 
 
 but whether it was the original or copy he was uncertain,. 
 The clerk's office was burnt in 1840, and the original tax list 
 had not been seen since that event took place. Upon this 
 evidence the Court instructed the jury, that they must be 
 satisfied that the document testified to was the list of taxable 
 property for 1836, or they would disregard it ; but if they 
 were so satisfied, it was immaterial whether the list was the 
 original, or the record thereof by the clerk, or an official copy, 
 as either was sufficient. A verdict was found for the plain- 
 tiff, and a judgment rendered thereon, from which the de- 
 fendant appealed. The judgment was reversed. In delivering 
 the opinion, Chief Justice Ruffin said, " The tax list is the 
 warrant of the sheriff to collect the taxes, and it should be 
 authenticated by the official certificate of the clerk, as 
 a true copy * of the original list, filed and recorded in * 170 
 his office. The list ought to be so authenticated, as 
 not only to satisfy the sheriff that it is a copy of the original, 
 but also appear upon inspection, to the citizens, to be official 
 evidence of their liability. It would seem of necessity that ii 
 mere copy of the list, not purporting to state what it is, nor 
 whence it comes, nor by whom made, would not answer the 
 purposes intended by the legislature, but that the nature of 
 the document should be stated under the hand of the clerk at 
 least ; but at all events it was not sufficient here, as it was not 
 authenticated by either the certificate of the clerk, or by the 
 oath of a witness, as a copy ; nothing more appearing but tliat 
 the clerk delivered the book to the sheriff, and said it was a 
 copy." 
 
 Where the statute requires the list to be delivered to the 
 • collector on or before a given day, a delivery afterwards con- 
 fers no authority upon the officer to proceed and collect the 
 taxes.i So, where a day is fixed for the delivery, and it is 
 delivered before the time arrives, the collector has no author- 
 ity ; for, up to the time fixed for delivery, the tax-payer has 
 a right to inspect the list, with a view to the correction of 
 errors in the assessment. Besides, the authority of the col- 
 lector being special, it does not attach until such time as the 
 law fixes for its commencement. A statute of New Hamp- 
 
 1 The Proprietors of Cardigan v. Page, 6 N. H. 182. 
 13 
 
194 OF THE AUTHORITY TO COLLECT THE TAX. 
 
 shire required a copy of the invoice, from which the assess- 
 ment was made, to be recorded or left in the town clerk's 
 office. This was omitted, and it was held, that until this 
 requirement was complied with, it was illegal to proceed in 
 the collection of the taxes.^ The statute of Vermont required 
 a recital of the title, and time of passing the act under which 
 the tax was levied, in the warrant to collect ; where the time 
 was misrecited, the warrant was held void.^ 
 
 Such are the adjudications upon the question of authority 
 
 to coUect, treated as a distinct fact in the series of acts which 
 
 are regarded as essential to the validity of the pro- 
 
 * 171 ceedings. In * the chapter relating to the authority of 
 
 the officer to sell the land as delinquent, the subject 
 
 will be renewed, and more fully explained and illustrated by 
 
 the authorities. This cfhapter might be regarded as useless, 
 
 ' but for the fact, that in some of the States, the power to sell 
 
 the land is vested in the hands of a different officer from the 
 
 collector. In aU such cases, it is apparent that the power to 
 
 collect, and the power to sell, are distinct acts, each of which 
 
 must exist, or the entire proceedings must fall to the ground. 
 
 1 The Proprietors of Cardigan v. Page, 6 N. H. 182. 
 
 2 Brown v. Wright, 17 Vt. 97. 
 
Op the demand op the tax. 195 
 
 CHAPTER VIII. 
 
 OP THE DEMAND OF THE TAX. 
 
 The mere assessment of a tax upon land does not create a 
 debt against the owner. It cannot be garnished, attached, or 
 seized in execution at the suit of a creditor of a municipal cor- 
 poration.i Nor is it a " judgment or contract " ^ which may 
 be set off against the claim of a creditor of a city, within the 
 meaning of the Massachusetts statute.^ In the absence of 
 any statutory provision allowing interest, it does not draw 
 interest, even after a demand.* It may be laid down as a 
 universal rule in the collection of a tax assessed upon the land 
 of resident owners, that the person or personal estate of the 
 delinquent is the primary fund out of which the tax must be 
 paid. A sale of the land itself is a dernier resort. The tax 
 is never so far regarded as a debt, in order to charge the body 
 or goods of the person against whom it was assessed, until a 
 demand has been made, upon the person taxed, by the col- 
 lector.^ 
 
 In Thompson v. Gardner,^ which was an action of assumpsit 
 by a collector to recover a tax assessed against the defendant, 
 the plaintiff proved a regular assessment of the tax, but failed 
 
 1 Egerton v. Third Municipality, 1 La. Ann. 435. 
 
 2 See Bradley v. McAtee, 7 Bush (Ky.), 667. 
 
 3 Peirce u. City of Boston, 3 Met. 520 ; Camden v. Allen, 2 Dutcher, 398. 
 Where a town summoned as trustee was owing the defendant .fll2 for profes- 
 sional services, and at the same time there was a town tax against the defend- 
 ant, unpaid, of $131.88, it was held, that the town was not entitled to apply said 
 tax upon said debt, and thus avoid being held upon trustee process. Johnson 
 V. Howard, 41 Vt. 122. See also 7 Bush, 673 ; Webster v. Seymour, 8 Vt. 
 140. 
 
 4 Shaw V. Peckett, 26 Vt. 482. 
 
 5 Bott V. Perley, 11 Mass. 169 ; Bonnell v. Koane, 20 Ark. 114 ; Green it. 
 Craft, 6 Cush. (Miss.) 70 ; Rathbun v. Acker, 18 Barb. 393. 
 
 B 10 Johns. 404. 
 
196 OP THE DEMAND OP THE TAX. 
 
 to prove that he had ever demanded it of the defendant. The 
 Court gave judgment for the defendant, saying, " A 
 * 173 * default in not paying on demand was necessary to be 
 shown. It would be an alarming doctrine to say that 
 a collector of taxes might sue immediately every person upon 
 his assessment roll, without first demanding payment of the 
 taxes." It would be equally alarming to permit the collector 
 to seize and imprison the body, or distrain and sell the per- 
 sonal estate of a citizen against whom a tax has been assessed, 
 without notifying him that the tax is- due, and demanding the 
 payment of it. The tax-payer must be in default before he 
 can be regarded as a delinquent, and these summary and ex- 
 traordinary powers, with which the collector is armed, are 
 resorted to. He cannot be in default until he is notified of 
 the tax, and has an opportunity of paying it. If, after a noti- 
 fication is given and a demand made, he neglects or refuses to 
 satisfy the tax, then the power of coercion attaches, and not 
 before. A condemnation without a hearing, or an opportunity 
 of one, would be contrary to natural justice ; and it ought not 
 to be presumed that the legislature intended that the sum- 
 mary power of collecting taxes by imprisonment of the body, 
 and distress and sale of the goods, or land of the person 
 assessed, should be arbitrarily exercised by the officer charged 
 with their collection. 
 
 In Jones v. Burford,i it was held that if a tax-payer once 
 duly tenders payment of his tax, and the collector declines to 
 receive it because he has been enjoined by a Court of Chan- 
 cery from collecting the taxes of that year, in a suit to which 
 the tax-payer is not a party, if the injunction be subsequently 
 dissolved, the collector cannot proceed to sell the land, with- 
 out making a new demand for the tax, after such dissolution 
 of the injunction. 
 
 In Ives V. Lynn,2 it was objected to a tax sale, that personal 
 notice, or other reasonable and sufficient warning of the assess- 
 ment of the tax had not been given, and that no demand of 
 
 1 26 Miss. (4 Cush.) 194. See also Seager v. Kearsage Mining Co., 12 Jud. 
 Circuit of Micii., published in Report of Aud.-Gen. of Mich, for 1873, p. xxxvui. 
 
 2 7 Conn. 505. 
 
OP THE DEMAND OP THE TAX. 197 
 
 payment was made. The statute required the collector 
 to * appoint a time and place for receiving taxes ; and * 174 
 in case of. failure, to distrain the goods of the delin- 
 quent. The contemporaneous construction of this statute, 
 and long and universal usage under it, authorized a notice by 
 publication on the sign-post of the town. It was proved that 
 this usage had been complied with in this case, and the Coxat 
 maintained the sale. 
 
 The principles to be extracted from all of the decisions 
 upon this subject, maybe thus stated: 1. "Where the statute, 
 under which the proceeding takes place, expressly requires a 
 notification and demand, the requisition must be complied 
 with, (a) 2. Where the statute is silent upon the question 
 of notice and demand, it must be construed according to the 
 principles of natural justice, which enjoins a personal demand 
 before the person assessed can be regarded as in default. 
 3. Where the statute does not expressly require a demand of 
 the tax, but authorizes the collectors to appoint a time and 
 place for the payment of the taxes upon his list, and give 
 general notice thereof by publication in a newspaper, or by 
 posting the notice in some public place, a personal notice 
 may be dispensed with. A failure to comply with the re- 
 quirement of the law in this respect, will render a sale of 
 land for taxes void.^ 
 
 Under the Illinois statute, the provisions of which have 
 already been recited,^ it has been held, that a report of the 
 delinquent list by the collector, to the Circuit Court, in the 
 form prescribed by law, is evidence of a demand, and author- 
 izes the rendition of a judgment upon the list, though the 
 form is silent as to whether a demand was or was not made, 
 and the collector failed to state the fact in relation to a 
 
 (a) St. Anthony Falls Water Power Co. v. Greely, 11 Minn. 325. In this 
 case, under a statute making publication of notice equivalent to a personal de- 
 mand, where there was no publication and no demand, the sale was held void. 
 See, however, Greene v. Lunt, 58 Me., 518, and note (a), p. * 144. 
 
 i Johnson v. Mclntire, 1 Bibb, 296 ; Thompson v Rogers, 4 La. 9 ; Parker v. 
 Rule's Lessee, 9 Cranch, 64 ; Jackson v. Shepard, 7 Cow. 88 ; Burd v. Ramsay, 
 9 Serg. & Rawle, 109 ; Thompson v. Gardner, 10 Johns. 404 ; Ives i>. Lynn, 7 
 Conn. 505 ; Mayhew v. Davis, 4 McL. 213. 
 
 2 Ante, p.* 26. 
 
198 01" THE DEMAND OP THE TAX. 
 
 demand.^ The contrary was held by Judge Pope, District 
 Judge of the United States Court in Illinois, upon the 
 *175 construction of the same *statute.2 It is an open 
 question under this statute, whether, on proof that no 
 demand was in fact made by the collector, the sale can be 
 sustained. The deed is not made evidence of a demand, but 
 it has been generally supposed that the judgment would con- 
 clude the former owner. The deed need not recite a demand 
 of payment of the tax. That fact may be proved aliunde? 
 
 1 Taylor v. People, 2 Gilra. 349 ; Job et al. u. Tibbetts, 5 Gilm. 382. 
 
 2 May hew v. Davis, 4 McL. 213. 
 » Gossett V. Kent, 19 Ark. 602. 
 
OF THE SEIZURE OP THE BODY OE GOODS, ETC. 199 
 
 CHAPTER IX. 
 
 OF THE SEIZUKE OF THE BODY, OB GOODS AND CHATTELS OF THE 
 DELINQUENT, TO SATISFY THE TAX. 
 
 Where the person against whom a tax has been legally 
 assessed, neglects or refuses to pay the tax voluntarily, after 
 a notification and demand made by the collector in the 
 manner prescribed by law, the necessities of the State com- 
 pel a resort to coercive means. In some States the law 
 requires the body of the delinquent to be arrested, and im- 
 prisoned in satisfaction of the tax.^ In one case last cited,^ 
 under a statute which required the body of a resident propri- 
 etor to be imprisoned until the tax was paid, and the land of 
 a non-resident to be sold in satisfaction, it was held, that an 
 action for false imprisonment would lie against the tax-col- 
 lector, for seizing and imprisoning the body of a non-resident 
 proprietor, who came into the State for a temporary purpose. 
 The evident intention of the law was to make the tax a 
 charge upon the person of the resident, and upon the land of 
 the non-resident owner. 
 
 In other States, the law requires the tax to be collected out 
 of the personal estate of the delinquent, if a sufficiency can be 
 found to satisfy it.^ In South Carolina, the statute thus mar- 
 shals the remedies : 1. A distress of the personal estate of 
 the delinquent. 2. The sale of the land. 3. The seizure 
 and imprisonment of the body.* A violation of the 
 order of remedies * thus prescribed, invariably renders * 177 
 the act of the officer illegal. It is the policy of the 
 law to resort to the land itself, only when all other remedies 
 fan to enforce a satisfaction of the tax. The person or per- 
 
 » Bassett v. Porter, 4 Cush; 487 ; Daggett v. Everett, 19 Me. 373 ; Rising v. 
 Granger, 1 Mass. 48 ; Appleton v. Hopkins, 5 Gray, 580. 
 2 Kising V. Granger, 1 Mass. 48. 
 8 Vide, p. * 172. 
 * Eingman v. Glover, 3 Rich. 27. 
 
200 OF THE SBIZUBE OP THE BODY 
 
 sonal estate of the delinquent is regarded as the primary, the 
 land the dernier resort. The tax never becomes a charge 
 upon the land, until the other remedies have been exhausted. 
 In this respect the power of the collector is limited ; the rem- 
 edies prescribed, and the order in which they are directed 
 to be enforced, are prerequisites, and must be as strictly com- 
 plied with as any other requirement of the law, from the 
 beginning to the end of the proceedings. The law admits of 
 no substitution or change in the oi'der thus established. It 
 is therefore held, that the land of the delinquent cannot be 
 sold in those States which authorize imprisonment, if his 
 body can be found, nor can a resort be had to the land, in 
 States where the personal estate is regarded as the primary 
 fund, as long as a sufficiency of personal estate can be seized 
 and sold in satisfaction of the tax. (a) A sale of the land 
 under such circumstances is illegal and void.^ 
 
 The strongest case upon this point, is that of Scales v. 
 Alvis.2 The statute of Alabama provided, that " where the 
 
 (a) Seager v. Kearsage Mining Co., 12 Jud. Circuit of Mich., reported in 
 Report of Aud.-Gen. of Mich, for 1873, p. xl. ; Bowen v. Donovan, 32 Ind. 379; 
 Beatty v. Mason, 30 Md. 416 ; Polk v. Rose, 25 Md. 160. But under statutes 
 authorizing the issue of tax executions which shall bind cdl the property of 
 defendant, &c., and authorizing the levy, &c., of a tax upon all and every species 
 , of property, real and personal, &c., held, tliat the marshal is not hound to make 
 an entry of no personal property before he can levy upon real property; both are 
 alike subject to levy. Smith v. Jones, 40 Geo. 89. Under the Iowa statute, a tax 
 deed is conclusive evidence that the treasurer complied with his duty in endeav- 
 oring to collect the tax by distress and sale of personal property of the delin- 
 quent, before selling the real estate. Stewart v. Corbin, 25 Iowa, 144. See 
 p.* 144 (a). 
 
 1 Tancey v. Hopkins, 1 Munf. 419, 437 ; Jackson v. Shepard, 7 Cow. 91 ; Par- 
 ker V. Smith, 4 Blackf. 70; Scales v. Alvis, 12 Ala. 617 ; Baltimore -w. Chase, 2 
 Gill & Johns. 376 ; Dallam v. Oliver, 3 Gill, 445 ; Burd v. Ramsay, 9 Serg. & 
 Rawle, 109 ; Cox v. Grant, 1 Yeates, 164 ; I'rancis v. Russell, 5 Hay. 294; Ham- 
 ilton V. Burum, 3 Yerg. 355 ; Doe ex dem. Gladney v. Deavors, 11 Geo. 79 ; Gouv- 
 erneur v. New York, 2 Paige, Ch. 434; Stead's Executors v. Course, 4 Cranch, 
 403; s. c. ?Pet. Cond, 251 ; Parker ^. Rule, 9 Cranch, 64; s. c. 3 Pet. Cond. 
 271 ; Thatcher v. Powell, 6 Wheat. 119 ; s. c. 5 Pet. Cond. 28. See Hutchins v. 
 Moody, 37 Vt. 313 ; Catterliu v. Douglass, 17 Ind. 213 ; Ellis v. Kenyon, 25 id. 
 134. Whether the three years' limitation law of Wisconsin would cure this 
 defect, qucere. Parish v. Eager, 15 Wise. 532. See also Schseffer v, The People, 
 60 111. 179, as to a judgment against land for a personal tax being unauthorized 
 wliere the record does not show that the owner had removed from the county, 
 or that the collector was unable to make the tax out of his personal property. 
 
 2 12 Ala. 617. 
 
OB GOODS, TO SATISFY THE TAX. 201 
 
 delinquent has no goods and chattels within the county, then 
 the lands and tenements of said delinquent may be sold by 
 the collector," &c. The facts were that the delinquent had 
 a yoke of oxen in the county, of value sufficient to satisfy the 
 tax, but they were exempt by law from execution for the 
 debts of the owner. The Court held the sale of the land 
 void under these circumstances, and, in their opinion, 
 say, " It will thus be seen * that the power of the col- * 178 
 lector to sell lands, is limited to those cases where the 
 delinquent has no goods and chattels within the county. 
 There is no provision for cases where the collector is unable 
 to find, or the delinquent is unwilling to surrender, goods. 
 The power exists only where there are no goods, and con- 
 forming to the principle of the many cases on this subject, 
 we are constrained to decide, that as there was personal prop- 
 erty of the delinquent within the county, the collector had 
 no discretion to seU the land." In answer to the argument 
 made in support of the sale, that the statute of the State 
 exempted the oxen from execution, the Court held, 1. That 
 the statute did not, in terms, apply to a distress for taxes ; 
 and 2. That the State, not being named in the act, was not 
 bound by it.^ 
 
 Under the statute of Tennessee, which required the col- 
 lector, in case he could find no goods and chattels of the 
 delinquent, out of which the tax could be made, to make 
 report to the County Court, and apply for judgment against 
 the laud taxed, it was held, that unless the fact affirmatively 
 appeared upon the face of the record, that the owner had no 
 
 1 Under the act to incorporate the city of Washington, passed May 15, 1820, 
 amended by the act of 1824, providing that real property, whether improved or 
 unimproved, &c., may be sold for taxes, ■with this proviso, that no sale "shall be 
 made, &c., of any improved property whereon there is personal property of suf- 
 ficient value to pay the taxes," &c., and providing further, that the collector 
 "shall have authority to collect the same by distress and sale of the goods and 
 chattels of the person chargeable therewith," it is not a condition to the valid- 
 ity of the sale of unimproved land for taxes, that the personal estate of the owner 
 should have been first exhausted by distress. The authority given to the col- 
 lector by sec. 12, declaring that he " shall have authority to collect the tax by 
 distress and sale of the goods of the person chargeable therewith," is not com- 
 pulsory, but cumulative merely. Thompson v. Carroll, 22 How. (TJ. S.) 422; 
 and see Martin v. Carron, 2 Butcher, 230. 
 
202 
 
 OP THE SEIZURE OP THE BODY 
 
 goods and chattels, the Court had no jurisdiction to render a 
 judgment against the land, and that a sale, under such cir- 
 cumstances, could not be supported.^ The statute of Illinois 
 provided, that " when any person, owning lands in any 
 
 county in this State, shall fail to pay taxes assessed 
 * 179 thereon, and the collectors shall be unable * to find 
 
 any personal property of such person in his county, 
 whereon to levy, of value sufficient to pay said taxes and 
 costs, it shall be the duty of the collector to make report 
 thereof, to the Circuit Court of his county, at the first term in 
 each year, for the preceding year or years, which report shall 
 be in the following form : — 
 
 ' List of Lands and other Real Estate, situated in the County of- 
 
 -, and State of 
 
 Illinois, on which Taxes remain due and unpaid, for the Year herein set forth." 
 
 ■g 
 
 
 S 
 
 
 i 
 
 ^ 
 
 
 
 
 ■s i 
 
 «. o 
 
 d 
 
 |l 
 
 S a. 
 
 a 
 
 «• 
 S 
 o 
 
 in 
 "S 
 
 1 
 
 a 
 
 II 
 
 11 
 
 1 
 
 Pi 
 
 1 
 
 E5 
 
 
 
 
 < 
 
 (H 
 
 
 
 
 
 
 
 
 
 
 
 t 
 
 
 The law also required the collector to give notice of his 
 intention to apply to said Court for a judgment against the 
 lands embraced in said report, by publication in a newspaper, 
 &c., and he was also directed to file a copy of said advertise- 
 ment, together with a certificate of the printer, showing the 
 due publication of the same. It was then made the duty of 
 the Court to hear and determine the application, in a sum- 
 mary way, without pleadings, and imless some valid objec- 
 tion was interposed by those interested in the list, to render 
 judgment against said lands. Upon this judgment, the clerk 
 was directed to issue and deliver to the collector, a precept, 
 commanding him to sell the lands against which judgment 
 
 1 Francis v. Russell, 5 Hay. 294 ; Hamilton v. Burum, 3 Yerg. 355 ; Thatcher 
 V. Powell, 6 Wheat. 119 ; b. c. 5 Pet. Cond. 28. 
 
203 
 
 had been obtained as aforesaid. Upon the construction of 
 this statute, it has been held by the Supreme Court of Illi- 
 nois, in two oases, one of which arose collaterally, and the 
 other upon writ of error, to reverse the judgment ; that where 
 the collector makes a report in the form prescribed by the 
 statute, it will be presumed that the delinquents re- 
 ported had no personal property ; that this * presump- * 180 
 tion may be rebutted by proof, upon objection taken 
 to the rendition of the judgment ; but if the owner makes no 
 defence, and suffers a judgment to be entered against the 
 land, the judgment thus rendered becomes conclusive in all 
 collateral actions, and cannot be impeached by showing that 
 the report of the collector, in this respect, was false ; and, 
 on error, the Court will, by intendment, support the judg- 
 ment where the record does not affirmatively show that the 
 owner had goods.-^ The contrary principle was maintained 
 by Judge Pope in the United States Court for the District of 
 Illinois.^ (a) 
 
 1 Taylor v. People, 2 Gilm. 349 ; Job v. Tibbetts, 5 id. 376. 
 
 2 Mayhew v. Davis, 4 McL. 213. 
 
 (a) A recital in a collector's deed that " not knowing of any personal property 
 whereon to levy," he proceeded to levy on the real estate, is not a direct and sat- 
 isfactory mode of reciting that sufficient personal property could not be found ; 
 but for the purposes of this case the recital was treated as sufficient to throw the 
 ontis on the owner. Jones v. McLain, 23 Ark. 429. 
 
204 OP THE EETUBN OP THE DELINQUENT LIST. 
 
 CHAPTER X. 
 
 OF THE RETURN OP THE DELINQUENT LIST. 
 
 In several of the States, as heretofore remarked, the jjower 
 to collect the tax, and the power to sell the land in case of 
 non-payment, is vested by law in different officers.^ When 
 such is the case, the statute usually requires the collector to 
 return a list of delinquents to his superior, in a certain pre- 
 scribed form, authenticated or verified in a particular manner, 
 and within a limited time. When such is the requirement, 
 it is regarded as imperative, and not directory, and an exact 
 compliance is demanded.^ (a) This return is the only evi- 
 
 1 Ante, ch. 7. 
 
 2 See Hill v. Mason, 38 Me. 461 ; Huntington v. Brantley, 33 Miss. 451 ; Pitts 
 V. Booth, 15 Texas, 453 ; Hopkins v. Sandige, 31 Miss. 668 ; Seager v. Kearsage 
 Mining Co., 12 Jud. Circuit of Mich., reported in Aud.-Gen.'s Report, 1873, 
 p. xl. 
 
 (a) Under an act requiring a return of all taxes which remain "delinquent 
 and unpaid," a return of a list of taxes which remain "delinquent or unpaid " is 
 defective, and confers no authority to sell the lands for Such taxes. St. Anthony 
 Falls Water Power Co. v. Greely, 11 Minn. 321. . And a certificate attached 
 thereto, " that the foregoing is a true and correct list of all lands sold by and 
 forfeited to the city of St. Anthony for unpaid taxes, and of all taxes levied and 
 assessed in said city remaining delinquent and unpaid," &g., " as stated in said list 
 and return hereinbefore written," did not cure the defect in the return. Ibid. 
 Under a statute requiring an oath to be taken \>y a collector of taxes on return- 
 ing lands on which the taxes have not been paid, the statute reading as follows : 
 " and upon making oath before the county treasurer, or, in case of his absence, 
 before any justice of the peace," &c., and under another statute providing " that 
 the county treasurer may appoint a deputy, who, In the absence of the treasurer 
 from his office, or, in case of a vacancy in said office, may perform all the duties 
 of the treasurer," held, that the oath may be administered by the deputy county 
 treasurer in the absence of the treasurer from his office. Malonny y. Mahar, 1 
 Mich. 26 ; s. c 2 Doug. 432. Under the new constitution of Illinois, sec. 4 of 
 Art. 9, providing that " The general assembly shall provide, in all cases where 
 it may be necessary to sell real estate for the non-payment of taxes or special 
 assessments for state, county, municipal, or other purposes, that a return of such 
 unpaid taxes or assessments shall be made to some general officer of the county 
 
OP THE EETTJRN OP THE DELINQUENT LIST. 205 
 
 dence of delinquency — of the fact that a demand was made, 
 by the collector, upon the person against whom the tax was 
 charged — and that the body of such person could not be 
 found within the district of the collector ; or, that the delin- 
 quent had no goods and chattels within the district out of 
 which the taxes could be made. Besides, the return is the 
 foundation of the authority of the superior — to whom it is 
 required to be made — to sell or order a sale of the land of 
 the delinquent, (a) If the officer to whom the return is made, 
 is the person to whom the power of making the sale is in- 
 trusted, the return constitutes his authority to sell — if he is 
 directed to issue a warrant or order to some third person to 
 make sale of the lands embraced in the delinquent list, the 
 return is the basis upon which he issues the order or warrant. 
 Such was the requirement in Illinois, Ohio, Vermont, 
 New * York, and New Hampshire.^ A neglect, there- * 182 
 fore, to make this return in the form, manner, and 
 time prescribed, is fatal to the validity of a tax sale. 
 
 The Ohio statute required that the return should be at- 
 tested by the oath of the collector. In the Lessee of Harmon 
 V. Stockwell,^ the return was sworn to before the county au- 
 ditor, and it was contended that the auditor had no authority 
 to administer the oath, and'ther%fore the sale was void. The 
 Court sustained this position, saying, " As the penalties of 
 perjury were intended to be imposed for a false return, it is 
 clear that the oath must be administered by competent au- 
 thority. If the auditor at that time possessed no such power, 
 
 having authority to receive state and county taxes, and there shall be no sale of 
 the said property for any of saidtaxes or assessments but by said officer, upon the order 
 or judgment of some Court of record," held, that this provision proliibited the 
 Court from rendering judgment for the sale of real estate for such taxes on the 
 application of any person but the general county officer named, and that no 
 other (in this case the city collector) but him could make the sale. Hills v. 
 Chicago, 60 111. 86. 
 
 (a) Lewis v. Disher, 25 Wise. 441. 
 
 1 Revised Laws Illinois, 1833, p. 524, sec. 8, and p. 528, sec. 1 ; Messenger ». 
 Germain, I Gilm. 631 ; Harmon v. Stockwell, 9 Ohio, 93 ; Hannel v. Smith, 15 
 Ohio, 134 ; Doe v. Whitlock, 1 Tyler, 305 ; Winder v. Sterling, 7 Ham. 190 
 (Part 2) ; Jackson v. Morse, 18 Johns. 442 ; Tallman o. White, 2 Comst. 66 ; 
 Homer v. Cilley, 14 N. H. 85. 
 
 ■■« 9 Ohio, 93. See Ward v. Barrows, 2 Ohio St. 245. 
 
206 OF THE RETUEN OP THE DELINQUENT LIST. 
 
 the list wants an essential requisite which invalidates the sale. 
 The power to administer an oath is incidental to no officer 
 except the judicial. It must be conferred by statute, either 
 directly or by implication, or ministerial officers do not pos- 
 sess it." The Court then proceed to examine the statutes of 
 Ohio, relative to the powers and duties of county auditors, 
 aud thus conclude : " "We therefore find no authority in any 
 of the statutes enabling the auditor to administer oaths, except 
 in certain specified cases, and the instance before us is not one 
 of them. The grant of authority in those specified cases 
 sufficiently implies that he possessed it in no others. The 
 return of the collector, therefore, was not made under the 
 securities and sanctions which the law required ; and this 
 omission is fatal to a title held under such strict principles as 
 a tax sale, and supersedes the necessity of looking further into 
 the case." 
 
 Under another statute of Ohio, the county treasurer was 
 empowered to collect the taxes ; and in case he was unable 
 to do so, he was required to make a return of the delinquents 
 
 to the county auditor, and to sign and testify to its cor- 
 * 183 rectness * under oath or affirmation, to be administered 
 
 by the county auditor. The county auditor was re- 
 quired to make a complete record of this return. In Miner v. 
 McLean, 1 the record offered in evidence did not show affirma- 
 tively that the oath had been taken by the treasurer, but a 
 transcript of the record did. The sale in question was held 
 void, because the oath was essential to the validity of the re- 
 turn, and it must appear upon the record ; no inferior evidence 
 being admissible for the purpose of supplying the defect. In 
 Illinois, a return of the delinquent hst' to the Circuit Court, 
 constitutes the authority of that Court to enter judgment 
 against the delinquent list.^ So in Tennessee ^ and Ohio.* 
 
 Upon the same principle as above stated, if the law requires 
 the tax collector after a sale, to return the certified list fur- 
 nished by the register of lauds, with a note to each tract or 
 
 » 4 McL. 138. See p. *256, note. 
 2 Spellman v. Curtenius, 12 111. 409. 
 '■> Thatcher v. Powell, 6 Wheat. 119. 
 < Wilkins v. Huse, 9 Ohio, 154. 
 
OF THE RETURN OP THE DELINQUENT LIST. 207 
 
 lot, showing the disposition made of it ; if sold, to whom, and 
 the amount paid by the purchaser, or if not sold, the amount 
 for which it was offered for sale, and bid in for by the State, 
 this return is essential to a deed by the register ; and if the 
 collector merely write against a tract a person's name, this 
 does not fulfil the law ; and the register's deed, based upon 
 such a return, is invalid. And although the purchaser could 
 not control this omission, he nevertheless buys subject to all 
 the requirements of law.^ 
 
 1 Donohoe v. Hartless, 38 Mo. 335. 
 
208 OF THE PROCEEDINGS WHERE A 
 
 CHAPTER XL 
 
 OP THE PROCEEDINGS WHERE A JUDICIAL CONDEMNATION IS 
 
 REQUIRED. 
 
 It has been observed already, that in some of the States, the 
 power to sell land for the non-payment of taxes, does not arise 
 until the delinquency of the owner has been judicially ascer- 
 tained.^ The character, requisites, and effect of these proceed- 
 ings, vary according to the peculiarities of the local law under 
 which they are carried on. There are, however, some general 
 principles, which are regarded as landmarks, and. uniformly 
 adhered to. It is a familiar principle, that a judgment is con- 
 clusive upon parties and privies, where the Court had juris- 
 diction to render it.^ Unless such jurisdiction exists, the 
 judgment is a nullity, and may be impeached collaterally.^ 
 
 1 Ante, p. * 26. 
 
 2 That after judgment in rem against the land it is too late to complain of 
 errors in the assessment, see Daily v. Newman, 14 La. Ann. 580; so after decree 
 to foreclose right of redeeming from tax sale unless collusion or fraud is shown. 
 McGahen v. Carr, 6 Clarke (Iowa), 331; nor can a judgment be attacked collat- 
 erally by showing that tax has been paid ; Cadmus v. Jackson, 52 Penn. St. 295; 
 Wallace u. Brown, 22 Ark. 118. 
 
 3 Brown u. Hogle, 30 111. 119. When the judgment in a tax suit (in rem and 
 against the owner in personam) recites that all owners and claimants of property 
 have been duly summoned to answer the complaint and have made default, the 
 judgment in this respect cannot be impeached in a collateral action, although it 
 appears that the name of one of the owners was omitted in the published sum- 
 mons. Reily v. Lancaster, 39 Cal. 354; see also 89 Cal. 439; 44 Cal. 623. As 
 to service of summons, return of service and judgment in tax suits, see 3b Cal. 
 393 ; 39 Cal. 621 ; 44 Cal. 623 ; 43 Cal. 642, 652. A judgment for taxes against 
 public property of the State is coram non judine and void. People v. Doe G. 
 36 Cal. 220. So a judgment rendered before the time for payment of the tax 
 has expired is void. Williams v. Gleason, 5 Clarke (Iowa), 284; Scott v. Bab- 
 cock, 3 G. Greene, 133, overruling Noble v. State, 1 Greene, 326. See p. *144, 
 note 1. Under a statute providing that the land shall be assessed to the owner 
 if known, and if not to the " unknown owner,'' and that if the tax is not paid, 
 suit shall be commenced against the person assessed, the land itself, and "all 
 owners and claimants," if the proceedings conform to the statute in the assess- 
 ment bringing of suit and summons, the judgment is conclusive against all the 
 
JUDICIAL CONDEMNATION IS EEQUIRED. 209 
 
 This jurisdiction must extend to the parties as well as to the 
 subject-matter. True, authorities may be found which advance 
 the position, that a judgment of a Court of general jurisdiction 
 cannot be questioned in a collateral action, for want of juris- 
 diction over the parties ; ^ but this doctrine seems to be at war 
 with the fundamental principles of our institutions. There is 
 no such thing as unlimited power in this country, and no 
 power which can be exercised arbitrarily. No such principle 
 exists, as that the Courts can do no wrong. The acts of every 
 tribunal acting under the authority of law, may be questioned 
 and tried by the law of its organization. The legislature 
 * itself is limited by the Constitution. Judicial power * 185 
 can rest upon no broader foundation. No man shall be 
 condemned without notice and an opportunity of being heard. 
 Such is the mandate of the Constitution. If Courts may dis- 
 regard this provision, it is impossible to perceive what plaus- 
 ible reason can be urged against the validity of an act of the 
 legislature, divesting a man of his estate, or depriving him of 
 his liberty. The great objection to such legislation is that it is 
 ex parte. If the Courts can thus proceed without notice, why 
 may not the legislature ? It is a simple choice of tyrannies. 
 If such a principle once gains a foothold, the dominion of a 
 mob would be a merciful substitute for such a power. The 
 only reason why a judgment is regarded as conclusive, is, that 
 an end may be put to litigation. Public policy demands re- 
 pose under such circumstances ; but there is neither justice 
 nor sound policy in closing the Courts against one who has 
 never litigated his rights, or had an opportunity of doing so. 
 An estoppel is regarded as odious, because it shuts out the 
 truth ; but it would be the essence of injustice to maintain an 
 estoppel against one who has been passive, without knowledge 
 
 world ; but if the action is not brought against " all owners and claimants," and 
 service is not made on the land, the judgment is void. Mayo v. Ah Loy, 32 Cal. 
 477. That a judgment for taxes which is both personal and against the land, is 
 a debt within the legal tender act, see Rhodes v. O'Farrell, 2 Nev. 60. 
 
 1 2 American Leading Cases, 737. The validity of a judgment in a tax suit 
 is tested by the same rules as a judgment in an action of any other class. It 
 cannot be impeached collaterally by proof of a defective assessment roll. Eitel 
 V. Foote, 39 Cal. 439. So the principles applicable to other judicial sales are 
 applicable to tax sales in California. Jones v. Gillis, 45 Cal. 641. 
 
 14 
 
210 OP THE PROCEEDINGS WHERE A 
 
 of any necessity for action. The law of rehearings, reviews, 
 and new trials, is opposed to this doctrine, and strongly, too, 
 for that law presupposes a notice and hearing, but opens the 
 litigation because injustice may have been done to the party 
 complaining. Therefore, to constitute a valid judgment, it 
 must have been rendered by a tribunal having jurisdiction over 
 the subject-matter of the litigation, and over the parties to it. 
 A Court has jurisdiction of the subject-matter, where by law, 
 authority has been conferred upon it, to hear and determine 
 the' particular cause of action in controversy between the par- 
 ties ; and it has jurisdiction over the person of the defendant, 
 when he voluntarily appears to the action, or has been actually 
 served with process, or has had constructive notice of the pen- 
 dency of the suit, in the manner prescribed by law. 
 
 This principle is applicable to all Courts. The only 
 difference between Courts of general, and those of special 
 
 jurisdiction, is this : to support the act of the former, it 
 * 186 is not necssary * that the facts and circumstances which 
 
 justify its action should appear aflfirmatively upon the 
 face of its record, it will be presumed that they existed, 
 whether the validity of the judgment is questioned collater- 
 ally, or upon writ of error.^ On the other hand, where the 
 Court is one of special jurisdiction, the facts upon which that 
 jurisdiction depends, must affirmatively appear upon the face 
 of its record.^ And some of the cases go further, and hold, 
 that those facts must appear at large, and not by way of re- 
 cital.^ When it is shown that a Court of general jurisdiction 
 had no authority in fact, to hear and determine the cause, 
 and when the record of the special tribunal fails to show 
 upon its face that authority, the act of each is a nullity, and 
 
 1 Grignon's Lessee v. Astor, 2 How. (U. S.) 319; Doe ex dem. Obert «. 
 Hammel, 3 Har. (N.J.) 73; Kempe v. Kennedy, 5 Cranch, 173; Raymond v. 
 Bell, 18 Conn. 87, 89 ; Propst v. Meadows, 13 111. 168, 169 ; Kenney v. Greer, 
 13 id. 433 ; Foot v. Stevens, 17 Wend. 483 ; Peacock v. Bell, 1 Saund. 73 ; Hart 
 u. Seixas, 21 Wend. 40 ; Voorhees v. U. S. Bank, 10 Pet. 449 ; Young v. Lorain, 
 11 111. 636, 639 ; Wyman v. Campbell, 6 Porter, 236, 243 ; Doe v. Wise, 5 Blackf. 
 402; M'llvoy v. Speed, 4 Bibb, 85; Fridge v. State, 8 Gill & Johns. 103; Van 
 Wormer v. Mayor of Albany, 15 Wend. 262 ; Paine v. Mooreland, 15 Ohio, 444, 
 445. 
 
 2 Vide cases cited ante, p. * 39. 
 
 3 Rex V. Croke, Cowper, 26. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 211 
 
 will be so treated in all other Courts and places where the 
 validity of their judgments is drawn in question.^ 
 
 These general principles are applied to the records of judg- 
 ments in tax proceedings. Iii Thatcher v. Powell,^ Chief 
 Justice Marshall says, " In summary proceedings, where a 
 Court exercises an extraordinary power, under a special stat- 
 ute prescribing its course, we think that course ought to be 
 exactly observed, and those facts especially which give 
 jurisdiction * ought to appear, in order to show that * 187 
 the proceedings are coram judice." And it makes no 
 difference whether this power is conferred upon a special 
 tribunal created for the sole and only purpose of trying tax 
 causes, or whether the power is superadded to a Court of 
 general common law and chancery jurisdiction. When this 
 special power is conferred upon such Courts, to be exercised 
 in a summary way, they are treated in the exercise of this 
 particular power as Courts of special jurisdiction.^ 
 
 In Indiana the rule is much more strict. Not only must 
 the jurisdiction affirmatively appear, but the evidence upon 
 which the Court acted must be set forth at large in the 
 record ; in other words, a complete record of all the tax pro- 
 ceedings anterior to the judgment must be made and pre- 
 served.* This is in accordance with the general principles 
 applicable to summary proceedings.^ But it must be re- 
 membered that all of these cases were decided upon writs of 
 error, and did not arise collaterally. The true rule undoubt- 
 edly is, that if the jurisdiction appears by recital or otherwise 
 
 J Williamson et al. v. Berry, 8 How. (U. S.) 540, 541 ; Glass et cd. v. Sloop 
 Betsey, 3 Dall. 7 ; Rose v. Himely, 4 Cranch, 241 ; Elliott v. Peirsol, 1 Pet. 328 ; 
 Wilcox V. Jackson, 13 Pet. 499 ; Shriver v. Lynn, 2 How. (Tj. S.) 59 ; Hickey 
 V. Stewart, 3 How. (U. S.) 750; Rogers *. Dill, 6 Hill (N. Y.), 415; Latham v. 
 Edgerton, 9 Cow. 227; Horner et ux. u. Doe, Smith (Ind.), 10; s. c. 1 Carter, 
 130 ; 2 American Leading Cases, 733, 736. 
 
 2 6 Wheat. 119. 
 
 8 Young V. Lorain, 11 111. 636, 637. 
 
 4 Dentler v. State, 4 Blackf. 258 ; Smith v. State, 5 Blackf. 65; Williams v. 
 State, 6 Blackf. 36. 
 
 » Judson V. State, 1 Minor, 153 ; Yancey v. Hopkins, 1 Munf. 419 ; Bates u. 
 Planters and Merchants' Bank, 9 Porter, 376 ; Crawford v. State, 1 Minor, 143 
 1 Chandler, 29 ; Harryman v. Titus, 3 Mo. 302; Zurcher v. Magee, 2 Ala. 253 
 Bates V. Branch Bank of Mobile, 2 Ala. 689 ; Brown v. Wheeler, 3 Ala. 287 
 Bettis V. Taylor, 8 Porter, 564. 
 
212 OF THE PKOCEEDINGS WHERE A 
 
 upon the record, the judgment will be sustained, although the 
 evidence npon which they acted is not spread upon the 
 record.i The effect thus given to this class of judgments, 
 where their jurisdiction is once established, is substantially 
 the same given to a judgment rendered by a Court of general 
 jurisdiction proceeding according to the course of the common 
 law. The reversal of such judgment will not defeat the title 
 of a purchaser acquired while the judgment was in full 
 
 * 188 force ; and the judgment itself, * so long as it remains 
 
 in force, cannot be impeached collaterally, unless it be 
 absolutely void.^ 
 
 The Tennessee statute required the collector to make the 
 money out of the goods and chattels of the person in whose 
 name the land was listed ; if the owner failed to pay on 
 demand, or had no goods and chattels, the collector was re- 
 quired to report a list of the delinquents to the County Court; 
 the Court was directed to cause an advertisement to be pub- 
 lished in a newspaper, stating that application was made for 
 a judgment against the lands, and upon the day named in the 
 notice it was the duty of the Court to render judgment upon 
 the list. In the construction of this statute, it has been 
 decided that the following jurisdictional facts must appear 
 in the record, or the judgment will be a nullity, and no title 
 can be acquired under it : 1. That the land was situate in the 
 county where it was taxed and reported ; 2. That the owner 
 had no goods and chattels out of which the tax could have 
 been made ; 3. That notice was given of the application in 
 due form of law ; and 4. That the taxes were due and 
 unpaid upon the land.^ 
 
 The Indiana statute of 1832 required the collector 
 
 * 189 to deliver * to the school commissioners a description 
 
 of the lands upon which taxes were due and unpaid, 
 
 1 Chestnut v. Marsh, 12 111. 173 ; Rogers v. Park, 4 Humph. 480 ; McCarroU 
 V. "Weeks, 5 Hay. 246 ; Taylor v. People, 2 Gilm. 349. 
 
 2 Lessee of Wilkins's Heirs v. Huse, 9 Ohio, 154 ; Chestnut v. Marsh, 12 111. 
 173 ; Spellman v. Curtenius, 12 111. 409. 
 
 3 Thatcher v. Powell, 6 Wheat. 119; McClung v. Koss, 5 "Wheat. 116; 
 s. c. 5 tr. S, Cond. 602 ; Francis v. Russell, 6 Hay. 294; McCarroU v. "Weeks, 
 5 Hay. 246 ; Campbell i/. Mclrwln, 4 Hay. 60 ; Anderson v. Patton, 1 Humph. 
 369; Rogers v. Park, 4 Humph. 480; Hamilton v. Burum, 3 Yerg. 355, 
 
JUDICIAL CONDEMNATION IS REQUIRED. 213 
 
 and in case the owners failed to redeem the same within three 
 years from the time of the delivery of said lists, the law pro- 
 vided that they might be sold in such manner as the legislat- 
 ure might thereafter prescribe, for the benefit of the school 
 fund. In 1835 an act was passed, prescribing the manner in 
 which such lands might be forfeited and vested in the State 
 for the use of the said school fund. This statute required, 
 among other things, that a list of the lands should be adver- 
 tised, and that the notice should express that unless the taxes 
 were paid by the next ensuing term of the Circuit Court, a 
 motion would be made for a judgment of forfeiture, &c. ^ 
 In one case it did not appear that the notice of the motion 
 contemplated had been given, but the record recited that 
 " the Court was satisfied that all the proceedings required 
 by law had taken place, &c." The Court held that this re- 
 cital amounted to nothing. The record must show what 
 those proceedings were, in order that the appellate Court may 
 have an opportunity to determine whether they were all that 
 the statute required to give the Circuit Court jurisdiction .^ 
 And in another case, the Court held that the proceedings re- 
 quired by law to take place anterior to the collector's return, 
 must also appear upon the record, as well as the notice of 
 the motion.3 
 
 The Ohio statute of January 30, 1822, authorized the rendi- 
 tion of a judgment, by the Common Pleas Court, after notice, 
 upon the delinquent list, and declared the tax deed, made in 
 pursuance of it, to be evidence of the regularity of the pro- 
 ceedings, and that the title thereby conveyed should not be 
 " invalidated or affected by the reversal of such judgment, 
 or any error therein, or by any error in the proceedings pre- 
 vious to the rendition of such judgment, relating to the charg- 
 ing or collecting of taxes on such lands, or the obtaining of 
 such judgment." The law further required, that a list of the 
 lands against which judgment was pronounced, should be certi- 
 
 1 A notice by a collector of taxes under the Illinois statute of an application 
 for judgment against delinquent lands which omits to state that an order of sale 
 will be applied for, is insufficient, and the subsequent proceedings are void. 
 Charles v. Waugh, 36 111. 315. 
 
 2 Dentler v. State, 4 Blackf. 258 ; s. p. Smith v. State, 5 Blackf. 65. 
 « Williams V. State, 6 Blackf. 36. 
 
214 OP THE PROCEEDINGS WHERE A 
 
 * 190 fied by the * clerk of the Court to the county auditor, 
 together with an order of sale. The auditor was 
 thereupon directed to give notice, and on the day named 
 therein, to proceed and sell the land, and make return of his 
 proceedings to the Court ; and it was made the duty of the 
 Court to approve the sale, if regular, and order a deed to he 
 executed and delivered to the purchaser. In the construction 
 of this statute, it has been held, that the prerequisites to a 
 valid sale and conveyance were, 1. A judgment rendered by 
 a Court of competent jurisdiction ; 2. A precept to the county 
 auditor directing a sale ; 3. Due notice of the time and place 
 of sale ; 4. A sale in pursuance of such notice ; 5. A return 
 of the proceedings ; 6. A confirmation of the sale, and an 
 order for the execution of the deed to the purchaser ; and, 7. 
 A deed executed in pursuance of the order. When these 
 facts exist, the effect of the judgment is to conclude the 
 rights of all concerned ; no informality, no irregularity, no 
 errors in any of the previous proceedings, can vitiate it. A 
 misdescription of the land in the assessment roll cannot be 
 taken advantage of. The only objections which can be made 
 to the judgment is a want of jurisdiction.^ 
 
 The statute of Illinois of February 26, 1839, contains the 
 following sections : — 
 
 " Assessors shall finish taking in the list of taxable property 
 on or before the first day of May, annually ; and each assessor 
 shall, on or before the said first day of May, deliver to the 
 clerk of the Commissioners" Court of his county the abstract 
 of lands furnished him by the clerk, together with the original 
 list of taxable property within his district, also a copy of said 
 list ; the copy shall contain the naroes of all persons owning 
 taxable property within his district, arranged and written in 
 alphabetical order ; the original list shall be filed and pre- 
 served by the clerk, and a copy shall be delivered over to the 
 
 collector of taxes, as hereinafter provided." ^ 
 * 191 * " On the second Monday of August, annually, or 
 
 so soon thereafter as collectors shall have been sworn 
 
 1 Eennick v. Wallace, 8 Ohio, 540 ; Lessee of Wilkins's Heirs v. Huse, 9 Ohio, 
 154. 
 
 2 Sec. 11. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 215 
 
 into office, the clerks of the County Commissioners' Courts 
 shall deliver to the collectors of their respective counties, the 
 alphabetical lists of taxable property returned to them by the 
 assessors, and take duplicate receipts of the same, in which 
 shall be specified the amount of taxes to be collected upon 
 the lands contained in the lists, and the amount to be collected 
 upon the personal property ; one of which receipts shall be 
 filed by the several clerks of the County Commissioners' Courts 
 in their office, and the other shall be delivered to the county 
 treasurer of the proper county, and by him filed in his 
 office." 1 
 
 " The collectors of the several counties shall, so soon as the 
 lists of taxable property are delivered to them, proceed to col- 
 lect the taxes charged upon said lists, by calling upon each 
 and every person residing in their respective counties, at his 
 or her usual place of residence, and requiring payment there- 
 of ; and each and every person shall be charged with and re- 
 quired to pay to the collector twenty cents on every hundred 
 dollars' worth of property listed for taxation ; and a lien is 
 hereby created and declared to exist, in favor of the State, 
 upon every article of personal property owned by any person 
 charged with taxes, from and after the taxes shall have been 
 demanded by the collector ; and no sale or transfer of the 
 . same shall affect the claim or lien of the State, but the said 
 property shall be liable to be seized by the collector, in whose- 
 soever hands or possession the same may be found, and sold 
 to satisfy such taxes, and all costs and charges attending the 
 collection of the same : Provided, the lien aforesaid shall not 
 continue to exist longer than to the expiration of the year 
 for which the taxes are or may be due. If any person 
 charged with taxes shall be absent from home when the col- 
 lector shall call upon him or her for payment thereof, the 
 collector shall leave a written notice at the residence of 
 every such person, stating the amount of taxes due 
 *from such person, and requiring him or her to make * 192 
 payment of the same at some time after the expiration 
 of ten days from the date of the notice, and at a place to 
 be specified in the notice ; and such notice shall be consid- 
 
 1 Sec. 14. 
 
216 OP THR PROCEEDINGS WHERE A 
 
 ered as a demand for the taxes within the meaning of this 
 
 act." 1 
 
 " If any person shall fail to pay his or her taxes when de- 
 manded by the collector, or within twenty days after such 
 demand, the collector is authorized and required to seize and 
 levy upon any personal property of such person, of value 
 sufficient to pay the taxes and costs, and to advertise and sell 
 the same at public vendue ; he shall give fifteen days' notice 
 of the time and place of sale, by posting one advertisement 
 on the door of the court-house of his county, and at three 
 public places in the neighborhood of the place of sale ; and if 
 the property seized shall not sell for a sum sufficient to pay 
 the taxes and costs, the collector may seize and sell any other 
 personal property of the person in default, upon giving the 
 notice of sale as aforesaid ; and if any article of property so 
 seized shall sell for more than the taxes and costs due, the 
 collector shall, upon demand, refund the overplus to the 
 owner." ^ 
 
 " When any person owning lands in any county in this 
 State, shall fail to pay the taxes assessed thereon, and the col- 
 lector shall be unable to find any personal property of such 
 person in his county, whereon to levy, of value sufficient to 
 pay said taxes and costs, it shall be the duty of the collector 
 to make report thereof, to the Circuit Court of his, 
 * 193 county, at the first term in each year,^ (a) * for the 
 
 1 See. 16. 2 Sec. 17. 
 
 3 The requirement of Sess. Laws of 1861, p. 168, § 1 that the notice and the 
 application for judgment shall be to the June term of the Court is peremptory, 
 and a judgment on application at a different term is void. Brown v. Hogle, 
 30 IIL 119 ; see also cases cited in 30 111. 127. 
 
 (a) See note (a), p. »181. Under § 26, Act of 1853 (Scate's Comp. 1078), 
 
 providing for application "to the County Court at the term thereof for 
 
 judgment," &c., and sec. 8 of the Amendatory Act of 1856 (ib. 1108), providing 
 that the collector may advertise the list of delinquent lands, &c., on the second 
 Monday in March or at any time thereafter, held, that the County Court has 
 jurisdiction to render judgment against delinquent lands for taxes at any regular 
 term after the April term in each year for the taxes of the preceding year, on 
 legal and proper notice ; and where application for judgment, &c., was made at the 
 June term and refused because the list had not been filed five days, and a new 
 application was made to the next August term, held, that the refusal at the June 
 term, not having been on the merits, formed no bar to rendering judgment on 
 the second application. Stilwdl v. The People, 49 111. 45 ; see also People v. 
 Nichols, 49 111. 619 ; Parks v. Miller, 48 III. 360. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 
 
 217 
 
 preceding year or years, which report shall be in the follow- 
 ing form : ^ — 
 
 " List of Lands and other Real Estate, situated in the County of , and State of 
 
 Illinois, on which Taxes remain due and unpaid, for the Year herein set forth." ^ 
 
 a 
 
 
 o 
 
 
 M 
 
 S' 
 
 
 
 
 
 
 
 
 
 
 a 
 
 1 
 
 il 
 
 a ' 
 
 M 
 
 « 
 
 EH 
 
 ■s 
 
 1 
 
 o 
 
 s 
 
 IS 
 
 s 
 
 1 
 
 1 
 
 
 
 
 
 
 
 
 " Before making the application to the Circuit Court pro- 
 Tided for in the preceding section, the collector shall publish 
 
 1 The report must substantially follow the form prescrihed by statute. Morrill 
 V. Swartz, 39 111. 108 ; Fox v. Turtle, 55 111. 377, where the collector's report, simply 
 showing the total amount of taxes due, without specifying whether the deUnquent 
 tax was due to the State or county, the error was held fatal. See Randolph v. Met- 
 calf, 6 Cold. 405, where under a statute prescribing the form of report and providing 
 that no sale shall be deemed insufficient because the number of acres is not pre- 
 cisely named nor the amount of taxes precisely given, but if the same is stated 
 with certainty to a common intent it shall be sufficient, the items required by the 
 act, viz., the value of the property, amount of taxes, collector's fees, &c., were set 
 out in figures without the amount of the taxes, costs, &c., and there was no use of 
 the words " dollars" or " cents," and no abbreviation mark, word, or character 
 on the record of the judgment to indicate the amount of the taxes, held that the 
 report and judgment and the sale based thereon were void. So where the statute 
 (§ 3 of ch. 92 of Act of Assembly passed Jan. 18, 1844) required the sheriff " in 
 his report to the Court, besides stating that the land lies in the county, to state the 
 civil district or districts in which the land lies, to whom granted, or in whose name 
 entered, the quantity of acres, as near as may be, which shall be a sufficient descrip- 
 tion ; and in cases of town lots, the name of the town and the number of the lot shall be 
 a sufficient description, &c. ; and no sale shall be avoided, &c., but such sales shall 
 be good and valid if the foregoing requisites be substantially complied with," and cer- 
 tain tracts of land and town lots were described in said report as follows : " Eli 
 Hill, one tract of land, containing 385 acres, lying in civil district No. 1, valued 
 at $200; taxes, -fl.OO. To whom granted, or in whose name entered, I have no 
 means of ascertaining." "B. F. Duggan, one town lot, lying in the village of 
 Bush Grove, valued at $400; taxes, $2.00." "John Heniford, one town lot in 
 the town of Hillsborough. If numbered I have no knowledge of it," &c., — held, 
 that the statute was imperative, and that said report was insufficient to found a 
 judgment upon. Ex parte Thacker, 3 Sneed, 844. 
 2 Sec. 25. 
 
218 OP THE PROCEEDINGS WHERE A 
 
 an advertisement in some newspaper printed in his said 
 county, if any such there be, and if there be no such paper 
 printed in his county, then in the nearest newspaper in this 
 State, which advertisement shall be once published, at least 
 six weeks previous to the said term of the said Circuit Court ; 
 and the said advertisement shall contain a list of the delin- 
 quent lands and town lots to be reported to said Court, the 
 names of the owners, if known, the amount of taxes, interest, 
 and costs, due thereon, and the- year or years for which the 
 same are due ; shall give notice of the intended application 
 to the Court for judgment against said lands and town lots 
 for said taxes, interest, and costs thereon, and for an order 
 to sell the said lands for the satisfaction thereof,^ and shall 
 also give notice, that on the second Monday next succeeding 
 the said term of the said Circuit Court, all the lands against 
 which judgment shall be pronounced, and for the sale of 
 which such order shall be made, will be exposed to public 
 sale, at the court-house of the said county, for the amount of 
 said taxes, interest, and costs due thereon ; and the advertise- 
 ment, published according to the provisions of this sec- 
 *194 tion, shall *be deemed and taken to be sufficient and 
 legal notice, both of the aforesaid intended application 
 by the collector to the Circuit Court for judgment, and also of 
 the sale of said lands, under the order of said Court." ^ 
 
 " The collector shall obtain a copy of the said advertise- 
 ment, together with a certificate of the due publication 
 thereof, from the printer or publisher of the newspaper in 
 which the same shall have been published, and shall file the 
 same with the clerk of the said Circuit Court, at the said term 
 thereof, together with the said report provided for in the 
 twenty-fifth section of this act." ^ 
 
 1 This is imperative. See Charles v. Waugh, 35 111. 315 , also Abbott v. 
 Lindenbower, 42 Mo. 162. 
 
 2 Sec. 26. 
 
 ' Sec. 27. Where the certificate of publication was signed " John Wentwortb, 
 publisher, by Eeid," the authority of such third person so to use the name of the 
 publisher not appearing, it was held insufficient, and the tax title defective; but 
 it seems that in case a newspaper was published by a firm or by a corporation 
 the certificate of one of tlie partners or of an officer of the corporation, showing 
 the o^cial connection of the person making it with the newspaper, might be 
 regarded as sufficient, Fox v. Turtle, 55 111. 377. See p. * 249, note. 
 
JUDICIAL CONDEMNATION IS BEQUIRED. 219 
 
 " The clerk of the Circuit Court, upon the filing of such 
 report and certificate of publication by the collector, shaU. 
 receive and record the same in a book to be kept for that 
 purpose, in which he shall enter all judgments, orders, and 
 other proceedings of the Court in relation thereto, and shall 
 keep and preserve the same as a part of the records of his 
 office ; and the said clerk shall place the said report and cer- 
 tificate of said collector at the head of the common-law 
 docket for said term, in the following form, to wit : — 
 
 " State of Illinois \ 
 
 V. \ Suit for taxes." ^ 
 
 John Doe and others. ) 
 
 " It shall be the duty of said Court, upon calling the com- 
 mon-law docket of said term, if any defence be offered by any 
 of the owners of said lands so reported, or by any person 
 having a claim or interest therein, to hear and determine the 
 same in a summary way, without pleadings ; and if no de- 
 fence be made, the said Court shall pronounce judgment 
 against the said lands, and shall thereupon direct the clerk of 
 said Court to make out and issue an order for the sale of the 
 same, which shall be in the following form, to wit : — 
 
 " State of Illinois, ) ^ „ 
 , [ set." 
 county, ) 
 
 * " Whereas, A. B., collector of said county, re- * 195 
 
 turned to the Circuit Court of said county, on the 
 
 day of , 18 — , the following tracts and parts of tracts 
 
 of land, as having been assessed for taxes by the assessor of 
 
 said county of , for the year 18 — , and that the taxes 
 
 thereon remained due and unpaid on the day of the date of 
 the said collector's return, and that the respective owner or 
 owners have no goods and chattels within this county on 
 which the said collector can levy for the taxes, interest, and 
 costs due and unpaid on the following described lands, to 
 wit:" [Here follows the list.'] 
 
 " And whereas, due notice has been given of the intended 
 application for a judgment against said lands, and no owner 
 
 1 Sec. 28. 
 
220 OP THE PEOCEEDINGS WHERE A 
 
 hath appeared to make defence or show cause why judgment 
 should not be entered against the said lands for the taxes, 
 interest, and costs due and unpaid thereon, for the year or 
 years herein set forth: Therefore, it is considered by the 
 Court, that judgment be, and is hereby, entered against the 
 aforesaid tract or tracts of land, or parts of tracts (as the case 
 may be), in the name of the State of Illinois, for the sum 
 annexed to each tract or parcel of land, being the amount of 
 taxes, interest, and costs due severally thereon; and it is 
 ordered by the Court, that the s^id several tracts of land, or 
 so much thereof as shall be sufficient of each of them to sat- 
 isfy the amount of taxes, interest, and costs annexed to them 
 severally, be sold, as the law directs."^ 
 
 " That the form as herein set forth shall be pursued as near 
 as the nature of the case will permit." ^ 
 
 "That it shall be the duty of the clerk, within five days 
 after the adjournment of said Court, to make out under the 
 seal of said Court, a copy of the collector's report, together 
 with the order of the Court thereon, which shall hereafter 
 constitute the process on which all lands shall be sold for 
 taxes, and deliver the same to the sheriff of his county ; and 
 the sheriff shall, thereupon, cause the said lands to be 
 *196 sold on the day specified *in the notice given by the 
 collector for the sale of the same, and make return 
 thereof to the said clerk within twenty days after the day of 
 sale." 3 
 
 " Any person or persons owning or claiming lands, adver- 
 tised for sale as aforesaid, may pay the taxes, interest, and 
 costs due thereon, to the collector of the county in which the 
 same are situated, at any time before the sale thereof." '^ 
 
 " Lands and real estate, which, at the time of sale, belonged 
 to infants, femes covert, or lunatics, may be redeemed upon 
 the terms specified in the preceding section, at any time 
 within one year from the time the disabilities of such person 
 shall cease to exist ; and if there be several infants owning a 
 joint, or joint and several, interest in any lands or real estate 
 sold for taxes, such infants, or any one of them, may redeem 
 the same from such' sale at any time within one year after the 
 
 1 Sec. 29. 2 Sec. 30. s Sec. 31. « Sec. 32. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 221 
 
 youngest one of them shall arrive at the age of twenty-one 
 years; and any person claiming the right to redeem land 
 under the provisions of this section, shall produce to the clerk 
 of the County Commissioners' Court or the proper county, the 
 affidavit of some credible person, stating who owned the same 
 at the time of the sale thereof ; and if the owner was a feme 
 covert at the time of a sale, stating that fact, and the time at 
 which he or she became of age ; or if there were several 
 infant owners, stating that fact, and stating the age of the 
 youngest of such infants ; and if the clerk shall be satisfied, 
 from the facts stated in the affidavit, that the lands proposed 
 to be redeemed, are subject to redemption under the provi- 
 sions of this section, or any other law of the State, he shall 
 file the affidavit so presented, and permit the lands to be 
 redeemed, upon the conditions which are or may be required 
 by law ; and such redemption shall operate to restore to the 
 owner or owners of the land, his, her, or their heirs or assigns, 
 all rights which he, she, or they had in and to the same at 
 the time of sale : Provided, however, That the certificate of 
 redemption shall not be evidence of any other fact than that 
 the redemption money was paid." ^ 
 
 * " Immediately after the expiration of the term of * 197 
 two years,^ from the date of the sale of any land for 
 taxes imder the provisions of this act, the sheriff shall make 
 out a deed for each lot or parcel of land sold, and remaining 
 unredeemed, and deliver the same to the purchaser upon the 
 return of the certificate of purchase. Deeds executed by 
 sheriffs shall be in the following form : — 
 
 Know all men by these presents, that whereas, at 
 
 term, of 18 — , of the Circuit Court of county, a judg- 
 ment was obtained in said Court, in favor of the State of Illi- 
 nois, against the [here insert the description of the land] for 
 
 the sum of dollars and cents, being the amount of 
 
 taxes, interest, and costs, assessed upon said tract of land for 
 
 the year 18 — , and whereas, on the day of , 18 — , 
 
 I, A. B., sheriff of the county aforesaid, by virtue of a pre- 
 
 1 Sec. 39. 
 
 - See Bowman v. Wettig, 39 111. 416. The owner is allowed that time to 
 redeem. 
 
222 OP, THE PROCEEDINGS WHERE A 
 
 cept issued out of the Circuit Court of the county aforesaid, 
 
 dated the day of , and to me directed, did expose 
 
 to public sale at the door of the court-house, in the county 
 aforesaid, in conformity with all the requisitions of the stat- 
 ute in such case made and provided, the tract of land above 
 described, for the satisfaction of the judgment so rendered as 
 aforesaid ; and whereas, at the time and place aforesaid, C. 
 
 D., of the county of , and State of , having 
 
 offered to pay the aforesaid sum of dollars and 
 
 cents, for which was the least quantity bid for, the 
 
 said tract of land was stricken off to him at that price. Now, 
 therefore, I, A. B., sheriff as aforesaid, for and in considera- 
 tion of the said sum of dollars and cents, to me in 
 
 hand paid by the said C. D., at the time of the aforesaid sale, 
 and by virtue of the statute in such case made and provided, 
 have granted, bargained, and sold, and by these presents do 
 grant, bargain, and sell, unto the said C. D., his heirs and 
 
 assigns, the . \_ffere follows the deseription.] To have 
 
 and to hold, unto him, the said C. D., his heirs and assigns, 
 for ever ; subject, however, to all the •rights of redemption 
 
 provided by law. In witness whereof, I, A» B., sheriff 
 * 198 as aforesaid, by * virtue of the authority aforesaid, 
 
 have hereunto subscribed my name, and affixed my 
 
 seal, this day of , 18—. 
 
 , Sheriff." ^ 
 
 "Deeds executed by the sheriff, as aforesaid, shall be primd 
 facie evidence, in all the controversies and suits in relation to 
 the right of the purchaser, his heirs or assigns, to the land 
 thereby conveyed, of the following facts : — 
 
 1. That the land conveyed was subject to taxation at the 
 time the same was advertised for sale, and had been listed 
 and assessed in the time and manner required by law. 
 
 2. That the taxes were not paid at any time before the 
 sale. 
 
 3. That the lands conveyed had not been redeemed from 
 the sale at the date of the deed. And shall be conclusive 
 evidence of the following facts : — 
 
 1 Sec. 42. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 223 
 
 1. That the land was advertised for sale in the manner, 
 and for the length of time required by law. 
 
 2. That the land was sold for taxes as stated in the deed. 
 
 3. That the grantee in the deed was the purchaser. 
 
 4. That the sale was conducted in the manner required by- 
 law ; and in controversies and suits involving the title to land 
 claimed and held under and by virtue of a deed execxited by 
 the sheriff as aforesaid, the person claiming title adverse to 
 the title conveyed by svich deed, shall be required to prove, in 
 order to defeat the said title, either that the said land was not 
 subject to taxation at the date of the sale- — that the taxes 
 had been paid — that the land had never been listed and as- 
 sessed for taxation, or that the same had been redeemed ac- 
 cording to the provisions of this act, and that such redemption 
 was had or made for the use and benefit of persons having the 
 right of redemption under the laws of the State ; but no person 
 shall be permitted to question the title acquired by a sheriff 's 
 deed, without first showing that he or she, or the person under 
 whom he or she claims title, had title to the land at the time 
 of the sale, or that the title was obtained from the 
 United States or * this State after the sale, and that all * 199 
 taxes due upon the land have been paid by such person, 
 
 or the person under whom he claims title as aforesaid."^ 
 
 " The books and records belonging to the office of the clerks 
 of the County Commissioners' Courts, and the clerks of the 
 Circuit Court, or copies thereof, certified by clerks of either of 
 the Courts aforesaid, shall be deemed sufficient evidence to 
 prove the judgment and sale of any land for taxes, or the 
 redemption of the same, or the payment of taxes thereon." ^ 
 
 " Persons paying taxes upon lands advertised for sale for 
 taxes, or after judgment has been obtained, and previous to 
 sale, shall be required to pay the cost of suit and of advertis- 
 ing the same, and all other costs which may have accrued on 
 said land under the provisions of this act, up to the time of 
 such payment." ^ 
 
 In construing this statute the Supreme Court have arrived 
 at the following conclusions : — 
 
 First. That in order to confer jurisdiction upon the Court, 
 
 1 Sec. 43. 2 Sec. 44. ' Sec. 46. 
 
224 OP THE PBOCEEDINGS WHERE A 
 
 it is essential that the collector should : 1. Make the report 
 required by section twenty-five ; and 2. Give notice of the 
 application for judgment as prescribed in section twenty- 
 six, (a) The report and notice are the foundation of the 
 whole proceeding, and without them the Court would have 
 no authority to enter a judgment upon the delinquent hst.^ 
 Second. The report of the collector must substantially 
 comply with the form prescribed by section twenty-five, or 
 it will be void, and the Court acquire no jurisdiction to render 
 judgment upon it (6). Thus, in Pickett v. Hartsock,^ a re- 
 port in the following form was held void : " State of Illinois, 
 Greene County, Collector's ofiice, August 8, 1843. To the 
 Honorable Judge of the Circuit Court of Greene County: 
 The collector of public revenue do ask of your honor 
 * 200 judgment on the following lands and * town lots, sit- 
 uated in said county, for the year 1842 : J. Valentine, 
 80 acres, E. J S. E. -^ 33, 11, 10, valuation f 320, tax 11.44, costs 
 22 cents. David Pinkerton, collector of Greene County." 
 This report, it will be seen, does not purport to follow the 
 statute form; and it is nowhere stated for what year the 
 taxes were assessed. The Court therefore held it insufficient 
 "to invest the Circuit Court with jurisdiction." [So in Mor- 
 gan V. Camp ^ it was held that the collector's report should 
 show on its face in which county the lands are situated, and 
 the year for which the taxes are assessed.] However, formal 
 defects in the report will not affect the jurisdiction of the 
 Court. In Spellman v. Curtenius * the concluding words of 
 the caption, viz. " for the year herein set forth," were omitted, 
 and in lieu thereof, the words " for the year 1843 " were in- 
 serted ; and at the foot of the report it was stated that the 
 costs upon each tract of land and town lot, which had then 
 accrued, were ten cents, instead of inserting the amount in a 
 column of the report, as indicated by its form ; yet the judg- 
 
 (a) Fortman u. Kuggles, 58 lU. 207 ; McKee v. Champaign County, 53 111. 
 477. 
 
 1 Atkins V. Hinman, 2 Gilm. 437 ; Chesnut v. Marsh, 12 111. 173 ; Spellman v. 
 Curtenius, 12 111. 409 ; Pitkin v. Yaw, 13 111. 261 ; Manly v. Gibson, 14 111. 136 ; 
 Charles v. Waugh, 35 111. 316; Morrill v. Swartz, 39 111. 108. 
 
 (b) See p. * 193, note (1). . 
 
 2 15 111. 279. 3 16 m, 175. 4 12 111. 414. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 225 
 
 ment was held valid. By the Court : " When the Court has 
 before it a collector's report properly headed, giving a descrip- 
 tion of the land, the amount of taxes due upon it, and for what 
 year, a case is presented authorizing the Court to act, if the 
 proper notice has been given." In the same case it was ob- 
 jected that the amount of costs was not correctly stated in 
 the report ; but the Court replied : " This is immaterial, as it 
 does not go to the jurisdiction of the Court to enter a judg- 
 ment. It might be cause for reversing a judgment on a direct 
 proceeding, by appeal, or writ of error, but cannot be made a 
 question where the judgment comes collaterally in issue." 
 
 The twenty-fifth section of the above-recited act, was 
 amended by the act of February 1, 1840,^ requiring the col- 
 lector to make his report at least five days before the term of 
 the Court at which he applied for judgment. Where 
 the judgment is silent *as to the day when the report *201 
 was made, it will be presumed to have been made in 
 conformity with the statute, and where the requirement has 
 been disregarded, it has been held directory. The jurisdic- 
 tion of the Court does not depend upon a literal compliance 
 with this provision ; it is sufiicient if made before the sitting 
 of the Court, or on the day of the commencement of the term.^ 
 The report need not show upon its face that a demand was 
 made of the tax, and that the owner of the land had no goods 
 and chattels ; it is sufficient if made in the form prescribed 
 by the statute, in which case the demand, and fact that no 
 goods could be found, will be presumed.^ 
 
 Third. It will be perceived that section forty-three does 
 not make the deed conclusive (or even primd facie) evidence 
 that due notice of the application for judgment had been 
 given, but simply " that the land was advertised for sale in 
 the manner and for the length of time required by law." 
 The consequence is, that the jurisdiction of the Court, as far 
 as it depends upon the publication of the notice prescribed in 
 section twenty-six, is open to attack. The recital in the form 
 of the judgment,* " And whereas, due notice has been given 
 
 i Sec. 4. 
 
 "- Atkins V. Hinman, 2 Gilm. 450 ; Jackson v. Cummings, 15 III. 449. 
 
 3 Taylor v. People, 2 Gilm. 349 ; Job v. Tebbetts, 5 111. 382. 
 
 * Sec. 29. 
 
 15 
 
226 OF THE PEOCEEDINGS WHERE A 
 
 of the intended application for judgment," is primd facie evi- 
 dence of this jurisdictional fact. This was the evidence of 
 the jurisdiction in Chesnut v. Marsh,^ although the report of 
 the case is imperfect in this respect. Of course it may be 
 impeached, and this was attempted in Jackson v. Cummings.^ 
 The question there made, was as to the sufficiency of the cer- 
 tificate of publication required by section twenty-seven. The 
 advertisement consisted of the usual caption, the list of lands, 
 &c., the notice of the intended application for a judgment, 
 and the time and place of sale, followed by a certificate of the 
 printer, " that the foregoing was duly published on the 15th 
 
 of January, 1845, in the ' Peoria Democratic Press,' 
 * 202 published in Peoria county, Illinois, and * that the 
 
 number of transcripts so published corresponds with 
 the number of newspapers printed and distributed for that 
 week." The objections to this certificate were, 1. That it 
 did not appear that the " Press " was a newspaper, that it 
 might be a book, a monthly periodical, or a handbill. 2. That 
 the words, " number of transcripts so published," might 
 refer to other advertisements of copies, and not the tax list. 
 To which the Court reply, " We may read the advertisement 
 and certificate so, as critical scholars, but knowing the statute 
 under which such piiblications are made, every one, lettered 
 or unlearned, would understand its proper connections, mean- 
 ing, and object." In this case, the following abbreviations 
 in the advertisement itself, were sanctioned by the Court, 
 upon the authority of the cases cited in the margin,^ viz., 
 "I," for dollar, "c." " ct." " cts." for cent or cents, "m." for 
 mills, " Lt." for lot, " Bk." for block, " Tx." for tax, " VI." 
 for valuation, " T." for township, " R." for range, " Sec." 
 for section, " qr. sec." for quarter section, and "pt." for 
 part, iSsc. 
 
 Fourth. The form of the judgment is prescribed in section 
 
 » 12 111. 173. 
 
 ■i 15 111. 449. So a decree of foreclosure, under a tax deed, which recites 
 that notice of the pendency of suit was given may be impeached by show- 
 ing that notice was not given. McGahen v. Carr, 6 Clarke (Iowa), 331. 
 
 3 Goodall I'. Harrison, 2 Mo. 124 ; Long v. Long, 2 Blackf . 298 ; Stevens v. 
 HoUister, 18 Vt. 293 ; Atkins v. Hinman, 2 Gilm. 444 ; Blakeley v. Bestor, 13 111. 
 714 ; Rev. Stat. 111. 1845, p. 446, sec. 62. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 227 
 
 twenty-nine.i Where it has been departed from, the Courts 
 have sustained the judgment, upon the principle, that when 
 it has been tendered by a tribunal of competent jurisdiction, 
 it must be regarded as valid in all collateral actions, however 
 erroneous it may be ; that no irregularity or informality can 
 justify a Court in pronouncing it void.^ Perhaps the strong- 
 est case illustrative of this rule, is that of Chesnut v. Marsh.^ 
 The judgment in that case read thus : " It is considered and 
 adjudged by the Court, that the State of Illinois do 
 severally * recover of the several owners of the lands, * 203 
 described in the report and list aforesaid, the taxes 
 due upon each of said lots of land, being the same set down 
 in figures opposite to each lot of land, together with the 
 interest and costs due thereon, and the costs of this proceed- 
 ing ; and it is further considered and adjudged, that each of 
 said lots of land described in the list aforesaid, or so much 
 thereof as will be sufficient, be sold to satisfy and pay this 
 judgment and the costs of sale, and this judgment is to be 
 entered as a several judgment against the owner of each lot 
 of land described in the report and list, and the land itself, 
 for the taxes, interests, and costs due upon the same." This 
 
 1 The judgment must show clearly the amount of tax for which it is ren- 
 dered. The figures " 248," without some mark indicating for what they stand, 
 in a column, at the head of which is the word " Tax," is not sufficient. Law- 
 rence V. Fast, 20 111. 338 ; Randolph v. Metcalf, 6 Cold. 408 ; Elston v. Kennicott, 
 46 111. 189 ; Potwin v. Oades, 45 111. 366 ; Pittsburg F. W. & C. Eail. Co. v. Chi- 
 cago, 53 111. 80 ; Chickering v. Failes, 38 111. 342 ; Lane v. Bommelmann, 21 111. 
 143 ; Woods v. Freeman, 1 Wal. (U. S.) 398. See also Cook v. Norton, 43 111. 
 391 ; People v. S. F. S. Union, 31 Cal. 132 ; Braly v. Seaman, 30 Cal. 610, 619 ; 
 People V. Empire, &c., Co. 33 Cal. 171. But see contra, Cahoon v. Coe, 52 N. H. 
 524. Qtusre, whether the precept must be equally certain, see Eppinger v. Kirby, 
 23 111. 521 ; Dukes v. Kowley, 24 111, 210. But this rule does not apply to the 
 want of a word or character to the numerals to indicate the amount of taxes due, 
 as a defect, to any thing prior to the application of the collector for judgment 
 against delinquent lands ; thus, the absence of the dollar mark in the assessment 
 roll, to designate the amount of the valuation or the taxes, will not render the 
 assessment or collector's warrant invalid and illegal. Chickering v. Failes, supra ; 
 Elston V. Kennicott, supra. See also State v. Eureka Mining Co. 8 Nev. 15. 
 That the judgment must show that the clerk of the Circuit Court has recorded 
 the collector's report and certificate of publication, see Dukes v. Eowley, supra. 
 
 2 Chesnut v. Marsh, 12 III. 173 ; Atkins v. Hinman, 2 Gilm. 437 ; Merritt ... 
 Thompson, 13 111. 716. 
 
 3 12 111. 173. 
 
228 OF THE PROCEEDINGS WHERE A 
 
 was a gross departure from the form prescribed by the stat- 
 ute, and was, in reality, a judgment against the owners, with 
 an award of execution against their land to satisfy it, with a 
 direction to the clerk to enter it up as a several judgment 
 against the owner and the land. The statute contemplated 
 a judgment in rem.^ This was a judgment in personam, and 
 to that extent at least, was conceded to be void.^ Three 
 questions arose upon these facts. 1. Is the judgment ren- 
 dered void because of the fact that it does not pursue the 
 statute form ? 2. Is it void as a judgment against the land 
 (if it can be so regarded), simply because it is confessedly 
 void as to the owners ? And 3. Is it not substantially a 
 judgment against the land ? The first and second questions 
 were answered in the negative, and the latter in the affirma- 
 tive, by a majority of the Court, Judge Trumbull dissenting. 
 The reasoning of the Court was, that a judgment could not 
 be impeached collaterally, however informal or irregular; 
 that this was substantially a judgment in presenti against the 
 land, and not a mere direction to the clerk to enter up one in 
 the future ; and that, inasmuch as no effort was made to 
 enforce it as a judgment in personam, but against the land 
 alone, that part which affected the owners might be treated 
 as surplusage. 
 
 In Atkins v. Hinman,^ the judgment did not recite the day 
 
 of the date of the collector's return, and omitted the 
 * 204 words * " and that the taxes thereon remained due and 
 
 unpaid, on the day of the date of the said collector's 
 return." Both of these recitals are contained in the statute 
 form of the judgment. With these exceptions the form was 
 strictly pursued. Besides, the report, which was in the form 
 prescribed by law, was copied into the judgment, and thus 
 became a part of it. The judgment was sustained upon two 
 grounds. 1. That inasmuch as the jurisdictional facts ap- 
 peared upon the face of the record, the omissions and varia- 
 tions in matters of form, were evidently clerical mistakes, 
 which ought not to vitiate the judgment. 2. That the 
 omitted facts in the formal parts of the judgment, clearly 
 
 1 Olcott V. State, 5 Gilm. 481. 
 
 2 See Pidgeon v. People, 36 111. 249. 3 2 Gilm. 437. 
 
JUDICIAL CONDEMNATION IS BEQUIKED. 229 
 
 appeared in the collector's report, whicli was a part of the 
 judgment record, and this was equivalent to a direct recital. 
 
 The judgment cannot be attacked and impeached collater- 
 ally, because the costs are improperly taxed, whether they 
 are greater or less in amount than permitted by law.^ A 
 judgment for the amount of the tax, and generally for the 
 costs, as in ordinary judgments, is sufficient.^ So, where the 
 amount of the costs is stated at the bottom of the collector's 
 report, and immediately preceding the concluding part of the 
 judgment order, the judgment is valid.^ The law does not 
 require that the judgment should state the name of the pat- 
 entee, or present owner, the valuation of the land, the county 
 where it is situated, or the year for which the tax is due, 
 consequently their omission is immaterial.* 
 
 On the other hand, it was held in Pickett v. Hartsock,^ 
 that a judgment rendered for taxes, on a day prior to the day 
 named in the notice of the collector, is void. In that case, 
 the notice stated that the collector would apply for judgment, 
 on the first Monday of April, which was the seventh day of 
 that month. The judgment was rendered April 4. 
 Treat, C. J. : " The * tax judgment of April 4, 1845, * 205 
 was clearly void. It was rendered prior to the day 
 named in the notice of the collector. The action of the Court 
 was premature and unauthorized. It had no jurisdiction over 
 the case before the 7th of April. Up to that day, owners 
 had the right to pay the taxes charged against their property, 
 or to make preparation to resist the application for judg- 
 ment." 6 
 
 So, where the judgment record fails to show upon its face, 
 the term and day when it was entered, it is a nullity, and 
 cannot be aided by oral evidence. Thus in Young v. Thomp- 
 son,'' the facts were that the tax deed recited a judgment 
 rendered at the May term, 1848 ; the precept bore date May 
 22, but the record of the judgment was silent as to when it 
 
 1 Spellman v. Gurtenius, 12 III. 414 ; Merritt v. Thompson, 13 III. 723. 
 
 2 Merritt v. Thompson, 13 III. 723, 725. ' Ibid. 
 i Spellman v. Curtenius, 12 111. 412. 
 
 s 15 III. 279. 
 
 See WiUiams v. Gleason, 5 Clarke (Iowa), 284. '' 14 111. 380. 
 
230 OP THE PEOCEEDINGS WHERE A 
 
 was entered up, but showed that it was rendered for the 
 unpaid taxes of 1847 ; the book in which judgments against 
 delinquent lands were recorded, showed on inspection, that 
 the judgment immediately preceding the one in question, was 
 upon the tax lists of 1845 and 1846, but was also silent as to 
 the time of its rendition ; and the caption of the succeeding 
 judgment showed that it was rendered at the May term, 
 1849, on the list of 1848. The general record of the Court 
 showed that the Court held its regular term in May, 1848 ; 
 and it further appeared that the precept upon the judgment 
 in question was issued within five days after the rendition of 
 the judgment, as required by law, but this information was 
 derived from an entry of the clerk at the foot of the judg- 
 ment, and was no part of the record authorized by the stat- 
 ute. The judgment to be valid, must have been rendered at 
 the May term, 1848. (a) Treat, C. J.: " In our opinion, there 
 was no legitimate evidence in the case to show that it was 
 rendered at that time. It certainly did not appear of record, 
 at what time the judgment was entered. This presented a 
 fatal objection to the plaintiff's title. The rule is, that a 
 record imports absolute verity, and must be tried by itself. 
 
 If deficient or imperfect, it cannot be aided by evi- 
 * 206 dence * dehors the same.* This record failed to show 
 
 such a judgment as was described in the sheriff's deed, 
 and the deed must fall for want of a foundation on which to 
 rest." 
 
 The description of the land contained in the judgment 
 must be so certain that a definite locality can be given to it, 
 or it will be void.2 But words, figures, and abbre^dations, 
 may be used for the purpose of designation.^ Examples of 
 this rule will be found in the cases cited in the margin.* To 
 authorize a judgment against several distinct parcels of land, 
 
 (a) See p. » 192, note (a). 
 
 1 Commercial Digest, Title Eecord, B. & E. ; Croswell v. Byrnes, 9 Johns. 
 287 ; Elliott v. Peirsol, 1 Pet. 328 ; Lessee of James v. Stookey, 1 Wash. C. C. 
 330. -^ 
 
 ■■i Olcott V. State, 5 Gilm. 481. 
 
 3 Ibid. 
 
 * Hiuman v. Pope, 1 Gilm. 133 ; .Atkins v. Hinman, 2 GUm. 443 ; Spellman ». 
 Curtenius, 12 111. 410. 
 
JUDICIAL CONDEMNATION IS EEQUIBED. 
 
 231 
 
 for one aggregate sum of money, the lots must constitute 
 one entire block or tract.^ 
 
 Fifth. The precept which issues " upon the judgment must 
 substantially conform to the requirements of the law, or it 
 wiU be treated as a nullity. In addition to section thirty- 
 one, as hereinbefore set forth, the ninth section of the Act of 
 February 1, 1840, provides, that " so much of the thirty-first 
 section of the act to which this is an amendment, as requires 
 the clerk of the Circuit Court to furnish a copy of the col- 
 lector's report to the sheriff, be and the same is hereby re- 
 pealed." 2 This repealing clause was itself repealed March 
 6, 1843, and the provision, requiring a copy of the collector's 
 report to be delivered to the sheriff, re-enacted.^ In Hinman 
 V. Pope,* a judgment in the form prescribed was read 
 in evidence, without objection. A precept was then * 207 
 offered and rejected, which was in this form, namely : — 
 
 * " List of Lands and other Reed Estate, situated in the County of Brown, and State of 
 Illinois, on which Taxes remain due and unpaid for the Years herein set forth." 
 
 
 g 
 
 ■S o 
 
 
 
 
 
 
 
 4» 
 
 11 
 
 Descriptjon. 
 
 1 
 
 s3 
 
 Tax. 
 
 Cost. 
 
 County. 
 
 ll* 
 
 £ 
 
 &i 
 
 
 (» 
 
 
 
 
 Gideon Brunk. 
 
 
 1839 
 
 160, N.E. 22, 1 S., 4 W. 
 
 aii2o 
 
 S60 
 
 16 
 
 Brown. 
 
 Andrew Ceroid. 
 
 
 1840 
 
 160, N.E. 30, 1 N., 2 W. 
 
 $640 
 
 448 
 
 16 
 
 u 
 
 The foregoing is a correct list of taxable property, upon 
 which taxes remain due and unpaid for the years 1839 and 
 1840, in Brown County, State of Illinois, March 24, 1841. 
 
 Thomas S. Bbockman, Collector 
 of Brown County, Illinois. 
 State of Illinois, ) 
 
 Brown County, J ' The People of' the State of Illinois 
 to the Sheriff of said County greeting : — 
 You are hereby commanded to sell so much of the fore- 
 going tracts of land as shall be sufficient to satisfy the tax, 
 
 » Pitkin V. Yaw, 13 111. 251 ; Spellman v. Curtenius, 12 111. 409 ; Atkins u. 
 Hinman, 2 Gilm. 437. ^ Laws 1840, p. 5. 
 
 3 Laws 1842, 1843, p. 237, sec. 28. * 1 Gilm. 131. 
 
232 OF THE PROCEEDINGS WHERE A 
 
 interest, and costs on each lot, set opposite said lot, in the 
 foregoing list, and make due returns of your doings, accord- 
 ing to law. 
 
 In testimony whereof, I have hereunto set my hand, and 
 aiSxed the seal of the Brown Circuit Court at 
 '-^" ^■-' Mt. Sterling, this 20th day of April, a. d. 1841. 
 
 Jambs Brockman, Clerk" 
 
 It will be perceived, on a comparison of this document 
 witli the thirty-first section of the act of 1839, that it does 
 not conform to the requirements of that section, which re- 
 quires the clerk to make out, under the seal of the Court, a 
 copy of the collector's report, together with the order of the 
 Court thereon, and deliver the same to the sheriff, &c. It 
 does not recite that any judgment had ever been rendered by 
 the Court. It is a mere mandate of the clerk to sell certain 
 tracts of land for taxes, to be found in a collector's list 
 
 appended to the paper. 
 * 208 * An execution, to be valid, must show on its face 
 
 that such a judgment has been rendered by a com- 
 petent Court as will justify emanation. It was contended, 
 that the repealing clause in the act of February 9, 1840, 
 made the precept in this case valid, but the Court held, that 
 the only effect of this clause was to dispense in the precept 
 with the collector's report, but that in all other respects the 
 process must conform to the requisitions of the thirty-first 
 section of the act of February 26, 1839, which required the 
 precept to consist of a copy of the judgment, certified under 
 the seal of the Court ; whereas, in this case, the precept did 
 not purport to be such copy, either in form or substance. 
 
 In the case of Job v. Tebbetts,^ the validity of the pre- 
 cept depended upon the construction of the thirty-first sec- 
 tion of the act of February 26, 1839, and the ninth section 
 of the act of February 1, 1840, which latter dispensed with 
 a copy of the collector's report. The facts were, that the 
 clerk copied and authenticated the judgment order, and de- 
 livered it to the sheriff, but omitted the list and description 
 of the lands against which the -judgment was pronounced. 
 
 I 5 Gilm. 380. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 233 
 
 It was insisted by the counsel opposing the title derived 
 under this precept, that the judgment, according to the form 
 prescribed in section twenty-nine, contained the list of lands, 
 and that a copy of the judgment order would necessarily 
 contain it also, and that the ninth section of the act of Febru- 
 ary 1, 1840, evidently intended to dispense with a copy of 
 the collector's report, otherwise a delivery to the sheriff of 
 two complete lists of lands against which judgment was pro- 
 nounced, would be required, one of which would be utterly 
 useless, and be attended with much expense. The Court, 
 however, held, that although the question was not free from 
 difficulty, the construction contended for was not admissible ; 
 that under the law of 1839, but one list was necessary, and 
 that was dispensed with by the act of 1840, and conse- 
 quently the precept should not recite the lands em- 
 braced * in the report and judgment, but consist simply * 209 
 of a copy of the order of the Court, duly certified 
 under the seal of the Court. 
 
 Since, however, the passage of the act of March 6, 1843, 
 which restored the old law of 1839, the list of lands, and the 
 order of the Court thereon, are essential to the validity of 
 the precept. The copy of the order of sale was intended to 
 notify the sheriff that the Court had entered a judgment for 
 the sale of the lands reported, while the copy of the col- 
 lector's report was designed to apprise him what land he 
 should sell.^ The form of the precept under this ruling, will 
 be found in Atkins v. Hinman.^ 
 
 In Manly v. Gibson,^ it was held, that where the list of 
 lands embraced in the collector's report was delivered to the 
 sheriff, with the order of the Court thereon, duly authenti- 
 cated, the precept was sufficient, though the formal parts of 
 the collector's report were omitted. Those omissions and 
 informalities in the judgment which do not render it void, 
 will not invalidate the precept, because the latter is a mere copy 
 of the former ; * nor will a clerical mistake in the recital of the 
 time when the collector made his report, render the precept 
 
 » Job V. Tebbettg, 5 Gilm. 882. - 2 Gilm. 444, 445. 
 
 5 14 111. 137. 
 
 « Chesnut v. Marsh, 12 HI. 173 ; Atkins v. Hinman, 2 GUm. 451. 
 
234 OP THE PROCEEDINGS WHERE A 
 
 void.i And it has also been decided, that the precept is not 
 a " writ or process," within the meaning of the constitution, 
 which requires all process, &c., to run in the name of the 
 " People of the State of Illinois." ^ A material variance 
 between the precept and judgment upon which it is based, 
 is fatal to its validity. Thus in Pitkin v. Yaw,^ where the 
 judgment was for 99 cents, and the precept recited a judg- 
 ment for 11.25, it was held to be a material, and therefore a 
 fatal, variance. The precept described a judgment more 
 than one-fourth larger than the one actually rendered. 
 * 210 Trifling variances may be disregarded, * but one which 
 destroys the legal identity of the proceedings cannot 
 be sustained. 
 
 Sixth. In the construction of this statute it is held, not 
 only that the judgment and precept are essential to the 
 validity of a sale for taxes, but that the burden of proving 
 their existence rests upon the purchaser, or those claiming 
 under him ; the Court holding the analogy between these 
 and ordinary sheriff's sales, complete in this respect.* 
 
 Seventh. The deed must substantially conform to the requi- 
 sitions of the forty-second section of the statute, wherein the 
 form is set forth. It must recite the judgment, precept, sale, 
 and expiration of the time of redemption. If any material 
 variances exist between the facts and the recitals in the deed, 
 or if it substantially departs from the statute form, it will be ' 
 treated as void, and cannot be read in evidence. The statute 
 expressly declares that " deeds executed by the sheriff, as 
 aforesaid, shall be " primd facie evidence of some, and con- 
 clusive evidence of other facts, particularly enumerated in 
 section forty-three. It surely was never intended to give to 
 the deed a conclusive effect against the rights of a third per- 
 son when the officer contemns the very authority under which 
 he acts, and disregards the plain requirements of the law, 
 which is his only guide in the execution of the deed. In 
 Pitkin V. Yaw,^ where the judgment was against eight lots, 
 
 1 Chesnut v. Marsh, 12 111. 173. 
 
 2 Curry v. Hinman, 11 111. 420 ; Scarritt v. Chapman, 11 111. 443. 
 = 13 111. 251. 
 
 < Hinman v. Pope, 1 Gilm. 131 ; Atkins v. Hinman, 2 Gilm. 487 ; Spellman v. 
 Curtenius, 12 111. 409 ; Pitkin v. Yaw, 13 111. 251. 
 5 13 111. 251. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 235 
 
 and the deed recited a judgment against and a sale of two 
 only, the variance was held fatal, and the deed inadmissible 
 in evidence. 
 
 JEighth, The party claiming title under the tax sale, makes 
 out a primd fade case, by producing, 1. The judgment of a 
 Court of competent jurisdiction ; 2. A valid precept issued 
 thereon ; and, 3. A sheriff's deed made in conformity with 
 the law.^ The presumption then arises, that all of the requi- 
 sitions of the law have been complied with by all of the 
 officers who had any thing to do with the proceedings, 
 and the onus probandi * is thrown upon the party con- * 211 
 testing the validity of the tax title.^ 
 
 Ninth. Section forty-three declares, that " no person shall 
 be permitted to question the title acquired by a sheriffs deed, 
 without first showing that he or she, or the person under 
 whom he or she claims title, had title to the land at the time 
 of the sale, or that the title was obtained from the United 
 States or this State after the sale, and that all taxes due upon 
 the land have been paid by such person, or the person under 
 whom he claims title as aforesaid." In construing this sec- 
 tion, it has been decided substantially, 1. That any one may 
 attack the validity of the judgment, precept, and deed, with- 
 out putting himself " in position," as it is called. 2. But if, 
 after the person claiming under the tax title, has made out a 
 primd facie case by showing a valid judgment, precept, and 
 deed, the adverse party desires to question the primd facie title 
 thus established, he must prove title to the land at the time 
 of the sale, and the payment of taxes as required by this 
 section.^ Proof that the party contesting the tax sale was in 
 possession, claiming title to the land at the time of the sale, 
 is sufficient evidence of title within the meaning of this 
 
 1 Holbrook v. Dickinson, 46 III. 285. See p. *85. Tliat the liolder of a tax 
 title must show that the collector's report and certificate of advertisement were 
 properly recorded, as well as that a judgment was rendered and precept issued, 
 see Dukes v. Rowley, 24 111. 210. 
 
 2 Manly v. Gibson, 14 lU. 136 ; Lusk v. Harber, 8 Gilm. 158 ; Hinman v. Pope, 
 1 Gilm. 131 ; Atkins v. Hinman, 2 Gilm. 437. 
 
 3 Hinman v. Pope, 1 Gilm. 138 ; Bestor v. Powell, 2 Gilm. 119 ; Atkins v. 
 ■ Hinman, 2 Gilm. 453, 454 ; Lusk v. Harber, 3 Gilm. 158 ; Curry c. Hinman, 11 
 
 HI. 420 ; Spellman v. Curtenius, 12 111. 409 ; Hope v. Sawyer, 14 111. 254. 
 
236 JUDICIAL CONDEMNATION. 
 
 statute.^ And if it appears that no taxes are due to the 
 State upon the land, this satisfies the other requirement of 
 the statute, although the taxes were not paid by the party 
 who desires to contest the validity of the tax title.^ 
 
 Tenth. Where the party resisting the validity of the tax 
 sale has thus put himself " in position," he may defeat the 
 sale by establishing these defences: 1. That the land was 
 not subject to taxation at the date of the sale ; ^ 2. 
 * 212 That the taxes, for * which the land was sold, had 
 been paid ; * 3. That the land was not listed and as- 
 sessed in the time and manner required by law ; ^ 4. That 
 the sale had been redeemed from ; ^ 5. That the sale was 
 made on a day different from that designated in the notice, 
 or the law ; '' and, 6. The party may go behind the judgment 
 and show that any of the material prerequisites of the law 
 have not been complied with.^ There are, doubtless, other 
 defences which may be successfully made to a tax sale under 
 this statute, but no decisions have settled them, and it is 
 unnecessary to anticipate the action of the Courts. It is 
 proper to add in conclusion, that the laws of Illinois, now in 
 force, are substantially like the act of 1839, and their con- 
 struction is governed by the same principles laid down in 
 this chapter. 
 
 1 Lusk V. Harber, 3 Gilm. 158 ; Curry v. Hinman, 11 III. 420. 
 
 2 Curry v. Hinman, 11 111. 420 ; Hope v. Sawyer, 14 111. 254. 
 
 3 Sec. 43. 
 
 * Sec. 43 ; Curry v. Hinman, 11 111. 420. But after decree of foreclosure, 
 under the Iowa statute, it is too late to show that tax was paid. Gaylord v. ScarfE, 
 6 Clarke (Iowa), 179. 
 
 5 Marsh v. Chesnut, 14 111. 223 ; Billings b. Detten, 15 111. 218. 
 
 6 Sec. 43 ; Chapin v. Curtenius, 15 111. 432. 
 
 1 Hope V. Sawyer, 14 111. 224 ; Polk v. Hill, 15 111. 130. 
 
 8 Lusk V. Harber, 3 Gilm. 161, 162. Judgment rendered at a date when the 
 time for payment of tax has not fully expired, is invalid. Williams v. Gleason, 
 5 Clarke (Iowa), 284. 
 
 A judgment cannot be rendered for taxes, a part of which are shown by the 
 record to be illegal, unless the taxes are so levied as to show to what portion the 
 land is legally liable. Campbell v, State, 41 III. 454. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 237 
 
 CHAPTER XII. 
 
 OP THE ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 The maxim is familiar, " That notice is of the essence of 
 things required to be done." ^ And it is a fundamental rule, 
 that in all judicial, or quasi judicial proceedings, affecting the 
 rights of the citizen, he shall have notice and an opportunity 
 of a hearing before the rendition of any judgment, decree, or 
 order against him. In other words, he must be warned, and 
 have his day in Court. And in the application of this rule, it 
 is immaterial whether the tribunal exercising authority over 
 his rights proceeds regularly or summarily — according to the 
 due course and process of the common law — or in pursuance 
 of a general or special statute. It would be a violation of 
 one of the first principles of justice and judicial proceedings, 
 . to try, and decide upon, the rights of an individual, civilly or 
 criminally, without notice, and consequently an opportunity 
 of defending himself. 
 
 So strict is the rule, that where a proceeding of a judicial 
 nature is authorized, and the statute is silent as to notice, the 
 adjudication will be void unless notice is given to the party 
 in interest.^ Where the proceeding is before a special tri- 
 bunal, exercising a summary authority, contrary to the course 
 of proceeding in -the common-law Courts, the evi- 
 dence that due * notice was given must indisputably * 214 
 appear upon the face of the record. Even a recital 
 of the notice is insufficient ; it must be set forth at large in 
 the record, that it may be seen on inspection whether the 
 
 1 1 Burr. 447 ; 3 Dem'o, 595. 
 
 2 Chase v. Hathaway, 14 Mass. 222; Eddy u. People, 15 111. 886 ; Holliday v. 
 Swailes, 1 Scam. 615 ; Shuraway v. Shumway, 2 Vt. 339; Smith v. Burlingame, 
 4 Mason, 121 ; Corliss v. Corliss, 8 Vt. 389 ; Kinderhook v. Claw, 15 Johns. 537 ; 
 
 : Brown o. Wheeler, 3 Ala. 287 ; State Bank u. Marsh, 2 Eng. 390 ; Owners v. 
 Mayor of Albany, 15 Wend. 874. See Ireland v. Kochester, 51 Barb. 414. 
 
238 ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 
 
 notice was legal and sufficient.^ If such is the law of notice 
 in judicial proceedings, it applies with much greater force to 
 the exercise of ministerial power, where the act is not only 
 summary, but the notice merely constructive ; where the pro- 
 ceeding is in the nature of a judgment, and terminates in the 
 divestiture of a title to real estate. 
 
 The law in relation to sheriffs' sales would seem to be an 
 exception to this principle. An advertisement of the time 
 and place of sale is usually required, but in this respect the 
 statute is regarded as merely directory to the officer. With- 
 out doubt, it is his duty to comply with its directions ; and 
 for a breach of his duty, he would be responsible to the in- 
 jured party, but such a breach of duty is not in itself sufficient 
 to avoid the sale. In such cases, the sheriff derives his au- 
 thority from the judgment and execution, and not from the 
 advertisement. Besides, the debtor, having been regularly 
 brought into Court by the service of process, is bound to take 
 notice of all the subsequent proceedings in the cause, particu- 
 larly in reference to the execution, which, to use the language 
 of Lord Coke, is the " life of the law." ^ But even in this 
 case, if the purchaser is aware of the fact that the officer has 
 failed to advertise the sale, in conformity with the require- 
 ments of the law, the sale may be avoided. This would 
 amount to a constructive fraud. It is only land fide pur- 
 chasers who are protected in this class of cases, and not those 
 who have actual notice of a substantial irregularity.^ Such 
 is the law of notice in sheriffs', and indeed, in all sales made 
 under the authority of a judgment, order, or decree. 
 
 But it seems to have been a universal principle in 
 * 215 the * legislation of this country relative to compulsory 
 taxation, that a notice of the time and place of selling 
 the land of a delinquent, must be given by publication in one 
 or more newspapers of the State or county in which the pro- 
 ceeding takes place, by recording the list, or posting notifica- 
 
 1 Bex V. Croke, 1 Cowp. 26 ; Cheatham v. Howell, 6 Yerg. 311 ; Gwin v. Van 
 Zant, 7 Yerg. 143. 
 
 - Minor v. Natchez, 4 Smedes & M, 602 ; s. c. 10 Smedes & M. 246 ; 2 Bibb, 
 401 ; 8 Ohio, 187 ; 9 Ohio, 19. 
 
 3 Hayden v. Dunlap, 8 Bibb, 216 ; Webber v. Cox, 6 Mon. 110. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 239 
 
 tions, in some public place, (a) There is less uniformity, 
 however, in the details of the various statutes, regulating the 
 form and contents of the notice, the time of publication, 
 the number of newspapers in which it shall be inserted, the 
 number of issues which shall contain it, the circulation of 
 the paper, and the mode of proving and perpetuating the fact 
 of publication. 
 
 It may, however, be laid down as a general rule, that the 
 advertisement of the sale, in the time and manner prescribed 
 by the law, is a prerequisite to the vaUdity of a tax title. 
 The officer derives his power of sale, in part, from the adver- 
 tisement of it. Power is conferred upon him to be exercised 
 on certain contingencies, and these contingencies must have 
 happened, and the conditions on which he can act must have 
 been performed, before his act can be valid. His power does 
 not attach until every prerequisite of the law has been com- 
 plied with. 
 
 One object of advertising tax sales is to give full notice to 
 the proprietor, and furnish him with every facility for the 
 voluntary payment of the tax, before a resort is had to coer- 
 cive means ; and another, equally beneficial to him, is to 
 create competition at the sale, and prevent his entire estate 
 from being sacrificed for a trifling sum compared with its real 
 value, when the sale of a less quantity might have been 
 made, if a spirited competition had existed. The longer the 
 notice is published, the wider the circulation of the paper, 
 and the more full the information conveyed in the advertise- 
 ment, so much greater will be the competition at the bid- 
 dings. It foUows that any neglect of the officer, which 
 deprives the owner and bidders of that full information 
 which the law intended to give them, is fatal to the validity 
 of the tax sale. These principles are fully sustained by the 
 authorities.^ 
 
 (a) Whether the advertisement of sale was such as the law required, is a 
 mixed question of law and fact, and should be submitted to the jury. Cooley v. 
 O'Connor, 12 Wal. 391. 
 
 1 Parker v. Rule's Lessee, 9 Cranoh, 64 ; Williams v. Peyton, 4 Wheat. 77 ; 
 Garrett v. Wiggins, 1 Scam. 335; Pitch v. Pinckard, 4 Scam. 69; Eonkendorff 
 V. Taylor, 4 Pet. 349 ; Pope v. Headen, 6 Ala. 433 ; Elliot v. Eddins, 24 Ala. 508 ; 
 Jenks V. Wright, 61 Penn. St. 410 ; Pitts v. Book, 15 Tex. 453. Where the 
 
240 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 * 216 * A particular examination of the cases, in which 
 these principles have been applied, will show how 
 
 statute required a notice to be published by the treasurer, stating that the tran- 
 script of unpaid taxes had been made, and that unless said taxes should be paid 
 at his office within twenty days after the first publication of said notice, he would 
 proceed to collect the same by public sale, &c., and the notice given was that 
 unless the tax was paid wltliin twenty days from the date of the notice the land 
 would be sold, &c., and the notice was dated Aug. 10, 1860, but was not first 
 published till Aug. 11, 1860, the sale was held invalid. State v. Mayor, 86 N.J, 
 Law, 288 ; Miles v. Walker, 4 Mich. 641 ; Stiles v. Weir, 26 Miss. 187 ; Hughey 
 V. Horrel, 2 Ham. 232 ; Moulton v. Blaisdell, 24 Me. 283 ; Brown v. Veazie, 25 
 Me. 359 ; Parnum v. Buffum, 4 Cush. 260 ; Nalle u. Fenwick, 4 Eand. 594, 596; 
 Kinney v. Beverley, 2 Hen. & Munf. 318, 344 ; Lessee of Holt v. Hemphill, 3 Ham. 
 232 ; s. c. 1-4 Ohio Cond. 551 ; Allen v. Smith, 1 Leigh, 231 ; Wistar ». Kam- 
 merer, 2 Yeates, 100 ; LuflTborough v. Parker, 16 Serg. & Bawle, 351 ; Dclogny 
 et al. V. Smith et al., 3 La. 418; Early v. Doe, 16 How. (U. S.) 610 ; Games w. 
 Stiles, 14 Pet. 322 ; Minor v. Natchez, 4 Smedes & M. 602 ; s. c. 10 Smedes & M. 
 246 ; Washington v. Pratt, 8 Wheat. 681 ; Kafferty's Heirs v. Byers, 5 Ham. 457; 
 Thompson v. Gotham, 9 Ohio, 170 ; Lessee of Wilkitis's Heirs ti. Huse and Swin- 
 dler, 10 Ohio, 139 ; Prindle v. Campbell, 9 Minn. 212 ; Bidwell v. Webb, 10 Minn. 
 59; St. Anthony, &c., Co. u. Greely, 11 Minn. 321. 
 
 A different rule prevailed in North Carolina at one time. Their statute re- 
 quired notice of the sale to be published in the State Gazette, and by posting a 
 copy at the door of the court-house, in the county where the land lay. In Stan- 
 ley V. Smith (1 Carolina Law Repository, 511, Bateman's Edition, 124), where the 
 question was as to the onus probandi, Hall, J., in delivering the opinion sustaining 
 the sale, says, " In both cases, it is made the duty of the sheriff to advertise; 
 but few persons would become purchasers if it was incumbent on them to prove 
 that the sheriff had done his duty in that respect. We think it better to say, that 
 as the law has made it his duty to do so, persons who bid for the land may take 
 it for granted that he has discharged that duty, — otherwise they would be de- 
 terred from bidding, and the mischief to owners of land so sold would be greater, 
 we apprehend, than would be experienced by not imposing the burden of proof 
 upon purchasers." And in Martin v. Lacy (1 Murphy, 311), the plaintiff claimed 
 under a grant, and the defendant under a tax sale. The case came before the 
 Court upon this question : " Whether the defendant was bound to show any other 
 evidence of title than the tax deed, &c." The law of 17E6 provided, " that it 
 shall not be lawful for any of the sheriffs in this State, either by themselves or 
 deputies, to sell lands for taxes, until the same hath been first advertised in the 
 North Carolina Journal, the State Gazette, and Fayettville Minerva, for the space 
 of one month, and also in the county in which they are situated, in manner as 
 heretofore required by law; which advertisement shall mention the situation of 
 the lands, the streams near which they lie, the estimated quantity, the names 
 of the tenants, the reputed owners, &c." And the law of 1792 further provided, 
 that "such conveyance shall be good and valid in law, the land so sold being first 
 advertised for such length of time as is required in cases of execution." The 
 Court answered the question certified in the negative. Wright, J. : " It is believed 
 that this act (1796) was intended to impose additional duty on the sheriffs, and 
 that the provisions of this, as well as the other act (1792), are merely directory 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 241 
 
 rigid the Courts are ia * requiring a strict compliance * 217 
 with the requirements of the statute in this particular. 
 
 1. The advertisement is an official act, and to be valid, 
 must be published by the officer to whom the duty has been 
 assigned, and purport upon its face to be his official act, and 
 be attested by his official signature. It has been shown in a 
 preceding chapter that the act of an officer de facto is valid. 
 This rule will undoubtedly apply to the publication of 
 the delinquent *list, though it has been held that *218 
 where an advertisement bore date June 7, and it 
 
 to them of their duty ; and that, although a failure in the performance of any 
 part of it might subject them to an action, in which they would be compelled to 
 indemnify the owner of any land which might be irregularly sold to the extent of 
 the injury sustained by such sale, yet it ought not to destroy the title of the pur- 
 chaser, who has the right to presume that a public officer, known to possess the 
 power to sell, has taken every previous step required of him by the law under 
 which he sells. This construction appears to be in conformity with the decisions 
 in cases of sales made of land by sheriffs, under writs of execution, which are 
 analogous in principle to cases of sales for the non-payment of taxes, &c. To re- 
 quire proof of the advertisement would so embarrass sales of this kind, and throw 
 BO many difficulties in the way of persons willing to bid a fair price for the land, 
 that they would not be willing to purchase ; for it would not only be necessary to 
 prove these facts on any particular occasion, but they must preserve the evidences 
 of them with their titles, to be used at any distant period, whenever these titles 
 might ke made the subject of controversy. The consequences would be, that not 
 only the difficulty of collecting tlie public revenue would be increased, but the land 
 would become a subject of speculation merely, to those who would, by purchasing 
 at very reduced prices, be willing to encounter the inconveniences and risks of pur- 
 chases under these embarrassing circumstances." The argument of M'Bryde, 
 counsel for the defendant, will throw some Ught upon the temper of the times in 
 which these decisions were made, and the history of the tax laws of North Caro- 
 lina. In commenting upon the two statutes above referred to, he remarks : " These 
 acts were intended for salutary purposes, and should receive a liberal construction. 
 After every precaution lias been taken, and the greatest exertions of legislative 
 prudence and foresight have been exercised, the revenue laws of the State are 
 still evaded. They have been enacted from time to time to prevent very general 
 and growing mischief. In the year 1792 it was found necessary to subject lands 
 to sale for the taxes due thereon. It is well known that large tracts of land 
 were owned by persons resident in other States, and in many instances by for- 
 eigners. Those persons had no personal property in the counties where tlie lands 
 were situate. It was therefore necessary for the legislature either to abandon the 
 land tax, or to adopt such measures as would enforce its payment. The revenue 
 laws of every country must be strict ; they must be fully and faithfully executed, 
 even if they should produce occasional hardship and inconvenience, otherwise 
 they will never answer the purpose for which they were intended." In one case 
 (Love V. Wilbourn, 5 Ired. 344), one million and seventy-four thousand acres of 
 land were sold, in a body, to satisfy the tax. 
 
 16 
 
242 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 appeared that the collector, who caused its publication, was 
 not sworn, until three days thereafter, the sale was void.i 
 It must appear on the publication, by what power, and in 
 what capacity the person acts ; and where the oiEcial char- 
 acter of the person was omitted, and the advertisement did 
 not purport upon its face in any other manner to be an offi- 
 cial act, the Court held the sale void. The Court said, "The 
 advertisement in this case was not signed by Spaulding as 
 collector, nor did it in any way so import, and the land- 
 holders were therefore no way informed that the signer of 
 that advertisement had any more right than any other man 
 to give such notice, nor that he had such power as he under- 
 took to exercise. It is not true that every man is presumed 
 to be clothed with and to be exercising an official authority, 
 because it seems to be needed for what he is attempting. 
 Such a principle would sweep away all official signatures 
 and designations. Every known public officer must add his 
 official signature to every official document. Besides, in this 
 case, the statute form contained such official designation, and 
 its omission is fatal. The form in such cases must be 
 strictly followed." ^ 
 
 While the law is thus rigid in requiring that the publica- 
 tion should, in fact, be an official act, and so purport upon 
 its face, slight variances between the real and published 
 name of the officer, are regarded as immaterial. Thus, in 
 Isaacs V. Wiley,^ where the name of the collector appointed 
 was Luther H. Brown, and the name attached to the adver- 
 tisement was Luther W. Brown, the advertisement was held 
 valid, the Court saying, " In the absence of proof that two 
 persons bearing the same name, and distinguished by these 
 initial letters, reside in the region where the appointment 
 was made, it certainly requires a very great stretch of credu- 
 lity to admit the construction that one man was ap- 
 * 219 pointed to this office, and that another intruded * him- 
 self into his place, and assumed the burden of his 
 duties. We think it more rational to treat the name as 
 being the same, but capriciously varied to suit the taste or 
 
 1 Langdon v. Poor, 20 Vt. IS. 
 
 " Spear v. Ditty, 9 Vt. 282. 3 12 Vt. 674. 
 
ADVERTISEMENT OF THE TUVJE AND PLACE OP SALE. 243 
 
 whim of the individual." This decision is in accordance 
 with the general rule that the law recognizes but one chris- 
 tian name, and that the omission of, or variance in, the middle 
 name of a person, is immaterial.^ 
 
 2. Where the law requires the publication to be made in 
 the State paper, in the paper published in a particular county, 
 or in a particular paper named in the statute, the advertise- 
 ment must be so published, or it is a nullity. Though the 
 reason of the law's preference may not appear, the letter of 
 the law. must be complied with. Probably the strongest case 
 in support of this rule, to be found in the reports, is that of 
 Bussey v. Leavitt.^ The law required a notice to be pub- 
 lished, three months prior to the day of sale, by three succes- 
 sive weekly insertions in the newspaper of the public printer 
 of the State. Two publications were inserted in the " Port- 
 land Advertiser and State Gazette," which was the newspaper 
 of the public printer ; but before the third insertion, the leg- 
 islature, by a resolve, declared it to be no longer the " State 
 paper." The Court decided the advertisement and sale 
 founded on it to be illegal. 
 
 But where the law required the notice to be published in 
 the " Vermont Republican " (a paper bearing that title at the 
 time of the passage of the statute being intended), and the 
 name of the paper was afterwards changed bj' the addition 
 of the words " and American Yeoman," and the notice was 
 published in the paper bearing the title thus changed, the 
 advertisement was held valid, the Court saying that " the 
 second name of a newspaper is seldom, if ever, regarded in 
 common parlance. But the addition raises no doubt of the 
 identity of the paper." ^ 
 
 It would seem from this that newspapers and persons are 
 placed on the same footing, as far as their names are con- 
 cerned. The name of each is used for^the purpose of 
 designation only, *and if the identity can be estab- *220 
 lished, it is certain enough, though a variance may 
 exist. It very often happens that a newspaper, after being 
 published for a long series of years, by the same proprietor, 
 
 1 Franklin v. Talmadge, 5 Johns. 84. 
 
 2 3 Fairf. 878. ' Isaacs v. Sliattuck, 12 Vt. 668. 
 
244 ADVERTISEMENT OF THE. TIME AND PLACE OP SALE. 
 
 at the same place, and under the same name, is transferred 
 to a stranger, the name changed, but its publication is con- 
 tinued, and the paper is still taken by the patrons of its 
 predecessor. Now, if the legislature were to direct the pub- 
 lication of the tax list in the paper by its original name, and 
 it was so published for several years after the passage of the 
 law, and the name was then changed, under the circum- 
 stances above indicated, would there be any doubt of the 
 legality of continuing the publication of the tax list in such 
 a paper ? The spirit of the law would be complied with, and 
 a failure of justice would take place if the right so to publish 
 was denied. 
 
 3. It is also well settled that if the statute requires the 
 advertisement to be inserted in several newspapers, published 
 at different places, the notice is illegal unless inserted in all 
 of the papers thus designated.^ Thus, the statute of Ohio 
 required the county auditor to publish the delinquent list in 
 some newspaper printed at the capital of the State, and also 
 in a newspaper printed in the county where the sale was to 
 take place, or if no paper should be printed in that county, 
 then in some newspaper having a general circulation in such 
 county. It appeared upon the trial of a tax title acquired 
 under this statute, that the notice was published in a news- 
 paper at Columbus, the seat of government, but in no other. 
 It further appeared that no paper was printed in the county 
 where the sale was to take place, that the papers then pub- 
 lished at Springfield and Chillicothe had a partial circulation 
 in such county, but the Columbus papers had the most gen- 
 eral circulation there. Objection being made to the suffi- 
 ciency of the publication, the sale was held void. By the 
 Court: "It is contended that as there was no paper printed 
 in the county, and as the Columbus paper was in 
 * 221 * general circulation in that county, it was not neces- 
 sary to publish the notice in any other. The law does 
 not admit of any such construction. The publication must 
 be made in two papers, one printed at Columbus, and the 
 
 1 See Bunner a. Eastman, 80 Barb. 689. So where the notice is to be 
 inserted in the newspaper " nearest to the county," that is held to be the one 
 published nearest the county line. Weer v. Hahn, 16 111. 298. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 245 
 
 other in the county where the auditor resides, if there be 
 such a paper, and if not, then in some paper, other than the 
 one printed at the seat of government, in most general circu- 
 lation in his county. The law was designed to extend the 
 notice as generallj'- as possible, for the information of owners, 
 and for the purpose of increasing competition at the sale. 
 This requisition of the law is substantial and useful, and can- 
 not be dispensed with. Tax sales are attended with greater 
 sacrifice to the owners of land than any others. Purchasers 
 at these sales seem to have but little conscience. They cal- 
 culate on obtaining acres for cents ; and it stands them in 
 hand to see that the proceedings have been strictly reg- 
 ular." 1 
 
 4. The statute usually requires a warrant to collect, or the 
 delinquent list to be delivered to the collector, which consti- 
 tutes his authority to proceed ; and after the warrant or list 
 comes to his hands, and before the advertisement is required 
 to be made, the collector is directed to make a personal 
 demand for the tax, and in default of payment, to arrest and 
 imprison the body, or seize and sell the goods of the delin- 
 quent, and a time is usually limited within which the de- 
 mand, arrest, or seizure is to be made, and before which 
 time has expired, the collector has no authority to advertise ; 
 or a time is fixed by law when the advertisement must be 
 made out by the collector and delivered to the printer for 
 publication. The authority of the collector to advertise a 
 sale of the land of the delinquent does not attach, until the 
 time thus limited for the exercise of these collateral remedies 
 has expired ; and if he proceed to advertise before the time 
 fixed, the act is illegal, and the sale founded thereon void. 
 The reason is apparent. The authority to proceed against 
 the land depends upon the fact that the collateral 
 * remedies are unavailing, and this cannot be certainly * 222 
 known until the time has expired within which they 
 may be pursued. 
 
 Besides, the officer has no right to increase the burden of 
 the delinquent by the costs of an advertisement, until the 
 law arms him with the power. The statute of New Hamp- 
 1 Lessee of Hughey v. Horrell, 2 Ohio, 231 ; s. c. 1-4 Ohio Cond. 335. 
 
246 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 shire required the collector, on or before a particular day, to 
 make out and deliver to the deputy secretary of State, a copy 
 of his tax list, which the deputy was to retain, and receive 
 payment of the taxes for a limited time, when it was to be 
 returned to the collector. It has been held, in construing 
 this act, that until the redelivery of this list, the collector 
 has no authority to advertise and sell.^ 
 
 In Ohio, the county auditor has no power to advertise and 
 sell until he has received from the State auditor a list of the 
 forfeited lands, certified and signed by the auditor, and at- 
 tested by his seal of office.^ And under the present revenue 
 law of Illinois, the authority of the collector to advertise the 
 list depends upon his inability to find personal property 
 belonging to the delinquent of value sufficient to satisfy the 
 taxes.8 
 
 The act of Congress relating to the taxing power of the 
 city of Washington, provided " that real property, whether 
 improved or unimproved, &c., on which two or more years' 
 taxes shall have bfeen due and unpaid, or on which any spe- 
 cial tax, imposed by virtue of the authority of the provisions 
 of this act, shall have remained unpaid for two or more years 
 after the same shall have become due, may be sold, &c." In 
 Ronkendorff v. Taylor,* the lot in question was sold for the 
 ordinary taxes of 1820 and 1821, which, by the ordinances of 
 the city, became due on the first day of January succeeding 
 the respective assessments, and also for a special paving tax, 
 levied in 1820, which latter tax did not become due until 
 
 January 1, 1821. The law required three months' 
 *223 notice prior to the sale. The * advertisement was 
 
 first inserted in a newspaper, December 6, 1822. The 
 sale took place March 10, 1823. The Court held the adver- 
 tisement and sale illegal, upon the ground that the law made 
 a clear distinction between general and special taxes ; that 
 property might be sold to pay the general tax as soon as two 
 years' taxes became due ; but in the case of special taxes it 
 could not be sold until the expiration of two years after the 
 
 1 Cambridge v. Chandler, 6 N. H. 271 ; Homer v. CiUey, 14 N. H. 85. 
 
 '^ Hannel v. Smith, 15 Ohio, 134. 
 
 ' Revised Statutes 1845, p. 444, §§ 46, 47. * 4 Pet. 364. 
 
ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 247 
 
 tax became due ; that the first notice was given nearlj-^ one 
 month before the lot was liable to be sold ; that the whole 
 period should have elapsed, which was necessary to render 
 the lot liable to be sold for the special tax, before the adver- 
 tisement was published ; that the owner of the lot, by paying 
 the tax at any time before January 1, 1823, would save it 
 from the liability of being sold ; and that until this hability 
 had attached, he could not be chargeable with the expense 
 of notice, nor could it be legally given. 
 
 5. Next, as to the form of the advertisement, (a) The 
 following principles, or rules, for testing the validity of tax 
 titles, appear to be fairly deducible from the reported cases 
 on that subject. 1. When the statute, under which the sale 
 is made, directs a thing to be done, or prescribes the form, 
 time, and maimer of doing any thing, such thing must be 
 done, and in the form, time, and manner prescribed, or the 
 title is invalid ; and in this respect the statute must be 
 strictly, if not literally, complied with. 2. But in determin- 
 ing what is required to be done, the statute must receive a 
 reasonable construction, and when no particular form or man- 
 ner of doing a thing is pointed out, any mode which effects 
 the object with reasonable certainty, is sufficient; and in 
 judging of these matters, the Court is to be governed by such 
 rational rules of construction as direct them in other cases. ^ 
 These two principles are best illustrated by the cases relative 
 to the form of the advertisement. Where the form is pre- 
 
 (a) Under a statute making tax deeds prima facie evidence of title in fee- 
 simple in the purchaser, a tax deed which recites that the lands therein described 
 " were advertised according to law," but contains no further recital of notice of 
 sale, is not admissible as evidence of title; to have any effect as" evidence it 
 must appear prima facie from the recitals in the deed that the register had 
 power to sell and convey. Yankee o. Thompson, 51 Mo. 238. So a recital of 
 "four weeks' notice thereof in the manner required by law" is insufficient. 
 Spurlock V. Allen, 49 Mo. 178 ; Large v. Fisher, 49 Mo. 307 ; see also Abbott v. 
 Doling, 49 Mo. 302 ; but see 58 Me. 518. So where the statute required the 
 posting of a printed handbill or advertisement of the sale of land for taxes, 
 posting a written one is not a compliance with the statute ; and a tax deed which 
 recites simply the posting of such written advertisement is void on its face. 
 Lsigroue v. Rains, 48 Mo. 536. That an advertisement of sale in the name of 
 one not the owner is no notice to the owner. See Hume v. Wainscott, 46 Mo. 
 145, affirming 43 Mo. 162. 
 
 1 Chandler v. Spear, 22 Vt. 388 ; Brown v. Hutchinson, 11 Vt. 569. 
 
248 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 scribed by the statute, that form must be strictly and liter- 
 ally followed ; the Court will not admit the substitution of a 
 different one. 
 
 Thus, the statute of Vermont directed the name of 
 
 * 224 the place * where the legislature held their session, at 
 
 the time when the tax was granted, to be inserted in 
 
 the advertisement according to the following form, namefy : 
 
 " Whereas the legislature of Vermont, at their session, 
 
 at , in the year , assessed a tax, &c." ; and the 
 
 statute enacted, that the " blanks in the form of the advertise- 
 ment, hereinbefore directed, shall be filled with the place of 
 the session of the legislature where the tax was assessed." 
 The collector omitted to comply with this requisition. At 
 the time of the passage of the statute, the seat of government 
 of the State of Vermont was ambulatory, but'when the col- 
 lector made out his advertisement, the legislature had, by 
 law, permanently located the capital at a fixed'place, and the 
 law assessing the particular tax recited in the advertisement, 
 was passed at the place thus fixed. The clerk had also 
 omitted, in making a record of the advertisement, to state 
 the place where one of the newspapers in which it was 
 inserted, was published, as required by the statute. For 
 these defects the advertisement was declared illegal, and the 
 sale void. The Court discussed the two questions together, 
 saying, " That the collector should have followed the form, , 
 and the clerk made the statement of the place where the 
 paper was printed a part of the record, are positive require- 
 ments of the statute ; and a compliance with these requisi- 
 tions must be regarded as a condition precedent to the con- 
 veyance "of a good title by the vendue deed. Where prop- 
 erty is affected, or the title divested, by the provisions of a 
 special act of the legislature, the requirements of the act must 
 be strictly followed. In the present case the operation of the 
 special statute was to divest the defendant of his property, 
 on his failure to perform a duty created by the statute, and 
 on the performance of certain acts prescribed to the officers 
 required to collect the tax, and record the proceedings. The 
 performance of these acts is the condition on which the prop- 
 erty was divested, and it is not for the Court to inquire 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 249 
 
 whether the provisions of the statute were Teasonable, whether 
 a comphance with them might not be dispensed with, with- 
 out injury to the defendant— but whether they have 
 been made ; and if so, * they must be hterally pur- * 225 
 sued."i In another case, the person making the 
 advertisement, omitted to prefix to his signature his official 
 designation of " Collector," as required by the statute form, 
 and the sale was held irregular, upon the ground that the 
 statute form ought to be strictly followed.^ 
 
 On the other hand, where no form is given, but the statute 
 declares what the contents of the advertisement shall be, 
 each fact required by the statute must appear in the advertise- 
 ment, or it will be void ; thus, the time and place of sale, a 
 description of the lands to be sold, (a) the amount of tax due, 
 the name of the owner,^ his delinquency, that no goods of his 
 can be found out of which to satisfy the tax, the year for 
 which the tax was due, (J) a recital of the purpose for which 
 the tax was levied, and such other facts as the particular 
 statute under which the notice is given, may have rendered 
 essential. Any omission in these respects, or variance 
 between the contents of the notice and the facts of the case, 
 will invalidate the proceedings. 
 
 Thus, where the statute required that the collector should 
 publish an advertisement that he would sell, on a particular 
 day, all lands on which the taxes remained due for the space 
 of nine months from the date of the assessment, and a delin- 
 quency for this length of time was not stated in his notice, it 
 was held void ; the Court saying, " The manifest purpose of 
 this requirement was not only to let the party charged with 
 
 » Culver V. Hayden, 1 Vt. 359. 
 
 2 Spear v. Ditty, 9 Vt. 282. 
 
 (a) Under ch. 24, Acts of Extra Session, 8th Gen. Assembly, making it the 
 duty of the treasurer, in giving notice of the sale of lands in cases where the 
 owner is unknown, to embrace the largest quantity practicable in each descrip- 
 tion of such lands, the advertisement of one hundred and sixty acres of land in 
 gross belonging to an unknown owner, which was assessed in parcels, constitutes 
 no defect. Henderson v. Oliver, 32 Iowa, 512. 
 
 8 Styles V. Weir, 26 Miss. (4 Cushm.) 187 ; Sutton o. Calhoun, 14 La. Ann. 
 209. 
 
 (6) Describing a tax as of the year when it is due, the statute prescribing no 
 rule of description, is unobjectionable. Cahoon v. Coe, 62 N. H. 523. 
 
250 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 the tax know that there was such a tax against him, and un- 
 paid, but that his delinquency had continued so long after the 
 date of the assessment, that the law authorized proceedings in 
 the manner prescribed, to obtain the sum required from the 
 land on which the tax was based. Without such notice, which 
 is of substantial utility to the person against whom the tax 
 remains undischarged, he is not informed, in the manner 
 which the legislature have provided, that he is exposed to 
 the costs which will arise from an attempt to obtain the 
 * 226 tax from the land * itself." ^ (a) In another case 
 the notice recited a tax " for the purpose of making, 
 repairing, and building bridges," whereas the tax authorized 
 by the statute was for "making and repairing roads and 
 building bridges." The true object of the tax not appearing 
 in the advertisement, it was held insufficient.^ 
 
 So where the advertisement described the tax only as a 
 " money, tax," when in fact it was a " State, county, and 
 school tax," it was held insufficient.^ 
 
 So where a statute required the advertisement to state 
 " the name of the person as whose property it was taxed," an 
 advertisement merely stating that it " was entered " by Ed- 
 ward Whitehead, is not sufficient. It does not aver that it 
 was assessed as his property, or that he was chargeable with 
 the taxes in arrears thereon.* 
 
 In describing the land, the collector in his advertisement 
 must give a particular and certain description, so that the 
 owner may know that it is his land, and bidders may ascertain 
 its locality with a view to the regulation of their bids.^ 
 
 1 Hobbs V. Clements, 32 Me. 67. 
 
 (a) So where the advertisement was required to state the amount of taxes 
 due and gave the sum total, including State and county taxes, a part of which 
 was illegal, the sale was held void. Clarke v. Strickland, 2 Curtis, C. C. 443. 
 
 2 Langdon v. Poor, 20 Vt. 13. 
 
 » Pierce v. Richardson, 87 N. H. 314. The transposition of the sums due for 
 State and county taxes is not an error that affects the validity of the sale. Scott 
 V. Watkins, 22 Ark. 556. 
 
 < Styles V. Weir, 26 Miss. (4 Cushm.) 187. 
 
 5 See p. * 124 ; Brown v. Veazie, 25 Me. 359 ; Tallman v. White, 2 Comst. 
 66 ; Carmichael v. Aiken's Heirs, 13 La. 205 ; Farnura v. Buffum, 4 Cush. 260. 
 See Yeuda v. Wheeler, 9 Texas, 408 ; Patrick v. Davis, 15 Ark. 363, A descrip- 
 tion in an advertisement for a tax sale of " a piece of land set off by Edmund 
 Chamberlain on settler's lot No. 5, 128 rods long and 38 rods wide, — 25 acres," 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 251 
 
 The statute of Massachusetts required the advertisement, 
 among other things, to state the names of the owners, if known, 
 and when unknown, to give " a substantially accurate descrip- 
 tion of the rights, lots, or divisions of the real estate to be 
 sold ; " the description given was, " Moses Buffum, house 
 and land, and Loring Emerson, house, barn, and 115 acres of 
 land." The Court say, " This we consider a very uncertain 
 description, and altogether insufficient. The owner's name 
 not appearing in the notice, a full and clear description of the 
 property to be sold should be given." ^ In another case, where 
 the plaintiff claimed under a tax sale, the advertisement con- 
 tained the following description, namely : — 
 
 Name. 
 
 No. of Entry . 
 
 Original 
 Proprietor. 
 
 Original 
 Quantity. 
 
 Watercourse. 
 
 Acres. 
 
 Rate. 
 
 Tax. 
 
 Haines, John. 
 
 4401 
 
 Haines, John. 
 
 170 
 
 Mad River. 
 
 73 
 
 2 
 
 3.922 
 
 * The Circuit Court instructed the jury, that the descrip- * 227 
 tion was so imperfect that no valid sale for taxes could 
 be made under it. On error, the Court say, " The law in re- 
 quiring an advertisement of the sale, has this double object in 
 view, to apprise the owner that the tax is unpaid, and to in- 
 vite the attention of purchasers in such a manner that the 
 land may be sold for its fair market price. To attain these 
 objects, it is necessary, that the description should be such 
 that the owner may know that the tax on his land is unpaid, 
 and that purchasers may learn the precise tract intended, and 
 
 held sufficient to support a sale. Smith v. Messer, 17 N. H. 420. See Greene v. 
 Lunt, 58 Me. 518. The following description of land in Township No. 8, South 
 Division, Hancock. County, consisting of twenty thousand acres, in an advertise- 
 ment of a sale for taxes, was held insufficient, the advertisement not indicating 
 the meaning of " S. D.," or in what part the " 4197 " acres are to be located : — 
 
 
 "HANCOCK COUNTY. 
 
 
 Tracts. 
 
 Advertised. Sold. 
 
 State tax. 
 
 No. 8. S. D. 
 
 4197 4197 
 
 10.42, &c.' 
 
 Griffin V. Creppin, 60 Me. 270. A sheriflf's notice of sale of lands under the 
 warrant of a county treasurer, issued upon an assessment of rents reserved, &c., 
 should describe the lands to be sold separately. Cruger v. Dougherty, 1 Lan- 
 sing, 464. ' Farnum v. Buffum, 4 Gush. 260. 
 
252 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 be enabled to estimate its actual value. In this case, the 
 whole original entry was taxed to its then owner, Haines, and 
 perhaps was sufficiently described by its number and water- 
 course ; but ninety-seven acres had been transferred to another 
 name, leaving seventy-three acres still standing to Haines, 
 What 73 acres ? In common or separate ? If separate, in 
 what part of the lot do they lie ? The answers to these ques- 
 tions materially affect the price. Without them no such in- 
 formation is communicated to the public as is calculated to 
 produce a fair competition, and no prudent man will offer its 
 value in his bid. The description, therefore, is not adapted 
 to promote a fair sale, and it must be holden insufficient." ^ 
 In another case the description was, " R. 4, T. 3, Sec. 13, p. N. 
 half 60 acres." By the Court : " The tax title set up by the 
 defendant cannot be sustained. The description in the du- 
 plicate and advertisement is too vague and uncertain. ' Sixty 
 acres, part of the N. J of section 13.' Which sixty acres ? is 
 an inquiry natural to be made. In Lafferty v. Byers,^ it is 
 held that such a description is too general. The tax sale must 
 
 be held void."^ 
 *228 *In Williams v. Harris,* the judgment of condem- 
 nation, order of sale, advertisement, and sherLfif's deed, 
 all stated that the land lay in A. county. In fact two-thirds 
 of it lay in B. county. It was held the sale was void, as to 
 any lands lying in B. county.* 
 
 In Douglass v. Dangerfield,^ the advertisement followed the 
 description in the list (which has already been given) ,^ and 
 it was held void. Where the watercourse, upon which the 
 
 1 Lafferty's Lessee v. Byers, 5 Ham. 458. " 5 Ham. 458. 
 
 3 Treon v. Emerick, 6 & 7 Ohio, 161. So "f of block 4 in," &c., void for 
 uncertainty. Bidwell v. Coleman, 11 Minn. 78. So a notice of sale which 
 embraces all lands upon which taxes are assessed, and is not restricted to lands 
 which may be delinquent, and which designates no place of sale, is void. Prindle 
 V. Campbell, 9 Minn. 212. 
 
 4 4 Sneed, 332. 
 
 5 Where the city and county in which the land lies are not distinctly stated 
 in the notice, it is insufficient ; and the fact that the notice is headed " Auditor's 
 Office, Ramsey County, Minn., St. Paul, Dec. 8, 1862," will not cure the defect. 
 Bidwell V. Webb, 10 Minn. 59. See p. » 114. 
 
 " 10 Ohio, 152. 
 
 7 4n(6, pp. •128, *129. 
 
ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 253 
 
 land was situate, was misdescribed, the advertisement was 
 held illegal.^ 
 
 The Tennessee statute required the collector " to specially 
 and particularly describe the land, and the number of the 
 grant or entry." In Gardner v. Brown,^ the land was thus 
 described : " Caleb Cross' heirs, 64 a.. No. 1328, lying in the 
 12th district, in the first range, 9th section." The land did 
 not in fact belong to Cross's heirs, but was granted in 1827 
 to Jesse Brown, under whom the plaintiff claimed title. 
 The number in the description was that of the entry. The 
 Court held the description insufficient. " The land is not 
 particularly and specially described in the advertisement. 
 It is described by the number of the entry, and not by the 
 number of the grant. The words of the section, indeed, 
 are, that it shall be described by a reference to the " grant 
 or entry," the meaning of which is, that if the land be 
 granted, the number of the grant shall be referred to, and if 
 it be not granted, that the number of the entry shall be re- 
 ferred to ; and not that in case of granted land, a reference 
 may be made by the officer, at his election, to the number, 
 either of the grant or entry." In Jacques v. Kopman,^ this 
 description was held void ; namely, " A lot of ground in 
 Faughbourg Livaudais, Parish of Jefferson, designated by 
 the number 8, square 45." 
 
 * In Ronkendorff w. Taylor,* the description and other * 229 
 particulars in the advertisement were as follows : — 
 
 To whom asse»sed. 
 
 No. of square. 
 
 No. of lot. 
 
 Amount. 
 
 James N. Taylor. 
 PaviDg tax int., 10 per ct. 
 Henry Toland^s heirs. 
 
 491 
 491 
 
 iof'4. 
 J of 4. 
 
 S16.80 
 23.16 
 16.80 
 
 The law required " the number of the lots (if the square 
 has been divided into lots), the number of the square or 
 squares, or other sufficient or definite description of the prop- 
 erty selected for sale, to be stated in the advertisement." 
 The Circuit Court instructed the jury " that the advertise- 
 
 1 Currie v. Fowler, 5 J. J. Marsh. 145. 
 8 6 La. Ann. 642. 
 
 2 1 Humph. 354. 
 * 4 Pet. 349. 
 
254 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 ment did not suiBciently designate what half of the said lot 
 was charged with the said taxes, and was to be sold for the 
 same, and did not purport to be an advertisement of an un- 
 divided moiety." This ruling was sustained by the Supreme 
 Court of the United States. McLean, J. : " Congress had 
 two objects in view in requiring this notice to be given ; 1. 
 To apprise the owner of the property ; and 2. To give notice 
 to persons desirous of purchasing. It is necessary for the 
 interest of the owner, that he should be informed of a pro- 
 ceeding which, unless averted by the payment of the tax, 
 would divest him of his property. And it was of equal if 
 not greater importance, that the property should be so defi- 
 nitely described that no purchaser could be at a loss to esti- 
 mate its value. It is not sufficient that such a description 
 should be given in the advertisement as would enable the 
 person desirous of purchasing, to ascertain the situation of 
 the property by inquiry. And, if the purchaser at the sale 
 had been informed of every fact necessary to enable him to 
 fix a value upon the property, yet the sale would be void, 
 unless the same information had been communicated to the 
 public in the notice. Its defects, if any exist in the descrip- 
 tion of the property to be sold, cannot be cured by any com- 
 munication made to bidlers on the day of sale by the 
 * 230 * auctioneer. What was the description given in the 
 advertisement of the property in controversy? It 
 was described to be 'half of lot No. 4, in square No. 491,' 
 and the other half was advertised at the same time, under 
 the same description, as belonging to Toland's heirs. What 
 would be understood by such a description ? Suppose half 
 a square had been advertised, it having been divided into 
 lots ; would it convey that certainty to the public, as to the 
 precise property about to be sold, that would enable any one 
 to form an opinion of its value ? No one could suppose that 
 an undivided half of the square was to be sold under the 
 notice ; and which half was offered could not be determined 
 from the advertisement. Would this be a notice under the 
 requisites of the law ? The value of a lot, or half lot, de- 
 pends upon its situation. If one of the half lots front two 
 streets, in a populous part of the city, it is of much higher 
 
ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 255 
 
 value than the other half. And this difference in value may 
 be still greater, if the lot be situated near the middle of the 
 square, fronting the street, and it be divided so as to cut off 
 one-half of it from the street. It will thus be seen, that it 
 is not a matter of small importance, to a person who wishes 
 to purchase, to know which half of a lot is offered for sale ; 
 and as any uncertainty in this matter must materially affect 
 the value of the property at the sale, it is of great impor- 
 tance to the owner that the description should be definite. 
 That an undivided moiety of a lot may be sold for taxes, has 
 already been stated. But would any one understand that 
 ' one-half of lot No. 4 ' means an undivided moiety ? In all 
 cities, half lots are as common as whole ones ; and when a 
 half lot is spoken of, we understand it to be a piece of ground 
 half the size of an entire lot, and of as definite boundaries. 
 The illustrations given show how great a difference in value 
 may exist between halves of the same lot. And would not 
 the preferable half be of much higher value than an undi- 
 vided moiety of the entire lot ? In every point of view in 
 which this notice can be considered, under the act of Con- 
 gress, it was radically defective. The property should have 
 been described as an undivided half of lot No. 4. Un- 
 der such a description, no one could be at a * loss as * 231 
 to its situation and value. The instructions of the 
 Circuit Court on this point are not erroneous." 
 
 Where the statute requires the amount of the tax due upon, 
 the land to he stated in the advertisement, an omission of this 
 fact, or a variance between the amount due and the sum named 
 in the advertisement, will be fatal. 
 
 Thus, in the Corporation of Washington v. Pratt,^ where 
 the act of Congress required the collector to state in his 
 advertisement of the sale " the amount of taxes due thereon," 
 and, further provided, that such lot only upon which " two 
 years' taxes remain due and unpaid," shall be sold, the facts 
 were that several lots were separately assessed to the same 
 person, and the advertisement stated the aggregate amount 
 of taxes due upon all of them ; and the sale was held illegal. 
 Jphnson, J. : " The question is whether it be necessary that 
 
 1 8 Wheat. 681. 
 
256 ADVERTISEMENT OP -THE TIME AND PLACE OF SALE. 
 
 the advertisement should contain a particular statement of 
 the amount of taxes due on each lot separately ; or, where 
 several lots belonged to the same person, whether it would 
 be sufiBcient to state in the advertisement the aggregate 
 amount of taxes due on all the lots so belonging to the same 
 person ? This may be a very immaterial question practically, 
 and it may not be very easy to assign a sufficient reason of 
 policy for the one or other alternative. But what have we 
 to do with such inquiries in cases of positive enactment? 
 The law must be pursued- whatever be the previous steps re- 
 quired. The difficulty here presented is grounded on the 
 use of the words in the eighth section, ' amount of taxes.' 
 This, in its ordinary import, expresses an aggregate of taxes. 
 But it is obvious that we cannot here apply that aggregate 
 idea to a sum made up from the taxes of many lots, since 
 this would also support the sufficiency of a publication ex- 
 hibiting nothing more than the amount of taxes upon the 
 whole list of lots advertised, whoever be the proprietors. 
 Some more appropriate signification must, therefore, be sought 
 for it, and this is easily found ; for, when it is considered that 
 
 the taxes of each are made several liens upon each, it 
 * 232 follows that this aggregate idea can * have reference 
 
 only to the amount made up from the arrears of the 
 two years, which must be due to authorize a sale. We there- 
 fore think that the taxes of each lot ought to be severally 
 exhibited. The operation of such a provision must be the 
 test of its own policy. The duty is easily complied with, 
 and the performance of it may not be destitute of practical 
 utility." So, where the advertisement stated the tax to be 
 four dollars and twelve cents, when it was in fact only three 
 dollars and thirty cents, the sale was held void.^ 
 
 But in Ronkendorff v. Taylor,^ where two years' taxes 
 were due upon the land, namely, for the years 1820 and 
 1821, the advertisement, in describing the tax for which the 
 land was to be sold, stated that the lot was to be sold " for 
 taxes due thereon up to the year 1821." The Circuit Court 
 instructed the jury that the advertisement was defective, as 
 
 1 Alexander v. Pitts, 7 Cush. 508. 
 
 2 4 Pet. 849. 
 
ADYERTISEMENT OP THE TIME AND PLACE OF SALE. 257 
 
 it " does not purport to advertise the said lot for two years' 
 taxes unpaid and in arrear ; " but the Supreme Court held 
 the instruction erroneous ; that the designation of the tax 
 " was sufficient ; for if the taxes were due, and the property 
 was liable to be sold for them, it can be of no importance to 
 the purchaser to have a more technical description of the tax 
 than the notice contained." It may be remarked upon this 
 case, that if a specific and certain designation of the tax due 
 upon the land is necessary at all, it is because the owner is 
 interested in knowing from the advertisement itself how 
 much money he is bound to pay in order to prevent the sale 
 of his land ; the purchaser has but little interest in the ques- 
 tion. If this be true, it will be difficult to maintain upon 
 principle the designation of the tax in question. The taxes 
 were in fact due upon the land for the years 1820 and 1821. 
 The notice says, the land will be sold for the taxes due 
 thereon " up to the year 1821." The words " up to " do 
 not, upon any fair rule of construction, include the taxes for 
 the year 1821. On the contrary, back taxes prior to the year 
 1821, were alone intended, as far as the language used 
 possesses any * meaning. Besides it must be remem- * 233 
 bered that the act of Congress only permitted a sale 
 of land " on which two or more years' taxes shall remain due 
 and unpaid," and it would seem that the advertisement ought, 
 upon its face, to notify owners and bidders that a power of 
 sale had actually attached at the time of its publication. 
 But, on the other hand, in a proprietary tax, where an equal 
 sum is assessed upon each proprietor, it is sufficient to state 
 in the notice the gross sum due upon the whole tract held in 
 common.^ 
 
 It is also essential that the advertisement should name the 
 time certainly when the sale will take place.^ 
 
 It should also state the place where the sale is to be made.^ 
 But where the advertisement, in describing the place of sale, 
 said, " at the court-house in Warren," but omitted the words 
 " Trumbull County," it was held sufficient ; the Court taking 
 judicial notice of the fact, that at the date of the advertise- 
 
 1 Wentworth v. Allen, 1 Tyler, 226. " Wilkins v. Huse, 10 Ohio, 139. 
 
 3 See Prindle v. Campbell, 9 Minn. 212. 
 
 17 
 
258 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 ment there was no town of Warren in Ohio, except that ia 
 Trumbull county.^ Where a statute required the auditor- 
 general to publish each year a statement of the lands liable 
 to be sold for taxes, and a notice of their sale, " at such pub- 
 lic and convenient place, at the seat of justice of the county, 
 as the county treasurer may select," and the auditor-general's 
 advertisement followed the words of the statute, without fix* 
 ing any locality, this was held a sufficient compliance with 
 the statute, and a notice by the county treasurer posted at 
 the court-house, county treasurer's office, and other public 
 places, (a) at the county seat a week before the day of sale, 
 was a reasonable and sufficient notice, if any notice at all 
 was required, as to which, qucere.^ 
 
 Whei-e the statute is silent as to the form and contents of 
 the advertisement, but directs generally that the collector 
 shall give notice, the statute is to receive such a construction 
 as will enable the delinquent to ascertain whether his land 
 is advertised, the amount of the tax charged upon it, and 
 the time and place when and where 'the sale will take 
 
 place. (6) 
 * 234 * Thus, under the acts of Congress of January 9, 
 
 1815, and March 5, 1816, it was declared, that when 
 the owner was a non-resident of the collection district where 
 the land lay, and the tax remained unpaid, for the space of 
 ninety days, the collector should " transmit lists of the same 
 to one of the collectors within the State, to be designated by 
 him for the purpose, &c., and the collector thus designated, 
 &c., shall cause notifications of the taxes due, as aforesaid, 
 
 1 ShelJon v. Coates, 10 Ohio, 278 ; Blalock ti. Gaddis, 33 Miss. 452. 
 
 (a) Under a statute requiring the posting of an advertisement in a "public 
 place," held, that where the place was unincorporated and uninhabited, it was 
 unnecessary to post any notice. "Lex non cogit ad impossibilia." Wells v. Bur- 
 bank, 17 N. H. 393; Wells v. Company, 47 N. H. 255. See also 40 N. H. 173; 
 Cahoon v. Coe, 52 N, H. 525. The certificate of the sheriff that the notice was 
 "posted up according to law " does not show that it was duly posted. Wells v. 
 Burbank, svpra. 
 
 2 Clark V. Mowyer, 6 Mich. 462 ; Wisner v. Davenport, 5 Mich. 501. See 
 4 Mich. 641. 
 
 . (b) Under a statute requiring notice of sale of the land for unpaid taxes to 
 the owner thereof, held, that the mortgagee, being the legal owner of the land 
 mortgaged, is the person to whom notice must be given by the sheriff. White- 
 hurst V. Gaskill, 69 N. C. 449. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 259 
 
 and contained in the lists thus transmitted to him, to be pub- 
 lished for sixty days, &c.," and section 4 of the act of 1815 
 provided, that " the secretary of the treasury shall establish 
 regulations suitable and necessary for carrying this act into 
 effect." The notice, in fact, published, was in this form, 
 namely, "Notice is hereby given that the subscriber has 
 received lists of the direct tax of 1816, remaining due upon 
 property in the following counties in the State of New Hamp- 
 shire, not owned, &c., and that he is authorized to receive 
 said taxes, with an addition of ten per cent thereon, &c., E. 
 Cutts, Collector designated, &c." No description of the 
 land, or particulars of the tax, or name of the owner, were 
 stated in the notice, but it appeared that the notification was 
 in the form prescribed by the secretary of the treasury. The 
 advertisement was held illegal, the Court saying, " It (sec. 4) 
 cannot be construed to authorize him (the secretary of the 
 treasury) to dispense with a clear requisition of the statute. 
 The objection must prevail. It is true that the statute does 
 not require in express terms, that any description of the land 
 taxed, or that the name of the owner, should be inserted in 
 the notification. But what is a notification of a tax. Can 
 anybody suppose that a mere publishment of the figures that 
 express the sum assessed would be a notification of the tax, 
 within the meaning of the statute ? We think not. It seems 
 to us to be implied in the very terms ' notification of the 
 taxes,' that notice was to be given to each owner that the 
 tax on his land remained unpaid." ^ 
 
 Where the law requires the collector to state in the 
 * advertisement the names of the owners, if known, * 235 
 an omission to do so will invalidate the sale.^ If the 
 name of the owner is unknown, then a more accurate and 
 certain description of the lands will be exacted from the col- 
 lector than in ordinary cases. This was held under a statute 
 which required the name of the owner to be inserted, if 
 known, otherwise a substantially accurate description of the 
 
 1 Eastman v. Little, 5 N. H. 290 ; Michiel v. Mullen, 5 Hay. 90. 
 
 2 Shinimin v. loman, 26 Me. 228 ; Corporation of Washington u. Pratt, 8 
 Wheat. 681. 
 
260 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 land.^ The evident object of the statute is to give the owner 
 every facility, in the ascertainment of his delinquency, which 
 his own name and a description of his property can afford to 
 him, upon an inspection of the notice ; and the Courts ought 
 to be as strict in requiring the statute to be fully complied 
 with in this respect, as in reference to any other prerequisite. 
 It has been held, however, in one case, that a misnomer of 
 the real owner will not invalidate the sale.^ This case does 
 not seem to be consistent with principle, or in conformity 
 with the adjudged cases. [But in this case the name of the 
 real owner was not known, and the statute provided how, in 
 such case, the land should be described, which was fully com- 
 plied with ; and the Court said, " as the notice would be 
 good without any name, we cannot perceive that the insertion 
 of the name of the former owner can vitiate it." But in a 
 later case before the same Court, when the land was taxed to 
 William S. Homer, and in the advertisement of the sale, he 
 was called Henry S. Homer, the sale was held invalid, neither 
 of said persons being either the legal owner, or the tenant in 
 possession.^ Where the statute requires the name of the 
 owner to be given, to whom the property is assessed, and that 
 is duly fulfilled, the sale is valid, although such person was 
 
 in fact dead when the tax was levied ; the statute 
 * 236 having provided that a * mere failure to assess the tax 
 
 in the name of the lawful owner, shall not make the 
 sale void.* ] 
 
 The notice must be published the full length of time re- 
 quired by law, or it will be void. To use the language of 
 Judge Wayne, " Property is liable to be sold on account of 
 an undischarged obligation of the owner of it, to the public 
 or to his creditors. But it can only be done, in either case, 
 where there has been a substantial compliance with the pre- 
 requisites of the sale, as these are fixed by law. Any assump- 
 
 1 Farnum v. Buffum, 4 Cush. 260, 266. And see Sutton v. Calhoun, 14 La. 
 Ann. 209. 
 
 2 Alvord V. Collin, 20 Pick. 418. See Sargent v. Bean, 7 Gray, 125 ; Daily ». 
 Newman, 14 La. .Ann. 580. 
 
 •• Sargent v. Bean, 7 Gray, 125. 
 
 * Holroyd v. Humphrey, 18 How. (U. S.) 69. 
 
ADVERTISEMENT OF THE TIME AND PLACE OP BALE. 261 
 
 tion by the oiEcers appointed to make the sale, or disregard 
 of them, the law discountenances. He may not do any thing 
 of himself, and must do all as he is directed by the law under 
 which he acts. He may not, by any misconstruction of it, 
 anticipate the time for sale within which the owner of the 
 property may prevent a sale of it by paying the demand 
 against him, and the expenses which may have been incurred 
 from his not having done so before. This the law always 
 presumes that the owner may do, until a sale has been made. 
 He may arrest the uplifted hammer of the auctioneer when 
 the cry for sale is made, if it be done before a lond fide bid 
 has been made." ^ 
 
 Thus, where the notice was required to be published " once 
 a week for at least twelve successive weeks," (a) and the 
 first insertion was on August 26,* 1848, and the time fixed for 
 the sale was November 15, in the same year, the sale was 
 held illegal, only eighty-one days intervening.^ So, where 
 the law required four weeks' notice, and the proof was the 
 publication eleven days prior to the sale, it was held illegal.^ 
 So, where the law required " ninety days' notice," and the 
 advertisement was dated November 1, and on that day 
 handed to the^ publisher of the newspaper, and was inserted 
 
 1 Early v. Doe, 16 How. (TJ. S.) 610. 
 
 (a) The certificate of a printer that the notice given by the county commis- 
 sioners, in reference to taxes due and unpaid, was published for thirty days, 
 beginning Feb. 21, 1869, is not sufficient proof that the notice was published 
 "once a week for four weeks," as required by Art. 81, § 56, of the Code. The 
 proof in this respect must be affirmative and certain, and not left to conjecture 
 and inference. It may have been inserted only every other week, and yet pub- 
 lished the number of days stated in the printer's certificate. County Commis- 
 sioners, &c. V. Clarke, 36 Md. 206. And under a statute requiring the first 
 publication of notice of a tax sale, in a newspaper, to be eight weeks prior to the 
 day of sale, the printed date of the newspaper is generally to be regarded as the 
 date of its publication ; and evidence tending to prove that the paper was in fact 
 actually printed and ready to be delivered on the afternoon of the day previous 
 to such printed date, and was actually delivered to the subscribers in the village 
 where the paper was published that afternoon or evening, and that the rest was 
 left in the post-office that night directed to the otlier subscribers, and went out in 
 the mail the next morning, that the whole edition was about 400 or 500, and from 
 50 to 75 for the village subscribers, was not competent to show that the paper was 
 published the day before its date. Schoflf v. Gould, 52 N. H. 512. 
 
 2 Early v. Doe, 16 How. (U. S.) 610. 
 
 3 Nalle V. Fenwick, 4 Band. 594, 595. 
 
262 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 therein weekly, from November 6 until the 29th day of Jan- 
 uary following, and the sale took place on the third 
 *237 day of February ensuing, being the day fixed *in the 
 notice, the sale was held illegal. It will be perceived, 
 that between the date of the advertisement and the day of 
 sale, there were more than ninety days; but between the 
 date of the first insertion and the day of sale there were but 
 eighty-nine, excluding, as the Court did, the first, and includ- 
 ing the last day.^ 
 
 Another statute of Alabama required three months' notice 
 of the time and place of selling resident lands, by publication 
 in a newspaper. In Scales v. Avis,^ it appeared that the col- 
 lector advertised, on January 4, that a sale of the resident 
 lands would take place on February 1 ensuing ; discovering 
 the error, he changed the time of sale to April 1, altered his 
 advertisement, after it had been published one month, and 
 gave notice to the delinquent, who consented to the irreg- 
 ailarity ; yet the sale was held void. 
 
 The Provincial Act of 26 Geo. II. required forty days' 
 notice of the sale of the interest of delinquent proprietors. 
 The proprietary tax, for which the land was sold, was voted 
 only thirteen days before the date of the tax deed. The 
 sale was made in 1780, and the question as to the regularity 
 of the sale arose in 1833. The Court, with every desire to 
 uphold a transaction so ancient, held the sale void, as it was 
 utterly impossible that the notice required could have been 
 given under these, circumstances.^ 
 
 The charter of New Orleans required three months' notice 
 of the sale by several insertions in a newspaper, but was silent 
 as to whether the notice should be published three months 
 immediately preceding the sale. The advertisements were 
 inserted in the months of December, February, and March, 
 omitting altogether a notice in the month of January. The 
 sale took place April 7, in pursuance of the notice ; but it 
 was declared void, the Court holding, that the statute' evi- 
 
 ' Pope V. Headen, 5 Ala. 433. See Elliot v. Eddins, 24 Ala. 509. 
 
 2 12 Ala. 617. 
 
 3 Farrar v. Eastman, 1 Eaii-f. 191 ; s. o. 5 Greenl. 346, and 9 Greenl. 191. 
 
ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 263 
 
 dently meant that the notice should be inserted during 
 the three months * immediately preceding the day of *238 
 sale, otherwise the notice might be given at any time 
 the corporation pleased, and at such great intervals of time 
 as to render nugatory nearly all the objects to be attained by 
 advertising.! But in Bussey v. Leavitt,^ where the statute 
 required " three successive publications in a newspaper three 
 months prior to the sale," the Court held, that the last inser- 
 tion must be three months prior to the sale. The statute of 
 Ohio required the delinquent list and notice of sale to be 
 published at least four weeks, " between the first days of 
 October and December," and the law further provided, that 
 the county auditor " shall, before the day of sale (which was 
 fixed on the last Monday in December) mentioned in such 
 notice, record in a book to be provided for that purpose, such 
 delinquent list and notice, copying the ^ame from the paper 
 in which they shall be published, and shall certify at the foot 
 of said record the name of said paper, and the length of time 
 such list and notice were published therein." 
 
 In Kellogg V. McLaughlin,^ the plaintiff, in support of his 
 tax deed, offered in evidence the record of the list and notice, 
 with the certificate of the auditor attached thereto, which 
 latter stated that the list and notice had been published 
 " four weeks between the first Mondays of October and De- 
 cember." He also offered parol evidence to show that the 
 advertisement was published between the first days of those 
 months. But the Court held, 1. That the record was insuffi- 
 cient upon its face to prove a legal advertisement ; and, 
 2. That parol evidence was inadmissible to aid it. This 
 latter ruling is in conformity with the principle established 
 by all the authorities, that an advertisement in this class of 
 cases, must be valid upon its face, and that if otherwise, 
 extrinsic evidence cannot be admitted to explain or help it.* 
 " The object of giving notice," remarks Judge Scates, in the 
 last-named ease, " I think would be completely defeated, if such 
 
 1 Delogny v. Smith, 3 La. 418. 
 ■•■i 3 Fairf. 378. 
 3 8 Ohio, 114. 
 * Alrard v. Collin, 20 Pick. 418; Fitch v. Pinckard, 4 Scam. 69. 
 
264 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 * 239 evidence could be admitted to correct * the mistake 
 
 (in the date of the advertisement), unless the party 
 would bring that explanation home to each person in interest, 
 and also show that the public were apprised of the mistake, 
 and did attend the sale, so as to insure competition at the 
 biddings. Sales might be conducted under such defective 
 notice, and the party be able to show it to be a mistake, and 
 what the true intention was, still the public might not be 
 apprised of it ; the purchaser might, as is said by the Court 
 in Ohio,i obtain acres for cents without competition, the tax- 
 payer have his land sacrificed for a trifle, and yet the pur- 
 chaser sustain his purchase by showing what the collector 
 intended, or that the printer had made a mistake. There is 
 too much uncertainty; the mischief would be irreparable. 
 The object is to secure competition, for the benefit of all con- 
 cerned ; and if the notice is so defective as not to give the 
 proper information, the sale will be void. This secret infor- 
 mation or intent of the publication cannot aid it." 
 
 The statute of Indiana provided, that a " county auditor 
 shall on the first day of October annually, make out and 
 record a list of delinquents, and cause a copy of such list to 
 be immediately published four weeks successively in some 
 newspaper having a general circulation in his county, if any 
 there be, otherwise by three notices to be posted up m public 
 places in each township in his county ; " and the law further 
 required the sale to take place on the first Monday in Janu- 
 ary. In Strong v. Flagler,^ the facts were, that the publica- 
 tion was not made until November 20 ; a mistake was then 
 discovered, and an amended notice inserted November 27, 
 and this last list was published in the " Evansville Journal," 
 on November 27, and on December 4, 11, and 17. It was 
 contended by the counsel for the tax purchaser, that inas- 
 much as four weeks' notice of the sale was given, there was 
 substantial compliance with the law, but the Court held the 
 proceedings void; that the term "immediately," meant a 
 publication as soon after October 1, as the same 
 
 * 240 * could be reasonably effected ; that in this case' there 
 
 1 2 Ohio, 233. 2 1 Carter, 542. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 265 
 
 was a delay of fifty days on the part of the auditor, and no 
 reason shown for it.^ 
 
 The statute of Illinois gave to delinquents until October 1, 
 to pay their taxes, and directed the State auditor to advertise 
 the delinquent list three weeks successively, the last publica- 
 tion to be at least sixty days before the day of sale. Where 
 the sale was made on December 9, 1823, it was held void.^ 
 In all cases where it appears upon the face of the tax deed, 
 when taken in connection with the law, that the full notice 
 required has not been given prior to the sale, the deed is held 
 void for all purposes.^ 
 
 In Ronkendorff v. Taylor,* where the law required the ad- 
 vertisement to be inserted " once a week for three months," 
 the facts were, that the first notice was given December 6, 
 1822, and the last, March 10, 1823. The sale took place on 
 the latter day. These periods embraced the time the notice 
 was required to be published, but it appeared on inspection 
 of the newspaper in which the notices were published, that 
 between three of the publications there was an interval of 
 eight, ten, and eleven days, respectively. Jt was contended 
 by the counsel for the former owner that " once a week " 
 meant once in every seven days. On the other hand it was 
 insisted that when a time is fixed for the performance of an 
 act, the whole time is allowed within which to do it, even to 
 the last minute ; that the requisition to publish once a week 
 gave the whole week succeeding the first insertion for the 
 second publication ; that the law did not designate on what 
 particular daj-- in the hebdomadal division of a week the 
 advertisement should appear ; that the name of the day of 
 the week on which the advertisement should be inserted was 
 of no moment, as the names of the days of the week were 
 
 • The publication of delinquent list (giving name of owner, wlien known, 
 description of property, &c.), under tlie California Bevenue Act of 1857, is not a 
 condition precedent to the vesting of the tax in the State. The obligation to pay 
 the tax does not exist by virtue of these proceedings ; and the omission of the prop- 
 erty from the delinquent list may be remedied by a special act authorizing a sale 
 after giving notice as therein provided. Moore v. Patch, 12 Cal. 2e5 ; Cowell v. 
 Doub, id. 273. 
 
 2 Moore v. Brown, 4 McL. 211 ; s. c. 11 How. (U. S.) 414. 
 
 8 Moore v. Brown, 11 How. (U. S.) 414; Farrarw. Eastman, 1 Fairf. 191. 
 
 * 4 Pet. 349. 
 
266 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 purely arbitrary ; that it was the period of seven days, 
 * 241 which the law regarded as the space of a * week ; and 
 in this case, as there was no period of fourteen days 
 in which the notice of the sale was omitted, the advertise- 
 ment was regular. Judge McLean, in delivering an opinion 
 sustaining the legality of the advertisement, says, "The 
 words of the law are, ' once a week.' Does this limit the 
 publication to a particular day of the week ? If the notice 
 be published on Monday, is it fatal to omit the publication 
 until the Tuesday weeli succeeding ? The object of the 
 notice is as well answered by such a publication as if it had 
 been made on the following Monday. A week is a definite 
 period of time, commencing on Sunday and ending on Satur- 
 day. By this construction, the notice in the case must be 
 held sufficient. It was published Monday, January the. 6th, 
 and omitted until Saturday, January the 18th, leaving an in- 
 terval of eleven days ; still the publication on Satm-day was 
 within the week succeeding the notice of the 6th. It would 
 be a most rigid construction of the act of Congress, justified 
 neither by its spirit nor its language, to say that this notice 
 must be published on any particular day of a week. If pub- 
 lished once a week, for three mouths, the law is compUed 
 with, and its object effectuated." 
 
 In Cass V. Bellows,^ the statute required the advertisement 
 to be published "three weeks successively." The first publi- 
 cation was on Saturday, November 2d, that being the usual 
 day of publication ; which was subsequently changed to Tues- 
 day, and the second publication was on Tuesday, November 
 12th, that being the next issue of the paper, and the third 
 publication was on the following Tuesday, November 19th. 
 It was ■ held, that the statute was substantially complied 
 with. 
 
 Where the law requires the advertisement to be published 
 in several languages — for instance, in English and French, 
 or English and German — the neglect of the collector to 
 comply with this requisition will render the advertisement 
 illegal, and the sale founded thereon void.^ 
 
 1 11 Foster, 501. And see Bachelor t.-. Bachelor, 1 Mass. 256. 
 
 2 Young V. Martin, 2 Yeates, 312 ; Delogny v. Smith, 3 La. 418. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 267 
 
 Sometimes the* law requires the notice to be pub- 
 lished in a * newspaper having the greatest circulation * 242 
 in the county where the sale is to take place ; when 
 such is the case, a compliance with the requirement is essen- 
 tial to the validity of the advertisement. 
 
 Thus, in the Lessee of Hughey v. Horrell,^ the statute of 
 Ohio declared that the county auditor, on receiving the delin- 
 quent list, " shall forthwith cause the same to be advertised 
 six weeks successively in some newspaper printed at the seat 
 of government in this State ; and also, in a newspaper printed 
 in his proper county, if any such there be, and if not, in some 
 newspaper in most general circulation in said county." The 
 facts were, that the notice was published in a newspaper at 
 Columbus, the seat of government, and in no other. It ap- 
 peared in evidence that the newspapers of Chillicothe and 
 Springfield had a partial circulation in the county where the 
 land lay, but that the Columbus papers had the most general 
 circulation there ; and it further appeared that there was no 
 newspaper printed in the county of the sale. The Court held 
 the notice illegal. " It is contended," say. the Court, "by the 
 defendant, that as there was no paper printed in the county of 
 Madison, and as the Columbus, paper was in general circula- 
 tion in that county, it was not necessary to publish the notice 
 in any other. The law does not admit of such construction. 
 The publication must be made in two papers, one printed at 
 Columbus, and the other in the county where the auditor 
 resides, if there be such a paper, and if not, then in some 
 paper (other than the one printed at the seat of government) 
 in most general circulation in his county. The design of this 
 provision was to extend the notice as generally as possible, for 
 the information of owners, and for the purpose of increasing 
 competition at the sale. This requisition is substantial and 
 useful, and cannot be dispensed with." 
 
 In Pierce v. Sweetser,^ the law required the county auditor 
 to publish the notice four weeks prior to the first Mon- 
 day in * January, the day of the sale, in some news- * 243 
 paper having general circulation in his county, if any 
 
 • 2 Ohio, 231 ; s. c. 1-4 Ohio Cond. S35. 
 3 2 Carter, 649. 
 
268 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 such there be, " else by posting notices, at some public place, 
 in each county commissioner's district, &c." The facts were, 
 that there was no paper printed in the county of the auditor, 
 where the delinquent land lay ; and the evidence of the re- 
 quired notice was a certificate of the county auditor, which 
 was competent to prove the facts contained in it under the 
 laws of Indiana, in these words : " October 23, 1844. I, John 
 Gilbert, county auditor, &c., do hereby certify, that I wrote 
 three copies of the foregoing delinquent list and notice ; that 
 I put one of them on the court-house door, and handed the 
 other two to the sheriff, requesting him to put up one in each 
 of the remaining commissioners' districts, &c. I further cer- 
 tify, that said advertisements were put up publicly, more than 
 four weeks prior to the first Monday in January, 1845, &c." 
 The sale was held illegal. By the Court : " It does not follow, 
 because no paper was published in the county where the land 
 lay, that none had a general circulation there." 
 
 A publication in extra sheets, which are circulated with 
 the paper designated by law, is a legal notice ; but where it 
 appears that the extra sheets M'ere not, in fact, sent to all of 
 the subscribers of the paper, the advertisement will be re- 
 garded as void.i Such wS,s the practice in Illinois from 1823 
 to 1830, but as the notices were all illegal in other respects, 
 this question was never judicially determined. But there 
 seems to be no plausible objection to a publication in extras, 
 if the circulation of them is as extensive as the newspaper 
 itself, in which the notice is required to be published. The 
 extra would have, under such circumstances, the satme pub- 
 licity as the regular sheet. No one could be prejudiced by it ; 
 and, for the purposes of preservation and reference, the extra 
 sheet, containing nothing but the delinquent list, would be 
 more convenient to all concerned. 
 
 The strictness required in regard to the notice of 
 * 244 the sale, is * very strongly illustrated by the case of 
 Porter v. Whitney ,2 which was a writ of entry, where 
 the tenant claimed under a tax sale, made twelve years prior 
 to the trial. The facts were, that the sale was made by 
 the collector of Brownfield, for the non-payment of taxes 
 
 • Davis V. Simms, 4 Bibb, 465. 2 1 Greenl. 306. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 269 
 
 assessed by that town, that the land demanded was formerly 
 a part of the town of Porter, and was annexed by law to 
 Brownfield within three years next before the time of adver- 
 tising the sale, but the name of Porter was not expressed in 
 the advertisement. The statute declared that "when the 
 name of the place in which such lands lie, may have been 
 altered, by any act of this commonwealth, within three 
 years next preceding such advertisement, he (the collector) 
 shall express, not only the present name, but the name by 
 which the same was last known." Th« sale was held illegal. 
 Mellen, C. J. : " The object which the legislature evidently 
 had in view, in this enactment, was to give effectual notice 
 to all concerned, and prevent any misconception by such an 
 alteration in the name of the place, as would essentially alter 
 its description. We ought, therefore, to give such a con- 
 struction to the law as to attain, as far as may be, the object 
 in view. The advertisement described the land as situate in 
 Brownfield ; it should have been more particular, and stated 
 that it was situate in that part of Brownfield, which was 
 formerly a part of Porter, and which had been annexed to 
 Brownfield. This would have put the proprietor on his 
 guard, and prevented all mistake and damage." Where the 
 law requires the advertisement to be inserted in two or more 
 papers, it is essential that the notice should be inserted in all 
 of them, or the sale will be void ; the reason is, that the 
 spirit of the law requires the greatest possible amount of 
 notoriety to be given of the time and place of sale, with a 
 view of giving full notice to the delinquent, and for the 
 further purpose of insuring a greater competition at the 
 biddings.^ 
 
 The statute of New Hampshire required notices of 
 the sale to * be posted in public places, for at least * 245 
 eight weeks prior to the day of sale, and an affidavit 
 of the fact that the law had been complied with in this 
 respect, but was silent as to who should make the affidavit, 
 and as to the contents of it. In Nelson v. Pierce,^ the evi- 
 dence of the posting of notices of sale was a sworn certifi- 
 
 1 Hnghey v. Horrell, 2 Ohio, 231 ; Allen v. Smith, 1 Leigh, 231. 
 » 6 N. H. 194. 
 
270 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 cate of W. Kenney, who was the occupant of the public 
 house where the notice was posted. The certificate was in 
 these words : " Bethlehem, January 7, 1829 : I hereby cer- 
 tify that the advertisement of non-resident lands for the year 
 1828, hereto annexed, has remained posted up in my bar- 
 room, in said Bethlehem, more than eight weeks prior to this 
 date. W. Kenney." The notice Avas held not to be suffi- 
 ciently proved. 1. Because it was doubtful whether the 
 affidavit could be made by any other person than the collec- 
 tor, whose duty it was to post the notices ; and, 2. Because 
 the certificate did not state when the notice was first posted. 
 On this latter point the Court say, " It is not enough that it 
 states the advertisement to have been posted up more than 
 eight weeks. We cannot know how he computes time in 
 such a case. The affidavit should state the day when the 
 advertisement was put up, and then we can see whether it 
 was put up in due season." 
 
 The statute of Connecticut authorized the notice to be 
 given by posting it on the sign-post of the town, — a place 
 where it is lawful, by the custom of that State, to post all 
 legal notices, — a place where all persons interested are in 
 the habit of resorting for information in cases where a legal 
 advertisement is required to be given. ^ 
 
 In other States, the law requires a notice to be posted in 
 a " public place." (a) Where such is the requisition the 
 
 1 Ives V. Lynn, 7 Conn. 505. 
 
 (a) For a definition of the words "public place," see also Austin v. Soule, 36 
 Vt. 645 ; Alger v. Curry, 40 Vt. 448. Where, to rebut a tax deed which was 
 prima facie evidence of the regularity of the proceedings, the defendant produced 
 in evidence the county treasurer's notice of sale, and the affidavit of the posting 
 of the same, which stated tliat, &c., affiant posted up the notice "in four pub- 
 lic places in sfiid county ;" but did not state that one of said copies was posted 
 in some conspicuous place in the treasurer's office, as required by the statute, Md, 
 that the affidavit produced must be regarded as prima facie the only affidavit 
 on that subject; that the prima facie evidence of the deed was thus rebutted; and 
 that the defect thus shown in posting the notices rendered the deed .void. Jarvis 
 V. Silliman, 21 Wise. 599 ; Iverslie v. Spaulding, 32 Wise. 394. And where the affi- 
 davit of the treasurer is thus defective, the fact that the treasurer did in fact post 
 three of said notices in the county, and one in the most public place in his office, 
 as the law directs, cannot be shown by parol at the trial of an action involving 
 the validity of the tax title, as this would defeat the object of the statute in 
 requiring such affidavit to be filed and preserved in the office of the clerk of the 
 board of supervisors, Iverslie v. Spaulding, supra. 
 
ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 271 
 
 Courts are extremely strict in requiring proof that the place 
 of posting was in fact a public place of resort, calculated to 
 give all of the notoriety to the sale, which the law evidently 
 contemplated.^ (a) 
 
 * In Cambridge v. Chandler, the town where the * 246 
 land lay was unorganized and uninhabited,^ and the ad- 
 vertisement was posted on a board, fixed in the sand, by the 
 side of the Androscoggin river, — this was held not to be a 
 public place within the meaning of the law. And in Tidd v. 
 Smith, the notice was posted on the 11th day of January, 
 1820. The sale was fixed for March 9, 1820. The law re- 
 quired three successive weeks' notice. The notice remained 
 up for the requisite time. When first posted, the place, 
 where it was put up was a public -place ; namely, a tavern, — 
 but on the 18th day of that month it ceased to be a tavern, 
 but the innkeeper remained in the building, and carried on 
 the business of a shoemaker, in the identical room where the 
 notice was posted ; and the proof was that many persons 
 frequented the shop for several weeks after the innkeeper 
 turned shoemaker. The Court held that the place ceased to 
 be a public one after the 18th day of January, and that con- 
 sequently the sale was illegal. In some of the States a per- 
 sonal notice to the owner is required, before a sale of his 
 land is authorized ; where this requirement has not been 
 complied with, the sale has been held void.^ 
 
 There is a statute in North Carolina * which requires that 
 " the sheriff shall, at the term of the County Court next 
 
 1 Pierce v. Sweetser, 2 Carter, 649 ; Cambridge v. Ciiandler, 6 N. H. 271 ; 
 Tidd V. Smith, 3 N. H. 178. ^ 
 
 (a) A notice of sale for non-payment of taxes, set up " at the court-house 
 door, and at three other of the most public places in the county," is a sufficient 
 compliance with Art. 81, § 59, of the Code, requiring that the notice shall be put 
 up " at the court-house door and at the most public places in such county." It 
 is not required that the notice should be put up at aU the most public places in 
 the county. County Commissioners, &e. v. Clarke, 36 Md. 206. 
 
 2 That an advertisement of sale need not be posted in an uninhabited and 
 unincorporated place, see Wells u. Burbank, 17 N. H. 393 ; Wells v. Company, 
 47N. H. 255. See * 233, note (a). 
 
 3 Moulton u. Blaisdell, 24 Me. (11 Shep.) 288 ; Brown v. Veazie, 25 Me. (12 
 Shep.) 359 ; Williams v. Peyton, 4 Wheat. 77 ; 4 B. Mon. 116. 
 
 * 1819. 
 
272 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 preceding the day of the sale for taxes, return a list of the 
 land upon which the taxes are unpaid, and which he pur- 
 poses to sell for taxes, therein mentioning the owner of each 
 parcel, and if the owner be unknown, the name of the last 
 reputed owner, and the amount of the tax due thereon ; and 
 that the list shall be read aloud in open Court, a copy re- 
 corded by the clerk upon the minutes of the Court, and that 
 a copy shall be set up by the clerk during the term in the 
 court-room." In Doe ex dem. Kelley v. Craig,^ these re- 
 quirements were not complied with, and the sale held 
 * 247 void. Ruffin, C. J. : " It seems to us that * this pro- 
 vision is not merely directory, but that it is to be ob- 
 served by the sheriff as a part of his duty, and as far as respects 
 the making of the return and having it recorded, it is essen- 
 tial to his authority to sell the land. It was knov/n that 
 notice by advertisement was a very uncertain method- of 
 informing the owner, and especially of unlisted property, 
 that his land was to be sold ; and moreover, that on account 
 of the diificulty of a purchaser proving the advertisement at 
 remote periods, and of the necessity, nevertheless, of sup- 
 porting fair purchases, the Courts had held,^ that sales made 
 without advertisement, and without the knowledge of the 
 owner, should stand, notwithstanding the prejudice that 
 might arise to the owner. The intention of the act of 1819 
 was to provide a more certain or probable notice to the 
 owner, of the intended sale of his land, and of the reason 
 therefor, by requiring it to be given in open Court, at the 
 term next preceding the sale, and to be recorded so that the 
 rumor thereof, at least, might reach him, and that upon inves- 
 tigation he might find at a known place, a permanent and 
 certain evidence of the truth of the matter. So, too, the 
 bidders cannot be deceived by any false report, as they can 
 respecting advertising in the country, or in a newspaper, as 
 the evidence is of record, and at home, and if they choose to 
 look, they must know whether the sheriff has done his duty 
 by the owner or not. If he has not, his sale ought not to 
 pass the title more than if it was by private contract, or was 
 
 1 6 Ired. 129. 2 Ante, pp. * 216, * 217. 
 
ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 273 
 
 not made at the court-house, or on a wrong day of the week ; 
 in all which cases the wrongful conduct of the officer must 
 be known to the bidder, and therefore his purchase ought 
 not to stand. Indeed, the proceeding, directed by the act of 
 1819, is very much in the nature of a judgment, and a pur- 
 chaser can as readily search for and find the one of record as 
 the other, and therefore there is as little reason to dispense 
 with the one as the other. The legislature meant to give 
 the citizen an effectual protection against surprise in the sale 
 of his land for taxes, but at the same time to do so without 
 exposing bidders to the danger of paying their money, 
 * and not getting the benefit of their purchases, pro- * 248 
 vided they would take the reasonable and not incon- 
 venient precaution, of availing themselves of the means 
 provided for informing themselves, whether the sheriff had a 
 right to sell or not. No person can be hurt by this construc- 
 tion, but one who wilfully keeps his eyes shut against the 
 light the law supplies to him. We think the sale to the lessor 
 of the plaintiff was therefore radically defective, and passed 
 no title." 
 
 This was a peculiar statute, and its provisions, in one re- 
 spect, somewhat analogous to the proclamations of a fine, 
 under the old English statute ; and the fact that the Court 
 required a strict compliance with its provisions, is one of the 
 very strongest illustrations of the degree of strictness, exacted 
 in the giving of every notice of sale, which the legislature 
 have seen proper to prescribe in this class of cases. Proof 
 of the advertisement depends upon the same general princi- 
 ples which relate to the other prerequisites of the law. The 
 onus probandi rests upon the purchaser at the tax sale, or 
 those claiming under him.i The deed is not primd facie evi- 
 dence that the sale was duly advertised.^ Where the law 
 requires the advertisement to be recorded, the record alone 
 can be resorted to for the purpose of determining its exist- 
 ence and sufficiency. Parol evidence is inadmissible to sup- 
 ply any defect in the record, or to explain any uncertainties 
 
 1 Ante, ch. 3. 
 
 2 Garrett v. Wiggins, 1 Scam. 335; Kinney v. Beverley, 2 Hen. & Munf. 581. 
 See Elliott v. Eddins, 24 Ala. 608. 
 
 18 
 
274 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 that may exist in it. And the Courts are strict in requiring 
 a rigid adherence to the requisitions of the law, as to the 
 contents of the record ; it must conform to the statute in all 
 respects. 
 
 In those States where the law requires the advertisement 
 to be recorded, this strictness is maintained, upon the ground 
 that the evident object of the law is to perpetuate the evi- 
 dence of the notice by matter of record, for the common 
 benefit of the purchaser and former owner ; that the intro- 
 duction of parol evidence in aid of the record thus 
 * 249 required to be made, would * defeat the policy of the 
 law.i The statute of Illinois requires the certificate 
 of publication to be recorded,^ and the question has several 
 times been raised upon the circuit, and in the Supreme Court, 
 as to the validity of the proceedings where the clerk has 
 omitted his duty in this respect ; but the cases have been 
 determined upon other points, so that it is still an open ques- 
 tion in that State.^ The manifest object of the statute is, to 
 show upon the face of the record the jurisdiction of the 
 Court, and to perpetuate the evidence that the sale was duly 
 advertised. It concerns the former owner and the purchaser 
 at the tax sale, and it would seem upon principle, and author- 
 ity, that such a requirement can in no sense be regarded as 
 merely directory to the clerk ; but that it is one of those 
 peremptory provisions which cannot be dispensed with with- 
 out invalidating the entire proceedings, — defeating the juris- 
 
 i Culver V. Hayden, 1 Vt, 369 ; Coit v. Wells, 2 Vt. 318 ; Clark v. Tucker, 6 
 Vt. 181 ; Spear v. Ditty, 9 Vt. 282 ; Isaacs v. Shattuck, 12 Vt. 668 ;. Carpenter 
 V. Sawyer, 17 Vt. 121 ; Judevine v. Jackson, 18 Vt. 470; Langdon v. Poor, 20 
 Vt. 13 ; Taylor i-. French, 19 Vt. 49; Kellogg v. McLaughlin, 8 Ohio, 114. 
 
 2 Ante, p. * 194, sec. 27. 
 
 3 But see Dukes v. Rowley, 24 111. 221. It need not appear of record that the 
 person who signed the certificate of publication was the publisher of the news- 
 paper in which the advertisement appeared ; that fact will be presumed to have 
 been proved before judgment for a sale was ordered. Dukes v. Rowley, 24 111. 
 210. See p. » 194, note 3. Where the statute (1 R. S. 931, § 76, 5th ed.) required 
 the town clerk to give notice at town meeting that lists of the land advertised 
 for sale by the comptroller for unpaid taxes had been deposited in his office, it 
 was held that this was a directory requirement, and that if the prerequisites to 
 the comptroller's power to advertise the land for sale existed, the omission of the 
 clerk to give such notice would not, at least as against a wrong-doer, invalidate 
 a sale. Pierce v. Hall, 41 Barb. 142. See also Noland v. Busby, 28 Ind. 154. 
 
ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 275 
 
 diction of the Court, and the power of the collector to sell 
 the land. 
 
 -Ordinarily, no presumption will be indulged in, for the 
 purpose of supplying the omission of proof in relation to the 
 publication of the advertisement.^ Though in support of an 
 ancient possession, it may be permitted. This, however, 
 will be examined more at large hereafter. But the law is 
 not only well settled, but apparent to every one, that no pre- 
 sumption can be indulged in to supply a defect which ap- 
 pears upon the face of the advertisement.^ It may be stated 
 as a general rule, that where an advertisement is illegal in 
 any respect, the consent of the owner, having notice of the 
 irregularity, cannot confer authority upon the ofl&cer to pro- 
 ceed with the sale. He derives his power from the 
 law — and not from the owner of * the land — and he * 250 
 must strictly conform to all its requisitions.^ The 
 date of the advertisement is primd facie evidence as to the 
 time when it was made and published.* But where a notice 
 of sale, and the paper itself which contained it, were dated 
 in 1836 instead of 1837, and parol evidence was offered to 
 prove the mistake, the evidence was held incompetent.^ The 
 reasoning in support of this decision of the Court, has al- 
 ready been given.® 
 
 ' Allen V. Smith, 1 Leigh, 231. 
 
 2 Farrar v. Eastman, 1 Fairf. 191 ; Porter v. Whitney, 1 Greenl. 306. 
 
 3 Scales V. Avis, J2 Ala. cI?. < Langdon v. Poor, 20 Vt. 13. 
 5 4 Scam. 81. « Ante, p. *238. 
 
276 OF THE AUTHORITY OP THE OFFICER TO SELL. 
 
 CHAPTER XIII. 
 
 OP THE AUTHORITY OP THE OFFICER TO SELL. 
 
 The power of sale does not attach until every prerequisite of 
 the law has been complied with.^ The regularity of the an- 
 terior proceedings is the basis upon which it rests. Those 
 proceedings must be completed and perfected, before the au- 
 thority of the of&cer to sell the land of the delinquent, can 
 be regarded as consummated. The land must have been duly 
 listed, valued, and taxed — the assessment roll placed in the 
 hands of the proper officer, with authority to collect the tax — 
 the tax demanded — all collateral remedies for the collection 
 of the tax exhausted — the delinquent list returned — a judg- 
 ment rendered where judicial proceedings intervene — the 
 necessary precept, warrant, or other authority, delivered to 
 the officer intrusted with the power of sale (a) — and the sale 
 advertised in due form of law — before a sale can be made. 
 In a word, every act which can be regarded as a condition 
 precedent to a valid sale, must precede the execution of the 
 power in question ; otherwise, there is no authority to sell, 
 and the whole proceeding will be treated as a nullity .^ 
 
 Whether a special authority, directly commanding a sale of 
 the lands embraced in the delinquent list, is essential, where all 
 of the previous proceedings are regular, depends upon the 
 peculiar legislation of each State. In some instances 
 * 252 the officer * derives his power of sale from the law itself, 
 which is his warrant, commanding him, without the 
 intervention of any other agency, to sell, and fixing the time, 
 place, and manner of sale.* In others, especially where a judg- 
 ment is required, a precept or other process is delivered to the 
 
 1 Minor v. Natchez, i Sraedes & M. 627, 628. 
 (a) See Randolph v. Metcalf, 6 Cold. 410. 
 
 - Lessee of Holt's Heirs «. Hemphill's Heirs, 3 Ham. 232 ; s. c. 1-4 Ohio 
 Cond. 551 ; Bishop v. Lovan, 4 B. Mon. 116 ; Garrett v. White, 8 Ired. Eq. 131. 
 3 McOoy V. Turk, 1 Penn. 499. 
 
OF THE AUTHORITY OP THE OFFICER TO SELL. 277 
 
 officer, which constitutes his authority to sell.^ In others a 
 simple copy of the delinquent list, duly authenticated, is de- 
 livered to the officer, and sometimes there is superadded a 
 command or direction to proceed and sell. 
 
 In Illinois, under the acts of 1827 and 1829, lands not listed 
 in the county of their locality, were required to be returned 
 by the county clerk to the auditor of State, on or before July 
 15, annually and in case .the taxes remained unpaid for a 
 limited time, the auditor was authorized to advertise and sell 
 the land. Until this list is returned by the clerk to the au- 
 ditor, his power of sale does not attach.^ Under the law of 
 1833, which transferred the sale from the auditor to the county 
 clerk, the authority of the clerk to sell depended upon the 
 delivery to him of a list of delinquents by the auditor.^ 
 
 The law of North Carolina required the owner to list his 
 land with the justice of the peace in his precinct ; if he neg- 
 lected to do so, the justice was authorized to appoint a free- 
 holder to value the land on oath, and make a return thereof 
 to the justice ; which return the justice was directed to add 
 to his list, and transmit the whole to the clerk of the County 
 Court. In case of faUure by the owner and justice, the sheriff 
 was required to list the land, and summon a freeholder to value 
 it, in which case the freeholder was required to send a tran- 
 script of the list and valuation to the clerk of the County 
 Court, before the next succeeding term of that Court, and 
 the clerk was directed to incorporate that with the list re- 
 turned by the justice ; the tax lists thus returned were di- 
 rected to be recorded by the clerk. 
 
 * In Pentland v. Stewart,* the Court say, " These * 253 
 records, it seems to us, are in the nature of judgments 
 against each individual on the lists, for the sums respectively 
 set against their names." The statute further provided, that 
 within thirty days after, the term of the Court to which the 
 lists were returned, the clerk should make out and deliver to 
 the sheriff a copy of the lists, upon the receipt of which the 
 latter was directed to proceed and collect the tax by demand, 
 
 1 Hinman v. Pope, 1 Gilra. 131 ; Lessee of Wilkins v. Huse, 9 Ohio, 154. 
 
 2 Revised Laws 1833, p. 524, sec. 3 ; Messenger v. Germain, 1 Gilm. 631. 
 
 3 Revised Laws 1833, p. 528, sec. 1. « 4 Dev. & Bat. 386. 
 
278 OF THE AUTHOEITY OP THE OPPICBR TO SELL. 
 
 seizure of goods or sale of the land* In commenting upon this 
 requirement, the Court, in the case last cited, remark : " The 
 certified copies of the tax lists, delivered by the clerk to the 
 sheriff, are, in law, his warrant of distress or execution against 
 the property of each individual, for the satisfaction of the 
 money due on them." The Court, therefore, held, that as " in 
 ordinary cases, where a party claims under a sheriff, he is com- 
 pelled to produce a judgment and execution against the debtor, 
 as well as the sheriff's deed," so in deducing title under a tax 
 sale, the purchaser must produce the record of the lists 
 in lieu of a judgment, and the copy of it delivered to the 
 sheriff as a substitute for an execution, otherwise, the sheriff 
 has no power to sell and convey the land. 
 
 The statute of Ohio, of March 14, 1831, required the audi- 
 tor of State to transmit to the county auditor a list of all 
 lands which had been forfeited to the State for the non-pay- 
 ment of taxes assessed thereon, said list to be certified and 
 signed by the auditor of State, and to have thereto affixed 
 his seal of office, " which list shall set forth the name or 
 names of the person or persons to whom such lands stand 
 charged with taxes, the amount of taxes due thereon for each 
 year, and for what years ; " and the law further provided, 
 that unless the taxes due upon the lands embraced in the list 
 were paid by October 15, the county auditor should advertise 
 and sell the same. 
 
 In Hannel v. Smith,i the evidence offered to show that such 
 list was transmitted to the county auditor, was a letter 
 * 254 dated * June 5, 1843, signed " Jno. Brough, auditor of 
 State, by J. B. Thomas," stating that such list was 
 enclosed, and authorizing the county auditor to proceed and 
 sell. The Court held the authority insufficient and sale void 
 upon three grounds : 1. The list was not certified to be cor- 
 rect. 2. It was not attested by the signature of the auditor 
 or his chief clerk. 3. It was not verified by the official seal 
 of the auditor. A list thus authenticated would no more 
 authorize the county auditor to sell the lands specified in it, 
 than a letter written by the clerk of a Court, and directed to 
 the sheriff, informing him that a judgment had been rendered 
 
 ' 15 Ohio, 134. 
 
OP THE AUTHORITY OP THE OFPICEE TO SELL. 279 
 
 by the Court in a certain cause, •would authorize the sheriff 
 to levy upon and sell the land of a judgment debtor. The 
 Court, after reciting the statute, say, " lb is apparent from 
 this law that the authority of a county auditor to sell forfeited 
 land is derived from this list thus transmitted to him by the 
 auditor of State. As well might a sheriff, without an execu- 
 tion, sell lands to satisfy a judgment, as a county auditor 
 undertake to sell without this list." 
 
 The statute of New Hampshire required the assessors to 
 deliver the tax list to the collector, on or before the thirtieth 
 day of May annually ; the collector was directed to deliver a 
 copy of the list to the deputy secretary of State, on or before 
 the eighth day of the next ensuing session of the General 
 Court ; this copy was to be kept by the deputy until Sep- 
 tember 1, and on application of the collector, the deputy was 
 to return to the former the copy. The power of the deputy 
 to collect taxes continued until the return, that of the col- 
 lector until the sale. Where the collector sold the land 
 before the copy of the list was returned to him by the deputy 
 secretary, the sale was held void. Prior to this return, the 
 collector had no means of ascertaining whether the owners 
 were delinquent : the taxes may have been paid to the 
 deputy secretary, and this may have been the very reason 
 why no return was made.^ 
 
 In Louisiana, the sheriff is authorized to demand the 
 tax, * and if not paid, he may proceed and sell the land * 255 
 of the delinquent ; "if the person against whom the tax 
 is assessed is a non-resident, or absent from the collection 
 district, so that a demand cannot be made, the collector is 
 required to make a return of all such persons to the State 
 treasurer, and this return constitutes the authority of the 
 treasurer to sell the lands embraced in the return. A sale 
 of the land of a non-resident or absentee, by the sheriff, 
 instead of the treasurer, is void.^ Where the statute requires 
 the tax lists to be delivered to the collector, on or before a 
 particular day, and this requirement is not conformed to, the 
 collector has no authority to sell.^ 
 
 1 Homer v. Cilley, 14 N. H. 85 ; Iron Manufacturing Co. v. Barron, 3 N. H. 36. 
 
 2 Thompson v. Rogers, 4 La. 9. 
 
 8 Proprietors of Cardigan v. Page, 6 N. H. 182. 
 
280 OP THE AUTHORITY OP THE OFFICER TO BELL. 
 
 The statute of Maine provided, that when no person shall 
 appear to discharge the taxes duly assessed on lands belong- 
 ing to non-residents, " within nine months from the date of 
 the assessment, the collector shall make a true copy of so 
 much of the assessment as relates to the taxes due upon such 
 real estate, and certify the same to the treasurer of the town 
 or plantation." The power of sale was vested in such treas- 
 urer. 
 
 In Flint v. Sawyer,^ it appeared that the assessment was 
 dated August 14, 1844, and the return of the non-resident 
 list was made by the collector to the treasurer. May 13, 1845. 
 The sale was held void. By the Court : " When a statute 
 requires an act to be performed in a certain time from the 
 date of some transaction, the day of such date is excluded in 
 the computation of the time. The collector should have 
 waited during all of the business hours of the 14th day of 
 May, 1845, for the owner of the land to pay the tax upon it, 
 before he made his certificate to the town treasurer. The 
 owner of the land was entitled to the full term of nine 
 months, in which he could make his payment without costs. 
 Besides, the taxes may have been paid on the 14th, within 
 the nine months allowed therefor, and the certificate of the 
 collector still be true." 
 
 The statute of Maine required the sale to be made within 
 
 two years from the date of the warrant to collect. In 
 * 256 1838", Usher v. * Taft,'-* the warrant was dated July 25, 
 
 the advertisement was published June 6, 1840, and the 
 sale was made October 10, 1840. In support of this sale, it 
 was insisted that a tax sale was made up of the seizure of the 
 property, the publication of the notices, and the striking off 
 the land to the highest bidder ; and that if the seizure be 
 made within two years from the date of the warrant, the 
 analogies of the law authorized the sale to be completed 
 afterwards ; that the sale had relation to the seizure ; that in 
 case of a sale under execution, if the levy was made in the 
 
 ' 30 Me. 226. In Pennsylvania, a county treasurer has no authority or 
 jurisdiction to sell unseated land for non-payment of taxes, until they shall have 
 been " due and unpaid for one year before " the sale; and no tax is due until 
 it is assessed. Miller i;. Hale, 26 Penn. St. 432. 
 
 2 33 Me. 199. 
 
OP THE AUTHORITY OP THE OPPJCER TO SELL. 281 
 
 lifetime of the execution, the sale might take place afterwards. 
 The Court, however, held the sale void. 
 
 Where the statute is silent as to the verification of the list, 
 or other document, which constitutes the authority of the 
 officer to sell, by the oath of the officer who is required to 
 make it, no such oath is necessary. The oath of office, and 
 the liability of the officer tO parties injured by a false list, 
 constitute the only security of the citizen in such cases.i 
 
 The statute of Ohio required the county treasurer, who was 
 ex officio collector, to return a list of delinquents, under oath 
 or affirmation, to be administered by the county auditor, and 
 the latter was directed to record the return in a book to be 
 kept for that purpose. The power of sale was vested in the 
 auditor, and a legal return was the basis of his authority. 
 The record failed to show the administration of the oath to 
 the county treasurer, as required by the law ; but a certified 
 copy of the return contained the oath. It was held, that, 
 without a sworn return, the county auditor had no power to 
 seU, that this fact must appear of record, and that no sec- 
 ondary evidence was admissible for the purpose of supplying 
 the omission.2 
 
 ■ A prior statute of Ohio required the collector to return, to 
 the county auditor, the delinquent list, "attested by such 
 collector, under oath," but omitted to direct by what officer 
 the oath should be administered. In Harmon v. Stock- 
 well,3 it * appeared that the oath was administered by * 257 
 the county auditor, and the sale was held void. By 
 the Court : " As the penalties of perjury were intended to be 
 imposed for a false return, it is clear that the oath must be 
 administered by competent authority. If the auditor, at that 
 time, possessed no such power, the list wants an essential 
 requisite, which invalidates the tax sale. The power to 
 administer oaths is incidental to no office except the judicial. 
 
 1 Hollister v. Bennett, 9 Ohio, 83. 
 
 2 Minor v. McLean, 4 McL. 138. So where tlie rerifieation of the delinquent 
 list is in the form of a certificate not under oath appended thereto by the collector, 
 the proceedings are void. Skinner v. Brown, 17 Ohio St. (n. s.) 33 ; and an aflS- 
 davit that the delinquent list corresponds with the return made by the collector is 
 insufficient ; it must state that it corresponds with the facts. Ibid. See p. * 182. 
 
 3 9 Ohio, 39. 
 
282 OP THE AUTHORITY OF THE OFFICER TO SELL. 
 
 It must be conferred by statute, either directly, or by impli- 
 cation, or ministerial officers do not possess it." The Court 
 then examine the several statutes of Ohio relating to the 
 power and duties of the county auditor, and thus conclude : 
 " We therefore find no authority in any of these statutes, 
 enabling the auditor to administer oaths, except in the speci- 
 fied cases. The grant of authority in those specified cases, 
 sufficiently implies that he possessed it in no other. The 
 return of the collector, therefore, was not under the securities 
 and sanctions which the law required ; and this omission is 
 fatal to a title held under such strict principles as a tax sale, 
 and supersedes the necessity of looking further into the 
 case." The precept, warrant, or list, must contain an accu- 
 rate description of the lands to be sold, or the sale will be 
 Yoid.i 
 
 In Kingman v. Glover,^ which was an action of trespass to 
 try title, the plaintiff having deduced upon the trial a regular 
 claim of title, the defendant claimed a seven years' lease 
 under a sale for taxes. The substantial provisions of the law 
 were, that eveiy person should make return of his property 
 for taxation under oath, that if the taxes were not paid when 
 they became due, the collector was authorized to issue a war- 
 rant under his hand and seal, directed to a constable, requir- 
 ing him to levy the amount of the tax by distress and sale of 
 the delinquent's goods or land, and in case the delinquent 
 failed to produce goods, or point out land, then the constable 
 was required to seize the body, &c. The form of the warrant 
 
 as prescribed by the statute, was as follows : — 
 *258 * " A. B., tax collector of, &c., to , con- 
 stable, &c. Whereas hath been assessed by 
 
 me, the subscriber, &c., in the sum of dollars and 
 
 cents, for defraying the charges of, &c., which sum the said 
 hath neglected to pay. Therefore, you are com- 
 manded, &c." 
 
 The act also provides that if lands are levied on under the 
 warrant, the constable shall advertise and sell an interest 
 "not exceeding the term of seven years." The tax execution 
 
 ^ Stewart v. Graffles, 8 Serg. & Rawle, 344 ; Spiller v. Baumgard, 4 La. 206. 
 2 3 Richardson, 27. 
 
OP THE AUTHORITY OF THE OFFICER TO SELL. 283 
 
 in question recited an assessment against " the estate of Mrs. 
 Hammond." This was the only informality in the proceed- 
 ings, and it was insisted that the warrant ought to express 
 upon its face the name of some person liable for the tax, that 
 the heirs of Mrs. Hammond were so liable in this instance, 
 and their names ought to have been inserted. A majority of 
 the Court ^ held the execution valid, saying, " The property, 
 whoever may be the owner, is chargeable for the assessed tax, 
 which justifies a levy and sale, if it be not paid ; and no injury 
 can be done, in a case like the present, to any citizen who 
 properly respects his obligations to the State, for the payment 
 of his portion of the common charge of the government, or 
 who exercises the most ordinary vigilance over his property. 
 Very strict and technical adherence to forms should not be 
 required from a class of public functionaries, whose duties 
 are not commonly supposed to require any peculiar qualifica- 
 tions, and the term of whose office is so short and precarious, 
 that few derive a knowledge of its duties from experience. 
 If the process which the tax collectors are authorized to issue, 
 does in substance and effect comply with the provisions of 
 the law, and afford to the owner of property the notice which 
 may be necessary for its protection, formal and technical 
 exceptions may without inconvenience or danger be disre- 
 garded." Judges Evans and Wardlaw dissented from this 
 opinion. 
 
 The law of South Carolina, under which the decision was 
 made, seems to describe a most rigorous and summary pro- 
 ceeding to enforce the collection of the tax, authorizing 
 even the * imprisonment of the body of the delinquent ; * 259 
 the notice of sale is extremely short ; and it would seem 
 upon principle that greater strictness ought to be required 
 than in ordinary cases. Who did the estate of Mrs. Ham- 
 mond belong to ? Did she die testate or intestate ? If the 
 former, who were the devisees ? It might be that she made 
 a will and devised her property to executors or trustees to 
 sell, for the benefit of some third pierson. In the warrant in 
 question, no one is designated as her legal representfltive. 
 By the very terms of the law and warrant, the tax is a charge 
 
 ^ Richardson, Frost, and O'Neall. 
 
284 OP THE AUTHORITY OP THE OFFICER TO SELL. 
 
 upon the person as well as the property of the owner. In 
 the event that no goods or land could have been found, 
 whose body would be liable to seizure under such a warrant ? 
 Is the officer at his peril to seize and imprison the right per- 
 son, under su^h a vague designation ? The same reasons 
 assigned by the court for dispensing with technicality in the 
 form of this warrant, may be applied with equal force to 
 every other proceeding in the enforcement of the revenue 
 laws of every State. It is said that strictness, in this class of 
 cases, is " wholesome discipline ; " but the rule laid down in 
 Kingman v. Glover is a bounty upon ignorance, a license to 
 depart from the requirements of the law, and converts every 
 tax collector into a petty legislator — arming him with a dis- 
 pensing power in cases where it is inconvenient for him to 
 follow the letter of the law. It will not be pretended that 
 even an ordinary execution against " the estate of Mrs. Ham- 
 mond " could be sustained for an instant. Yet a more lax 
 rule is applied to a warrant to collect a tax, affecting not only 
 the property, but the personal liberty of the delinquent. 
 These reasons detract greatly from the authority of Kingman 
 V. Glover, and sustain the opinion of the dissentient judges 
 in that case. It has already been shown that the deed is not 
 evidence of the authority of the officer to sell, and that the 
 onus probandi rests upon the party alleging the existence of 
 the authority .1 
 
 ' Chapters 2 and 3 ; vide also Doe ex dem. Morris u. Himelick, 4 Blackf. 471, 
 note ; 8. c. 4 Blackf. 494. 
 
CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 285 
 
 CHAPTER XIV. 
 
 OP THE DISTINCTION BETWEEN CONDITIONS PRECEDENT AND 
 DIRECTORY REQUIREMENTS. 
 
 Courts do not sit for the purpose of granting favors to par- 
 ties, but to administer justice to them, according to the law 
 of the land. While this general principle is universally con- 
 ceded, it has been held that many requirements of a law may 
 be regarded as directory.^ Lord Mansfield remarks, "that 
 there is a known distinction between circumstances which 
 are of the essence of a thing required to be done by an Act 
 of Parliament, and clauses merely directory." ^ No case, 
 however, attempts to point out what that distinction is, so as 
 to establish a general rule of construction which can be relied 
 on, except in relation to the time within which an act may 
 be done, (a) In such cases, the general rule undoubtedly is, 
 
 1 Mussey v. White, 3 Greenl. 290; State Bank v. Buckmaster, Breese, 133; 
 Vance v. Schuyler, 1 Gilm. 160 ; Day v. Graham, 1 Gilm. 435 ; Taylor v. Brown, 
 6 Cranch, 234 ; Craig v. Bradford, 3 Wheat. 694 ; Stringer v. Young, 3 Pet. 
 320; United States o. Kirkpatrick, 9 Wlieat. 720; United States o. Vanzandt, 
 11 Wheat. 184; Striker v. Kelly, 7 Hill, 9; Allen v. Parish, 3 Ohio, 187; 
 Lawrence v. Speed, 2 Bibb, 401 ; Hayden v. Dunlap, 3 Bibb, 216 ; Bealls v. 
 Guernsey, 8 Johns. 52 ; Wiggin u. Mayor of New York, 9 Paige, 16 ; State v. 
 Click, 2 Ala. 26; Hooker c/. Young, 6 Cow. 269; Marchant v. Langworthy, 
 6 Hill, 646. 
 
 2 1 Burr. 647. 
 
 (a) The rule is thus laid down in French v. Edwards, 13 Wal. 511, by 
 Field, J. : " There are undoubtedly many statutory requisitions intended for 
 the guide of oflBcers in the conduct of business devolved upon tliem, which do 
 not limit their power or render its exercise in disregard of the requisitions 
 ineffectual. Such generally are regulations designed to secure order, system, 
 and dispatch in proceedings, and by a disregard of which the rights of parties 
 interested cannot be injuriously affected. Provisions of this character are no 
 usually regarded as mandatory unless accompanied by negative words importing 
 that the acts required shall not be done in any other manner or time than that 
 designated. But when the requisitions prescribed are intended for the protection 
 of the citizen, and to prevent a sacrifice of his property, and by a disregard of 
 which his rights might be and generally would be injuriously affected, they are 
 
286 CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 
 
 that where a statute specifies the time within which a public 
 officer is to perform an official act regarding the rights and 
 duties of others, it will be considered as a directory require- 
 ment, unless the nature of the act to be performed, or the 
 
 language used by the legislature, show that the desig- 
 * 261 nation of the time was intended as a limitation * upon 
 
 the power of the officer, (a) Where there is nothing 
 in the nature of the power conferred, or in the manner of 
 giving it, which justifies the inference that the time was men- 
 tioned as a limitation, it may be exercised after the day fixed. 
 By a directory statute, it is not to be understood that no duty 
 is imposed to do the act at the time specified, in the absence 
 of a satisfactory reason for not then doing it, but simply that 
 the act is valid if done afterwards ; while a peremptory law 
 requires the act to be done at the time specified, and at no 
 other.^ This mode of getting rid of a statutory provision by 
 
 not directory, but mandatory. They must be followed, or the acts done will be 
 invalid. The power of the officer in all such cases is limited by the manner 
 and conditions prescribed for its exercise." See also Cooley's Const. Lira., 
 pp. * 74-78 ; Cruger v. Dougherty, 43 N. Y. 122. 
 
 (a) See Wilcox ... Humphrey, supra, p. * 118, note {b) ; p. » 121 ; 39 Ind. 605; 
 Hill V. "Wolfe, 28 Iowa, 577 ; Shaw v. Orr, 30 Iowa, 859. 
 
 1 People „. Allen, 6 Wend. 486 ; Pond v. Negus, 8 Mass. 280 ; St. Louis 
 County V. Sparks, 10 Mo. 117 ; Walker v. Chapman, 17 Ala. 126 ; Webster v. 
 French, 12 111. 802 ; Marsh v. Chesnut, 14 111. 228 ; Billings v. Detten, 15 111. 218 ; 
 Thames Manufacturing Co. a. Lathrop, 7 Conn. 550 ; People v. Peck, 11 Wend. 
 604; Ex parte Heath & Roome, 3 Hill, 42; People v. Holley, 12 Wend. 480; 
 Colt V. Eves, 12 Conn. 248, 255; Mead v. Gale, 2 Denio, 232 ; Kex v. Sparrow, 
 Strange, 1128 ; Rex v. Leicester, 7 Barn. & Cres. 6. See Brown v. Hogle, 30 111. 
 119 ; 16 Mich. 152 ; Hill v. Wolfe, 28 Iowa, 577. See pp. * 118, 156. A statute 
 directing a tax-collector to keep property seized (as a distress) four days before 
 advertising, and at the expiration of that time to sell it, giving six days' notice, 
 does not require him to act at the exact expiration of the four and six days, 
 though he may not advertise and sell in less time. Clemons v. Lewis, 86 Vt. 673. 
 Where by inadvertence the assessment rolls were not returned to the common 
 council, and the levy not made within the time fixed by the city charter, it 
 was held not to avoid the tax even at law, and still less in equity ; there being 
 provision for correction of errors by a board of assessors before returning the rolls 
 to the council, and it not being contended that the plaintiifhad been deprived of 
 his remedy in this respect. Mills v. Johnson, 17 Wise. 598. Where the assessors 
 had opened their roll for inspection, in pursuance of notice given by them that 
 it was completed, and opposite the name of the plaintiff had left a blank which 
 was to be filled up with a description of lands leased by him as soon as they could 
 discover whether any had been released within the year, the assessors having 
 collected data as to the property to be assessed and agreed upon its value, and 
 
CONDITIO^fS PRECEDENT AND DIRECTORY REQUIREMENTS. 287 
 
 calling it directory, is not only unsatisfactory, on account of 
 the vagueness of the rule itself, but it is the exercise of a 
 dispensing power by the Courts which approaches so near 
 legislative discretion that it ought to be resorted to with 
 reluctance, and only in extraordinary cases, where great 
 public mischief will otherwise ensue, or important private 
 interests demand the application of the rule. There is no 
 more propriety in dispensing with one positive requirement 
 than another; a whole statute maybe thus disposed, of when in 
 the way of the caprice or will of a judge. It is usually much 
 easier to do the act than hunt up reasons for its omission. 
 Besides, it vests a discretionary power in the ministerial 
 officers of the law, which is dangerous to private rights ; and 
 the public inconvenience occasioned by a want of uniformity 
 in the mode of exercising a power, is a strong reason for bri- 
 dling this discretion.^ It is dangerous to attempt to be wiser 
 than the law, and when its requirements are plain and posi- 
 tive, the Coiiits are not called upon to give reasons why it 
 was enacted.^ 
 
 * The remarks of Judge Pope, in Mayhew v. Davis,^ * 262 
 are worthy of a place in this connection.. In comment- 
 ing upon the requirements of one of the revenue laws of Illi- 
 nois, he proceeds to say, " But it is said that some of the 
 
 where, after the roll was opened, the complainant's agent examined the same, 
 and vyas informed of the assessors' intention, and he afterwards furnished the 
 assessors with a list of complainant's property, wliioh was inserted in the roll 
 about the middle of July, held, that the assessment was regular, and a tax levied 
 thereunder valid. Overing v. Foote, 43 N. Y. 290. In New Hampshire, the 
 direction in the tax statutes that the money shall he collected and paid into 
 the treasury within a certain time, is directory merely, and an assessment of 
 the tax after such time is valid. Wells v. Burbank, 17 N. H. 393. Under the 
 Indiana statute, an omission to deliver the tax duplicate to the treasurer by Oct. 
 15, or to add up the columns and carry the footings forward, as was required by 
 law, does not render the duplicate void. Board of Commissioners o. McCarty, 
 27 Ind. 475. In California, where a statute provided that " on or before the first 
 Monday of May annually, the board of supervisors of said city and county shall 
 levy the amount of taxes," &c., and the order levying the tax was passed the 
 first Monday of May, but the approval of the mayor, which was necessary to 
 the completion of the levy, was not obtained till the next day, the tax was illegal. 
 People V. McCreery, 34 Cal. 432. 
 ^ Vide ante, pp. * 55, * 61. 
 
 2 Dillingham v. Snow, 5 Mass. 557 ; Eeeds v. Morton, 9 Mo. 878. 
 
 3 4 McL. 213. 
 
288 CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 
 
 requirements of the legislature are only directory, and may 
 be dispensed with. Upon this it may be remarked, 'that a 
 judge should rarely if ever take upon himself to say that 
 what the legislature have required is unnecessary. He may 
 not see the necessity of it, still it is not safe to assume that 
 the legislature did not have a reason for it ; perhaps it only 
 aimed at uniformity. In that case, the judge cannot interfere 
 to defeat that object, however puerile it may appear. It is 
 admitted there are cases where the requirements may be 
 deemed directory. But it may be safely affirmed, that it can 
 never be where the act, or the omission of it, can by any pos- 
 sibilitj' work advantage or injury, however slight, to any one 
 affected by it. In such case it can never be omitted." 
 
 What requisitions are to be deemed conditions precedent, 
 and what may be treated as directory, must depend upon a 
 sound. construction of the nature and objects of each regula- 
 tion.^ No general rule can be laid down for the government 
 of every possible case which may arise. The peculiar phrase- 
 ology of each statute, the course of legislation upon the par- 
 ticular subject-matter, the local policy intended to be advanced, 
 must all be duly considered.^ The application of this doc- 
 trine to tax laws is denied by many of the cases. It is said 
 that to sustain a ta,x sale where the officer has failed to con- 
 form to the requirements of the statute, " is to transfer the 
 legislative power to the sheriff, and so allow him to sell land 
 for taxes, not in the manner prescribed by the written law, 
 but according to his private notions of what is right, and 
 would place at his discretion the property of every citizen of 
 
 the State." 3 
 *263 *In Culver v. Hayden,* the Court say, "Where 
 
 property is affected, or the title to be devested, by the 
 provisions of a special statute, the requirements of the act 
 must be strictly followed. The performance of these acts is 
 the condition on which the property is to be devested ; and it 
 is not for the Court to inquire whether the provisions of the 
 statute are reasonable, whether a compliance with them may 
 not be dispensed with without injury to the owner of the 
 
 1 Hayes v. Hanson, 12 N. H. 284. 2 Monk v. Jenkins, 2 HiU, Ch. 12. 
 
 ' Register v. Bryan, 2 Hawks, 17. * 1 Vt. 359. 
 
CONDTTIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 289 
 
 estate, but whether they have been made, and if so, they 
 must be literally pursued." 
 
 And in McDonough v. Gravier,i the Court say, " TouUier, 
 in his commentaries on the civil law of France, in treating of . 
 the nullities of contracts, divides the subject into 1. Acts 
 done contrary to law; and 2. Omissions to pursue the for- 
 malities required by its provisions. This latter branch is sub- 
 divided into substantial and accidental formalities. When 
 the formality prescribed is founded on natural equity, it is 
 said to be substantial, and its omission carries with it nullity 
 of the act. In our opinion, it is of the essence of justice and 
 natural equity that when a forced sale of property is made 
 under statutes, all formalities, which have the semblance of 
 benefit to the owner, should be strictly complied with." This 
 principle is maintained by the New York authorities.^ 
 
 The case of Torry v. Millbury,^ indorsed by Sibly v. 
 Smith,* lays down the following rules, relative to the con- 
 struction of this class of statutes : " In considering the vari- 
 ous statutes regulating the assessment of taxes, and the 
 measures preliminary thereto, it is not always easy to distin- 
 guish which are conditions precedent to the legality and 
 validity of the tax, and which are directory, merely, and do 
 not constitute conditions. One rule is very plain and well 
 settled, that all those measures which are intended 
 for the security of the citizen, for insuring * an equal- * 264 
 ity of taxation, and to enable every one to know for 
 what polls, and for what real and personal estate he is taxed, 
 are conditions precedent, and if they are not observed, he is 
 not legally taxed ; but many regulations are made by statute, 
 designed for the information of assessors and officers, and 
 intended to promote method, system, and uniformity, in the 
 mode of proceeding, the compliance or non-compliance with 
 
 1 9 La. 546. 
 
 2 Sharp V. Johnson, 4 Hill, 99; Corwin v. Merritt, 3 Barb. 343 ; Atkins v. 
 Kinnan, 20 Wend. 249; Newell v. Wheeler, 48 N. Y. 486 ; ante, pp. * 61, »64. 
 
 3 21 Pick. 64. 
 
 * 2 Gibbs, 498, 499. " What the law requires to be done for the protection 
 of the tax-payer is mandatory, and cannot be regarded as directory merely." 
 Clark V. Crane, 5. Mich. 154 ; see also Mann v. City of Utica, 44 How. Pr. E. 
 
 336. 
 
 19 
 
290 CONDITIONS PRECEDENT AND DIRECTOET REQUIREMENTS, 
 
 ■which does, in no respect, affect the rights of tax-paying citi- 
 zens ; these may be regarded as directory. OiBcers may be 
 liable to legal animadversion, perhaps to punishment, for not 
 .observing them, but yet their observance is not a condition 
 precedent to the validity of the tax." 
 
 The Vermont rules upon this subject are thus laid down 
 in Chandler v. Spear : ^ " The following principles, or rules 
 for testing the validity of ta;x titles, appear to be fairly dedu- 
 cible from the reported cases on that subject : 1. Where the 
 statute, under which the sale is made, directs a thing to be 
 done, or prescribes the form, time, and manner of doing any 
 thing, such thing must be done, and in the form, time, and 
 manner prescribed, or the title is invalid ; and in this respect 
 the statute must be strictly, if not literally, complied with. 
 2. But in determining what is required to be done, the stat- 
 ute must receive a reasonable construction ; and when no 
 particular form or manner of doing a thing is pointed out, 
 any mode which effects the object, with reasonable certainty, 
 is sufficient ; ^ and in judging of these matters, the Court is 
 to be governed by such rational rules of construction as 
 direct them in other cases." And in Spear v. Ditty,^ Judge 
 Phelps remarks : " Great nicety has prevailed in relation to 
 these, titles ; and in cases of doubt the inverted maxim seems 
 to have obtained, ut res magis pereat quam valeat. They are 
 said to be stricti juris — a proceeding in invitum, &c. This 
 is true. Still, some degree of reason and sense is to be ex- 
 ercised in determining what right is ; and although there 
 may be no equitable consideration to aid such title, 
 * 265 still every * statute should have a rational interpreta- 
 tion, and a reasonable effect. We ought not to dis- 
 card those aids which guide us in other cases ; nor by an 
 unreasonable and senseless nicet3% defeat a solemn act of the 
 legislature. It is, however, admitted, that in interpreting 
 these statutes, we should consider the title to be acquired 
 iinder them as stricti juris, and should require a full. and 
 complete compliance with the requisitions of the statute. 
 
 1 22 Vt. 388. 
 
 2 See Wells v. Company, 48 N. H. 634. 
 
 3 8 Vt. 419. 
 
CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 291 
 
 Before the title of the owner is divested by such a proceed- 
 ing, we should insist upon every thing tending to the security 
 of the owner, which is either prescribed by the terms of the 
 act — brought within it by a rational and strict construction 
 — or which, in the nature of the transaction, is necessary to 
 give ample effect to every safeguard which the legislature 
 have endeavored to throw around the subject. But it is not 
 our duty to legislate — to create artificial and unreasonable 
 difficulties ; nor by over-nice and unmeaning technicality, 
 without an}' rational purpose, to convert the proceeding into 
 an idle ceremony." ^ 
 
 This seems to be the safer and most equitable rule to adopt; 
 a requirement which tends to the security of the owner, or 
 which possesses the semblance of benefit to him, should be 
 faithfully complied with ; while those which possess no intrin- 
 sic merit, and the omission of which works no manner of 
 injury to the owner of the estate, ought not to defeat the 
 title of the purchaser. Such seems to be the true principle 
 to be deduced from the decided cases, if it be once conceded 
 that any provision of a statute may, under any circumstances, 
 be regarded as directory. The application of that principle 
 
 ' A statute provided that all its instructions and directions for assessing, 
 levying, and collecting taxes, should be deemed only directory, and that no 
 error or informality not affecting the substantial justice of the tax itself, should 
 affect the validity of the tax or assessment. Held not to embrace such errors 
 as went to the jurisdiction of the officers, or substantially affected any material 
 step in the proceedings, as notice of sale. Prindle o. Campbell, 9 Minn. 212 ; 
 Moorhouse v. Bowen, id. 314. In Maine, by Revised Statutes of 1841, ch. 14, 
 § 63 (Kevised Statutes of 1857, ch. 3, § 85), it is provided that the assessors shall 
 require the collector to give bond for the faithful discharge of his duty, and this 
 provision is held to be directory, and the giving of such a bond is not a condition 
 precedent to the collector assuming his official duties. Scarborough c Parker, 
 53 Me. 252. See p. * 102. Under the Nevif Jersey statutes, assessors of town- 
 ships are required to take an official oath that they will faithfully, honestly, and 
 impartially value and assess the ratable estates in their townships, and that in 
 making such valuation and assessments, they will, to the best of their knowledge 
 and judgment, observe the directions of the law respecting the same, &c. ; and 
 it is provided by sec. 14 of Supp. Stat, of 1862, that assessors shall assess prop- 
 erty at its full and fair value, &c. ; and it is also provided that every assessor 
 shall annex to his duplicate an oath in writing that all assessments in his dupli- 
 cate have been made according to the requirements of said statute. Held, that 
 the annexing such oath or affirmation was directory. State v. Metz, 2 Vroom 
 (N. J.), 378 ; but see p. * 348, note and p. * 158. 
 
292 CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENT8. 
 
 to the facts of each particular case, is shown in those parts 
 of this work which treat of the different requirements ; the 
 design of this chapter being simply to lay before the profes- 
 sion those general rules, which seem to aid in the investiga- 
 tion of questions of this nature, (a) 
 
 (a) An ordinance of Dubuque respecting special assessments for grading, &c., 
 provided tliat the resolution of the council, by which such tax should be levied, 
 should be published for two weeks in the official paper of the city, and that the 
 tax should thereupon be due and payable. Held, that the provision respecting 
 publication was not merely directory, but that it must have been complied with 
 in order to give the tax any legal existence. Dubuque v. Wooten, 30 Iowa, 571. 
 Where at the time of the assessment of the land it was owned and occupied by 
 the defendant, and yet the supervisor did not furnish the defendant nor any 
 person residing on the land a blank form for a statement of taxable property, 
 nor did he call on the defendant nor any one residing on the land for a statement, 
 such statement including both real and personal property, and the assessment 
 roll being made from these statements, held, that this requirement is mandatory, 
 because the owner is entitled to have the land assessed to some person who is 
 entitled to be called upon for the tax, and from whom the tax may be collected 
 by distress and sale of personal property before the land can be charged with 
 it ; and a failure to comply with this requirement avoids the sale. Seager v. 
 Kearsage Mining Co., Aud. Gen.'s Report (Mich.), 1873, p. xl. See note (o), 
 p. * 122. 
 
OF THE SALE OP THE LAND. 293 
 
 CHAPTER XV. 
 
 OP THE SALE OP THE LaIJD. 
 
 The general principles relative to the power of sale have 
 already been fully explained. It has been shown that the 
 authority of the officer to sell depends upon the regularity 
 of the anterior proceedings, and in most instances upon a 
 special precept authorizing him to proceed ; and it has also 
 been shown that where the sale is conducted by the wrong 
 officer or person, or where the proper officer makes the sale 
 before his power attaches in point of time,^ or where he exer- 
 cises the power after it has become functus officio, the sale is 
 void.2(a) But there are important details connected with 
 the auction itself, and the duties of the officer intrusted with 
 the conduct of it, which constitute the subject-matter of this 
 chapter. (6) 
 
 1. The sale must he a public and not a private one? The 
 object of the law is to secure a fair competition among the 
 bidders. If a secret sale could be sustained, the policy of 
 the legislature would be defeated in this respect. No statute 
 
 ' See Scott v. Babcock, 3 G. Greene (Iowa), 133, that by the law of Iowa of 
 1844, lands were not subject to sale unless the taxes had been due and unpaid 
 for three years ; qualifying the case of Noble v. The State, 1 G. Greene, 225. 
 
 2 Ante, ch. 2, p. • 34 ; eh. 3, p. * 65 ; ch. 13 ; Hughey v. Horrell, 2 Ham. 231 ; 
 Thompson v. Rogers, 4 La. 9 ; Usher v. Taft, 33 Me. 199. 
 
 (a) Sec. 762 of tlie Revision, providing that an error or irregularity in the 
 tax shall not affect the validity of the sale, applies as well to a sale for a 
 delinquency existing before the enactment of said section as to one subsequent 
 thereto ; the sale takes place under the law in force at the time it occurs. It is 
 competent for the legislature to modify and change the provisions of its revenue 
 law; and if this change imposes new conditions upon the collection of taxes 
 already delinquent, the tax-payer has no ground of complaint. Sully v. Kuehl, 
 30 Iowa, 278. 
 
 (6) In tlie absence of any special provision of law as to the manner of selling 
 property for taxes, recourse must be had to other statutes in pari materia. 
 Templeton v. Morgan, 16 La. Ann. 438. 
 
 3 See Cuttle v. Brockway, 8 Casey (Penn.), 45; Jenks v. Wright, 61 Penn. St. 
 410. 
 
294 OP THE SALE OP THE LAND. 
 
 is remembered which does not either in express terms, or by 
 necessary implication, require the sale to be at public Ten- 
 due. A sale made in violation of the letter or policy of the 
 
 law, in this particular, is void. 
 * 267 * In Keene v. Houghton,^ the statute required the 
 
 collector to sell non-resident lands to the highest bid- 
 der, at public aucti6n after giving due notice,- &c. The land 
 in question was struck off to Isaac Tyler, for the taxes and 
 costs, he being .the highest bidder. Afterwards, and before 
 the proceedings were returned and recorded, in pursuance of 
 the statute, the defendant Houghton was substituted as a 
 purchaser in lieu of Tyler; and the sale was so returned. 
 A deed was executed and tendered by the collector to 
 Houghton, which the latter refused to receive, because he 
 was advised that the proceeding was illegal, that the collec- 
 tor had no authority to make the substitution. Keene, the 
 collector, thereupon sued Houghton for the purchase-money, 
 and tlie Court held that he was not entitled to recover. 
 Shepley, J. : "In the execution of a power given by statute, 
 there must be a strict conformity to its provisions, or the 
 proceedings will be ineffectual. The person authorized can- 
 not adopt a different mode of proceeding, which he may 
 judge would accomplish the same object in a different man- 
 ner, and be more beneficial to those interested. The collec- 
 tor in this case is authorized to deed only to the highest 
 bidder, that is, the person who would bid the highest price 
 for the land by taking the least quantity of it, and pay the 
 amount due ; and he only could acquire a title to the land by 
 such a sale ; for a sale, not in conformity to the provisions of 
 the statute, could not give a title. The bill of exceptions 
 states that Isaac Tyler was the purchaser at the sale ; and it 
 does not appear that he refused to comply with the conditions 
 of sale, or that he acted as the defendant's agent, or assented 
 to the transfer of his bid to the defendant ; and the plaintiff 
 had no right to substitute the defendant for Tyler as the 
 purchaser." In this case it appeared that the defendant was 
 not present at the sale ; if he had been there, and declined 
 bidding, and afterwards, by agreement with Tyler and the 
 
 i 19 Me. 368. 
 
OP THE SALE OP THE LAND. 295 
 
 collector, been substituted as purchaser, the transac- 
 tion would have been a fraud upon the law, * as its * 268 
 direct tendency would have been to destroy competi- 
 tion at the sale. 
 
 2. The sale must take place at the precise time fixed ly the 
 law, or notice, otherwise it will he void?- (a) 
 
 The twenty-sixth section of the revenue law of Illinois, of 
 February 26, 1839,2 contemplates a notice of the application 
 for a judgment upon the delinquent list, and of the sale, in 
 the same advertisement, and fixes the day of sale " on the 
 
 1 Ronkendorffu. Taylor, 4 Pet. 349; Conrad v. Darden, 4 Yerg. 307 ; Essing- 
 ton V. Neill, 21 111. 139; Moore v. Brown, 11 How. (U. S.) 414. See Noyes v. 
 Haverhill, 11 Cush. 338; Pierce v. Benjamin, 14 Pick. 356 ; Prindle v. Campbell, 
 9 Minn. 212 ; Chaplin v. Holmes, 27 Ark. 417 ; Park v. Tinkham, 9 Kan. 615 ; 
 Love V. Kilboum, 5 Ired. 847 ; Avery v. Rose, 4 Dev. 554 ; Doe dem. Taylor u. 
 Allen, 67 N. C. 346; and the sheriff's power to sell land for taxes being on 
 condition that it be exercised within a certain time, the legislature cannot by a 
 private act give him power to sell after the expiration of the time allowed by 
 law, as this would be to take the owner's property without process of law. Doe 
 V. Allen, supra. 
 
 (a) In New Hampshire, a sale made after the return day of the warrant is 
 valid. Gaboon v. Coe, 52 N. H. 525; citing Homer v. Cilley, 14 N. H. 85, 99 ; 
 Wells V. Burbank, 17 N. H. 393 ; Smith v. Messer, 17 N. H. 420. In Iowa, under 
 sec. 776 of the Revision, providing that if from neglect of officers to make returns 
 or from other good cause the sale cannot occur on the first Monday of October, 
 the treasurer shall make the sale on the first Monday of the next succeeding 
 month in which it can be made, allowing time for publication, held, that the 
 reasons or causes for making the sale at such other time than the first Monday 
 of October need not appear of record. Sully v. Kuehl, 30 Iowa, 275. Nor is a 
 tax deed reciting the sale as made on the first Monday of December instead of 
 October void, as showing the sale to have been made at a time not authorized 
 by law. Eldridge v. Kuehl, 27 Iowa, 160; see also Hobson v. Dutton, 9 Kan. 
 477. But see McDermott v. Scully, 27 Ark. 226, where it was held that where 
 the law requires an order of Court for the sale of property for non-payment of 
 taxes, the sale not having been made at the appointed time for tax sales, and 
 that the sale be made at a specified time, the omission of the sheriff's deed to 
 recite that the deed was made in pursuance of such an order or at the time 
 required renders the deed void, and such defect, it was said, could not be aided 
 by evidence aliunde. Where real property has been once duly advertised for 
 sale for taxes, under the Iowa statute the sale thereof may be made at any time 
 thereafter pursuant to adjournments regularly made, and need not be advertised 
 again. Hurley v. Street, 29 Iowa, 429. Where the law authorized the sale of 
 lands for taxes which were delinquent and remained due and unpaid more than 
 two years, it was held that a sale made before that time was void. Orr v. 
 Travacier, 21 Iowa, 68. 
 2 Ante, pp. * 193, 194. 
 
296 OP THE SALE OP THE LAND. 
 
 second Monday next succeeding the said term of the said 
 Circuit Court," at which the application is made, and in 
 which the judgment is rendered ; and the law further pro- 
 vides, "that it shall be the duty of the clerk, within five 
 days after the adjournment of said Court, to make out under 
 the seal of said Court, a copy of the collector's report, to- 
 gether with the order of the Court thereon, which shall 
 hereafter constitute the process on which all lands shall be 
 sold for taxes, and deliver the same to the sheriff of his 
 county ; and the sheriff shall thereupon cause the said lands 
 to be sold on the day specified in the notice, given by the 
 collector, for the sale of the same, &c. ; " ^ and the statute 
 further declares, that the deed of the sheriff shall be con- 
 clusive evidence " that the sale was conducted in the manner 
 required by law." In the more populous counties of the 
 State, the session of the Court continued from two to six 
 weeks : in the smaller counties the Court did not sit longer 
 than a week, and in some only for a few days. 
 
 The question necessarily arose upon the construction of 
 this statute, whether the words, " second Monday next suc- 
 ceeding the term of the Court," had relation to the first day 
 of the term, or to the day of the adjournment of the Court. 
 In counties where the term of the Court was fixed for one 
 week only, it was immaterial which period of computation was 
 adopted, as in either case the day of sale would be cer- 
 * 269 tainly * known to all persons interested in the proceed- 
 ing. But where the law authorized the Court to 
 continue the term beyond the period of one week, if the 
 time was computed with reference to the day of adjourn- 
 ment, these consequences would follow : 1. The owner and 
 those desirous of attending the sale would be bound to take 
 notice at their peril of the matter of fact as to when the 
 Court actually adjourned ; and, 2. The sale would not take 
 place uniformly throughout the State. In the small counties, 
 the sale would be on the second Monday succeeding the 
 commencement or end of the term — (the term invariably 
 commencing on Monday, or some intermediate day of the 
 
 1 Ante, p. » 194, § 27. 
 
OP THE SALE OP THE LAND. 297 
 
 week, and ending at twelve o'clock on Saturday night) — 
 while in the larger counties, the day of sale would depend 
 upon the time of the adjournment of the Court. On the 
 other hand, as the clerk was authorized and required to de- 
 liver the precept of sale to the sheriff, within five days after 
 the adjournment of the Court, it seemed to many that the 
 day of adjournment was the time for the commencement of 
 the computation. There seemed to be strong reasons for 
 either construction ; for holding that the sale would be legal 
 on the second Monday succeeding the commencement of the 
 term, or on the second Monday after its adjournment. The 
 ambiguity in the language of the law gave rise to a diversity 
 of practice under it ; and the day of sale floated between 
 these conflicting opinions, until the passage of the act of 
 1845,' which fixed the " fourth Tuesdaj^ succeeding the com- 
 mencement of the term," as the day of sale. The varied 
 practice, however, under the old law, gave rise to litigation, 
 and the question at length came before the Supreme Court, 
 at the December term, 1845, in the case of Bestor v. Powell.'^ 
 This case came np from Peoria county, where the Circuit 
 Court commenced its term on the 15th, and adjourned on 
 the 28th day of April, 1841. The precept upon the tax 
 judgment was issued on the 24th of that month, while the 
 Court was in session ; and the sales commenced on 
 the 26th and ended on the * 29th day of April, so that * 270 
 no Monday intervened between the close of the term 
 and the day of the sale. The Court held the sale valid, 
 upon the ground that by fiction of law the term constituted 
 but one day, and that every act of the Court had relation to 
 that day ; but that without resorting to that fiction, the ad- 
 journment might be presumed to follow immediately after 
 the entering of the judgment upon the tax list, as far as that 
 proceeding was concerned ; the Court in the exercise of this 
 special and summary power, being regarded for the purposes 
 of this question, quoad hoe a special tribunal, the powers of 
 which ceased upon the rendition of the judgment, except so 
 far as it was necessary for the issuing of the precept to en- 
 force the judgment and to enable the sheriff to make his 
 
 1 Revised Statutes, 444, § 47. ^2 Gilm. 119. 
 
298 OP THE SALE OP THE LAND. 
 
 return of the sale. However, the Court intimated an opinion 
 that a sale on the second Monday succeeding the adjourn- 
 ment of the Court would have been equally valid ; but inas- 
 much as this question was not fairly presented by the record 
 in that case, it has been very properly regarded as a dictum 
 of the judge who delivered the opinion. 
 
 In Hope V. Sawyer,^ the question whether such a sale could 
 be sustained, was directly before the Court, upon this state of 
 facts : the judgment was rendered on the third Monday of 
 September, 1841, being the day of the commencement of the 
 term of the Circuit Court, the precept issued October 18, 
 1841, and the sale took place October 19, 1841, which was 
 the second Monday succeeding the adjournment of the Court. 
 The sale was held void. Treat, C. J. : " Ought the sale to 
 take place on the second Monday succeeding the first day of 
 the term, or on the second Monday after the close of the 
 term ? The opinion was expressed, in the case of Bestor v. 
 Powell, that the former day was the one intended by the 
 legislature ; and upon a further consideration of the question, 
 we are well satisfied that such is the proper interpretation of 
 the statute. It was, however, intimated in that case, that a 
 
 sale made on the latter day would be valid. We caii- 
 * 271 not assent to such a conclusion. * It was evidently 
 
 the design of the legislature to prescribe an uniform 
 mode for the sale of land for taxes. The time designated for 
 the sale was to apply to all cases. The sale was to be made 
 on the second Monday after the rendition of the judgment. 
 The collector was not vested with any discretion, as to the 
 day of sale. The law fixed the time, and it was his duty to 
 pursue it. If he could properly make sales on both of the 
 days indicated, it would be very difficult to hold that he 
 might not sell on any other day. In requiring the sale to 
 take place on the second Monday after the commencement of 
 the term, the day of sale was made certain. The time when 
 a term of the Court shall commence, is a matter of positive 
 law ; and the public would, therefore, know to a certainty 
 when the sale would be made. Owners and bidders would 
 have specific information of the day of sale. Sales for taxes 
 
 I 14 111. 254. 
 
OP THE SALE OP THE LAND. 299 
 
 would uniformly follow within two weeks from the rendition 
 of the judgments. A different construction would leave the 
 time of sale uncertain, and contingent. It would be made 
 to depend on the fact, when the term of the Court might end. 
 The day of sale could not be known, until the Court had 
 actually adjourned. It could not be ascertained from the 
 report of the collector. And sales would not be made uni- 
 formly within a certain time after the judgments were entered. 
 In some counties the Court remains in session for two or three 
 days only ; in others for as many weeks ; and in others for a 
 still longer period. The object of the collector's notice was 
 to apprise owners of the proceedings against their property, 
 and secure competition at the sale. That object would be in 
 a great degree defeated, if the sale could be made on the 
 second Monday after the close of the term. The effect would 
 be to lessen competition at the biddings, and sacrifice the in- 
 terests of the owners of property ordered to be sold. The 
 direction to the clerk to issue the precept within five days 
 after the adjournment of the Court, does not necessarily in- 
 dicate the second Monday after the close of the term, as 
 the proper day of sale. 
 
 " It was said, in Bestor v. Powell, ' By fiction of 
 law, the term * is one day, but as the judgment and * 272 
 proceedings on these applications are entered' and kept 
 in a separate record, without resorting to the fiction, the ad- 
 journment may be presumed to follow immediately upon the 
 entering this judgment, as to this proceeding.' The revenue 
 law imposed this new and peculiar jurisdiction on the Court, 
 and required it to be exercised before the Court proceeded to 
 other business. It was clearly the design of the law that the 
 judgment should be entered on the first day of the term. In 
 legal contemplation, it is entered on that day ; for all the 
 purposes of the revenue law, the Court may well be consid- 
 ered as at an end when the judgment is entered. The sale 
 in question was not made on the second Monday after the 
 rendition of the judgment, and was therefore invalid." 
 
 This doctrine was reaffimed in Polk v. Hill,i where the judg- 
 ment was entered May 13, and the sale took place on the 
 
 1 15 III. 130. 
 
300 OF THE SALE OP THE LAND. 
 
 third day of June thereafter. The Ohio statute of January 
 30, 1820,1 provides " that previous to the sale of any land, 
 &c., it shall be the duty of the auditor to advertise, &c., 
 which advertisement shall set forth the time and place of sale, 
 &c., and the auditor shall attend at the time and place of 
 sale, and proceed to sell, &c., and if any person or persons to 
 whom the same maj^ be struck off, shall refuse to pay, &c., 
 the auditor shall proceed to offer the same from time to time, 
 for the space of three days in succession, unless previously 
 sold." 
 
 In the lessee of Wilkins's Heirs v. Huse et al.,^ which was 
 an action of ejectment, the plaintiff deduced a regular chain 
 of title, and unless that title was divested by a tax sale, under 
 which the defendant claimed, he was entitled to recover the 
 premises in controversy. The evidence was that the land was 
 advertised, in due form of law, to be sold on June 1, 1824. 
 From the return of the auditor, it appeared that the land was 
 in fact sold, June 2, 1824, and no reason was assigned 
 * 273 in the * return, why it was not sold on the day speci- 
 fied in the notice. The Circuit Court charged the jury 
 that the sale was illegal ; a verdict Avas thereupon found for 
 the plaintiff, and the defendant moved for a new trial upon 
 the ground of a misdirection of the judge, upon the point of 
 law relative to the legality of the sale. The motion was 
 overruled, the Court holding the sale illegal. Hitchcock, J. : 
 " The objection made in the present case, is to a proceeding 
 (under the law of Ohio, requiring a judgment) after judg- 
 ment. Whether this objection is well made, depends upon 
 the seventh section of the before-recited act, and more particu- 
 larly upon the construction of the last clause of the section. 
 Now the question arising, is as to the intention of this last 
 clause. Is it to give the auditor three days in which to sell 
 aU the lands against which judgments are rendered, should 
 so much time be necessary ? or must he offer all which he 
 does offer, upon the day appointed for the sale, and if there 
 is not time to sell the whole, suspend the proceedings as to 
 those which cannot be offered for want of time, except as 
 to such as have been struck off, but upon which bids have not 
 
 ' Sec. 7. 2 10 Ohio, 139. 
 
OP THE SALE OP THE LAND. 301 
 
 been paid ? I must confess that my mind inclines strongly 
 to the former construction. This, however, is not the most 
 obvious construction. Giving this clause, in connection -with 
 the whole section, such construction, and the intention is, 
 that all the land must be offered for sale on the first day 
 named in the advertisement. But in the event that any 
 purchaser shall fail to pay the judgment and costs, then the 
 county auditor is authorized to offer the same land on 
 the second and third day, if not previously sold ; and this is 
 the construction which a majority of the Court hold that it 
 must receive. Giving the section this construction, it would 
 seem to follow, of course, that if the land was sold on a day 
 different from that named in the advertisement, some reason 
 consistent with the law must be shown, why it was so sold, 
 and this should appear from the return of the officer effecting 
 the sale. The object of an advertisement is that the 
 public may be notified of the time and place of sale, that op- 
 portunity may be given for competition. The object 
 is * not attained if an officer may advertise on one day * 274 
 and sell on another. Such a proceeding cannot be 
 sustained.^ 
 
 In Northup v. Devore, and Adams et al. v. Bainter,^ the 
 defendants relied upon tax titles, derived under the statute 
 of Ohio, of 1822, which required a judgment, precept, adver- 
 tisement, sale, deed, return, and confirmation. The judgment 
 was rendered at the August term of the Common Pleas Court, 
 1824. The land was sold, November 10, 1824 ; at the De- 
 cember term, 1824, an order, confirming the sale was entered 
 by the Court, reciting that a sale was made on the 10th, 11th, 
 and 12th days of December. The ordel- of confirmation was 
 dated December 12, 1824. The sale and order of confirmation 
 were held void. Lane, C. J. : " This mistake in the descrip- 
 tion of the time of sale, appears to us a fatal defect in the 
 defendant's title. Although it is argued that no other sale 
 was made, except that on the I'Oth day of November, and the 
 
 1 Where a sale of land for taxes is not commenced on the day specified in 
 the notice of sale, the land cannot be sold at a subsequent time. Prindle v. 
 Campbell, 9 Minn. 212. 
 
 2 11 Ohio, 359. 
 
302 OP THE SALE OP THE LAND. 
 
 time is probably misdescribed through the inadvertence of 
 the clerk, yet, as the order stands it affords no evidence that 
 the sale of November 10 was ever acted upon by the Court." 
 
 3. It is equally important that the sale should he made at the 
 place designated in the advertisement. If the notice is of a 
 sale to take place at the court-house door, and it is made at 
 some private room or house in the county town, or elsewhere 
 in the county, there can be no question but that the sale is 
 void, (a) It is just as important that the owner should know 
 where to go in order to arrest the sale by the payment of the 
 tax, and that those desiring to purchase should know where 
 to find the officer exercising the power of sale, as it is that the 
 time named in the advertisement should be literally adhered 
 to in the making of the sale. Thus if the statute requires the 
 
 sale to be made "before the court-house door," a sale 
 *275 made * inside the court-house is not good.^ So in 
 
 Georgia where the statute was silent as to the place 
 of sale it has been held that a sale should be had in the 
 county where the property is situated.^ (6) 
 
 4. Where the officer intrusted with the power of sale, is 
 authorized by the statute or common law to constitute and 
 appoint deputies, it seems that a sale by a deputy is valid, al- 
 though the power is not expressly delegated to him, upon the 
 principle that all of the ministerial duties of an officer may be 
 performed by deputy.^ (c) 
 
 (a) See Vasser v. George, 47 Miss. 721 ; Koch v. Bridges, 45 Miss. 256. See 
 p. * 368, note. 
 
 1 Rubey v. Huntsman, 32 Mo. 501. And see Keene v. Barnes, 29 Mo. 377 ; 
 see also Doe ex dem. Kelly v. Craig, 5 Ired. 129. 
 
 'i Rice V. Johnson, 20 Geo. 639. 
 
 (6) Where a tax deed recited that the land was " sold by the county treas- 
 urer of said county of Dane at public auction at the court-house in the village of 
 Madison in the county of Madison," held, that the Court will take judicial notice 
 the village of Madison is in Dane county, there being no such county as Madison 
 in the State, and the deed is good notwithstanding this clerical error. Huey «■ 
 Van Wie, 23 Wise. 613. See p. * 114 (a). 
 
 3 Chapman v. Bennett, 2 Leigh, 329. So in Wisconsin an acknowledgment 
 of the execution of a tax deed by the deputy for and in the name of his principal 
 was held valid. Huey v. Van Wie, 23 Wise. 613. 
 
 (c) In Twombley v. Kimbrough, 24 Ark. 459, it was hM that the collector 
 holding the tax book and warrant stands in the same attitude as if he held an 
 execution against an individual, and had levied it upon his lands ; and that the 
 
OP THE SALE OF THE LAND. 303 
 
 6. It is presumed, that without express authority, conferred 
 by statute, to adjourn a sale from day to day, the officer must 
 sell all of the lands embraced in his list on the day named in 
 the advertisement, or suspend the sale, so far as those which 
 remain are concerned. Still, it is difficult to perceive any 
 substantial reason why the general principle — that when a 
 power is conferred by statute, every incident essential to 
 carry the power into complete effect, goes with it by implica- 
 tion^ — does not apply, 
 
 "Where the law fixes the day of sale, and appoints an officer 
 to conduct it, and is silent as to the power of adjourning the 
 sale, and it is impossible, on account of the great number of 
 parcels of land upon the delinquent list, for the officer to sell 
 the whole in one day, the power of continuing the sale to 
 another day would seem to be necessarily implied, in order 
 to prevent a failure of justice, in which the State is essentially 
 interested. She might be deprived of the greater portion of 
 her revenues unless such a power was sustained. And no 
 injury could possibly accrue to the owners of the land, if the 
 adjournment was publicly announced by the officer, at the 
 close of the first day's sale. 
 
 * But in the case of Sibley v. Smith,^ it was held, that * 276 
 this principle of taking power by implication, was not 
 applicable in the construction of this class of statutes ; that 
 being in derogation of the common law, and authorizing pro- 
 law governing sales on executions in cases lilce this, in the absence of overruling 
 provisions to the contrary, must govern tax sales; and therefore the collector 
 for a particular year is the only officer authorized to collect the taxes for that 
 year, and although his terra of office expires before the day fixed for the sale o 
 lands for such taxes, lie alone can make such sales ; and he may do this himself 
 or by his deputy; it is only when the collector has died or been removed from 
 office, or is otherwise disqualified to act, that the actual collector can make suth 
 sales ; and therefore the tax book for the year 1856 having been given to one 
 collector and the lands sold by another collector in 1857, the former collector 
 being alive and not disqualified from making such sale, the sale was void. In 
 this case the collector who made the sale had been the deputy of his predecessor, 
 but as the sale was not made by hira as such deputy, but as collector for 1857, 
 the sale was void. See p. * 374, and notes, and p. * 375. 
 
 1 Mitchell V. Maxwell, 2 Florida, 594 ; Witherspoon v. Dunlap, 1 McCord, 
 546; 12 Coke, 130, 131; 9 Bacon, Abr. 220, ed. 1846; 10 Pet. 161; 18 Johns. 
 418; 2 Cow. 199, 233, 235; 1 Kent, 465, note ; 2 Scam. 79, 83. 
 
 2 2 Gibbs, 490. 
 
304 OP THE SALE OF THE LAND. 
 
 ceedings, the effect of which is to divest the citizen of his title 
 to real estate, such statutes should be construed strictly, al- 
 though made for the public benefit ; that their provisions can- 
 not be enforced further than they are clearly expressed ; that 
 the officers acting under them can take no power that is not 
 expressly delegated to them ; that they can assume no power 
 by implication, and that when their acts are not clothed with 
 the authority of the statute, they are of no validity whatever. 
 The same principle is affirmed in other cases.^ In Pennsyl- 
 vania, the statute authorized the adjournment of the tax sale 
 " from day to day," and a sale made on an adjourned day, 
 without a day intervening between that and the first day of 
 the sale, was held valid, upon the ground that such had been 
 the uniform usage in the State in conducting sales made 
 under the law.^ 
 
 6. The sale to he valid must he made to the " highest iidder," 
 which ordinarily means the person who offers to pay to the col- 
 lector for the land put up, the largest sum of money, (a) This 
 is the rule in Pennsylvania ; but the purchaser simply pays 
 into the treasury the amount of the tax, interest, and costs 
 actually due upon the land, and executes and delivers to the 
 treasurer a bond for the residue, usually called a " surplus 
 bond." This is intended for the benefit of the owner of the 
 land in case he submits to the sale, and is willing to receive 
 the surplus.^ 
 
 In most of the States, however, the highest bidder is he who 
 
 1 Doe V. Chunn, 1 Blackf. 336, 338 ; Van Horn's Lessee v. Dorrance, 2 Dall. 
 304 ; i Hill, 99. 
 
 2 Burns v. Lyon, 4 Watts, 363. 
 
 (a) If the record of a tax sale shows that the highest bidder, being "the 
 person who will pay the taxes and costs taxed on each bid or lot of land for the 
 least quantity of the same,'' " shall be the purchaser," and then shows that A 
 was the purchaser, that is evidence that he was also the highest bidder. Smith 
 V. Messer, 17 N. H. 420. Under the act of Feb. 6, 1863 (12 Stat, at Large, 640), 
 amending the act of June 7, 1862, which amendment was intended to be a 
 substitute for sec. 7 of said previous act, the commissioners of taxes, though 
 "authorized" to bid off property to the United States "at a sum not exceeding 
 two-thirds of its assessed value," are not bound to bid it up so as to make it 
 bring in all cases that amount, and a sale to a private person for a sum sufficient 
 to pay the tax, interest, and cost, is not for that reason invalid. Turner v. 
 Smith, 14 Wal. 562, reversing s. c. 18 Grat. 830. 
 
 3 Supra, ch. 17. 
 
OP THE SALE OP THE LAND. 305 
 
 will pay the taxes, interest, and costs due upon the tract offered 
 for sale, for the least qu-antity of it.^ There is no way of secur- 
 ing competition at a sale but by selling the entire parcel 
 * upon which the tax is assessed, to the person who will *f271 
 pay the highest amount of money for it, or pay the 
 arrears upon the land for the least quantity of it. A viola- 
 tion of either rule works an injury to the owner of the land ; 
 in the one case, the surplus money to which he is entitled 
 under the law is reduced in amount; and in the other, a 
 greater quantity of his land is sold to pay the tax than the 
 law contemplates. 
 
 A statute of New Hampshire required the officer who con- 
 ducted the sale, to make out and return a complete record of 
 his proceedings. Where the officer failed to state in his return 
 that he sold the land " to the highest bidder," the sale was 
 held void.2 And oral evidence would undoubtedly be inad- 
 missible for the purpose of supplying the_ omission.^ The 
 form of the deed prescribed by the law of Illinois, and used 
 in that State up to 1839, contained the recital : " And whereas, 
 at the time and place aforesaid, A. B. offered to pay the afore- 
 said sum of money for (the whole tract or a part thereof, as 
 the case be) which was the least quantity bid for."* The 
 same recital is substantially contained in all the forms pre- 
 scribed and used since that time.^ 
 
 Similar recital's are required in the forms of deeds used in 
 other States. A failure to recite the fact that the grantee in 
 the deed was the highest bidder, would render the deed void ; 
 and especially would it be deprived of its legal effect as evi- 
 dence, in those States where a deed executed in the form 
 prescribed is declared to be primd facie, or conclusive, evi- 
 dence of a title in the purchaser at the tax sale.^ The sale 
 of a tract of land for more than the amount due upon it, is 
 not void for that reason ; under a statute which required a 
 
 1 See Lovejoy v. Lunt, 48 Me. 377. 
 
 '" Proprietors of Cardigan o. Page, 6 N. H. 182; Bean v. Thompson, 19 N. H. 
 290. 
 
 2 Kellogg V. McLaughlin, 8 Ohio, 114. 
 
 4 Laws 1826, pp. 78, 79. ^Ante, p. * 198. 
 
 •> Per Judge Tucker in Kinney v. Beverley, 2 Hen. & Munf. 531 ; Maxcy v. 
 Clabaugh, 1 Gilm. 26. 
 
 20 
 
306 OP THE SALE OP THE LAND. 
 
 sale to the person who would pay the taxes for the least 
 quantity of the land upon which it was assessed, the 
 * 278 owner is not prejudiced by such a sale, * inasmuch as 
 he, is only bound to pay the tax, interest, and cost due 
 upon the land when he redeems from the sale.^ And under 
 the same statute it has been held, that Avhere the whole 
 amount of the tax due upon the land was not bid, the sale 
 though void in the hands of the original purchaser, will be 
 sustained in favor of a bond fide grantee, claiming title under 
 such purchaser, without notice of the irregularity in the sale.^ 
 
 7. The sale must be for cash; if credit is given to the pur- 
 chaser it is absolutely void.^ Thus, in Gushing v. Longfellow,* 
 where the proof was, that the officer who made the sale, gave 
 credit to the purchaser for the amount of his bid, the sale was 
 held invalid. By, the Court: "This he was not authorized 
 by law to do. He should have sold for cash down. Public 
 agents authorized to make sales, in the absence of any express 
 authority to the contrary, can do no otherwise. Those who 
 deal with them are bound to take notice, that such is the case, 
 and they become privy to the erroneous proceedings. If one 
 deals with a private agent even, who has not an express or 
 implied authority to sell on credit, the title to any article 
 purchased of such agent will not vest in the vendee as against 
 the principal. Public agents can seldom, if ever, derive au- 
 thority from implication." 
 
 The same principle was applied in Illinois v. Dalafield,^ 
 where the State of Illinois authorized a loan, and appointed 
 agents to sell the bonds " at not less than their par value." 
 A sale was made nominally at par, the State bonds drawing 
 interest from the date of their sale, the proceeds of the sale 
 to be paid to the State by instalments. The sale was held 
 void upon two grounds. 1. The bonds did not bring their 
 par value. 2. They were sold upon credit. 
 
 And in Dickenson v. Gilliland,^ it was held that a sheriff, 
 
 1 Peters v. Heasely, 10 Watts, 208. See p. *404, note. 
 
 - Devinney v. lieynolds, 1 Watts & Serg. 328. 
 
 ' See Donnel v. Bellas, 10 Casey (Penn.), 157. 
 
 * 26 Me. 306. 
 
 6 8 Paige, C. K. 527; s. c. 2 Hill, 159. 
 
 6 1 Cow. 498. 
 
OP THE SALE OP THE LAND. 307 
 
 in permitting a redemption by a judgment creditor, of 
 land sold * under execution, acts under a delegated * 279 
 and special authority, and must strictly comply with 
 the law ; that he cannot receive a less sum than the law re- 
 quires to redeem, nor can he give credit for the redemption 
 money to the person who desires to redeem. Even the power 
 of a factor to sell upon credit depends upon an express author- 
 ity from his principal, or the usage of trade in the particular 
 business with respect to which he is agent.^ 
 
 It therefore seems clear, as well upon principle as by the 
 adjudged cases, that an officer intrusted with the power of 
 selling land for taxes due upon it, cannot sell upon credit, 
 unless he is expressly authorized, as in Pennsylvania, where 
 the purchaser gives a surplus bond for a portion of the pur- 
 chase-money. But where there is no agreement, before the 
 sale, between the officer and bidder, that a credit shall be 
 given for the whole or any portion of the bid, and after the 
 sale the purchaser pays a part of the purchase-money, and 
 gives to the officer his note or other obligation for the pay- 
 ment of the residue at a future time, the sale will be main- 
 tained. Such were the facts in Longfellow v. Quimby,^ where 
 the Court say, " This is unlike a case where the stipulation is 
 made before the sale that a credit is to be given the pur- 
 chaser. Here the offi'cer, as such, was accountable for the 
 whole sum for which the land was sold, and the taking of the 
 note for a portion of the purchase-money was a matter be- 
 tween the purchaser and himself, in his private character." 
 The same principle would undoubtedly apply where no por- 
 tion of the purchase-money is paid, but the officer accepts the 
 promise of the purchaser in satisfaction of the bid. The offi- 
 cer in that case, would be liable to his superiors, and must 
 seek his remedy upon the promise ; and if no agreement 
 
 1 Forrestier v. Bordman, 1 Story, 43 ; Van Alen v. Vanderpool, 6 Johns. 69 ; 
 McKinstry v. Pearsall, 3 Johns. 319 ; Robertson v. Livingston, 5 Cow. 473 ; Hap- 
 good V. Batcheller, 4 Met. 573 ; Greely v. Bartlett, 1 Greenl. 172 ; Scott v. Sur-, 
 man, Willes, 409 ; Goodenow v. Tyler, 7 Mass. 36 ; Burrill o. Phillips, 1 Gall. 
 360 ; Houghton v. Matthews, 8 Bos. & Pull. 489 ; Myers v. Entriken, 6 Watts & 
 Serg. 44. A collector has no right to receive Tennessee banlc paper for taxes, 
 nor is he in fault if he refuses to accept a part of the sum charged on the lands. 
 Hunt V. McFadgen, 20 Ark. 277. 
 
 2 29 Me. 196. ' 
 
808 OP THE SALE OP THE LAND. 
 
 * 280 to sell * iipon credit appears to have been made before 
 the sale, he will be permitted to recover, (a) 
 8. Where a part of the land sold is liable to sale, and the 
 residue is not, the sale is void in toto. Thus in Moulton v. 
 Blaisdell,! the law required the collector to advertise and sell 
 unimproved lands of non-resident proprietors, and improved 
 lands of resident propjietors ; and in case of improved lands 
 belonging to a resident of the State, but who resided out of the 
 town in which the land was situate, the collector was directed 
 to give an additional notice, in writing, to the owner of the 
 land before making the sale. The facts of the case were, that 
 the land in question belonged to a person who did not reside in 
 the town where the land lay, and the tax was assessed ; a part 
 of which was improved, and the rest unimproved. There was 
 no proof of a notic* in writing to the owner. The whole par- 
 cel of land was taxed and sold as one estate. By the Court : 
 " The whole, both improved and unimproved, being sold at 
 auction for one integral si^m, upon one bid, the sale cannot be 
 good in part, and bad in part ; but if not valid for the whole, 
 the title entirely fails." The sale was thereupon held void, 
 upon the ground that one who owned improved land, but 
 resided out of the town, was entitled to the additional notice 
 mentioned in the statute ; that the fact that a portion only of 
 the tract in question was improved, made no difference. The 
 owner may have been prejudiced by the sale, and the law will 
 presume that he was. The advertisement was simply a con- 
 structive notice. If the actual notice contemplated had been 
 given to the owner, he would probably have paid the tax as- 
 sessed upon the entire tract. He, at least, would have had an 
 opportunity of doing so. 
 
 The same principle was decided in Hayden v. Foster.^ So, 
 where divers taxes are assessed, some of which are legal, and 
 the residue illegal, the sale cannot be upheld pro rata, but the 
 
 entire sale falls to the ground.^ The rule is, that where 
 * 281 a * grant, an instrument or act, is void in part by the 
 
 statute law, it is void for the whole. Ithas been quaintly 
 
 (a) See Anderson v. Rider, 46 Cal. 134. 
 
 1 24 Me. 283. i 13 Pick. 492. 
 
 3 Ante, p. * 169. 
 
OP THE SALE OP THE LAND. 309 
 
 said, and oftentimes repeated, that " the statute law is like a 
 tyrant ; when he comes he makes all void ; but the common 
 law is a nursing mother, making only void where the fault is, 
 and preserving the rest." ^ But even the common-law rule 
 which puts such a construction upon a transaction as to sus- 
 tain the legal and reject the illegal part, is only applicable to 
 cases where, from the nature of the act, a severance of the 
 good from the bad part, can be made. A severance is impos- 
 sible in the case of an illegal tax. 
 
 The same principle was applied in Wallingford v. Fiske,^ 
 where several parcels of land lying in one township were as- 
 sessed together as one tract, for the year 1813, and assessed 
 separately for the years 1814, 1815, 1816, and 1817, and the 
 whole were sold en masse for the five years' tax thus assessed 
 upon them ; the sale was held illegal, upon the ground that 
 the sale could not be regarded as legal as far as it was based 
 upon the assessment of 1813, and void as to the other years. 
 
 9. The sale must be according to the parcels, and description 
 contained in the list and the other proceedings, or it cannot be 
 sustained.^ Especially must it conform to the list as that con- 
 
 1 Dwarris Stat. 739; Hobart, 14; 2 Wils. 351 ; 1 Saund. 66, a; 8 East, 231, 
 236 ; 11 East, 165 ; 13 East, 87 ; 15 East, 440 ; 7 T. R. 201 ; 8 T. U. 411 ; 5 
 Taunt. 727 ; 5 N. H. 196 ; 6 N. H. 225 ; 1 Johns. C. R. 339 ; 8 Johns. 253 ; 14 
 Johns. 458, 465 ; 5 Cow. 162, 548 ; 15 Mass. 159 ; 3 Bibb, 500. 
 
 2 24 Me. 886. 
 
 ' In Clarke v. Strickland, 2 Curtis C. C. 439, it was said that, under a power 
 to sell land, a sale of all " the right, title, and interest," of the party is not the 
 same thing. See Einstein o. Gay, 45 Mo. 62. See p. *368, note. Where 
 the assessment is not of an undivided interest in, but of an entire tract or parcel 
 of land, the tax collector has no authority to sell an undivided interest therein 
 for the non-payment of taxes. Roberts v. Chan Tin Pen, 23 Cal. 259. Where 
 there is a sale of a less portion than the whole tract, if the owner fail to designate 
 the portion he wishes sold, the tax collector must designate a portion, before the 
 sale, and with sufficient particularity to distinguish it. Ibid. In an action to 
 declare invalid a tax sale on the ground that the premises were sold as one entire 
 tract, while they were distinct lots, the sale was maintained on tlie ground that 
 it followed the assessment, the assessment not having been questioned, the law 
 having made a distinction between errors in the assessment and errors in the 
 sale, and not allowing the validity of the assessment to be questioned after the 
 sale was made. Moulton o. Uoran, 10 Minn. 67. When the assessment list is 
 returned by the assessor, and the process of assessment is completed by the 
 County Court, it becomes in the nature of a judgment; and the warrant attached 
 to the tax book delivered to the collector is a process in the nature of an execu- 
 tion ; and the condition of the lands — that is, as being lands of resident or non- 
 
SIO OF THE SALE OP THE LAND. 
 
 stitutes the basis of all the subsequent proceedings, (a) The 
 course pursued must be consistent with itself throughout the 
 entire proceeding. Any variance in this respect will be fatal 
 to the validity of the sale. The reason is obvious ; the author- 
 ity of the officer to sell is derived from the existence and reg- 
 ularity of the anterior proceedings. If those proceedings 
 * 282 are irregular, * he possesses no authority at all ; if reg- 
 ular, the law confers upon him no power to change them. 
 He acts at his peril in making a sale if they are irregular, and 
 if regular, they constitute his only guide in advertising, sell- 
 ing, and conveying the land affected by them.^ 
 
 In Pitkin v. Yaw, the judgment was against eight town lots; 
 for an aggregate sum ; two only were sold, and the sale was 
 held void. Willey v. Scoville was a case where nine ten-acre 
 lots were assessed en masse, instead of severally ; the sale, on 
 the contrary, was a several one, for the tax due upon each lot, 
 and it was held void. In Andrews v. Senter,^ it appeared that 
 
 resident owners — becomes fixed ; and so, if a resident owner of lands becomes 
 a non-resident after tlie delivery of tbe tax book to the collector, tbe collector is 
 Ijound to pursue tbe mode prescribed by the statute for tbe sale of lands of resi- 
 dent tax-payers. Gossett v. Kent, 19 Arlt. 602. See Garibaldi v. Jenkins, 27 
 Ark. 4-56. 
 
 (a) Under sec. 47 of 1 K. S. 406, which provides that "whenever a sitm in 
 gross is assessed upon any tract, &c., of land, any person claiming a divided or 
 undivided part thereof may pay to tbe treasurer any part of tbe tax, interest, 
 and charges thereon, proportionate to tbe number of acres claimed by him, on 
 the certificate of the comptroller ; and the remaining tax, interest, and charges, 
 shall be a lien on the residue of tbe land only," and § 28, which provides that of 
 the tract so subdivided, tbe person wishing to pay the tax upon a divided part 
 of it, shall deliver to the comptroller a map of " the subdivision, if required by 
 him," wliere for three years tbe assessments of taxes for certain roads on a tract 
 of about 50,000 acres, composed of 493 lots, were made in gross, and tbe assess- 
 ments for town and county charges for the same time were for the most part 
 upon those parcels of the tract lying respectively in the several towns for which 
 the assessments were made, though in some instances tbe lots were separately 
 assessed ; and in tbe years subsequently taxes were regularly assessed on many 
 of the lots separately, and returns having been made in respect to all these taxes, 
 the comptroller proceeded to advertise the lands for sale as 493 separate lots in 
 a certsiin survey, and before the sale apportioned the taxes on each of the lots, 
 and entered the same in his books- by averaging the burden according to the 
 quantity of land in each lot, and each lot was put up and sold for the aggregate 
 amount with which it was thus made chargeable, held, that this was not such a 
 variance as would avoid the sale. Fellows v. Denniston, 23 N. Y. 437. 
 
 1 Pitkin V. Yaw, 13 111. 258 ; Willey v. Scoville, 9 Ohio, 43. 
 
 2 82 Me. 894. 
 
OP THE SALE OP THE LAND. 311 
 
 two lots were listed and advertised for sale separately, but the 
 collector — as it appeared from his return of the sale — sold 
 them together for the aggregate sum due upon both, and the 
 sale was held void. The same principle was sustained in Mor- 
 ton V. Harris.^ 
 
 And in Wallingford v. Fiske,^ which was a writ of entry, 
 wherein the defendant claimed under a tax sale, it appeared 
 that all of the several parcels of land lying in township number 
 three were listed and assessed in the names of the several 
 owners. The warrant stated the gross sum due upon the 
 whole township, the return of sale showed a sale of the entire 
 township to three persons for the sum of 168.53, and the ex- 
 ecution and delivery of the deed accordingly. The sale was 
 held void. By the Court : " The legislature were careful 
 that, so far as it could be done, each parcel of land should be 
 exclusively holden for the tax with which it was charged ; 
 that no unnecessary inconvenience should arise from adver- 
 tising and selling in gross, different parcels of an estate, in 
 which different interests might exist ; that on a redemption 
 of the title conveyed upon such sale, each individual might 
 obtain his own land by the payment of the tax thereon, 
 and the expense arising from the sale thereby * avoiding * 283 
 the disputes which would grow out of a claim for 
 contribution, where one tract was burdened with the taxes 
 upon itself and others also.^ Each right, number of lot, or 
 division must be advertised and separately sold at public 
 auction." It is also held, that the fact that the several lots, 
 tracts, or parcels, belong and are assessed to the same person, 
 does not dispense with the law, or excuse a deviation from it.* 
 The law contemplates a sale in legal subdivisions, and will 
 not tolerate any act Avhich tends to create confusion in tlie land 
 systems of the respective States and of the United States, and 
 thus destroy the legal identity of a parcel of land known to 
 the law only by specific metes and bounds. 
 
 10. Where a tract of land is assessed against tenants in com- 
 
 1 9 Watts, 319. See also Woodburn v. Wireman, 3 Casey (Penn.), 18 ; Keene 
 V. Barnes, 29 Mo. (8 Jones), 377. 
 
 2 24 Me. 386. ' 13 Pick. 492. 
 « Shimmin v. Inman, 26 Me. 228. 
 
312 OF THE SALE OP THE LAND. 
 
 mon, and one of them pays the tax on his undivided share, 
 the interest of the other may be sold to satisfy the residue of 
 the assessment.^ 
 
 11. The question has been raised in several cases, but not 
 decided,^ whether, where the law is silent as to the mode of 
 locating the land sold, it is competent for the officer to sell 
 and convey a certain number of acres, out of a tract, without 
 designation by metes and bounds, and thus make the pur- 
 chaser at the tax sale a tenant in common with the owner 
 of the residue ; and also, whether a sale of the undivided 
 moiety can be sustained.^ There would seem to be no diffi- 
 culty in answering these questions. The only instance where 
 a tenancy in common can be created by mere operation of law, 
 is where a dissolution of an estate in joint-tenancy or copar- 
 cenary takes place ; and the only other mode of creating 
 * 284 one is by an express limitation in a deed to two * or 
 more persons.* It cannot be created by implication, 
 where the statute itself fails to point out the modus operandi 
 whereby it may be affected, not only because it is inconsis- 
 tent with the general principles of law relative to the origin 
 of such rights, but because, as we have already seen, the 
 officer who executes the power of selling land for taxes can 
 exercise no implied power whatever. He acts in hostility to 
 the owner of the estate, and not as his agent, and he must 
 pursue his authority literally. 
 
 There is, however, no statute regulating this class of sales 
 which is so ambiguous as to present such a question. The 
 authority usually conferred is to sell the land upon which the' 
 tax is due ; or so much thereof as may be necessary to satisfy 
 the charge ; or to sell a certain interest less than a freehold 
 out of the estate ; or to sell to one who will bid the least 
 quantity to be located on a particular side of the tract, or in 
 
 1 Ronkendorff v. Taylor, 4 Pet. 362 ; Payne v. Danley, 18 Ark. 441. 
 
 2 But it has recently been held, that if the deed describes tlie land merely as 
 so many acres of a certain lot, which contains much more land, it passes an undi- 
 vided interest in such lot, equal to the proportion which the number of acres sold 
 bears to the whole number of acres in such lot. Sheafe v. Wait, 30 Vt. 735. Sea 
 Gibbs V. Swift, 12 Cush. 393. See p. *125 and note. 
 
 8 Currie v. Fowler, 5 J. J. Marsh. 145 ; Waldron v. Tuttle, 3 N. H. 340. 
 * 2 Blackstone Com. 192, 193. 
 
OP THE SALE OP THE LAND. 313 
 
 a particular corner of it ; or to sell as many acres of the tract 
 as may be sufficient to satisfy the tax, the boundaries of 
 which are to be ascertained by an official survey prior to the 
 consummation of the purchaser's title. No such difficulties as 
 suggested can possibly arise in the construction of the power 
 of sale under the character of statutes above indicated. All 
 of them evidently contemplate a sale of the entire tract, or 
 interest of the party against whom the tax is assessed, or a 
 particular portion to be designated by metes and bounds, or 
 other certain description. 
 
 This question was directly decided in Loud v. Penniman.^ 
 The act of Congress of 1815 provided that where property, 
 liable to the direct tax, should not be divisible, so as to enable 
 the collector by a sale of a part thereof to raise the whole 
 amount of the tax, with all costs, &c., the whole should be sold, 
 and the surplus paid to the owner. The land in question was 
 susceptible of such a division as to bring the amount due, but 
 the collector sold an undivided half of the tract ; and the sale 
 was held void. By the Court: "The collector should 
 have sold a * part of the land, by metes and bounds, suffi- * 285 
 cient to have paid the taxes, &c., as it is admitted he 
 could have done ; or if that could not have been done, he 
 should have sold the whole, and have accounted for the sur- 
 plus according to the requisition of the statute. It is clear 
 that where the estate was capable of division, the officer had 
 no authority to sell an undivided part of it, but only so much 
 as would be sufficient to pay the tax, &c., to be set off sepa- 
 rately from the rest." It is not in the power of any officer, 
 acting under a special statute, to thrust a co-tenant upon the 
 owner of an estate in severalty against his will.^ 
 
 12. Where several parcels of land, belonging to the same 
 person, are separately assessed, each parcel is liable for its own 
 specific tax and no more.^ The lien created by the statute is 
 upon each tract for its own tax, and it cannot therefore be 
 sold to satisfy the tax due upon the others.* Thus, in Hay- 
 
 1 19 Pick. 539. ^ Hodge v. Wilson, 12 Swedes & M. 498. 
 
 3 And the purchaser is entitled to a deed which so states the sale. Donahoe 
 V. Richardson, 21 Mo. 420. 
 
 * But even this is allowed by statute in some States. See Powers v. Barr, 
 24 Barb. 142. 
 
314 OF THE SALE OP THE LAND. 
 
 den V. Foster,! where twenty-two distinct parcels of land, 
 owned by one individual, and situate in the same town, were 
 valued and taxed separately, but one of them was sold to pay 
 the tax upon all of them, the sale was held void. The Court 
 remarked : " So numerous and various are the collateral, de- 
 rivative, and dependent interests in estates, which are liable 
 to taxation to one common owner having a general property, 
 that it would be attended with the Titmost inconvenience, 
 and produce a great confusion of rights, if the whole tax 
 could be charged upon one estate." 
 
 In Baskins v. Winston,^ several tracts of land, containing 
 in all 1,874 acres, were assessed and valued separately, as the 
 property of Isaac Lane, a part of which belonged to him, and 
 the rest belonged to Winston, the defendant, but were illegally 
 assessed in the name of Lane. The aggregate tax was 
 * 286 $33.95, * for which the lands were sold. The sale was 
 held void. By the Court : " We are clearly of opinion 
 that the tax collector could not make a valid sale of land be- 
 longing to Winston, although assessed to Lane, for the purpose 
 of paying taxes due by and assessed to Lane for other and dif- 
 ferent tracts belonging to him. So to hold would not only 
 subject a man's property to the payment of taxes not due 
 upon it, but would appropriate the property of one person to 
 paj'^ the debts and charges which the State might have against 
 another. We cannot suppose the legislature ever intended 
 such an act of injustice, and must therefore declare the sale 
 made in this case invalid." 
 
 13. The quantity of land that may he sold hy the officer de- 
 pends upon the phraseology of each particular statute. 
 
 The statute of New Hampshire required that so much of 
 the delinquent's estate should be sold, " as will be sufficient 
 to pay the taxes and incidental charges " upon it. In Ains- 
 Worth V. Dean,3 the whole tract was offered and struck off to 
 the first bidder. The Court held the sale void, saying: 
 " No regard appears to have been paid to this provision in the 
 sale, and no reason is given why the law was not complied 
 
 1 13 Pick. 492. ^ 24 Miss. 431. 
 
 a 1 Foster, 400 ; Lyford v. Dunn, 32 N. H. 81, 86, 87 ; Jaquitli v. Putney, 48 
 N. H. 141 ; Davis v. Handy, 37 N. H. 66, 69. 
 
OF THE SALE OP THE LAND. 315 
 
 with, if indeed any reason could be considered as sufficient. 
 The whole lot was advertised and sold for the taxes and 
 costs." A similar decision was made under a statute of 
 Maine.i (a) 
 
 1 Loorais V. Pingree, 43 Me. 299 ; and see Crowell o. Goodwin, 3 Allen, 535 ; 
 Lovejoy r. Lunt, 48 Me. 377 ; Frencli c. Patterson, 61 Me. 210. 
 
 (a) The California statute of 1861 requires that the sheriff shall only sell the 
 smallest quantity of the real estate that any purchaser will talte and pay the 
 judgment and costs. Gillis v. Barnett, 38 Cal. 393. This provision was intended 
 for the protection of the tax-payer, and is mandatory and not directory merely; 
 and tlie recitals in the sheriff's deed as to the manner in which he conducted 
 such sale are evidence against the grantee and parties claiming under him. Ao- 
 cordinglj', a deed reciting a sale to the highest bidder, when he was authorized 
 by the statute only to sell the smallest quantity of the property which any one 
 would take and pay the judgment and costs, was held void on its face. French 
 u. Edwards, 13 Wal. 506. Under a similar statute, providing further that the 
 collector shall offer each tract in the advertised list separately, where the col- 
 lector, instead of offering for sale separately each tract, presented the list to the 
 persons present, and offered to sell if they would buy, and they all replied that 
 they would not buy any of them, it is but fair to presume that no injury resulted 
 to the owners of the land by the failure of the collector to comply with the letter 
 of the statute. But the testimony of the collector, if competent for such a pur- 
 pose, is not suflBcient to defeat a tax title by impeaching the truth of his own 
 ofiBcial return, attested by the clerk of the county as to the mode of offering the 
 land for sale. Biscoe v. Coulter, 18 Ark. 423. A sale of several distinct parcels 
 or subdivisions of land, separately assessed or in fact distinct, en masse and for a 
 gross sum, is void. Penn v. Clemans, 19 Iowa, 372; Ware v. Thompson, 29 Iowa, 
 65. And a tax deed which shows the sale to have been thus made is void upon 
 its face. Ware v. Thompson, supra ; Boardman v. Bourne, 20 Iowa, 134 ; Ackley 
 V. Sexton, 24 Iowa, 320; Ferguson v. Heath, 21 Iowa, 438; Williams v. Heath, 
 22- Iowa, 519; Byam c. Cook, 21 Iowa, 393; Harper v. Sexton, 22 Iowa, 442; 
 Walker v. Moore, 2 Dill. C. C. 256. But a tax deed which states only the gross 
 amount for which they were sold, is not invalid for that reason, if it shows that 
 they were sold separately. Orton v. Noonan, 25 Wise. 672. In Iowa, land may 
 be sold for taxes in tracts greater than forty acres, when so assessed to known 
 owners ; and such sale will not for that reason be declared invalid, when it does 
 not appear that the taxes due upon the tract could have been satisfied by the 
 sale of a part thereof; the statutory provision requiring that in cases where the 
 owners are unknown the assessment thereof and entry of the same in the tax book 
 shall not exceed the sixteenth part of a section or smallest subdivision of land 
 according to government survey is, upon the maxim expressio unius exclusio alterius, 
 authority where the owners are known for its assessment in larger tracts. Eldridge 
 V. Kuehl, 27 Iowa, 160 ; Corbin v. De Wolf, 25 Iowa, 124 ; Bulkley v. Callanan, 
 32 Iowa, 461 ; Stewart v. Corbin, 25 Iowa, 144 ; see also Wallace v. Berger, 
 25 Iowa, 456 ; Johnson v. Chase, 30 Iowa, 308 ; Ware v. Thompson, supra. And 
 when nothing appears to the contrary from the face of tlie deed, it will be pre- 
 sumed that the owners are known, and that the sale in other respects was 
 authorized. Bulkley v. Callanan, supra. 
 
316 OP THE SALE OF THE LAND. 
 
 But in Ives v. Lynn,^ where it did not appear affirmatively 
 in the deed, or return of sale, that no more land was sold than 
 was necessary to raise the amount of taxes due upon the en- 
 tire tract offered, the Court held, that it was a presumption of 
 law that the collector performed his duty, and conducted the 
 auction fairly and properly ; and in the absence of proof re- 
 butting this presumption the sale was sustained as far as this 
 point was concerned.^ [The revised statutes of Massachusetts 
 
 provided ^ that the collector shall sell " so much of the 
 * 287 real estate as shall * be sufficient" to discharge the tax 
 
 and charges ; but if in the opinion of the collector 
 " any parcel of real estate cannot be conveniently divided, 
 and a part thereof set off without injury to the residue, he 
 may sell the whole of the land itself," &c. Under these pro- 
 visions it was recently held, that the collector could adopt 
 only one of two courses ; either sell just enough to pay the 
 tax and charges, or, if in his opinion not capable of division, 
 sell the entire tract taxed ; he could not adopt a middle course 
 and sell more than sufficient to pay the tax and charges, but 
 less than the whole lot taxed, unless it also appeared that the 
 lot actually sold could not be again divided without injury to 
 the residue.*] 
 
 The statute of Georgia provided that the collector should 
 sell the land of the defaulter, or " so much thereof as wiU 
 pay the amount of the taxes due with costs." In Stead's 
 Executors v. Course,^ it appeared that a sale was made, 
 under this statute, of an entire tract of 450 acres, but it 
 did not appear how much taxes were due upon the land. 
 In deciding against the title upon this state of facts, Chief 
 Justice Marshall said : " The sale ought to have been of so 
 
 • 7 Conn. 505. 
 
 2 See also Tweed v. Metcalf, 4 Mich. 601 ; Biscoe v. Coulter, 18 Ark. 423. 
 So it cannot be objected to the validity of a tax deed that it does not show that 
 a less portion than the whole lot it purports to convey was first offered, when it 
 is shown by the testimony of the treasurer that it was In fact so offered. Gray 
 V. Coan, 30 Iowa, 536. 
 
 3 Ch. 8, §§ 28, 29. 
 
 < Crowell V. Goodwin, 3 Allen, 535. But this rule was changed by the Gen. 
 Stats, ch. 12, § 33, it then being left entirely to the collector's option to sell the 
 whole or any part of the estate. 
 
 s 4 Cranch, 403. 
 
OP THE SALE OP THE LAND. 317 
 
 much of the land as would satisfy the tax in arrear. ... If 
 the whole tract of land was sold when a small part of it 
 would have been sufficient for the taxes, which at present 
 appears to be the case, the collector unquestionably ex- 
 ceeded his authority." And in Doane v. Chittenden,^ it 
 was held that a sale of two tenements on one lot, owned and 
 occupied by different persons, to satisfy a tax on the lot, less 
 than one-tenth of the value of one tenement without separately 
 offering the parcels until a sufficient sum was raised to pay 
 the amount, was an abuse of the discretion of the levying 
 officer, and was void. , 
 
 And where the statute was silent as to the quantity which 
 might be offered and sold to pay the taxes, the Supreme Court 
 of Indiana held, that upon general principles, a sale of a 
 greater * quantity than was necessary to satisfy the tax, * 288 
 where the land was susceptible of a division, or a sale in 
 smaller parcels, was illegal and void.^ (a) The Court after 
 quoting the case of Stead v. Course, which arose upon the con- 
 struction of the Georgia statute, and approving of the decision 
 of Judge Marshall, say : " The rule must be the same, without 
 any positive law for the purpose. It rests upon principles of 
 obvious policy, and universal justice." This is clearly the 
 correct rule of law. [But where a part of the tract was offered 
 without receiving a bid thereon, a sale of the entire tract in 
 one body was held legal.^] It was held in Woddye v. Coles,* 
 that where a sheriff, under an execution for five shillings, 
 seized and sold five oxen, each of the value of five pounds, 
 he became a trespasser ab initio. 
 
 And it has been repeatedly decided, in this country, that 
 an excessive levy and sale of personal property subjects the 
 officer to an action.^ So it has been adjudged, that where a 
 sheriff sells more land than is necessary to satisfy the execu- 
 tion, the land being susceptible of advantageous division, the 
 
 1 25 Geo. 103. ' ^ O'Brien v. Coulter, 2 Blackf. 42L 
 
 (a) An act of the Congress of the United States which required that the 
 whole land should be sold in all cases, without regard to tlie fact that it might 
 be divided without injury, and the tax paid by the sale of part, was held uncon- 
 stitutional. Martin v. Snowden, 18 Grat. 100 ; Downey v. Nutt, 19 id. 59. 
 
 3 Slater v. Maxwell, 6 Wall. (U. S.) 268. 
 
 * Noy, 59. * 8 Johns. 333 ; 18 Johns. 562 ; 1 Johns. 502. 
 
818 OP THE SALE OP THE LAND. 
 
 sale is illegal.^ If this principle is applicable to sales made 
 by an officer under the authority of a judgment and execu- 
 tion, there seems to be still stronger reasons for extending it 
 to sales made by officers under a special authority derived 
 from a statute, without the intervention of judicial proceed- 
 ings, and where the greatest possible degree of strictness has 
 alwaj's been regarded as " wholesome discipline." (a) 
 
 The North Carolina statute provided, " that if no person 
 shall bid a smaller quantity than the whole, then the whole 
 land, so set up, shall be considered as a bid of the governor, 
 and the sheriff shall strike off the same to him accordingly, 
 and execute a good and sufficient deed of conveyance to 
 him and his successors in office." In the case of Register v. 
 Bryan,^ the plaintiff claimed a whole tract, under a tax sale 
 made in violation of this law, and his title was held to 
 * 289 be absolutely void ; * not only against the governor, 
 but also as against the former owner. 
 
 The statute of Mississippi declared that the collector " shall 
 not sell, in any one lot, more than the eighth of a section; 
 but if one lot will not sell for the amount of the taxes due, 
 and the costs and charges that have accrued, as many lots of 
 that quantity may be sold as will be sufficient to pay the 
 amount due," &c. In Hodge v. Wilson,^ the facts were, 
 that the land sold was a quarter section, containing one hun- 
 dred and sixty acres, and the collector, in offering it for sale, 
 asked : " Will any one Tpaj the taxes, costs, and charges for 
 one-eighth, or eighty acres ? " No one bidding, he then put 
 up the whole quarter and sold it. The Circuit Court sus- 
 tained the sale, but its judgment was reversed in the High 
 Court of Appeals. The judges, though concurring in the 
 reversal, did not agree upon all the points arising in the case. 
 On this point they all agreed ; namely, " that the collector 
 should have designated the particular eighth which was first 
 offered. He cannot sell an undivided interest, and make the 
 purchaser a tenant in common with the original owner ; nor 
 can he, by so selling, give the purchaser choice of the tract 
 
 1 Isaacs V. Gearhart, 12 B. Mon. 231 ; Tiernan v. WUson, 6 Johns. Ch. 411. 
 (a) See Polk i-. Rose, 25 Md. 161. 2 2 Hawks, 17. 
 
 3 12 Smedes & M. 498. 
 
OP THE SALE OF THE LAND. 319 
 
 or parcel purchased, (a) He is directed to sell in separate 
 lots of an eighth of a section, and not an undivided interest; 
 nor can he by the sale, confer upon the purchaser the right 
 to elect which specific half of the tract he will take." i Chief 
 Justice Sharkey also held that, " the collector must sell in 
 lots of an eighth of a section, and in no greater quantities. 
 If one will not sell, another must be offered, and so on until 
 the whole has been offered in separate lots." The opinion 
 of Judge Thacher upon this point was, that "if the first 
 eighth will not sell, it is to be offered with the next eighth, 
 and so on until the amount of the tax is bid." And the 
 conclusion at which Judge Clayton arrived on this question 
 was, that " when the first part is sufficiently designated, and 
 is not sold, then the part so offered and refused may be added 
 to the next, and so on, until a sale is effected, or the 
 sheriff m.ay offer each subdivision separately." * The * 290 
 reasoning of the Chief upon this debatable point " was 
 designed to prevent the sale of more land than was actually 
 necessary, or in other words, to collect the taxes by the sale 
 of as little as possible, observing the legal subdivisions of 
 sections. It is founded on the most obvious principle. Gov- 
 ernment is established for the benefit of the people, and it 
 should not be permitted so to act, by its officers, as to pro- 
 duce injustice or oppression. It must protect, and not sacri- 
 fice, their rights ; and all its exactions must be made with " 
 the least possible encroachment on individual rights. But 
 for this law, the collector would have been left free to exer- 
 cise his discretion ; but this law prescribes a limit." In 
 Boisgerard v. Johnson,^ where the sheriff struck off the 
 
 (a) See note 2, p. * 283. 
 
 1 To allow a person to select from the tax list a portion of the delinquent 
 lands, and purchase the whole for the tax due without competition, is fraudulent. 
 Brown v. Hogle, 30 111. 119. 
 
 ^ 23 Miss. \2'l. See further upon this question, Baskins v. Winston, 24 Miss. 
 431; Yasser o. George, 47 Miss. 713; Doe v. Strong, 1 Tyler, 191. The tax 
 collector may sell the laud one-eighth at a time, at successive biddings, until he 
 has sold enough to pay the taxes due, and then may make one deed of all if 
 to one purchaser. Ray v. Murdock, 86 Miss. (7 George) 692. So where the 
 statute forbade the sheriff from putting up at one time more than one-tenth of 
 the land on which the tax was due, allowing him to proceed by tenths until the 
 tax should be raised or all the land sold, and the sheriff sold the tract in one 
 parcel, the sale was held void. Love v. Wilbourn, 6 Ired. 347. 
 
320 OP THE SALE OP THE LAND. 
 
 entire lot without either offering each eighth separately, or 
 offering one-eighth alone, and upon failure to get a bid for 
 that adding another to it, and offering them together, and 
 upon failure to get a bid for that adding another and offering 
 them together, and so on till the whole were offered, the prin- 
 ciple established in Hodge v. Wilson was reaffirmed and the 
 sale held invalid. 
 
 The act of Congress of May 4, 1812, for the government 
 of Washington City, provided " that unimproved lots in the 
 city of Washington, on which two years' taxes remain due 
 and unpaid, or so much thereof as may be necessary to pay such 
 taxes, may be sold, at public sale, for such taxes due thereon." 
 In case of the Corporation of Washington v. Pratt, (a) 
 this question was made upon the statute: "Whether, where 
 several lots belonged, and were assessed to one person, and 
 two years' taxes were due on every one of them, it would 
 be lawful to sell one of the lots to pay the taxes due upon 
 all, or each lot would be liable only to be sold to pay the tax 
 due on itself." To which Judge Johnson responded : " This 
 question, thus st.ated, does not admit of a general answer. 
 That each lot stands encumbered with no more than its owd 
 taxes, and the lien upon each is several and distinct, results 
 not less from the provisions of the eighth section, which 
 gives the right of redeeming severally, than from the con- 
 sideration, that in case of a partial sale by the proprie- 
 * 291 tor of many lots, the purchaser from him * would not, 
 by the act of transfer, hold his purchase disencum- 
 bered of its own particular taxes, either absolutely, or upon 
 the contingency of the remaining lots of his vendor being 
 adequate to the satisfaction of the taxes due on the whole. 
 Nor would the purchaser of a single lot hold his purchase 
 encumbered with the taxes due on the whole mass of lots held 
 by the vendor ; each would have the right to redeem upon 
 paying the taxes assessed on his own particular purchase, 
 and would hold his purchase subject to such taxes. The 
 provisions of the act are clearly intended to raise the tax of 
 each lot from itself ; the words are, so much thereof, not so 
 many, as they must have been after speaking of ' unimproved 
 
 (a) 8 Wheat. 686. 
 
OP THE SALE OP THE LAND. 321 
 
 lots,' had it been intended to authorize the sale of some for 
 the taxes of others ; and not the sale of each one, or ' so 
 much ' as is necessary of each one, for the payment of its 
 own taxes. Applying the enacting words to the case of an 
 owner of a single lot, and the effect of the word ' much ' can 
 only be to authorize a sale of part of a lot, whenever circum- 
 stances will admit of such a sale, and the sum due will not 
 require more. But if taxes be due by one and the same in- 
 dividual, in small sums, upon many lots, and one lot being 
 set up for sale, produces a sum adequate to the payment of 
 all, the whole arrears become paid off, and no excuse can 
 then exist for making further sales." The evident conclu- 
 sion, to which this opinion tends, is, 1. That the lien upon 
 each lot, for the taxes, is several and distinct, and a pur- 
 chaser of one or more of the lots, less than the whole num- 
 ber, subsequent to the date of the assessment, from the 
 owner in whose name they were all assessed, holds his lot or 
 lots unencumbered with the taxes due on the other lots, the 
 title to which remains in his vendor. 2. And where all of 
 the lots, thus assessed to one proprietor, remain in his hands 
 until the sale takes place, if the sale of one or more of the lots, 
 and less than the whole number, produces enough money to 
 satisfy the tax due upon the whole, the collector will not be 
 justified in proceeding to sell the residue. Another statute 
 was enacted, .relating to the same city, on May 15, 1820, 
 providing " that improved or unimproved property, 
 or so much thereof not less * than one lot, as may be * 292 
 necessary to pay the taxes, &c., may be sold, &c. ; " 
 and still another act passed May 26, 1824, provided " that it 
 shall be lawful for the said corporation, where there shall be 
 a number of lots assessed to the same person or persons, to 
 sell one or more of such lots for the taxes and expenses due 
 on the whole ; and also to provide for the sale of any part of 
 a lot, for the taxes and expenses due on said lot, or other 
 lots assessed to the same person, as may appear expedient, 
 according to such rules and regulations as the said corpora- 
 tion may prescribe." 
 
 In Mason v. rearson,^ which was an action of ejectment, 
 1 9 How. (U. S.) 248. See Thompson v. Carroll, 22 How. (U. S.) 422. 
 
 21 
 
322 OP THE SALE OP THE LAND. 
 
 the defendant claimed under a tax sale, purporting to have 
 been made in pursuance of the foregoing acts of Congress. 
 The facts were that twenty lots had been separately listed in 
 the name of the " Washington Tontine Co." The whole were 
 appraised at $1,783 ; the tax assessed upon them was 164.94 ; 
 they were all sold separately, the entire proceeds of the sale 
 were 1705 ; and the lots first and secondly offered brought 
 185, which was more than sufficient to pay the taxes and 
 expenses of the whole list. The Court held the sale void, 
 upon the ground that the first two lots offered having been 
 sold for more than enough to discharge the tax due upon all, 
 a further sale was not only unnecessary, but a great sacrifice 
 of the property of the company, and that the law according 
 to the intimation in the Corporation of Washington v. Pratt, 
 and the language of the act of 1824, not only permitted the 
 collector to stop the sale when the bids covered the taxes and 
 expenses due upon all of the lots, but that it was his impera- 
 tive duty to do so. It was contended by the counsel in sup- 
 port of the tax title, " that the law allowed a discretion in 
 the city to sell each lot for the tax on each ; and that in the 
 exercise of this discretion, the sale of all can be vindicated as 
 legal ; that the intention was not to give a power which the 
 city must, but which they might exercise ; and that the 
 owners might have saved their property by redeeming 
 293 from the sale." To which the Court * reply : " 1. 
 That it was the design of Congress to prevent sacri- 
 fice and speculation. 2. That what a public corporation or 
 officer is empowered to do for others, and it is beneficial to 
 them to have done, the law holds ought to be done ; the word 
 ' may ' in such cases is imperative, and not permissive merely. 
 3. That the argument that the owners might have preserved 
 their rights by redemption, is entitled to but little force, when 
 the same oversight, accident, or misfortune which prevented 
 the seasonable payment of the tax, would probably defeat a 
 redemption ; and when the argument, if sound, would apply 
 to every other defect in a tax sale ; if such views were to 
 prevail, the only remedy of the owner, against an illegal sale 
 of his property, would be to redeem from it. But instead of 
 such a loose constructive leniency towards a purchaser under 
 
 * 
 
OP THE SALE OP THE LAND. 323 
 
 a special law, it is well settled, that where a tax title is to be 
 made out by a party under such a law, as by the defendant 
 in this case, it must be done in all material particulars, fully 
 and clearly. In the language of some of the cases, it must 
 be done ' strictly,' ' exactly,' ' with great strictness.' The 
 purchaser setting up a new title in hostility to the former 
 owner, is not to be favored, and should have looked into it 
 with care before buying, and not expect to disturb or defeat 
 old rights of freehold, without showing a rigid compliance 
 with all the material requisitions of the law under which the 
 sale was made." Such was the reasoning of the lamented 
 Judge Woodbury, in favor of that rule of strictness which 
 has been almost universally adopted by the Courts of this 
 country in the investigation of tax titles, and it furnishes a 
 complete refutation of the only arguments ever advanced 
 by any Court in favor of their validity, when the proceed- 
 ings were manifestly irregular, namely, that the " govern- 
 ment must collect her revenue," — " let the owner pay his 
 taxes promptly, or redeem from the sale." ^ 
 
 No one denies that the necessities of the State demand a 
 periodical and adequate supply of revenue ; that she possesses 
 the power to assess it ; that it is the duty of the citizen to pay 
 it, and that promptly ; that if he fails in the performance of 
 this duty, the State has a right to resort to adequate 
 coercive * remedies ; that the sale and conveyance of * 294 
 the land of the delinquent to one who is willing to 
 advance the tax, is a legitimate exercise of sovereign power ; 
 that such a sale and conveyance will, if regularly made, vest 
 an absolute title in the grantee, as complete and perfect in 
 all respects, as a grant by the Federal government of a part 
 of the public domain. But the great difficulty is that the 
 State, in the exercise of her sovereign power of taxation, has 
 always seen proper to prescribe the mode and manner of sell- 
 ing the lands of delinquents, and in such language as to 
 make a close adherence to the terms of the power, conditions 
 
 1 Where a part-owner of an unincorporated place which was undivided had 
 paid a part of the tax without designating the number of acres claimed by him, 
 a sale of the residue on which no payment had been made for the unpaid balance 
 of the tax and costs was held suflSciently certain. Wells v. Burbank, 17 N. H. 
 393. 
 
324 OF THE SALE OP THE LAND. 
 
 precedent to the validity of the sale ; at least the Courts — 
 applying to such proceedings the well-known and invariably 
 recognized principles of the common law, which control the 
 execution of all special authorities — have so held ; and 
 the ignorance or negligence of the officers intrusted with the 
 execution of the power, has thus far defeated the manifest 
 design of the law. The remedy is obvious. Let the revenue 
 laws be plain and simple ; dispense with all useless and un- 
 meaning forms and technicalities which encumber the present 
 system. Give to the officers who execute the power, informa- 
 tion to enable them to perform their duties ; and when the 
 law is once perfected, and the officers have become familiar 
 with the routine of their duties under it, let it stand upon the 
 statute book, and abandon the system of annual changes in 
 the details of the law. When these suggestions are acted 
 upon, or some more feasible plan adopted, then will a tax 
 title cease to be a by-word among land-owners and land- 
 dealers. Then will Courts no longer remark, in opening the 
 discussion of a tax cause, "this title is of that kind almost 
 proverbially known as a collector's title, as expressing a 
 case of doubt and difficulty." ^ Then no Court will declare 
 a tax title primd facie void, and become " astute " in search- 
 ing for defects in them. Then liberal principles will 
 prevail in testing their validity, and the ordinary presump- 
 tions made to sustain them. And then, and not till then, 
 
 will land-owners look to it at their peril that their 
 * 295 * taxes are promptly paid, or (if by oversight they 
 
 suffer the day of sale to pass by) be vigilant in effect- 
 ing a redemption. As things now stand, a tax title is no title 
 at all. Out of the numerous sales made under the acts of 
 Congress between the years 1800 and 1818, not a single one 
 has been sustained ; and not exceeding ten, under the laws 
 of the several States, out of at least twelve hundred which 
 have found their way to the Superior Courts of the country. 
 Experience seems to have thrown but little light upon the 
 subject, and the legislature have been unable to keep pace 
 with the ingenuity of the bench and bar in discovering 
 defects in tax sales. 
 
 1 10 Mass. 105. 
 
OF THE SALE dP THE LAND. 325 
 
 14. Where, after an assessment is made, the county in 
 which the proceeding was had is divided, the collector of the 
 old county has power to sell land lying in the territory em- 
 braced in the newly created county.^ This is in conformity 
 with the general principles of law in analogous cases.^ 
 
 The law relative to fraudulent sales and the location of 
 the land sold, will be examined in subsequent chapters. 
 
 1 Devor v. McClintock, 9 Watts & Serg. 80 ; Moss v. Shear, 25 Cal. 38. 
 
 2 5 Watts, 87 ; 16 Ohio, 466 ; 17 Ohio, 135-143 ; 16 Mass. 86 ; 4 Mass. 389 ; 
 6 J. J. Marsh. 147 ; 4 Halst. 357. 
 
326 OP THE CERTIFICATE OF SALE. 
 
 CHAPTER XVI. 
 
 OP THE CEKTIFICATB OP SALE. 
 
 When a sale is made, the officer usually executes and de- 
 livers to the purchaser a certificate of the sale, which consti- 
 tutes the evidence of the purchaser's right, and entitles him 
 to a deed for the land sold, unless the sale is redeemed from 
 by the owner within the time limited by law in that behalf. 
 This is the case in Ohio, Illinois, Michigan, and Missouri,^ 
 and perhaps in other States.^ (a) 
 
 1 Kice V. White, 8 Ohio, 216 ; People ex rel. Seaman v. Hammond, 1 Dougl. 
 276 ; Reeds v. Morton, 9 Mo. 878 ; Bruce v. Schuyler, 4 Gilm. 221 ; Silliman v. 
 Frye, 1 Gilm. 664. The 'act of Congress of June 7, 1862, contemplates the 
 issuing of a certificate of sale, though the United States becomes the purchaser. 
 Cooley V. O'Connor, 12 Wal. (U. S.) 391. 
 
 ^ The liolder of such a certificate has such an interest in the land as to be 
 a proper party in a proceeding to foreclose an equity of redemption. Brobst v. 
 Thompson, 4 Greene (Iowa), 135. But before delivery of deed title remains in the 
 former owner, even after the time of redemption has e;xpired, and he may maintain 
 ejectment against the holder of the tax certificate. Williams v. Heath, 22 Iowa, 519. 
 A mere sale without a deed gives the purchaser no title. Annan v. Baker, 49 N. H. 
 161. The act of 1844, ch. 92, § 1, giving efiect to a sheriflF's deed does not give 
 any special force to a certificate of sale. Such certificate on a bill filed to set up 
 a tax sale must be accompanied by proof of all the requirements to constitute a 
 valid sale. Quimby & Co. v. North American, &c.. Coal Co., 2 Heiskell, 596. 
 So in Pennsylvania, until the tax title of unseated land has matured by expiration 
 of two years from sale, the owner, on his constructive possession, can bring 
 trespass ; and the purchaser at the tax sale commits a trespass in cutting timber 
 on the land. Shalemiller v. McCarty, 55 Penn. 186. 
 
 (a) In Kansas, a distinction is made by the law as to the rights of individuals 
 and of counties purchasing lands for taxes, in that the latter are allowed to bid 
 only in the absence of other purchasers ; and in that case to bid becomes an 
 absolute duty, and the certificates of sale to the county are subject to purchase 
 by any applicant at a fixed price. Sec. 10, ch. 198 (Comp. L. 877), providing 
 for making tax deeds due on certificates of sale applies only to cases where the 
 certificates are in the liands of individuals, and a tax deed executed to a coupty 
 as the holder of a certificate is void. Guittard Township v. Commissioners of 
 Marshall Co., 4 Kan. 388 ; State v. Magill, 4 Kan. 415 ; see also Tarr v. Haughey, 
 5 Kan. 634. And a tax deed so executed to the county being unauthorized and 
 void cannot operate to prevent the treasurer from assigning such certificates of 
 
OP THE CERTIFICATE OP SALE. 327 
 
 In Connecticut, the statute required the collector, upon the 
 sale of the land, " to give to the purchaser a deed of warranty 
 thereof, to be lodged in the office of the town clerk where the 
 land lies, to remain unrecorded twelve months ; and if the 
 owner shall within twelve months from the time of the sale, 
 pay or tender to the purchaser, &c., the purchase-money and 
 twelve per cent interest thereon, such deed shall be void, and 
 shall be delivered up to the person paying or tendering the 
 money," &c.i 
 
 In other States, the officer, immediately upon the receipt of 
 the purchase-money, is authorized to execute and deliver to 
 the purchaser a deed conveying the land to him, which vests 
 an absolute estate in the purchaser on condition that the 
 owner does not redeem the same within the time prescribed 
 by law. In all of these cases the purchaser acquires only a 
 contingent interest in the estate purchased, liable to 
 be defeated in the * event of a redemption, and if no * 297 
 redemption is made an absolute and indefeasible title 
 becomes vested in him. (a) 
 
 In the case of the People v. Hammond,^ which was a pro- 
 ceeding by mandamus, the facts were, that the relator pur- 
 chased a parcel of land, at a tax sale held October 5, 1840, 
 and received a certificate therefor, which, under the law, 
 
 sale, although the treasurer has delivered the certificate to the county clerk on 
 the execution of the deed ; and the treasurer may on the relation of an individual 
 tendering to him the amount of taxes, penalty, interest, and costs be compelled by 
 mandamus to assign to him such certificates issued to the county. State v. Magill, 
 supra ; see also Tarr v. Haughey, supra, which was a case of mandamus to compel 
 the issue of a certificate of redemption to the owner under nearly similar circum- 
 stances. See note p. * 433. 
 
 1 Ives V. Lynn, 7 Conn. 505. 
 
 (a) In Scovill v. Kelsey, 46 111. 344, it was held that " the purchaser at a tax 
 sale, legally held and conducted, acquires an equitable Interest in the land, which 
 during the two years is represented by the right to the redemption money if 
 paid, and a conveyance of the land will pass this equitable interest and the right 
 to the money as completely, as between the parties, as an assignment of the 
 certificate." It was also said in this case that, " if a deed were made to one person 
 and the certificate to another, both innocent persons, the holder of the certificate 
 may with some reason insist on a superior right to the redemption money." As 
 to the point that a conveyance passes the lien of the grantor by virtue of his tax 
 certificate, see also Thomas v. Stickle, 32 Iowa, 71 ; Lain v. Shepardson, 23 Wise. 
 228. 
 
 2 1 Dougl. 276. 
 
328 OP THE CERTIFICATE OF SALE. 
 
 entitled him to a deed after the expiration of two years from 
 the day of sale, unless redeemed by the owner. On the first 
 Monday of August, 1842, before the time for redeeming from 
 the first sale had expired, the land was again sold for taxes, 
 and bid off by a stranger for a sum largely exceeding the 
 taxes, interest, and costs chargeable thereon, which surplus 
 was by law required to be deposited with the State treasurer, 
 " to the credit of the proper owner or claimant " of the land. 
 The auditor-general, upon this state of facts, refused, on the 
 application of the relator, to draw a warrant on the treasurer 
 for the surplus. The Court refused to award a peremptory 
 mandamus. Ransom, C. J. : " In that statute (1833), when- 
 ever mention is made of the person who buys land at a tax 
 sale, he is denominated the purchaser, and no title whatever 
 to the land sold vests in him until at the expiration of two 
 years he receives the treasurer's deed, ' which conveyance,' 
 says the statute, ' shall vest in the person who receives it an 
 absolute estate in fee-simple.' Prior to that conveyance he 
 has only a lien upon the land for the repayment of the 
 amount of the tax paid, (a) with twenty per cent interest ; 
 he has no right to interfere with the possession of the owner ; 
 he cannot enter upon the land for any purpose whatever, nor 
 can he control the rents and profits. If, then, it was the 
 conveyance by the treasurer, and not the purchase at the tax 
 sale, which made the relator the owner of the land, he did 
 not become such owner until October 5, 1842. Was he then 
 the owner in time to entitle himself to the surplus moneys 
 which he claims? It is perfectly clear that the individual 
 
 who has the legal title to the land, at the time of the tax 
 * 298 sale, is * the owner entitled under the statute to the 
 
 surplus moneys, if any there be." (5) 
 
 (a) So in Brackett v. Gilmore, 15 Minn. 251, it was likewise held, that before 
 tlie expiration of the period of redemption " the purchaser has not as against the 
 owner an estate or interest in the land, but only a lien upon it." No title, legal or 
 equitable, vests in the purchaser till the execution and delivery of the collector's 
 deed. Stephens v. Holmes, 26 Ark. 48. The purchaser for taxes is not entitled 
 to rents and profits during the period allowed for redemption. Mayo v. Woods, 
 31 Cal. 269. 
 
 (6) In Stebbins v. Guthrie, 4 Kan. 366, it is said that " the purchaser at a tax 
 sale buys the property then, becomes the owner then, the title only being defea- 
 sible by redemption for two years." See pp. * 296, 297, and notes. 
 
OP THE CERTIFICATE OF SALE. 329 
 
 When, however, the period allowed the owner to redeem 
 has expired, the purchaser acquires a vested equitable inter- 
 est in the land, which descends to his heirs upon his death, 
 and which is placed beyond the reach of legislation. In the 
 Lessee of Rice v. White,i which was an action of ejectment, 
 the plaintiff claiming under a tax title, it appeared in evi- 
 dence that the sale was to William Wetmore, and that a cer- 
 tificate of purchase was thereupon executed and delivered to 
 him by the collector, in due form of law, that before the exe- 
 cution of the deed Wetmore died intestate, and his executors 
 assigned the certificate to Edwin Wetmore, who assigned it 
 to the lessor of the plaintiff, to whom a tax deed was exe- 
 cuted. Upon this state of facts judgment was rendered for 
 the defendant. By the Court : " The certificate of purchase 
 does not convey a legal title ; but it is evidence of an equi- 
 table title to the land, and enables the purchaser to call in 
 the legal title. And it savors so strongly of the realty, that 
 in our opinion, it descends to the heir, and is not assets in the 
 hands of the executor. The act prescribing the duties of 
 the county auditor, provides that such certificate shall be 
 assignable in law, and vest in the assignee, or his legal repre- 
 sentatives, all of the right and title of the original purchaser. 
 The words 'legal representatives,' used as they are in con- 
 nection with the certificate of purchase, or evidence of realty, 
 we construe to be the heir to whom the realty descends. It 
 follows, then, that the heir only could legally transfer the 
 certificate of purchase, and, consequently, no legal title is 
 vested in the plaintiff's lessor by the deed, which is predi- 
 cated upon a void assignment." This decision is undoubt- 
 edly correct ; the certificate of purchase at a tax sale, stands 
 upon the same footing with a certificate of entry, under the 
 laws of the United States, or a certificate of purchase, ex- 
 ecuted by the sheriff, upon a sale of land under execution ; 
 and it has uniformly been held, that they vest in the 
 purchaser an * equitable interest in the land itself, and * 299 
 do not simply constitute a chose in action, or a chattel 
 interest. On the death of the holder, they descend to his 
 heirs. And the construction which the Supreme Court of 
 
 1 8 Ohio, 216. 
 
330 OP THE CERTIFICATE OP SALE. 
 
 Ohio place upon the words " legal representative," is in con- 
 formity with the decisions in analogous cases.^ 
 
 The right of a purchaser to a deed, in pursuance of the 
 sale and certificate, when the time of redemption expires, is 
 a vested one ; and the legislature cannot, without a violation 
 of the contract between the State and the purchaser, repeal 
 the authority of the officer to execute and deliver a deed to 
 him.^ Nor can the legislature extend the time of redemption, 
 after the rights of the purchaser have attached. Those rights 
 attach when his bid is accepted and he pays the purchase- 
 money, and the statute then in force constitutes the law of 
 his contract; by it alone are his rights and duties, to be de- 
 termined ; 2 (a) nor can the legislature renew the remedy once 
 
 1 Delaunay v. Burnett, 4 Gilm. 454 ; Grand Gulf Eailroad & Banking Co. v. 
 Bryan, 8 Smedes & M. 234; 4 Mo. 333; 5 Mo. 147; 9 Mo. 714; 3 Vesey, Jr. 
 486 ; 1 Yeates, 213 ; 2 Yeates, 585 ; 2 Dall. 205 ; 6 Serg. & Rawle, 83. 
 
 2 Bruce v. Schuyler, 4 Gilm. 274, 278. As to how long such right continues, 
 see 23 Wise. 229. 
 
 3 Dikeman v. Dikeman, 11 Paige, Ch. 484; Robinson v. Howe, 13 Wise. 341 ! 
 see also Adams v. Beale, 19 Iowa, 61. See p. * 432 ; Smith v. Cleveland, 17 Wise. 
 556 ; Nelson v. Rountree, 23 Wise. 368. Ch. 113, Laws of 1867, which required 
 the holder of a tax certificate to serve a written notice upon the person if any in 
 the actual occupancy or possession of the land sold for taxes for the period of 
 thirty days or more, at any time within the six months immediately preceding 
 the expiration of the period of redemption or the six months immediately pre- 
 ceding the time when application is made for the deed, at least three months 
 prior to the issuing of the deed, such notice stating that he is holder of the tax 
 certificate, setting forth a copy thereof, and stating the time when such deed will 
 be applied for ; and which statute provides that at any time previously thereto 
 or to the issuing of such deed, such land or any part or interest therein may be 
 redeemed from taxes, — is invalid as to cases in which tax deeds were due befon 
 its passage, or in less than three months thereafter, as impairing the obligation 
 of the contract. Dolan v. Trelevan, 31 Wise. 151 ; Kearns v. McCarville, 24 Wise. 
 457 ; Curtis v. Morrow, 24 Wise. 669 ; State ex rel. Knox v. Hundhausen, 23 Wise. 
 508. Said statute is valid as to sales made before its passage, where a reasonable 
 time was given tlie holders of certificates to comply with its provisions, so as 
 to obtain their deeds when they would otherwise have been due, provided 
 there was any person thus in possession for thirty days prior to that day. State 
 
 (a) A tax deed must be allowed all the eflfect as evidence given by the law 
 in force at the time of the sale. Nelson v. Rountree, 23 Wise. 367. And the 
 legislature cannot make a deed valid which by law was void as between the 
 parties to it at the time of the passage of the act. Orton v. Noonan, 23 Wise. 
 102 ; Conway v. Cable, 37 111. 82. 
 
OP THE CERTIFICATE OF SALE. 331 
 
 barred by the statute of limitations, (a) The certificate 
 vests such an interest in the purchaser that when the time, 
 fixed for redemption has expired, and the officer improperly 
 refuses to clothe the purchaser with the legal title a manda- 
 mus will be awarded at the instance of the purchaser, to 
 compel the execution of a deed.i (6) Where the law re- 
 
 V. Hundhausen, 24 Wise. 196 ; Curtis v. Morrow, 24 Wise. 669. But if there 
 was no one thus in possession, the right of the claimant to a deed would become 
 absolute on that day, and would not be affected by a subsequent possession on the 
 part of the owner. To entitle the applicant to compel by mandamus the issue 
 of a deed where his demand therefor was not made till some months after it is 
 claimed to have become due, he must show affirmatively either that there was 
 no such possession before the day it became due, or that notice was duly given. 
 State ex rel. Knox v. Hundhausen, 24 Wise. 196. This chapter applies to deeds 
 issued by city as well as county officers. State u. Hundhausen, 23 Wise. 508. 
 Where the claimant was in the actual ^jossession of the land more than six months 
 prior to the expiration of the time for redemption (all of which period of six 
 months was after the publication of said act), and no notice was given as the act 
 requires, the deed was invalid ; but an actual occupancy for thirtj' days or more 
 within the last three month's preceding the expiration of the time for redemption 
 would not entitle the occupant to such notice from one who claimed under a tax 
 sale made before the passage of the act. Curtis v. Morrow, supra. The three 
 months' notice of application for a tax deed is required only when the land has 
 been occupied for thirty days or more within the six months immediately pre- 
 ceding the expiration of the time for redemption from the tax sale. Dolan v. 
 Trelevan, supra. 
 
 (a) Seep. * 564. 
 
 1 Maxcy v. Clabaugh, 1 Gilm. 26. The owner of a valid certificate of a sale of 
 land for taxes, to whom a deed, fatally defective in form, has been issued, and who 
 has never been in actual possession of the land, may compel the execution of a 
 proper deed by mandamus. See p. * 373 and note. State v. Winn, 19 Wise. 304 ; 
 Clippinger v. TuUer, 10 Kan. 377. And it is no defence to such an application on the 
 part of the assignee of the certificate, that there was no other proof of an assign- 
 ment than an indorsement of the name and official title of the person who was clerk 
 at the time of the alleged assignment, such officer being the proper person to make 
 the assignment, or that the certificate after assignment in blank had been trans- 
 
 (6) Sess. Laws 1843, p. 81, § 69, authorizing the auditor-general, if he shall 
 discover before sale or conveyance of lands that on account of irregular assess- 
 ments, or for any other cause, any of said lands ought not to be sold or conveyed, 
 to forbear to seU or to withhold a conveyance after sale, as the case may be, 
 confers upon him judicial powers, into the proper exercise of which the Court 
 cannot inquire on motion for a mandamus. This writ will only be granted to 
 compel the performance of a ministerial act not dependent upon the exercise of 
 judicial discretion, in the absence of an effectual legal remedy. People v. Auditor- 
 General, 3 Mich. 427. 
 
332 OF THE CERTIFICATE OP SALE. 
 
 quires the purchaser to record his certificate or lodge his deed 
 in a particular office, with the evident design of giving notice 
 of the sale to the former owner, the requisition must be 
 strictly complied with.^ In most of the States, the certifi- 
 cate of purchase is made assignable in law, and the officer 
 authorized to convey is directed to execute and deliver the 
 deed to the assignee.^ 
 
 The nature and extent of the interest of one who pur- 
 chases land at a tax sale, prior to the time limited for a re- 
 demption, present some highly important questions, 
 * 300 and may be * appropriately considered in this connec- 
 tion. The general principles which control estates, 
 granted with conditions subsequent annexed to them, are of 
 occasional application in this class of cases. A conditional 
 estate is one which depends for its existence upon the hap- 
 pening or not happening of some uncertain event, whereby 
 the estate may commence, be enlarged or defeated. Such 
 an estate may arise by implication of law, but is more com- 
 monly created by express words in the instrument by which 
 the estate is conveyed. These conditions are either prece- 
 dent or subsequent. Precedent are such as must happen or 
 be performed before the estate can commence or be enlarged ; 
 subsequent are such by the non-performance or failure of 
 
 ferred to a town or city which had no power to purchase or sell such certificates, 
 and came to the plaintiff from such town or city,' or that the certificate is defective 
 in omitting the words " according to the facts," the clerk having no right to insist 
 , upon these objections, even if good in themselves, which is doubtful, especially 
 after lie has received and cancelled the certificates. Ibid. But all legal fees 
 which liave accrued since the issue of the certificate must be paid before the 
 holder is entitled to a deed. White v. Strahl, 17 Wise. 146. Under the Wiscon- 
 sin statute of 1854, ch. 66, or of 1859, ch. 22, the purchaser was entitled to a deed 
 at the expiration of three years from the sale in all cases where the land remained 
 then unredeemed, although the lands of minors, &c., were subject to redemption 
 after the delivery of the deed. Wright v. Wing, 18 Wise. 45. 
 
 1 Reeds v. Morton, 9 Mo. 878 ; Ives v. Lynn, 7 Conn. 505. 
 
 2 A quitclaim deed of the land from the purchaser at a tax sale, is not such an 
 assignment of the certificate as to authorize the issue of a deed to the grantee in 
 such deed. State v. Winn, 19 Wise. 304. ' See p. * 376, note ; Clippinger v. 
 TuUer, 10 Kan. 377. And a suit in equity to compel the county clerk to execute 
 a tax deed to a supposed assignee of the certificate when the supposed assignors 
 are not brought into Court, and no valid assignment of the certificate has ever 
 been made, cannot be maintained. Clippinger v. TuUer, supra. 
 
OP THE CERTIFICATE OP SALE. 333 
 
 which an estate already vested may be defeated. The usual 
 practice on the making of the sale is to deliver to the success- 
 ful bidder a certificate of purchase, with a proviso attached 
 thereto, that unless the sale is redeemed from within the 
 time limited by law in that behalf, the purchaser will be 
 entitled to a deed for the land. But in several of the States, 
 instead of this certificate, a deed is immediately executed 
 and delivered to the purchaser, conveying to him a present 
 estate, with a redemption clause annexed. And in all cases, 
 the right of redemption is preserved to married women, in- 
 fants, lunatics, and others laboring under special disabilities. 
 In each of these instances the estate may be said to be 
 granted in prcesenti, but liable to be defeated upon a compli- 
 ance with the redemption laws by those who formerly owned 
 the estate. If no redemption is made within the time and in 
 the manner prescribed by the statute, the estate becomes ipso 
 facto discharged of the condition ; if the sale is redeemed 
 from, the estate of the tax purchaser is defeated. Until a 
 redemption takes place, the grantee under the tax sale (after 
 the delivery of the deed to him) may be regarded as the 
 owner of the estate, at least so far as strangers are con- 
 cerned. He may maintain an action at law for all injuries 
 done to the inheritance by a Wrong-doer ; recover in eject- 
 ment against one who intrudes himself into the possession of 
 the estate ; and generally, do any act consistent with the 
 nature of his title.^ It is presumed, however, that he 
 cannot himself commit * waste, or do any act to the * 301 
 injury of the estate, until the time fixed for redemption 
 has expired ; and that if he attempts to do so, the former owner 
 may restrain him by injunction. It might be prudent, how- 
 ever, for the complainant, in such a case, to bring into Court 
 with his biU the amount necessary to redeem the estate.^ 
 
 1 When the premises are not in the actual possession of any one, a recorded 
 tax deed draws after it constructive possession, and is such an assertion of title 
 by the claimant under the deed as to enable the owner to maintain ejectment 
 against the grantee of the deed. Parish v. Eager, 16 Wise. 532 ; Austin v. Holt, 
 32 Wise. 478. See p. * 586, and notes. 
 
 2 An action against the grantee in a tax deed executed under either of the 
 Wisconsin statutes of 1854, ch. 66, or 1859, ch. 22, to restrain him from entering 
 
334 OP THE CERTIFICATE OF SALE. 
 
 Oil the other hand, the tax purchaser may sustain a bill to 
 enjoin the former owner, or those acting under his license, 
 from the commission of similar acts of waste or destruction ; 
 this remedy he is entitled to, because a redemption is un- 
 certain ; and if it never takes place, he has a right to the 
 estate as it was at the time of his purchase. Whether the 
 party claiming under the tax deed could maintain an action 
 of trespass quare clausum f regit against the former owner for 
 cutting timber upon the estate, is, to say the least, a debat- 
 able point. Until the redemption takes place, he is the 
 owner of the estate undoubtedly. But has he all of the 
 rights incident to an ownership in fee ? Has he a right to 
 take possession, and make improvements upon the land? If 
 timber land, may he clear, fence, and cultivate it ? These 
 and similar questions are somewhat embarrassing. One thing, 
 however, is certain ; his possession would not be adverse to 
 the true owner until the time of redemption expired ; and 
 consequently the statute of limitations would not run in his 
 favor. He is in without the consent of the true owner, and 
 against his will ; but he holds the possession in subordination 
 to the title of the original proprietor, in case a redemption is 
 seasonably made. If the owner does not redeem, the pos- 
 session may be regarded as adverse, and having relation back 
 to the date of his entry, even as against the former owner. 
 But suppose a redemption takes place within the time lim- 
 ited, is the possessor under the tax title entitled to compensa- 
 tion in equity for his improvements, or is he to be regarded 
 as having made them at his peril? Is the former owner 
 entitled to an account of the rents and profits of the estate 
 while in the occupancy of the tax purchaser ? Has he any 
 remedy for waste, spoil, or destruction ? When the redemp- 
 tion takes place, can it have any retrospect, so as to make the 
 
 tax purchaser a trespasser under any circumstances, 
 * 302 or does it operate like the * performance of any other 
 
 condition subsequent annexed to an estate? These 
 
 on the land, cutting timber, &c., cannot be maintained by owner, although still 
 entitled to redeem, unless he has redeemed in fact or oilers to do so. Wright ». 
 Wing, 18 Wise. 45. 
 
OP THE CERTIFICATE OF SALE. 335 
 
 questions must necessarily arise in the investigation of the 
 rights acquired under the taxing power of every State ; and 
 without attempting the solution of them, or anticipating the 
 decision of the Courts when they do arise, it may be re- 
 marked that the analogy is complete between an estate at 
 common law, with a condition subsequent attached to it, and 
 the title of a tax purchaser after the delivery of the deed to 
 him, and prior to the time when the right of redemption by 
 those laboring iinder disabilities, has expired ; and it would 
 seem that the same principles are applicable to each. 
 
336 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 CHAPTER XVII. 
 
 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 We are not now treating of conditions subsequent, annexed 
 to estates at common law, on the breach or non-performance 
 of which an estate which has already vested may be de- 
 feated ; but of those acts which the law requires to be per- 
 formed after the sale has been made, in order to vest the 
 estate in the purchaser. In the language of Judge Cowen, 
 these conditions, " if looked to in their chronological order, 
 are indeed conditions subsequent ; but for the purpose of 
 giving effect to the deed, they are conditions precedent, to 
 all intents and purposes, and without showing affirmatively 
 the literal performance of them, the "deed is mere waste 
 paper." ^ 
 
 The statutes of several of the States require either that 
 the ministerial officers of the law, or the purchaser shall, 
 within a limited time after the sale has taken place, perform 
 certain duties or acts intended for the protection of the 
 former owner, the non-performance of which invalidates the 
 sale.2 The duties of this character most commonly enjoined 
 upon the officers, are the return of the proceedings anterior 
 to, and at the time of the sale, and the deposit or record of 
 the same ; and those imposed upon the purchaser are the 
 filing of a surplus bond, the record of his certificate of pur- 
 chase, and the giving of a notice to redeem, actual or con- 
 structive, to the former owner. Of each of these in their 
 order. 
 
 1 Bush V. Davison, 16 Wend. 554. 
 
 2 In Michigan, it has been AeWthat the sale was not void merely because the 
 town treasurer failed to make a statement under oath, of all money collected by 
 him, and file the same with the county treasurer, as required by sec. 41, p. 74, 
 Laws of 1843. Such oath is required to secure an accurate accounting, and has 
 no reference to the return of the land for delinquent taxes. Tweed v. Metcalf, 
 4 Mich. 579. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 337 
 
 * Where the law requires the officer who made the * 304 
 sale, to return a history of his proceedings, it must be 
 done at the time and in the manner prescribed, or the sale 
 is invalid.i(a) The return must show the description of 
 the land, the name of the purchaser, the time of the sale, and 
 all other particulars connected with it which the law requires. 
 The object of this legislation is to perpetuate the facts attend- 
 ing the transaction, to enable the owner to learn from the 
 record the fact that his land has been sold, and to guide the 
 officer intrusted with the power, in the execution and de- 
 livery of a conveyance to the purchaser. It is neither safe 
 nor expedient to leave the title to real estate to depend, 
 in any case, " upon the uncertain and fading memory of 
 mortal man ; " and it is not the policy of the law to do so. 
 By the return, the owner is always enabled, by going to the 
 proper officer, to ascertain with certainty the fact of sale, and 
 protect his interest in the premises by a redemption, or at his 
 peril contest the validity of the proceedings. And the officer 
 intrusted with the power of making the conveyance, is en- 
 abled to ascertain the description of the land, the amount of 
 the bid, the quantity sold, the name of the purchaser, and 
 every other fact which the law requires to be stated in the 
 deed. The return of sale, in this class of cases, is not anal- 
 ogous to the return upon an execution, and stands upon an 
 entirely different footing. There the authority of the officer 
 is derived from the judgment and execution, and no neglect 
 in advertising, no irregularity in the sale, or subsequent pro- 
 ceedings, can defeat the title of the purchaser. The officer 
 may justify, and the purchaser acquire, a title under an ex- 
 ecution, although it is never returned. If the power once 
 existed, it is immaterial what becomes of the evidence of it. 
 
 1 See Lane v. James, 25 Vt. 481 ; Green v. Craft, 28 Miss. 70. 
 
 (a) As where the statute required the sheriff, at the second term next succeed- 
 ing the term when returns are made of land to be sold, to return a list of the 
 tracts actually sold, a failure to comply with this requirement renders the sale 
 invalid. Doe v. Allen, 67 N. C. 346 ; see also Avery v. Rose, 4 Dev. 549, as to 
 the efiFect of a failure by the purchaser to make and present to the sheriff a 
 survey of the land bid off by him within the time prescribed by law. But see 
 WeUs V. Company, 47 N. H. 258 ; Cahoon ■.. Coe, 52 N. H. 526, and cases cited, 
 to the point that the sheriff cannot invalidate his sale by subsequently neg- 
 lecting to leave his papers with the clerk of the Court. 
 
 22 
 
* 
 
 338 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 Such are the principles which govern the sales of sheriffs 
 under executions.^ It is very different as regards the returns 
 of collectors, under the revenue laws. There are no parties 
 to the proceeding but the State, officer, and purchaser. The 
 
 owner is neither a party nor privy. The proceeding 
 305 is * against his will, in hostility to his rights, and for 
 
 the purpose of subverting his title. The officer is not 
 his agent, and has no power to bind him, except so far as he 
 pursues the imperative provisions of the law. The officer 
 acts at his peril in selling and making his return, and the 
 owner in determining whether he will redeem, or contest the 
 title of the purchaser, as shown by the return. The return 
 is essential to enable the owner to determine upon his course 
 of action, and as it is beneficial to him that a return should 
 be made, that return becomes an important prerequisite, and 
 unless it is made within the time, and in the mode prescribed 
 by law, no title can pass to the purchaser at the sale. Besides, 
 the proceeding is stricti juris, and, upon general principles, 
 the law gives an action against the officer for making a false 
 return, and unless that return is made, the owner is remedi- 
 less in the premises. Again, there are no other means pro- 
 vided for giving to the owner official information of the fact 
 of sale, and the particulars connected with it, except in those 
 States where a register of the sale is made and kept by the 
 officer in whom the power of sale is vested, or by his legal 
 assistant. 
 
 Thus, the Illinois statute of February 27, 1833, requires the 
 sale to be made at the time and place designated, by the clerk 
 of the County Commissioners' Court, assisted by the sheriff, as 
 auctioneer, and directs the clerk to " keep a register of such 
 sales, in a book to be provided by him for that purpose, in 
 which he shall enter each tract of land exposed to sale by the 
 sheriff, as particularly as described in the advertisement, &o., 
 stating the precise quantity of each tract sold, to whom sold, 
 and the amount of the proceeds of such sale, leaving at the 
 end of each line three columns in blank, of sufficient space 
 to insert the names of persons who may redeem such land, 
 the date of redemption, and the amount of the redemption 
 
 1 4 Wheat. 500 ; 2 Bin^ 401 ; 1 Cow. 18 ; 10 East, 73 ; 8 Johns. 52. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 339 
 
 money," 1 and transmit to the auditor of State a transcript of 
 the same.2 And under the act of February 26, 1839, 
 where the sale is made by * the sheriff, aided by the * 306 
 clerk, similar duties are imposed upon the latter rela- 
 tive to the keeping of a registry and the making of a return 
 of the sale.^ It is evident that the registry and return are of 
 importance to the former owner and purchaser, and also to 
 the officer who executes the deed, and through whom a re- 
 demption is effected. By reference to the register the owner 
 can be informed as to the time when the sale was made, the 
 amount for which the land sold, who made the sale, and when 
 and where it was made, the quantity of his land sold, and 
 every other fact necessary to enable him to redeem or contest 
 the regularity of the proceedings. On inspection the pur- 
 chaser can see whether the sale has been redeemed from, when 
 and by whom it was effected, and the amount of the redemp- 
 tion money paid to the officer ; thus ascertaining the legality 
 of the transaction, and the elxtent of the officer's liability to 
 him. The registry, or return, is also the guide of the officer, 
 when he executes his deed, or the owner applies to redeem, 
 and when the purchaser calls upon him for the payment of 
 the redemption money. And under these statutes, the tran- 
 script of the sale, directed to be retuaied to the auditor, was 
 evidently intended for the benefit of non-resident owners, by 
 giving to them additional means of informing themselves of 
 the fact of sale, and the particulars of it. In every view of 
 the subject, it is manifest that the return, or a registry of the 
 sale, is beneficial to all parties in interest, and therefore be- 
 comes a substantial prerequisite to the validity of the pur- 
 chaser's title. 
 
 The statute of Maine required the collector to make return 
 of "his particular doings in the sale," to the town treasurer, 
 within thirty days after the sale. Under this statute it has 
 been held, that unless the return is made within the time 
 limited, the title of the purchaser cannot be sustained.* In 
 
 1 Laws 1833, p. 530, § 6. 2 Laws 1823, § 7. 3 Laws 1838, 1839, p. 15, § 36. 
 
 * Andrews v. Senter, 32 Me. 394; Pinkliam v. Morang, 40 Me. 588; Lane v. 
 James, 25 Vt. 482. And in Maine, if the whole tract is sold, the return should 
 state that it was necessary to sell the whole, or the sale is not valid. Lovejoy 
 V. Lunt, 48 Me. 377. 
 
340 
 
 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 this case the return did not designate the land sold, 
 * 307 and the court held, that * even if made in the time 
 
 prescribed, it was void, for want of a specification of 
 the land ; " the owner could not ascertain from it whether 
 any, or what land of his had been sold." Under the statute 
 of New Hampshire, it was held that the return must show 
 that the sale was made to the highest bidder.^ 
 
 The Maine statute made it the duty of the collector " to 
 return to the town clerk his particular doings in the sale of 
 unimproved lands of non-resident proprietors, within thirty 
 days after the day of sale." In Shimmin v. Innian,^ the 
 return was in this manner : — 
 
 " HowLAND, February 6, 1836. 
 
 " Charles Davis bought of Daniel Wood, collector, lots of 
 land as follows, namely : — 
 
 Watercourse. 
 
 No. of the Lots. 
 
 Range. 
 
 No. of Acres. 
 
 Taxes and Charges. 
 
 On Penobscot Kiver. 
 
 16, 17, 18. 
 
 
 230. 
 
 ffi5.B2. 
 
 " Rowland, February 10, 1836. 
 
 " Daniel Wood, 
 " Collector of Howland for the year 1835." 
 
 This return was held void because the description of the 
 land was indefinite. By the Court : " The soundness of the 
 argument cannot be admitted, that the neglect of the collec- 
 tor to do a subsequent act should not prejudice the title of 
 the purchaser. For his title is made to depend upon proof 
 of a compliance, by the collector with the requisitions of law."^ 
 
 1 Ante, p. * 277. 2 26 Me. 228. 
 
 3 The only authority opposed to the doctrine of the text is that of Hollister v. 
 Bennett, 9 Ohio, 91. The statute of Ohio provided, tliat after making the sale, 
 the collector should, on or hefore the first Monday in January then next follow- 
 ing, transmit to the auditor of the county " a list of all lots or parts thereof sold, 
 also the purchaser's name," &o. A furtlier provision was, that the collector 
 should give a certificate of sale, " and at any time thereafter make a deed to the 
 purchaser." The sale and deed were made on the same day. There was no 
 evidence as to whether a return was or was not made. By the Court : " Whether 
 this return was made in the present case, we know not, as there is no evidence 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 341 
 
 * The Connecticut statute required the collector " to * 308 
 give to the purchaser a deed of warranty thereof, to be 
 lodged in the office of the town clerk where the land lies, 
 there to remain unrecorded twelve months ; and if the owner 
 shall, within twelve months from the time of sale, pay or 
 tender to the purchaser, &c., the purchase-money and twelve 
 per cent interest, such deed shall be void, and shall be de- 
 livered up to the person paying or tendering the money," &c. 
 In Ives V. Lynn,i the land was sold July 29, 1822, and the 
 deed was not executed until April 1, 1826. The proceedings 
 were held void. By the Court : " In order to carry the whole 
 law into effect, the deed must be executed with all convenient 
 speed after the sale, and lodged with the town clerk, other- 
 wise the right of redemption cannot, or at least may not, be 
 exercised for deficiency of notice. Neither the owner of the 
 land, nor a purchaser, mortgagee, or creditor, is bound to 
 look anywhere but at the town clerk's office, to get the 
 requisite information of the facts, in order to decide on the 
 necessity or propriety of redeeming the estate sold. The 
 deed in question was not executed until nearly four years 
 after the sale of the land by the collector. The validity of 
 the deed depending on a positive law not complied with, it 
 is undoubtedly void." 
 
 The statute of Vermont provided, that " every collector 
 shall, within thirty days after completing the sale, &c., cause 
 his proceedings to be recorded in the proper office for the 
 recording of deeds." Where there was a failure on the part 
 of the collector to perform this duty, the sale was held 
 void.2 So where the * sale was completed July 31, * 309 
 
 upon the point. It is not necessary, however, that it should be done immediately 
 after the sale. If it be made on the first Monday of January next succeeding, it 
 is sufiScient. Before this time a certificate of purchase must have been issued, 
 and it may be that a deed has been executed. In fact, in the case before the 
 Court, the deed was executed on the 19th day of December, the very day of sale, 
 which, if the proceedings hitherto had been in conformity with law, vested a title 
 in the grantee, and it would be rather extraordinary to hold tliat the title could 
 be divested by the failure of the collector to do an act which lie was subsequently 
 bound to perform." See p. * 304 (o). 
 
 1 7 Conn. 505. 
 
 2 Richardson v. Dorr, 5 Vt. 9 ; Giddings v. Smith, 15 Vt. 357; Lane w. James, 
 25 Vt. 482. 
 
342 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 1789, and the proceedings were not lodged until March 4, 
 1800.1 
 
 The same doctrine was reaffirmed in Taylor v. French,^ 
 where the facts were that all the lands upon the list were sold 
 August 24, 1829, but for some reason not shown the sale was 
 adjourned until October 5, 1829. No sales were made on the 
 latter day, but the collector, finding that all of the sales had 
 been made, and no mistake being discovered, he adjourned 
 the vendue without day, and on the 16th day of October 
 made his return of the proceedings. The proceedings were 
 held void because the return was not made within thirty daj's 
 after the completion of the sale. By the Court: "It is said 
 that the collector had power to adjourn the vendue, and that 
 therefore the thirty days should commence running from the 
 time it was adjourned without day. Vendue sales for land 
 taxes are proceedings in invitum, and we have always required 
 a strict compliance with the statute requisites. The statute 
 is that the return shall be made within thirty days after com- 
 pleting the sales. To hold that this means thirty days from 
 the time the collector shall see fit to adjourn the vendue with- 
 out day, though the sales may have been completed long 
 before, is a perversion of language. The statute can have 
 but one meaning. The time must commence running when 
 the sales are all completed ; and it matters not when the 
 vendue shall in form be finally dissolved. The time begins to 
 run when the sale is ended." 
 
 In Sumner v. Sherman,^ the law required the collector to 
 keep a record of his proceedings, and within thirty days next 
 after the ending of his vendue, lodge a true and attested copy 
 of his sales, together with his warrant, tax bill, and advertise- 
 ment, with the town clerk, whose duty it was made to record 
 the same, (a) The collector failed to perform this duty, and 
 
 1 Mead v. Mallet, 1 D. Chipman, 239. 2 19 vt. 49. 
 
 3 13 Vt. 609. 
 
 (a) Where at the end of a record of the proceedings of a tax sale of land the 
 town clerk affixed a certificate as follows : " Received for record and recorded and 
 examined April 7, 1840. Attest, John Dodge, Town Clerk," it was held, that this 
 certificate referred and applied to the entire record, the proceedings and the sale, 
 including the warrant and certificate of tlie oath, as a complete and perfected 
 record of the sale. The fact that such record was made from the original need not 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 343 
 
 the tax sale was held void. Williams, 0. J.: "This was 
 calculated to protect the purchaser, as well as the 
 owners, whose lands * were sold, by preserving the * 310 
 evidence of the proceedings and the authority of 
 the collector, and by preventing any fraud to be apprehended 
 from the mutilating or falsifying of these records by the col- 
 lector, or deeding when he had not sold, or when he had no 
 authority to sell. By a resort to these records, the purchaser 
 could ascertain whether his title was complete, and the owner 
 whether his title had been divested by a public sale. It may 
 be sufficient for us to say that the legislature have required 
 this to be done, and that, by all the previous decisions in this 
 State, it has been considered that a failure to do so was fatal 
 to the purchaser's title ; that, although the purchaser has no 
 control over the collector to compel him to leave this copy, 
 or over the clerk to compel him to record it, yet unless it is 
 done, he can acquire no title, and if he has any remedy, it is 
 against the officer who neglects his duty. It has never been 
 doubted that a failure to comply with what is enacted must 
 be fatal to any title attempted to be acquired. Thus, it has 
 been considered that a neglect of the collector to record his 
 proceedings, to leave a copy of his warrant and advertisement, 
 although subsequent to the sale, or take the oath of office, 
 and give bonds when required to do so, was a defect which 
 prevented any title from passing by his sale." 
 
 Where the proceedings were required to be recorded " in 
 the proper office for recording of deeds," and they were 
 recorded in separate books, provided for the special purpose, 
 and not in the regular books of the office, this was held to be 
 a compliance with the law.^ 
 
 For the purpose of perpetuating the authority of the officer 
 to sell, and the regularity of his proceedings, the legislature 
 in some of the States have required such proceedings, or some 
 portion of them, to be recorded at length in a particular 
 public office. When the duty thus enjoined has been entirely 
 
 appear in the certificate ; that is presumed. Neither is a vendue sale rendered 
 invalid by the fact that a sheet containing a list of unredeemed lands, is tied into 
 the book of records, instead of being copied in. Carbee v. Hopkins, 41 Vt. 250. 
 1 Isaacs 1'. Shattuck, 12 Vt. 668. 
 
344 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 neglected, imperfectly performed, or not performed in the 
 time required by the statute, the title derived under such 
 
 proceedings has been held void. The statute of Ver- 
 * 311 mont directed the town * clerk to record the collector's 
 
 advertisement, and certif}' whether the same had been 
 published according to law. In Judevine v. Jackson,^ this 
 requirement not having been complied with, the tax sale was 
 held illegal. The reasons of the Court are thus assigned: 
 " Purchasers and land-owners are to look to the records to 
 ascertain whether a vendue is correct and valid, and whether 
 it is necessary for the owner to redeem. The records must 
 contain full and plenary evidence in this particular. Hence 
 it is obvious that if the certificate of the town clerk, as to the 
 publication of the advertisement, is omitted, there is no legal 
 evidence that the advertisement has been published as re- 
 quired by law. The purchaser may find he has no title ; and 
 the owner may omit to redeem, inasmuch as his land has not 
 been legally sold." 
 
 In regard to the manner in which the record is to be made 
 up by the officer upon whom the duty is devolved, the Courts 
 are inflexible in requiring a rigid compliance with the require- 
 ments of the statute. The legislature of Vermont required 
 the collector, on the completion of his sale, to make a return 
 of his proceedings for record in the proper office for recording 
 deeds in his townsliip ; and the town clerk was directed to 
 record the advertisements at length, together with the title, 
 number, volume, and date of the newspaper in which they 
 were inserted, and the place where such papers were printed. 
 In Culver v. Hayden,^ the place of the publication of one 
 of the newspapers did not appear in the record made by the 
 town clerk, and the sale was defeated for this omission. 
 Turner, J., said, " That the clerk should have made the 
 statement of the place where the paper was printed, a part 
 of the record is a positive requirement of the statute, and a 
 compliance with this requisition must be regarded as a condi- 
 tion precedent to the conveyance of a good title by the vendue 
 deed. Where property is affected, or the. title to it divested, 
 
 1 18 Vt. 470. 
 
 2 1 Vt. 359 ; reaffirmed in Clark v. Tucker, 6 Vt. 181. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 345 
 
 by the provisions of a special act of. the legislature, the 
 requirements * of the act must be strictly followed. In * 312 
 the present case, the operation of the special statute 
 ■was to divest the defendant of his property, on his failure to 
 perform a duty created by the statute, and on the performance 
 of certain acts prescribed to the officers required to collect 
 the tax and record the proceedings. The performance of 
 these acts is the condition on which the property was di- 
 vested ; and it is not for the Court to inquire whether the 
 provisions of the statute were reasonable, whether a compli- 
 ance with them might be dispensed with without injury to 
 the defendant, but whether they have been made ; and if so, 
 they must be literally pursued." 
 
 In another case, the record omitted the date of the news- 
 paper and its place of publication, and the sale was held void, 
 the Court remarking : " These records are not evidence unless 
 they contain all the requisites pointed out by the statute. 
 The statute is very particular in describing what shall be 
 recorded, and makes certified copies of the record, evidence. 
 Those which fall short of this description are not evidence." ^ 
 Another record omitted the official signature of the collector 
 to the advertisement, which was attempted to be recorded at 
 length, and for this defect the tax title was avoided.^ 
 
 In another case, the offices of collector and town clerk were 
 held by the same person — Jonas Stone — and in certifying 
 upon the books of the town clerk the verity of the record, he 
 signed his name thus, " Jonas Stone, Collector," and the tax 
 sale was declared illegal for this wrong designation.^ In an- 
 other case, the record of the advertisements was in the exact 
 form prescribed by law, but the clerk raade his record from 
 copies furnished him from the collector's books, instead of 
 from the newspapers themselves which the collector was re- 
 quired to lodge with him. The tax sale was defeated. The 
 Court say, " Is this a compliance with the statute ? It is a 
 principle of the common law that a copy of a certified copy 
 of a record is not evidence. The reason is, that the 
 more removed the copy * offered in evidence is from * 313 
 
 1 Coit V. "Wells, 2 Vt. 318. ■' Spear v. Ditty, 9 Vt. 282. 
 
 3 Isaacs V. Shattuck, 12 Vt. 668. 
 
346 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 the original, the greater is the liability to inaccuracy. The 
 objection would not be obviated though each copy be exam- 
 ined and compared by the same individual. In the present 
 case, the record is two removes from the original advertise- 
 ments. The statute requires the clerk to record the ad- 
 vertisements themselves. This is imperative." ^ It may be 
 remarked that in this case the town clerk was held a compe- 
 tent witness to prove the facts upon which the objection was 
 founded. In another case, the Court held that the record 
 must be verified by the of&cial signature of the clerk.^, The 
 principles illustrated by these cases are fully sustained by the 
 authorities. 
 
 Although the Courts are thus strict in requiring a compliance 
 with every requirement of the statute relating to the record of 
 the proceedings, yet intendments are occasionally indulged in' 
 for the purpose of sustaining the validity of the record. It is 
 generally said that no presumptions are indulged in favor of 
 tax titles. " It is true that no essential requisite will be pre- 
 sumed ; but to a certain extent presumptions may, and must 
 be made ; otherwise we are driven to forced and violent pre- 
 sumptions the other way, which are not to be made."^ It 
 was objected in one case that the place of publication did not 
 certainly appear in the record. The law required the record 
 to state " the place where such paper was printed." The 
 record showed that the advertisement was " published at 
 Windsor." There was a town and county in Vermont of that 
 name. It was insisted that the phrase " at Windsor " was 
 equivocal, but the Court held otherwise. " We say at a town 
 or village, but in a county or State. From this record no 
 sober or sane man coAild seriously doubt where this paper was 
 printed. And while we intend to be strict in regard to titles 
 claimed by virtue of collectors' sales of land for taxes, and to 
 dispense with no prerequisite which the statute fairly indi- 
 cates, we hope to escape the imputation of frivolous and pue- 
 rile criticism." * 
 * 314 * Another objection taken to the record in this case, 
 and overruled, was that the law required the advertise- 
 
 ' Carpenter v. Sawyer, 17 Vt. 121. 2 Taylor v. French, 19 Vt. 49. 
 
 3 Spear v. Ditty, 8 Vt. 419. * Isaacs v. Shattuck, 12 Vt. 668. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 847 
 
 ment to be. published in three different newspapers, and re- 
 corded at length, whereas in this case, the clerk had copied one, 
 and referred to the others by name, date, number, volume, and 
 place of publication, certifying that they were in the same 
 form as the one recorded. And lastly, it was objected that the 
 proceeding was recorded in a separate book, kept by the clerk 
 for the record of tax proceedings, whereas the law required the 
 proceedings to be recorded "in the proper ofSce for recording 
 of deeds," which seemed to imply that they should be recorded 
 in the record books containing deeds. But the Court held 
 the record valid. In Bellows v. Elliot,^ it appeared from the 
 record that the three newspapers in which the collectors' ad- 
 vertisement appeared, were published at Danville, Rutland, 
 and Windsor, but the State was not named, and the Court 
 presumed that these towns were in Vermont.^ 
 
 Such is the nature of the duties imposed upon the officers, 
 which occur chronologically after the making of the sale, and 
 such the decisions of the Courts in reference to the effect of the 
 non-performance of them, with the exception of the filing of the 
 surplus bond, under the Pennsylvania system, which will be 
 noticed presently. It is now proposed to state the cases aris- 
 ing under those statutes where a duty is imposed upon the 
 purchaser himself, in order to perfect and protect his title, 
 after his purchase is consummated. 
 
 The statute of Missouri authorized the officer, making the 
 sale, to execute and deliver to the purchaser a certificate of the 
 sale, and required the purchaser to cause it to be recorded, and 
 if the sale was not redeemed from within two years, the officer 
 was then directed to deliver a deed to the purchaser, &c. In 
 Reeds v. Morton,^ the facts were, that the sale took place June 
 18, 1832, the certificate bore date June 20, 1832, but was not 
 
 1 12 Vt. 569. 
 
 2 A tax sale is not avoided by the collector's omission to file the newspapers 
 containing the advertisements in the town clerk's office witliin ten days after the 
 sale. Smith v. Messer, 17 N. H. 420. So if all the steps were legally taken in 
 assessing and returning the taxes as unpaid that are prerequisites of the power 
 to advertise the omission of the town clerk to give notice at town meeting, 
 according to requirements of 1 Revised Statutes, 5th ed. 931, § 76, that lists of 
 land advertised for sale had been deposited in his'office, will not avoid the sale. 
 Pierce v. Hall, 41 Barb. 142. 
 
 3 9 Mo. 878. 
 
348 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 recorded until January 13, 1836, and the deed was exe- 
 • 315 cuted * and recorded June 28, 1834. The sale was 
 
 held void. Scott, J. : " If the certificate was not re- 
 corded before the execution of the deed, it could hardly have 
 been of anj^ avail to record it afterwards. The recording of 
 the deed answered all the purposes designed by a record of 
 the certificate. Here then is a material act to be done by the 
 purchaser, which he has failed to do. The owner of the land 
 had two years, within which he might have redeemed. Had 
 the certificate of sale been seasonably placed on the record of 
 deeds, might not some one have seen it, and communicated 
 the fact to the owner ? Might not some rumor by that means 
 have been spread abroad, which would have reached his ears ? 
 But the party has withheld this instrument from record, when 
 he was required by law to place it there, and we can see that 
 the owner of the land may have sustained an injury in conse- 
 quence of this neglect. But according to the principles above 
 asserted (relative to the strictness required in this class of 
 cases), we do not feel called upon to give reasons why this 
 thing should have been done. He who wishes to obtain an 
 estate worth thousands, for less than ten dollars, and under 
 and by virtue of the law, is not to be permitted to ask why he 
 should be required to do this or to do that. It is an answer, 
 that it is required by law. Ita lex scripta est. He claims by 
 the law : then by that law let his pretensions be judged. 
 But this provision was designed as one of the means of com- 
 municating to the owner the fact that his land has been sold. 
 The placing of it on record after the time for redemption ex- 
 pired, was a nugatory act ; it should have been seasonably 
 recorded, and the failure to do so renders it void, and by con- 
 sequence, the auditor's deed." 
 
 The statutes of Pennsylvania authorized a sale of unseated 
 land to the highest bidder, and required the purchaser to pay 
 the amount of the taxes and costs due upon the land to the 
 treasurer (the officer empowered to make the sale), and execute 
 and deliver to that officer a bond for the payment of the sur- 
 plus, if any, to the owner of the land. The statute is not at 
 hand, and on account of the mode of reporting the cases which 
 have arisen under these statutes it is impossible to 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 349 
 
 with * accuracy the precise terms of the law. The sub- * 316 
 stance of them, however, seems to be, that the treasurer 
 shall prepare the bond, that the purchaser shall execute it, and 
 the treasurer file the same forthwith in the office of the pro- 
 thonotary ; and the bond is declared to be a lien upon the land 
 purchased, in favor of the former owner, for the period of five 
 years from its execution ; and it is presumed, from the lan- 
 guage of the Courts, and the nature and object of the require- 
 ment, that the bond ought to be executed simultaneously with 
 the consummation of the sale — that the execution and deliv- 
 ery of the deed and bond are concurrent acts. The following 
 adjudications have been made in that State in the construc- 
 tion of these statutes : — 
 
 1. That the execution and delivery of this bond by the 
 purchaser to the treasurer, is a condition precedent to the va-* 
 lidity of the title acquired at the tax sale.^ Upon this point 
 Chief Justice Gibson remarks : ^ " The bond for the surplus 
 purchase-money, beyond the amount of the taxes and costs, 
 was not given by the purchaser until two years after the ex- 
 ecution of the deed. This is fatal. The legislature intended 
 to make the filing of the bond and the delivery of the deed 
 concomitant acts ; for it is expressly declared that the bond is 
 to be filed 'forthwith.' But the reason of the thing is suf- 
 ficient to show what was meant. In the case of an ordinary 
 purchase, the party calling for the execution of the contract, 
 must, in the absence of a positive stipulation, have performed, 
 or at least be ready to perform, every thing he was bound to 
 do ; and the same principle is applicable to cases of purchase 
 at tax sales. The purchaser is not to be invested with title to 
 perhaps a valuable tract of land, and on payment of a few 
 cents, before that portion of the purchase-money which be- 
 longs to the original owner, has been secured in the way 
 pointed out in the law. It is no answer to say, it is the duty 
 of the officer who executes the deed to see that the bond be 
 filed, and that for negligence in that particular the owner 
 has a remedy against him and his sureties ; and 
 that as the owner is secured in this shape the * title * 317 
 
 1 Cuttle V. Brockway, 24 Penn. St. 145. 
 
 2 Sutton V. Nelson, 10 Serg. & Rawle, 238. 
 
350 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 passes independently of the bond. For whose security is the 
 bond to be filed ? Certainly for that of the owner. The 
 intention was to give him a lien upon the land itself, and to 
 make it the duty of the purchaser, at the peril of his title, 
 to see that he has it. He might otherwise encumber the land 
 so as to render a bond subsequently given, no security at all. 
 Besides, it -^^ould be unreasonable, and what the legislature 
 never intended, to suffer bidders to turn the sale into a mere 
 experiment, and to hold to the contract or rescind it, as the 
 bargain shou-ld turn out to be a good or a bad one ; or, as in 
 this very case, to execute the bond after the lapse of a con- 
 siderable period, and to claim the land after the original owner 
 had enhanced its value by improvements. The law intended 
 that ever}' transaction of this kind should be a real one, the 
 execution of the bond and deed being simultaneous, whereas 
 when the officer parts with the deed, without having obtained 
 the bond, the purchaser is to be considered as obtaining it 
 surreptitiouslj', because the ofBcer transcends his power, and 
 under such circumstances the delivery is void." 
 
 And in McDonald v. Maus,^ which was an action of eject- 
 ment, the plaintiff gave in evidence a legal and regular title 
 in himself, and the defendant relied upon a tax title. It was 
 objected to the latter title, that the defendant had given no 
 bond to the treasurer for the surplus of the purchase-money. 
 There was no positive evidence whether such a bond was 
 given or not. But the Court below being of opinion that, 
 whether there was proof of it or not, the defendant's title was 
 good, so instructed the jury, who found a verdict accordingly, 
 upon which judgment was entered. The judgment was re- 
 versed by the Supreme Court, and a venire de novo awarded. 
 Rogers, J. : " If a purchaser, at a treasurer's sale for taxes, 
 has neglected to file a bond, for the surplus moneys, within 
 two years after the sale, the deed to him is void.^ Although 
 
 subsequent cases have somewhat limited this rule, so 
 * 318 far as it regards the person whose duty it * is to file 
 
 the bond, yet the execution and delivery of the bond 
 form a part of the title, and whenever a person relies upon a 
 tax title, it is necessary for him to prove affirmatively the fihng 
 
 > 8 Watts, 864. 2 Sutton «. Nelson, 10 Serg. & Eawle, 238. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 351 
 
 of the bond, or at any rate its execution and delivery. "With- 
 out this, the title is void, and cannot avail against the former 
 owner." This doctrine was reasserted in Donnell v. Bellas.^ 
 
 The payment of the whole amount of the purchase-money 
 to the treasurer, cannot be taken as a substitute for the sur- 
 plus bond, (a) The bond is a lien on the land, for which the 
 personal security of the treasurer is not an equivalent. Even 
 his sureties would be irresponsible for the surplus thus placed 
 in his hands, for the receipt of it would certainly be an un- 
 official act.^ 
 
 In White v. Willard,^ the purchaser gave bond at the time 
 of the sale, as required by law, but the bond was mislaid by 
 the treasurer, and was not found until seven years after, when 
 it was filed in the proper office. It was held by the Court 
 that the title of the purchaser became perfected, when he 
 executed and delivered to the treasurer the surplus bond 
 contemplated by the statute, and that the neglect of the 
 treasurer to file it, could not affect the title of the purchaser. 
 By the Court : "It is not the business of the purchaser to 
 attend to the duty of the officer, further than to see that 
 he had the bond ; nor can he be made answerable for negli- 
 gence not his own. For whose benefit is it that the officers 
 perform this particular duty? Certainly for the benefit of 
 the former owner, who alone has a remedy against him for a 
 breach of it ; and this shows that the purchaser is not the 
 party to suffer by the officer's negligence. If, then, the pur- 
 chaser has performed his part by delivering the bond, he is 
 not chargeable with negligence in remaining ignorant of the 
 officer's omission, for seven or any other number of years. 
 But, granting him to have been aware of the fact, 3'et not 
 being a trustee for any one, it was nob his business to inter- 
 fere, which is still more conclusively shown by his 
 total inability to control the officer's * actions." The *319 
 same principle has been affirmed in other cases.* 
 
 1 10 Barr, 341. 
 
 (a) But the failure to give a surplus bond on the purchase of unseated "land, 
 and paying the whole purchase-money to the treasurer, are irregularities cured by 
 the limitation in the act of April 8, 1804. Rogers v. Johnson, 67 Penn. St. 43, 
 
 " Connelly v. Nedrow, 6 Watts, 451. 
 
 » 1 Watts, 42. * Burns v. Lyon, 4 Watts, 868. 
 
352 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 2. To prove the execution and delivery of a surplus bond, 
 rests vrith the purchaser, (a) And he must show, by satisfac- 
 tory proof that the law, in this respect, has been strictly com- 
 plied with. Where diligent search has been made in the 
 proper office, for the bond, and it cannot be found, and the 
 testimony of the treasurer, or a third person, is relied upon to 
 establish the fact that a bond was executed and delivered 
 by the purchaser, the evidence must be clear and satisfactory 
 in its character, and not depend upon the indistinct recol- 
 lection, the vague impression, or doubtful surmise of the 
 witness.^ 
 
 3. The receipt of the treasurer, for the surplus bond re- 
 quired of the purchaser by the act of Assembly, is primd facie 
 evidence of the execution and delivery of the bond by the 
 purchaser, and of the fact that it was duly filed by the treas- 
 urer ; ^ and, in the absence of any rebutting proof, must, like 
 all primd facie evidence, be deemed conclusive.^ So a recital 
 in the tax deed, of the execution of a surplus bond, is held 
 to be primd facie evidence of that fact.* 
 
 4. The bond must contain a specification or particular de- 
 scription of the land sold, otherwise it is vicious and the title 
 of the purchaser defective. The reason is, that the statute 
 makes the bond a lien for the surplus, upon the land pur- 
 chased, and surely the bond cannot create a. specific lien 
 against rights subsequently acquired, unless the land upon 
 which it was intended to operate is specifically described ia 
 it ; and the indorsement of the description, by the treasurer, 
 upon the back of the bond, cannot aid it, as the officer's 
 indorsement is no part of the instrument. The indorsement 
 is a simple memorandum for the convenience of filing it. 
 The omission to describe the land in the bond, is not simply 
 a misprision of the treasurer. It is true that the treasm'er 
 
 (a) But under tlie statute where the deed recites that it has been given, the 
 burden is on the party who denies that a bond has been filed to show at least 
 some ground for his assertion before he can call for proof from the other side. 
 Cuttle «. Broekway, 24 Penn. St. 145. 
 
 1 IW'Donald v. Maus, 8 Watts, 364. 
 
 ^ Fager o. Campbell, 5 Watts, 287. 
 
 •' Robbinson v. Williams, 6 Watts, 281. 
 
 * Devinney v. Reynolds, 1 Watts & Serg. 328. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 353 
 
 is charged with the business of preparing *it, but *320 
 he is bound to perform it under the direction of the 
 purchaser ; and the latter is bound, on the other hand, to 
 know the law of his title, and to point out errors in the 
 concoction of it. When the bond is delivered, his participa- 
 tion ends, and the exclusive business of the treasurer begins. 
 Previous to the execution and delivery of the bond, the 
 purchaser acts at the peril of his title. ^ 
 
 5. A trifling variance between the surplus and the bond 
 will not defeat the title of the purchaser. It is a mere mis- 
 prision of the officer, and being immaterial, the maxim " de 
 minimis non curat lex,''' apphes. It is presumed that it is 
 not necessary to give a surplus bond, when the surplus does 
 not exceed the cost of its execution.^ 
 
 6. The purchaser, in order to show that his bond covered 
 the amount of the surplus, may contradict the recital in the 
 treasurer's deed, as to the amount of the surplus, by the sale- 
 book or other competent evidence.^ 
 
 7. In Burns v. Lyon* it was held, that common-law proof 
 of the execution of the surplus bond was unnecessary, that 
 its execution would be presumed, from the fact it was found 
 among the files of the prothonotary's office. 
 
 8. Secondary evidence of the existence and contents of a 
 surplus bond, is not admissible until its loss or destruction 
 has been established, in conformity with the principles of 
 the common law.^ 
 
 The constitution of Illinois® contains the following pro- 
 vision : " Hereafter, no purchaser of any land or town lot, at 
 any sale of lands or town lots for taxes due, either to this 
 State or any county or incorporated town or city within the 
 
 1 Bartholomew v. Leech, 7 Watts, 472. 
 
 '' Frick V. Sterrett, 4 Watts & Serg. 269 ; Devinney v. Reynolds, 1 Watts & 
 Serg. 328.- 
 
 3 Turner v. Waterson, 1 Watts & Serg. 171. 
 < 4 Watts, 363. 
 
 5 Dreisbach v. Berger, 6 Watts & Serg. 564. Where a tax deed contained a 
 receipt for cost of a surplus bond, it will be presumed after a lapse of nearly thirty 
 years, during which the purchaser has paid taxes, &c., that such surplus bond 
 was given. Lackawanna Iron Co. v. Tales, 55 Penn. St. 90. 
 
 6 Art. IX., sec. 4. 
 
 23 
 
354 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 same, or any sale for taxes or levies authorized by the 
 * 321 laws of this State, shall be entitled * to a deed for the 
 
 land or town lot so purchased, until he or she shall 
 have complied with the following conditions, to wit : such 
 purchaser shall serve or cause to be served, a written notice 
 of such purchase, on every person in possession of such land 
 or town lot, three months before the expiration of the time 
 of redemption on such sale, in which notice he shall state 
 when he purchased the land or town lot, the description of 
 the land or lot he has purchased, and when the time of re- 
 demption will expire.! ju jjjjg manner, he shall serve on the 
 person or persons in whose name or names such land or lot 
 is taxed, a similar written notice, if such person or persons 
 shall reside in the county where such land or lot shall be 
 situated ; (a) and in the event that the person or persons in 
 whose name or names the land or lot is taxed do not reside 
 in the county, such purchaser shall publish such notice in 
 some newspaper printed in such county ; and if no newspaper 
 is printed in the county, then in the nearest newspaper that 
 is published in this State to the county in which such lot or 
 
 ' A deed executed without such notice having been given conveys no title ; 
 and proof that such notice has been given is essential to the admissibility of a 
 tax deed in evidence. Holbrook v. Fellows, 38 111. 440 ; Wilson v. McKenna, 
 52 111. 43. Where the notice stated the day on which the right of redemption 
 expired to be the same as that on which it alleged the sale was made, the notice 
 was held void. Wilson v. McKenna, supra. The doctrine that the claimant under 
 a tax title must show that he gave the notice prescribed by the constitution, as 
 laid down in Holbrook v. Fellows, suprn, has reference to cases where a para- 
 mount title is claimed under such deed, and not to cases where such deed is 
 merely color of title under the statute of limitations ; so that where the deed 
 is made at the proper time and is regular on its face, the grantee claiming only 
 color of title under it, bad faith or fraud on the part of the grantee is not to be 
 presumed in the absence of proof, and the deed is good color of title under the 
 statute without proof of such notice, the presumption being that such notice was 
 given ; but if facts are adduced sufficient to overcome this presumption of regu- 
 larity, while the title remains in the original grantee, and he then fails to estab- 
 lish the fact of giving the required notice, semble, that this breach of duty would 
 amount to bad faith and defeat his claim under the statute. Morrison o. Norman, 
 47 111. 477. 
 
 (a) And it should appear affirmatively by the proof, not only that the notice 
 was served upon the person in whose name the property was taxed, if unoccu- 
 pied, but also that such person at the time of such service resided in the county 
 where the land is situated ; constitutional provisions for the protection of tax- 
 payers must be strictly construed. Denike v. Bourke, 3 Bissell C. C. 39. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 355 
 
 land is situated ; which notice shall be inserted three times, 
 the last time not less than three months before the time of 
 redemption shall expire. Every such purchaser, by himself 
 or agent, shall, before he shall be entitled to a deed, make an 
 ajB&davit of having complied with the conditions of this section, 
 stating particularly the facts relied on as such compliance ; 
 which affidavit shall be delivered to the person authorized by 
 law to execute such tax deed, and which shall by him be 
 filed with the officer having custody of the records of lands 
 and lots sold for taxes and entries of redemption in the county 
 where such land or lot shall lie, to be by such officer entered 
 on the records of his office, and carefully preserved among 
 the files of his office ; and which record or affidavit shall be 
 primd fade evidence that such notice has been given, (a) 
 Any person swearing falsely in such affidavit shall be deemed 
 guilty of perjury, and punished accordingly. In case any 
 person shall be compelled under this section to publish a no- 
 tice in a newspaper, then, before any person who may have 
 a right to redeem such land or lot from such tax sale, shall 
 be permitted to redeem, he or she shall pay the officer 
 or person who by law is authorized to * receive such * 322 
 redemption money, the printer's fee for publishing 
 such notice, and the expense of swearing or affirming to the 
 affidavit, and filing the same." 
 
 This is the first instance where the people in the exercise of 
 their inherent sovereignty have undertaken to legislate upon 
 the subject of tax titles. It will be perceived by a careful 
 analysis of this section, that it provides, — 1. That it shall 
 extend to all tax sales made under the authority of the State, 
 and of counties and municipal corporations. 2. That the pur- 
 chaser, in order to entitle himself to a deed, must give a writ- 
 ten notice of his purchase, to every person in possession of the 
 land. 3. That he shall serve a similar notice upon the person 
 in whose name the land was listed for taxation, if such person 
 
 (a) And before a tax deed can be read in evidence, it must be made to appear 
 that this affidavit has been made and filed ; and the legislature cannot render 
 nugatory this constitutional provision by legislation which seeks to shift the 
 burden of proof upon the land-owner to show that it was not filed. Williams v. 
 Underhill, 58 111. 137.^ 
 
356 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 resides in the county where the land lies. 4. That if the 
 person in whose name the land is listed does not reside in such 
 county, then the purchaser is required to publish the notice 
 in a newspaper printed in that county. 5. If no newspaper 
 is printed in the county, then the notice is to be inserted in 
 the nearest newspaper published in the State, to the county 
 in which the land is situated. 6. That the actual notice to the 
 occupant or person in whose name the land was listed, must 
 be served at least three months before the expiration of the 
 time of redemption. 7. That the newspaper publication must 
 be inserted three times. 8. That the last insertion in the 
 newspaper shall be at least three months prior to the time 
 when the redemption expires. 9. That the notice, whether 
 actual or constructive, must contain a statement of the time 
 of the sale, a description of the land, and the time when the 
 redemption will expire. 10. That the purchaser in person, 
 or by his agent, must make affidavit of a compliance with 
 these requirements. 11. That such affidavit must state par- 
 ticularly the facts relied upon as evidence of such compliance. 
 12. That the affidavit thus required shall be delivered to the 
 person authorized by law to execute the tax deed. 13. That 
 the deeding officer shall file it with the officer having the 
 custody of the records relating to tax sales and redemptions. 
 14. That the latter named officer shall enter the affidavit 
 
 upon the records of his office, and shall carefully pre- 
 * 323 serve * the same among the files of his office. 15. That 
 
 the affidavit when made in compliance with the requisi- 
 tions of the constitution shall be deemed primdfade evidence 
 that the redemption notice has been duly given. 16. That per- 
 jury may be assigned upon a false affidavit made under this sec- 
 tion. And, lastl^jWhen the owner, occupant, orother person in 
 interest, applies to redeem, he or she must pay the expenses at- 
 tending the publication of the notice and the proof of the same. 
 But few questions arising under this constitution have, as 
 yet, been litigated in Illinois. This organic law became oper- 
 ative on the first day of April, 1848. Some tax sales were 
 made after that period, upon assessments made during the pre- 
 ceding fiscal year, and the question arose upon a mandamus to 
 compel the officer to make a deed to a purchaser, who had 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 357 
 
 failed to comply with the foregoing provisions, whether the 
 constitution embraced such a case. It was insisted by the 
 counsel for the tax purchaser, that the constitution did not 
 apply to tax proceedings in fieri at the time it went into effect, 
 but only to subsequent assessments and sales. On the other 
 hand, it was contended that the constitution related only to 
 sales and redemptions under the revenue laws, and that its 
 words and spirit required the notice of the sale to be given, 
 in all instances where a sale took place after the constitution 
 went into operation, whether based upon a prior or subse- 
 quent assessment; that the purchaser acquired no vested 
 interest in the tax proceedings until his purchase, which was 
 after the constitution became operative ; and as he purchased 
 with full notice of this requirement, he was bound to conform 
 to it ; that the only interest which he could possibly have in 
 the proceedings anterior to the sale, was in the maintenance 
 of them according to the law in force at the time they 
 respectively took place, freed from the legislative power of 
 repeal by which a right acquired by him, at a sale founded 
 on those proceedings, might become divested ; that the doc- 
 trine of relation could have no other effect than to shield him 
 from legislative spoliation, and protect him against rights 
 acquired by third persons in the land purchased intermediate 
 the assessment and sale. The mandamus was refused, 
 * and an appeal taken, but never prosecuted, so that * 324 
 the question has not yet been decided by the highest 
 Court of resort, (a) It would seem, however, upon principle, 
 the literal construction of the constitution itself, the spirit of 
 the requirement and analogous cases, that notice to the occu- 
 pant and person, in whose name the land was listed for taxa- 
 tion, should have been given by the purchasers, at all sales 
 made throughout the State, after the adoption of the constitu- 
 tion, although founded upon assessments for the preceding 
 year. The question assumes great importance, inasmuch as 
 it affects most of the sales in Illinois during the year 1848. 
 To the argument already advanced, it may be added, that the 
 same objection which may be urged against the retrospective 
 operation of an ordinary law, cannot be urged against a simi- 
 
 (a) Seep. * 321, note 1. 
 
358 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 lar operation of a constitution which is the fundamental and 
 supreme law of the land — ordained by the people themselves, 
 who acknowledge no superior in a legal sense — especially as 
 the provision in question does not interfere with the vested 
 rights of any individual. 
 
 In Weer v. Hahn,^ the question came up as to the meaning 
 of the expression, " nearest newspaper," as used in the consti- 
 tution. The action was ejectment, in which the defendant 
 claimed under a tax title upon a sale made in 1850 for the 
 taxes of 1849. The land was situated in the county of Macou- 
 pin, the redemption notice was published in a newspaper called 
 the " Green County Banner," a paper published in the town of 
 Carollton, the county seat of an adjoining county ; there was 
 no newspaper then published in the county where tlie land lay; 
 it was proved upon the trial, that at the time of the publication 
 of the several redemption notices, newspapers were regularly 
 published in Hillsboro', Jersey ville, Edwardsville, and Alton, 
 towns situated in adjoining counties, each of which were nearer 
 to the boundary line of Macoupin than Carollton. Alton was 
 seven miles nearer. The Court held the notice insufficient. 
 Chief Justice Treat, after reciting the foregoing section of the 
 
 constitution, proceeds to say : " These constitutional pro- 
 * 325 visions * are clearly designed for the benefit of the owner 
 
 of real estate. The principle is that he shall not be 
 divested of his title by a sale for taxes, unless he has, when 
 practicable, personal notice of the sale, and of the time when 
 his right to redeem will expire. To secure this object, the pur- 
 chaser is required to serve a written notice of those facts on 
 every person in possession of the land, and on the party in 
 whose name it was listed for taxation, at least three mouths 
 before the time of redemption will expire. If the latter is not 
 a resident of the county, a similar notice must be published in 
 a newspaper of the county ; and if there is no newspaper within 
 the county, the notice must be published in the nearest news- 
 paper to the county. These requirements, being intended for 
 the protection of the owner, must be strictly complied with in 
 order to divest him of his title. They are imperative, and 
 cannot be disregarded. The purchaser is not entitled to a deed 
 
 1 15 111. 298. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 359 
 
 until these precedent conditions are strictly performed ; and if 
 he succeeds in obtaining a deed without such performance, the 
 title of the owner will not thereby be defeated. In this case, 
 the plaintiff, in whose name the land was assessed, did not 
 reside in the county, and no newspaper was published therein. 
 It was, therefore, incumbent on the defendant to give notice in 
 the ' nearest newspaper published in this State to the county.' 
 The question is, has he complied with this requisition ? It is 
 clear that the answer must be in the negative. The notice 
 is to be published in the nearest newspaper to the county. 
 That is a matter of fact which is easily ascertained. A news- 
 paper of an adjoining county may not be the nearest newspaper 
 to the county in which the land is situated. And the news- 
 papers of the adjoining counties may not be equallj^ near to the 
 county where the land lies. The question, which is the nearest 
 newspaper to the county, must necessarily be determined by 
 comparing the distances between the places of publication and 
 the county line. That is the only way of ascertaining the paper 
 in which to give the notice. In this case there were four news- 
 papers published nearer to the county than the one in which 
 the notice was inserted. The notice should have ap- 
 peared in the Alton paper, * its office of publication * 326 
 being several miles nearer to the county than that of the 
 CaroUton paper. The fact that the latter paper had a respect- 
 able circulation in the county, has nothing to do with the ques- 
 tion. The ownerhas the right to insist upon a strict execution 
 of this requirement of the constitution. He is not to be 
 deprived of his estate except in the mode prescribed. The 
 affidavit of the defendant was only primd facie evidence that 
 the notice was published in the nearest newspaper. It was 
 competent for the plaintiff to prove that the fact was otherwise. 
 And when that was done, the sheriff's deed necessarily fell for 
 want of a foundation upon which to stand." 
 
 There is a statute in New York which provides that " when- 
 ever any land sold for taxes by the comptroller, and conveyed 
 as hereinbefore provided, shall, at the time of conveyance, (a) 
 
 (a) Where land sold for unpaid taxes is oeeupied when the deed thereof is 
 executed by the comptroller, the occupant is entitled to the notice to redeem 
 within the six months prescribed by the Revised Statutes (1 R. S. 412, § 83) 
 
360 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 be in the actual occupancy of any person, the grantee to whom 
 the same shall have been conveyed, or the person claiming 
 under him, shall serve a written notice on the person occupy- 
 ing such land, stating in substance the sale and conveyance, 
 the person, to whom made, and the amount of the considera- 
 tion money mentioned in the conveyance, with the addition of 
 thirty-seven and a half per cent on such an amount, and the 
 further addition of the sum paid for the comptroller's deed ; 
 and stating, also, that unless such consideration money and 
 the said thirty-seven and a half per cent, together with the 
 sum paid for the comptroller's deed, shall be paid into the 
 treasury for the benefit of such grantee, within six months 
 after the service of such notice, that the conveyance of the 
 comptroller will become absolute, and the occupant, and all 
 others interested in the land, be for ever barred from all right 
 or title thereto. The occupant, or any other person, may, at 
 any time within the six months mentioned in such notice, 
 redeem the said land, by paying into the treasury such con- 
 sideration money, with the addition of thirty-seven and a half 
 per cent thereon, and the amount that shall have been paid 
 for the comptroller's deed ; and every such redemption shall 
 be as effectual as if made before the conveyance of the land 
 
 sold. In every such case of actual occupancy, the 
 * 327 grantee, or the person claiming under * him, in order 
 
 to complete his title to the land conveyed, shall file 
 with the comptroller the affidavit of some person who shall be 
 certified as credible by the officer before whom such affidavit 
 shall be taken, that such notice as is above required was duly 
 
 notwithstanding tlie land was unoccupied when the two years allowed by the 
 statute to redeem expired, and the puroliaser became entitled to a deed. The 
 " time of conveyance " means not the time when the purchaser had a right to 
 require a conveyance, but the time when it was really made ; and the comp- 
 troller's deed does not vest a title in the purchaser until the notice has been 
 served, and the six months tor redemption have elapsed. Ch. 108, Laws of 1830, 
 provides for cases where the land is occupied at the expiration of the two years 
 given for redemption, and allows a redemption by the owner, occupant, or any 
 other person, at any time before the service of such notice, provided the title of 
 the purchaser shall not have become perfect prior thereto, and is not a substitute 
 for and does not repeal the provisions of the Revised Statutes as to notice where 
 the land is occupied when the comptroller's deed is executed. Hand v. Ballou, 
 2 Kernan, 6^1. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 361 
 
 served, specifying the mode of service. If the comptroller 
 shall be satisfied by such affidavit, that the notice has been duly 
 served, and if the moneys required to be paid for the redemp- 
 tion of such land shall not have been paid into the treasury, he 
 shall certify the fact, and the conveyance before made by him 
 shall thereupon become absolute ; and the occupant, and all 
 others interested in the said lands, shall be for ever barred of 
 all right and title thereto." This statute is very similar to the 
 provision in the constitution of Illinois, hereinbefore recited, 
 and the decisions in the one State, upon the construction of 
 those provisions, are entitled to respect as authority in the 
 other. Several cases have arisen in the Superior Courts of 
 New York, upon the construction of the statute of that State, 
 which are entitled to great consideration. 
 
 In Jackson ex dem. Watson et al. v. Esty,^ which was an 
 action of ejectment, the lessors of the plaintiff claimed title 
 under a tax sale, made during the existence of the statute 
 above quoted. The comptroller's deed bore date April 22, 
 1823. Upon the trial of the cause it was proved, that at the 
 date of the comptroller's deed the premises in question were 
 in the actual possession and occupancy of one Carpenter, who 
 held the possession, or betterments, by a conveyance to him- 
 self, and one Day, but he made no claim or pretence of title 
 to the land itself. It further appeared that in June, 1824, 
 the defendant succeeded to the rights of Day and Carpenter, 
 by purchase. The plaintiff proved that Day, in 1823, on 
 being inforaied of the purchase at the tax sale, by the lessors 
 of the plaintiff, said that he had no title to the land, and ex- 
 pressed a wish to buy of them ; and also that the defendant 
 proposed to purchase the premises of Watson, but the parties 
 could not agree as to the price. This evidence was of- 
 fered by the plaintiff as equivalent to a waiver * of the * 328 
 notice required by the law, and which had not been 
 given. It was objected to, but received by the judge, who 
 charged the jury that such negotiations amounted to a waiver 
 of the notice, if notice was necessary to a mere naked pos- 
 sessor. The defendant excepted, and the jury found a verdict 
 for the plaintiff, which the defendant moved to set aside, 
 
 » 7 Wend. 148. 
 
362 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 which motion was sustained by the Supreme Court. Savage, 
 C. J. : " It is a general rule, that the party who sets up a 
 title must furnish the evidence necessary to support it. If 
 the validity of a deed depends on an act in pais, the party 
 claiming under that deed is as much bound to prove the per- 
 formance of the act, as he would be bound to prove any 
 matter of record on which its validity might depend. It 
 forms a part of his title ; it is a link in the chain which is 
 essential to its continuity, and which it is incumbent on him 
 to preserve. Even the recitals in the deed of the performance 
 of the acts necessary to validate the conveyance, are not suf- 
 ficient ; they must be proved independent of the deed. Per- 
 haps a deed from the comptroller is an exception as to this 
 particular, for the statute declares that such conveyance shall 
 be conclusive evidence that the sale was regular, according to 
 the provisions of the act ; but it cannot be evidence of acts 
 which were to be done subsequently. The comptroller's cer- 
 tificate is the proper evidence, and perhaps the only evidence, 
 that the lands occupied at the time of conveyance, have not 
 been redeemed within six months after the service of the 
 notice, which the purchaser must give. In case of a convey- 
 ance by the comptroller, it has been decided that where there 
 was no tax due, the comptroller's deed was void, and confers 
 no title. The right to sell depends upon the non-payment of 
 the tax ; the purchaser takes, therefore, a contingent title, and 
 where the land is occupied, it depends further upon a condi- 
 tion subsequent to be performed by the purchaser. To com- 
 plete a title in such a case, it is as necessary to proVe the service 
 of notice and the omission to redeem, as it is to prove the sale; 
 and where the fact of occupancy, at the date of the comptrol- 
 ler's deed, is shown, I can see no reason why it is not as nec- 
 essary to produce the comptroller's certificate to prove 
 * 329 a failure to redeem, * as it is to produce the comptrol- 
 ler's deed to prove the sale made by him. Both are 
 necessary links in the chain of the purchaser's title, and both 
 these facts, like all other facts, must be proved by the best 
 evidence of which the nature of the case admits. The ques- 
 tion then arises, whether it is necessary that the occupation 
 must be by the owner, and whether the occupant can, by his 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 363 
 
 acts, dispense with the notice required by the statute ? The 
 object of the legislature was to raise a. revenue with the least 
 possible sacrifice to the citizen. The possessor of real estate 
 is bound to pay the taxes, and when not possessed, the pro- 
 ceeding must necessarily be against the property. The legis- 
 lature foresaw that it might happen that the property might 
 not be occupied when assessed, and yet be occupied when 
 sold for taxes ; and that by the mistakes which might be 
 made by the returning officers, property might be returned as 
 non-resident, when in truth it was occupied. They wisely 
 provided, therefore, that the purchaser should ascertain the 
 fact at his peril, and give notice when necessary. The pur- 
 chaser must, therefore, do every act necessary to perfect his 
 title ; he must not only give notice, but he must make proof 
 of that fact, and that proof is the evidence upon which the 
 comptroller is to act in the last instance. Now I deny that 
 these acts can be waived by a person having no interest 
 in the property, even if they could by the former owner, on 
 which point it is unnecessary to express an opinion. But if the 
 offer to purchase be an admission of title, what kind of title 
 does it admit ? Clearly none other than the party had. The 
 lessor has an inchoate title, which might be transferred by him 
 just as it had been transferred to him from the original pur- 
 chasers at the comptroller's sale; and if the defendant had 
 purchased the title of the lessors of the plaintiff, his title 
 would not have been perfect. Trace it ever so far, and 
 through ever so many hands, whoever sets up this title, 
 must show that he has complied with the requirements of the 
 statute, unless, indeed, the former owner were to purchase, 
 and then such purchase might quiet the title, because there 
 would be no one to disturb it. It is a cardinal principle 
 that a man shall not be divested of his interest in his 
 * property but by his own acts, or the operation of law ; * 330 
 and where proceedings are instituted to change the title 
 to real estate, by operation of law, the requirements of the 
 law under which the proceedings are had, must be strictly 
 pursued. I am accordingly of- opinion, that the offer by the 
 defendant to purchase the lessor's title, proved nothing, and 
 that the plaintiff 's title is imperfect, and will be, until he gives 
 
364 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 notice, and procures the comptroller's certificate according to 
 the statute." 
 
 The next case in chronological order, which arose in New 
 York, was that of Comstock et ux. v. Beardsley,^ in which the 
 defendant claimed under a deed from the comptroller, bearing 
 date June 27, 1828, in pursuance of a sale for taxes. In an- 
 swer to which the plaintiffs proved that one Bean occupied 
 the premises in question, from 1824 to 1830 ; that from forty 
 to seventy acres of the tract were cleared and cultivated, that 
 Bean had a dwelling-house on the premises, in which he 
 resided, except during the summer of 1828, when he was 
 from home, working out as a laborer ; but during his absence 
 his wife occupied the house, and the garden adjoining. The 
 residue of the lot was occupied by two individuals, under a 
 lease from Bean, at thirty dollars per annum, who cultivated 
 the improved part of the lot, and made potash on the unim- 
 proved part. No evidence was offered of any notice to redeem 
 given to the occupants of the land. The judge thereupon di- 
 rected the jury to find a verdict for the plaintiffs for so much 
 of the land as was actually improved at the date of the comp- 
 troller's deed, but for no more. The jury found accordingly. 
 The plaintiffs having excepted to the charge, moved for a new 
 trial, which was granted by the Supreme Court. Nelson, J. : 
 " The material question in this case is, whether the whole of 
 the premises in question were actually in the possession and 
 occupancy of Bean or any other person, at the date of the 
 deed from the comptroller. If they were, then the title under 
 
 that conveyance is defective for want of proper no- 
 * 331 tice to redeem.^ An occupancy that would * constitute 
 
 a good adverse possession of the entire lot, and which 
 might ripen into a title in twenty years, was not within the 
 contemplation of the statute. It was not intended to regard 
 the title of the land thus sold, but the object was to afford to 
 any person who might happen to be an occupant at the date 
 of the deed, an opportunity to redeem, presuming that he 
 was either owner or in some way legally interested in the 
 land. The act for the assessment and. collection of taxes,^ 
 
 1 15 "Wend. 848. 2 7 Wend. 148. 
 
 3 Laws of 1823, p. 390. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 365 
 
 subjects the occupant to assessment and taxation for real 
 estate, and it is only when lands are unoccupied that they can 
 be returned as non-resident lands. This act and that of 1819 
 are in pari materia, and the term occupant used to convey 
 the same idea in both of them. Though there was no person 
 in occupation at the time the assessment was made, and there- 
 fore the land must be returned as non-resident, yet, if an oc- 
 cupant is found there at the date of the deed, he must be called 
 upon for the tax, together with interest and expenses that have 
 accrued, before he can be dispossessed ; and the occupancy 
 and possession in the latter is just such an one as is contem- 
 plated by the act in the former instance. Now it appears that 
 Bean had occupied the lot for six years, from 1824 to 1830, 
 except during the summer of 1828, when he was temporarily 
 absent as a laborer, leaving his family on the premises, and 
 renting the farm for the season to other persons. Upon these 
 facts, would the assessors have been justified in returning the 
 land as non-resident land ? I think not. Bean himself, and 
 by his tenants, was in the actual occupation and possession of 
 the whole lot, and he clearly was taxable under the act of 1823. 
 There existed no difficulty in giving the proper notice under 
 the statute. Every necessary fact for this purpose could have 
 been ascertained upon the premises. 
 
 The judge, I think, also erred in the distinction tak^n be- 
 tween the improved and unimproved parts of the lot, holding 
 that notice was necessary before the title of the purchaser 
 became perfect as to the former, but not as to the latter. I 
 have already expressed the opinion, that there was an 
 occupation and * possession of the entire lot, within * 332 
 the spirit and meaning of the statute, which is one 
 answer to this distinction. But the act of 1819, incorporated 
 into the act of 1823, provides that in case of every sale and 
 conveyance for taxes, by the comptroller, of lands which, at 
 the time of the conveyance are in the actual possession and 
 occupancy of any person, a written notice shall be served on 
 him, or left at his dwelling-house, stating in substance the 
 sale and conveyance, to whom made, and the amount of con- 
 sideration, after adding 81i per cent, and that unless the same 
 shall be paid into the treasury, for the benefit of the purchaser, 
 
366 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 within six months, the deed to him will be absolute, and the 
 occupant, and aU others interested in the land, will be for 
 ever barred from all right and title to the same. The act 
 then provides, that the receipt of the treasurer, countersigned 
 by the comptroller, stating the payment, and for what land it 
 was intended to redeem, shall as effectually redeem it, not- 
 withstanding the sale and conveyance, as if paid within two 
 years after the sale. Now< in this case, the whole lot was 
 sold for taxes in arrear, in one parcel ; and it seems to me 
 clear, upon the above section, that if part was actually occu- 
 pied at the date of the deed, even if the residue is to be 
 deemed vacant land, the occupant is entitled to redeem the 
 whole ; and if so, is entitled to notice for that purpose. The 
 deed does not become absolute in respect to any part till such 
 notice and default of payment ; for in case of every sale and 
 conveyance of land in the actual possession and occupation 
 of any person, notice shall be served, stating, among other 
 things, the amount of consideration, the thirty-seven and 
 a half per cent, and cost of deed ; and the whole amount must 
 be paid, and when paid, the whole purchase is redeemed, and 
 the title of the purchaser divested. The occupant cannot re- 
 deem without paying the whole purchase-money, together 
 with interest and expenses, though in possession of part only. 
 He would have a remedy over against the owner of the resi- 
 due. I cannot perceive how the purchaser can escape giving 
 the notice, by consenting to take the unoccupied part, since 
 it is not distinguished from that occupied by the statute, 
 when both are included in one bid. If there is an 
 * 333 * occupant of part only, he is entitled to notice before 
 his possession can be disturbed. Each notice calls for 
 the whole purchase-money. On failure to comply with its re- 
 quirements, the whole title becomes absolute ; on compliance, 
 the whole is defeated. As the purchaser may compel the oc- 
 cupant of part, upon notice, to redeem the whole lot or forfeit 
 his share of it, it should not be left optional with him either 
 to give such notice or compound with the occupant, and take 
 the residue of the bid without notice." 
 
 In Bush V. Davison,! the plaintiff claimed to recover thirty 
 
 } 16 Wend. 650. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 867 
 
 acres of land, under a deed executed by the comptroller of the 
 State, conveying ninety-five acres of land as sold for taxes, of 
 which the thirty acres constituted a part. The tax deed bore 
 date December 30, 1833. On the day of the date of that deed, 
 one Phillips was in possession of a dwelling-house erected on 
 the premises in question, as a tenant at sufferance to the de- 
 fendant, 'and continued in possession until January 13, 1834, 
 when he removed from the premises. A question was made 
 upon the trial, whether the possession of Phillips did not con- 
 structively embrace fifty acres of unimproved land surround- 
 ing the house, as well as the house itself, he having originally 
 entered as the owner of the fifty acres, which he conveyed by 
 deed to the defendant on December 13, 1833. The judge 
 charged the jury, that if they should find that Phillips was in 
 possession of the fifty acres at the date of the comptroller's 
 deed, exercising such acts of ownership as its situation in its 
 unimproved state was capable of, then the plaintiff, having 
 failed to prove the notice required by the statute to be given by 
 purchasers to occupants of land sold for taxes, was not entitled 
 to recover ; but if they should find that his possession was lim- 
 ited to the dwelling-house, then it would "be their duty to find a 
 verdict for the plaintiff for the whole of the premises claimed, 
 except the dwelling-house, as to which they must find for the 
 defendant. The jury found a verdict for the whole of the prem- 
 ises, except the dwelling-house. The defendant moved 
 for a * new trial, which was granted by the Supreme * 334 
 Court. The opinion of the Court was delivered by 
 Cowen, J. : " If the question of constructive possession was 
 material, there can be no doubt, that on the evidence given, 
 the judge properly left the question to the jury, whose finding 
 must be received as conclusive. The plaintiff claims to have 
 made title by operation of the statute ; and the only question of 
 any difficulty is, whether, within that statute, notice be neces- 
 sary to the actual occupant of any part of an entire tiact sold 
 to pay non-resident taxes, before the comptroller's deed shall 
 become absolute in respect to any other part, even though it be 
 at the time vacant, ^e several provisions of the statute under 
 which the plaintiff claims, are : [Here the judge recites the 
 statute as given ante, p. * 326, and proceeds.] Looking at the 
 
368 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 statute, no doubt can arise that the judge correctly restrained 
 the recovery to the vacant and unoccupied land. Phillips being 
 found in possession of the house at the time, the comptroller's 
 deed would be inoperative as to that, according to the common 
 understanding of the act, until notice of the purchase and de- 
 fault to pay the taxes ; and such default proved and certified 
 at the comptroller's office. This was held in Jackson v. Esty, 
 on a consideration of the various provisions now consolidated 
 in the revised statutes. A compliance with all the terms pre- 
 scribed to the purchaser, after the date of his deed, was by that 
 case made necessary, without any qualification arising from the 
 character of the occupancy. In that case there was no claim 
 or color of title, and an actual waiver by the tenant of notice 
 was proved. No disclaimer which he can make, according to 
 that case, can be received as of force to maintain an ejectment, 
 even against himself. The deed, though issued from the comp- 
 troller's office with every apparent solemnity, carrying a title on 
 its face, and made by sec. 82 of 1 R. S., pp. 399, 400, 2d ed., 
 conclusive evidence that the sale was regular, according to 
 the provisions of the law, is yet standing alone, a mere nulUty 
 in respect to the occupant. I collect all this from the language 
 of the late Chief Justice, at page 150 of Jackson v. Esty; and, 
 
 indeed, no other view of the conveyance would warrant 
 * 335 the decision in that case. The defendant was * a mere 
 
 squatter, claiming no title, and offering to purchase of 
 the lessors of the plaintiff — a set of facts, which ^er se, and 
 even without such a deed, would have entitled them to recover. 
 According to my remembrance, on that cause going down for 
 trial again, it was so contended, and the lessors tried to keep 
 the comptroller's deed out of view, and recover on Esty's admis- 
 sion alone. But to prevent an ingenious evasion of the decision 
 at bar, by the plaintiff stopping after the admission and dis- 
 claimer had been shown, I allowed the defendant himself to 
 prove the deed, and then directed the jury to find against his 
 admission. The late Chief Justice says, at the page cited, that 
 such a deed carries a contingent title, depending on the notice, 
 &c., as a condition subsequent; and so indeed it does, when 
 the condition is looked to in its chronological order ; but for the 
 purpose of giving effect to the deed, I think he would have added, 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 369 
 
 that it was a condition precedent to all intents and purposes, 
 and that without showing affirmatively the literal performance 
 of it, the deed still remained mere waste paper, of no more 
 effect than the sale under a mortgage power without advertise- 
 ment, or the sale for United States taxes in Jackson v. 
 Shepard,! to which the Chief Justice referred. We want no 
 case beyond that to show the great strictness with which the 
 forms, under which a title is to be divested by a sale for taxes, 
 must be pursued. The difficulty with us circuit judges, who 
 were called upon in the first instance to act upon the statute, 
 lay iu the novel form under which the condition came to us. 
 A deed from the State, authorized by statute, and made conclu- 
 sive of its own regularity, purporting to transmute the title, and 
 actually delivered out to the purchaser, is yet made a mere 
 escrow, to be available on the performance of a precedent con- 
 dition. Looking at the ordinary legal effect of such a deed, 
 under the statutory provisions, we should say it carried the 
 title, which would be defeasible by the actual occupant pay- 
 ing the tax, after notice to him, or some other person paying 
 for him ; and that the right to redeem in that way (for 
 the word redeem is * used in the statute) would be * 336 
 limited to the actual occupancy, and was intended for 
 the benefit of the owner. Jackson v. Esty had particular refer- 
 ence to the rights of the owner, and would not allow the actual 
 occupant to waive the notice to his prejudice. Next came the 
 question on the meaning of the words actual occupancy, for it 
 was only when the lands sold were in that state that notice was 
 necessary. In Comstock v. Beardsley, which was ejectment 
 by the original owner for land in Clinton county, the defence 
 rested on the comptroller's deed of the premises, which were 
 partly in the actual occupancy of another who claimed title 
 to the whole. No notice had been given, and on the trial I 
 restricted the defence to the part actually occupied. That was 
 some years ago. A new trial was granted. This Court de- 
 clared the deed void for the whole. The present Chief Justice 
 delivered the opinion of the Court. The result was, that the 
 statute, according to its true construction, operated to protect 
 the possessor, to the extent, not only of the actual occupancy, 
 
 1 7 Cow. 88. 
 24 
 
370 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 but the occupant's claim of right ; and he added, that when- 
 ever any portion of the premises was actually used and improved, 
 even though there was no claim beyond, the deed would not be 
 effectual for any part of the land. On the cause coming down 
 again at the last June circuit, an offer was made, as on the 
 former trial, to limit the actual occupancy to one-fourth of 
 the premises in question, and to prove the additional fact that 
 the occupant never claimed any thing beyond. That I over- 
 ruled, and stopped the cause, on the distinct expression of the 
 Chief Justice, ohiter perhaps, but still a very explicit opinion, 
 bearing the marks of reflection. I must be understood to speak 
 from recollection, not now having notes of the opinion before 
 me. And I do not stop to procure and examine the opinion, 
 because, on reflection, I am satisfied that the Chief Justice 
 did not, in either branch of it, go beyond what was warranted 
 by the case of Jackson v. Esty, the principle of which I had 
 overlooked. The statute from which I have read all the pro- 
 visions connected with that case, declares, that whenever any 
 land sold for taxes shall be in the actual occupancy of any 
 
 person, the grantee shall give notice, &c., containing 
 * 337 * particular directions in respect to what must be done, 
 
 and that in default of payment, the conveyance of the 
 comptrollor will become absolute. Then the occupant or any 
 other person may redeem the laud conveyed. Then, to com- 
 plete his title, the grantee must prove to the comptroller the 
 service of the notice, who is to certify the non-payment of 
 the tax, and his conveyance thereupon becomes absolute. 
 The condition is an entire thing ; so is the conveyance and 
 the title. So the tax, the land, and the right to redeem. 
 The condition imposed by the statute has arisen, if a single 
 foot of land was actually occupied. The words are, if any 
 land sold, &c. What kind of condition ? A condition pre- 
 cedent, which must be performed before the deed can operate 
 to pass the title of the owner ; or in the language of the statute, 
 before the grantee can ' complete his title to the land conveyed.' 
 The deed is to be taken as if the statute were recited in it. 
 That the condition is precedent will be more plainly apparent 
 upon a further consideration of Jackson v. Esty. If it were 
 subsequent, then in common effect, ejectment would lie with- 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 371 
 
 out notice, and a recovery of all the land might be had subject 
 to the right of redemption by the occupant or owner, until he 
 should yet be foreclosed by a notice, with proof and the comp- 
 troller's certificate. The statute was open to such a construc- 
 tion. That would have been treating the owner as a kind of 
 mortgagor, holding an equity of redemption, the legal estate 
 being in another. But both Jackson v. Esty, and Comstock v. 
 Beardsley, denied that there was any legal title in the purchaser 
 upon which he coiild recover, until he had served the notice 
 and the owner was in default ; nor, as far as I know or have 
 heard, has any action been thought of, for occupied land, short 
 of this. The occupant has more than an equity ; he has the 
 legal right. According to Jackson v. Esty, the case is nearer 
 that of mortgagor and mortgagee as it stands, since the revised 
 statutes. All the legal estate of the latteris taken away, and 
 his mortgage changed to a mere equitable lien, which cannot 
 in general become a legal estate, for any pui'pose, imtil actual 
 foreclosure. In Jackson v. Esty, the late Chief Justice re- 
 marked : ' I can see no reason why it is not as neces- 
 sary to produce *the comptroller's certificate to prove *338 
 a failure to redeem, as it is to produce the comptroller's 
 deed to prove the sale made by him.' The notice, the de- 
 fault, the proof and certificate of the comptroller, being a 
 precedent condition imposed, as we have seen, whenever there 
 is occupied land covered by the deed, it is then impossible 
 to divide or apportion that condition, and say it is dispensed 
 with in respect to the unseated lands, and the deed shall 
 therefore avail as to them, though void as to the seated part. 
 In the same way, where there are various occupants in sev- 
 eralty, the condition cannot be performed by piecemeal, being 
 fulfilled as to A., though not as to B., and so on through the 
 alphabet. If otherwise, the conveyance, which is also an 
 entire thing, might be brought into existence by parts in the 
 same way. It is said in Co. Litt. 215 a, that a condition is 
 an entire thing, and cannot be divided. He instances the: 
 case of a condition subsequent, but I can find in the books 
 no attempt to apportion a legal title, upon the ground that 
 only some part of the condition precedent, on which it was 
 to arise, had been performed. In the case at bar, Phillips 
 
872 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 was in possession of a small part of the land sold for taxes ; 
 and no notice having been given, we are of opinion that on 
 the true construction of the statute, the deed was inoperative 
 as to every part of the tract included in it. On that ground 
 there must be a new trial." 
 
 In Leland v. Bennett,^ the plaintiff claimed under a tax 
 deed dated May 13, 1832. For the purpose of defeating this 
 title, the defendant proved, that at the time of the comptrol- 
 ler's conveyance, the defendant, although residing some dis- 
 tance from the premises in question, held a paper title to the 
 whole, and actually cultivated nearly an acre, in the north- 
 west corner of the tract. It also appeared that the defendant 
 had chopped over, and used for pasture, about three acres, 
 that he had sold some timber off the lot, and his agent had 
 made sugar from the trees growing thereon. The judge 
 charged the jury that if any part of the lot was occu- 
 * 339 pied by the defendant, or any other * person, at the 
 date of the comptroller's deed, the defendant was en- 
 titled to a verdict, inasmuch as the plaintiff had failed to 
 show that the notice required by the statute had been given 
 to such occupant. The jury rendered a verdict for the de- 
 fendant, which the plaintiff moved to set aside, but the 
 motion was overruled. Cowen, J. : " The cases relied on by 
 the counsel for the defendant are decisive against the plaintiff's 
 claim to recover by virtue of the comptroller's deed.^ The 
 privilege of a part claimant to redeem a part, if he choose, 
 supposed to have been overlooked in those cases, does not 
 vary the principle upon which they proceeded." 
 
 The case of Smith v. Sanger,^ was an action of trespass 
 quare clausum f regit. The plaintiff claimed under a tax sale 
 and deed. The defendant insisted that the land was occu- 
 pied at the date of the comptroller's deed, and that as no 
 notice to redeem was given the occupant, the tax deed was 
 void, and so the Circuit Court ruled, and its decision was 
 affirmed in the Supreme Court, but the Court of Appeals 
 reversed the judgment. The facts upon which the objection 
 
 1 6 Hill, 286. 
 
 ' Comstock V. Beardsley, 15 Wend. 348 ; Bush v. Davison, 16 Wend. 550. 
 
 > 3 Barb. 360 ; s. c. 4 Comst. 677. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 373 
 
 was founded, appear in the opinion of the Court. Bronson, 
 C. J. : " The lot in question contains two hundred and fifty 
 acres of land, and the question is, whether the land was ' in 
 the actual occupancy of any person' on the first day of 
 August, 1845, the date of the comptroller's deed to the 
 plaintiff. Lot number 84, in Duer's patent, is bounded on 
 the west by lot number 57, and those tAvo lots are bounded 
 in part on the south by lot number 4 of the gore. There 
 was a brush fence on and near the south line of lots 84 and 
 67, but the fence was crooked, and near the south-west cor- 
 ner of 84, included a small strip or nook of land, containing 
 about two and a half square rods, in a meadow, upon lot 4 ; 
 when or by whom the fence was made did not appear. On 
 the second day of July, 1845, nearly a month before the date 
 of the comptroller's deed, one Baker took possession 
 of lot 4 of the gore, under a * contract to purchase * 340 
 the same from the plaintiff ; and Baker, that season, 
 mowed the meadow on lot 4, including the nook, which, on 
 subsequent survey, was found to be a part of lot 84. Baker 
 did not know at the time that the fence to which he mowed 
 enclosed any part of lot 84. Vaughan, who, prior to July, 
 1845, held a contract for the purchase of lot 4 of the gore, 
 never claimed to occupy or be in possession of any part of 
 lot 84 ; nor was there any proof that those who had occu- 
 pied number 4, ever claimed any part of lot 84, or that they 
 knew or supposed that any part of that lot was included by 
 the brush fence in the gore lot meadow, until Baker dis- 
 covered the fact some time after he took possession. The 
 fact seems to be that the one who made the brush fence in- 
 tended it should be on the line between the lots. But as the 
 land was worth only three dollars per acre, and the fence 
 was of a cheap and temporary nature, no great pains were 
 taken to make it straight ; and the strip in question, amount- 
 ing to only one-sixteen-thousandth part of the lot, and not of 
 the value of five cents, was included in lot 4 by mistake. I 
 have no doubt that the jury would have so found the fact, if 
 the question had been left to their decision. But the judge 
 refused to submit the question of occupancy to the jury, and 
 nonsuited the plaintiff. In all of the cases where it has 
 
374 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 teen held that notice was necessary, there was a substantial 
 occupancy of some part of the lot or parcel of land which 
 had been sold by the comptroller, with an intention to enjoy 
 the property, either by right or by wrong ; while here the 
 enjoyment seems to have been merely accidental, and with- 
 out an intention to occupy any part of lot 84. I think there 
 was no occupancy of the lot within the meaning of the 
 statute. But if that was matter of doubt upon the evidence, 
 the question should have gone to the jury. The judgment 
 should therefore be reversed, and a new trial granted." 
 
 The conclusions to be extracted from the New York de- 
 cisions, are : 1. That the notice to redeem is a condition prece- 
 dent to the validity of the comptroller's deed,^ (a) that although 
 the deed of the comptroller is executed and delivered 
 * 341 to the * purchaser prior to the time when the notice 
 is required to be given, it does not take effect until 
 the comptroller certifies that the condition upon which ita 
 validity depended has been strictly performed. 2. That the 
 comptroller's deed is not evidence of the performance of this 
 subsequent condition. That the onus prohandi upon this 
 question rests'on the party claiming under the tax deed. 3. 
 That the certificate of the comptroller is the only evidence 
 that the sale has not been redeemed from. 4. That in order 
 to entitle the occupant to notice, it is not necessary that he 
 should be in possession under claim or color of title, and that 
 any person liable to pay the taxes must be notified. 5. That 
 
 1 Where law (1 R. S. 409, § 76) required the comptroller, at least six months 
 before the expiration of two years allowed for redemption to publish at least once 
 a week for six weeks successively in all the public newspapers printed in the State, 
 a notice that unless the lands should be redeemed by a certain day they would 
 be conveyed to the purchaser : Held, that the omission to publish in one or 
 more newspapers made conveyance void. Bunner v. Eastman, 50 Barb. 639. 
 See p. *299, note 3. Such publication must b& fully completed before the 
 commencement of the last six months of the two years succeeding the sale, and 
 an omission in this respect will invalidate the purchaser's title. Doughty ». 
 Hope, 3 Den. 600 ; s. c. 1 Comst. 79 ; Westbrook v. "Willey, 47 N. Y. 457 ; see 
 also People v. Mayor, 10 Wend. 393. 
 
 (a) But in Wright v. Sperry, 21 Wise. 331, it was hdd, C. J. Dixon dissenting, 
 that a tax deed made in 1861 upon a sale in 1857 was not invalid because publi- 
 cation of the notice to redeem was not completed (as prescribed by statute) six 
 months before the tiiiie for redemption expired, the statutes requiring such notice 
 being held merely directory. See also Stridde v. Saroni, 21 Wise. 173. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 375 
 
 a person in possession of the land at the date of the comp- 
 troller's deed, though the premises were vacant, or in the 
 possession of another at the time the assessment was made, 
 is entitled to the notice. 6. That a person in possession of 
 a part of an entire tract, without title, color, or .claim of 
 title, is yet entitled to notice ; and that notice must extend 
 to the whole tract, upon a portion of which he has intruded 
 
 — the deed cannot be good in part and bad in part. 7. Not 
 even the disclaimer of title bv the tenant of. the freehold, 
 will enable the purchaser to recover where he has failed to 
 give the requisite notice. 8. And where the occupant is not 
 the owner of the laud upon which he is seated, he cannot, 
 by any act or declaration of his, dispense with the notice 
 required by the statute. 9. That an accidental or chance 
 occupation of a small portion of a tract, occasioned by a con- 
 fusion of boundaries, does not entitle the occupant to notice 
 
 — there must be an intention, on the part of the occupant, 
 to enter and take possession of the specific parcel of land in 
 controversy. 
 
 This particularity and prolixity of statement, in reference to 
 the law of Illinois and New York, was deemed necessary on 
 account of the novelty of the principles involved in their con- 
 struction. These laws are based upon a degree of justice to the 
 owner of the land, which deserves to be followed by the resi- 
 due of the States.! When the conditions imposed by this class 
 of laws are faithfully performed by the purchaser at the tax 
 sale, he deserves more liberality at the hands of the 
 Courts, * than one who purchases at a sale made under * 342 
 a statute which makes no provision for a redemption 
 notice. The reason is, that in the one case the notice is 
 actual, and in the other constructive. Courts always con- 
 strue notices of the latter description more strictly than those 
 of the former. 
 
 ' The provision of the Wisconsin statute of 1854, ch. 66, and 1859, ch. 22, 
 requiring an advertisement of unredeemed lands six months before expiration of 
 the time of redemption, stating among other things the interest calculated to the 
 last day of redemption, and specifying that day, refers to the period fixed for 
 redemption in ordinary cases, and after which the purchaser would be entitled 
 to a deed, and not in any case to the period of redemption of minors, &c., after 
 the issue of the deed. Wright v. Wing, 18 Wise. 45. 
 
376 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 In reriewing the decisions of the Courts detailed in this 
 chapter, in relation to conditions subsequent to the tax sale, it 
 will be observed that tliey uniformly require every condition, 
 the performance of which is imposed upon the purchaser him- 
 self, to be literally performed ; while, on the other hand, where 
 the duty of performing the condition is cast upon the officers 
 of the law, and they neglect to comply with it, some of the 
 decisions assert the doctrine that this failure on the part of 
 the officer, ought not to invalidate the title of the purchaser. 
 Such as has been shown is the rule in Ohio, in reference to 
 the return of the sale ; and in Pennsylvania, in relation to the 
 filing of the surplus bond. It is contended that there is a man- 
 ifest distinction between the neglect of the purchaser and that 
 of the officer. This distinction thus contended for is most 
 strikingly illustrated by the decisions of the Pennsylvania 
 Courts in regard to the surplus bond. The purchaser is 
 bound, at the peril of his title, to execute and deliver to the 
 treasurer a bond, at the time and in the manner prescribed by 
 law. If he fails to do so, this fact alone furnishes conclusive 
 evidence of an abandonment of his purchase. But the duty 
 of filing the bond, in the office of the prothonotary, being 
 imposed upon the treasurer who made the sale, and who was 
 required to receive the bond and cause it to be filed, the omis- 
 sion of this duty ought not to affect the title of the purchaser. 
 It is impossible to perceive any just distinction between the 
 performance of a condition precedent, and one which is sub- 
 sequent to the sale, in regard to their effect upon the pur- 
 chaser's title. He is bound at his peril, to see that all of the 
 requirements have been faithfully complied with by the offi- 
 cers intrusted with the execution of the power prior to the 
 sale, and before he has acquired any rights whatever ; and it 
 
 would seem that when his right has once attached — 
 * 343 upon his bid and the payment of * the purchase-money 
 
 — greater vigilance is imposed upon him than before, 
 in order to consummate and protect his title to the property. 
 A still stronger reason is, that after an inchoate right has once 
 vested in him by a purchase, the law gives him ample remedy 
 to protect himself from the consequences of the neglect of the 
 officer to perform a duty which the law exacted of the latter. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 377 
 
 He may compel the specific execution of the duty by a man- 
 damus, or seek his remedy by an action upon the case for the 
 non-feasance. The title being regarded as stricti juris, he is 
 bound to see that all of the requirements of the law are com- 
 plied with. The condition, though subsequent in point of 
 time, is, nevertheless, regarded in judgment of law as precedent 
 to the acquisition of the title. The law authorizes a sale and 
 conveyance, upon certain prescribed conditions; the officer 
 acting under a special authority, the purchaser being bound 
 to see that he conforms to it, it is difficult to discern Avhy the 
 conditions upon which the deed depends should not be as 
 faithfully performed as those conditions which are required to 
 precede the sale. In the last instance, the purchaser is bound 
 to see that the law is strictly complied with, and no right 
 having vested in him prior to the sale, the law arms him with 
 no remedy against the officer for any neglect of his duty. 
 But after the sale he has a remedy, and as he does not become 
 entitled to a deed until the conditions are performed according 
 to the requirements of the law, he is chargeable with personal 
 negligence if he fails to pursue that remedy and compel the 
 performance of the official duty upon wliich the validity of 
 his title is made to depend. If it is beneficial to the owner 
 that the subsequent conditions should be performed, and they 
 are not, it is an injury to him, which, according to the acknowl- 
 edged principles of justice, ought to invalidate the sale. It 
 may be called a formality ; but where the formality prescribed 
 is founded on natural equity, it is said to be substantial, and its 
 omission carries with it nullity of the act. It is of the' essence 
 of justice and natural equity, that when a forced sale of pi'op- 
 erty is made under statutes, all formalities which have the sem- 
 blance of benefit to the owner should be rigidly complied 
 with. * This class of sales cannot be likened to the sale * 344 
 of a sheriff, and the effect of his neglect to file or record 
 the certificate of his sale. There the owner of the land is 
 regarded as in Court until the satisfaction of the judgment, and 
 usually has actual notice of the levy. The authority to sell and 
 convey depends alone upon the judgment and execution. The 
 purchaser is bound to look no further. No irregularity of the 
 officer, either in advertising or selling the land, or in the per- 
 
378 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 formance of any duty, imposed upon him subsequent to the 
 sale, can affect the title of the purchaser. But the power of 
 the officer in tax sales depends upon a series of acts, which are 
 required by law to precede and follow the sale ; each and every 
 step, from the listing of the land for taxation to the consumma- 
 tion of the title by the delivery of a deed to the purchaser is a 
 separate and independent fact. All of these facts, from the 
 beginning to the end of the proceeding, must exist ; and if any 
 material link in the chain of title be wanting, the whole falls 
 to the ground for want of sufficient authority to support it. 
 Testing the Ohio and Pennsylvania cases by these principles 
 — and the New England decisions in relation to the return, 
 deposit, and record of the proceedings of the officer who made 
 the sale — they cannot be sustained. The return of sale in 
 the Ohio case, as has already been shown, was beneficial as 
 well to the purchaser as the owner, besides being the only 
 guide of the officer in the redemption or conveyance of the 
 land. The surplus bond required by the laws of Pennsyl- 
 vania constituted a lien upon the land purchased in favor of 
 the former owner of the estate. The filing of it in the office 
 of the prothonotary, where the evidence of judgment and 
 mechanics' liens were preserved, was intended to give notice 
 to subsequent purchasers and creditors, and was, therefore, 
 beneficial to them as well as to the owner. In conclusion, to 
 use the language of one of the Courts : " It is easier for the 
 purchaser to see that the duty is performed, than it is for a 
 judge to assign reasons why it may be safely omitted." 
 
AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 379 
 
 CHAPTER XVIII. 
 
 OF THE AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 The rule is well settled, that every public document, which is 
 required by law, to be executed by a public officer, and pre- 
 served as a memorial of the facts recited in it, must be verified 
 by the official signature of the person who made it.- The ob- 
 ject of the rule is the identification of the document as an 
 official act, executed by authority of law ; and its spirit is 
 answered only, when the official character of the person 
 making it is established, and the document appears upon its face 
 to be an official act, attested by the signature of the officer. 
 The reason of the rule is obvious. No man has the right to 
 bind another by a written statement, unless he has authority 
 to make such a statement, either from the person to be af- 
 fected, or the laws of the land, by which all are bound. All 
 written instruments, executed in pursuance of private author- 
 ities, show upon their face the representative character of the 
 person executing them. The agent executes in the name of 
 his principal, signs the name of the principal, and attests the 
 paper by his own signature ; else, he alone is bound by it. 
 Chief Justice Parker, in Stackpole v. Arnold,^ says, " It might 
 be sufficient for the decision of this cause to state, that no per- 
 son, in making the contract, is to be considered as the agent 
 of another, -unless he stipulates for his principal by name, 
 stating his agency in the instrument which he signs. This 
 principle has long been settled, and has been frequently rec- 
 ognized; nor do I know of an instance in the books of 
 an attempt to charge a person as the maker of any 
 * written contract, appearing to be signed by another, * 346 
 unless the signer professed to act by procuration or 
 authority, and stated the name of the principal on whose be- 
 half he gave his signature. It is also held, that whatever 
 
 1 11 Mass. 27. 
 
380 AUTHENTICATION OP THK DIFFERENT DOCUMENTS. 
 
 authority the signer may have to bind another, if he does not 
 sign as agent or attorney, he binds himself and no other 
 person." An additional reason why every act of an officer 
 should bear upon its face evidence of its official character, is, 
 that in this country every officer is responsible to the govern- 
 ment and parties interested in his acts, for all injuries occa- 
 sioned by his acts or omissions under color of his office ; and 
 in actions against him it is not just that the injured party 
 should be compelled to resort to a weaker species of evidence — 
 depending upon memory, and subjected to the risks attending 
 death, absence, and insanity — to prove the legal identity of 
 an official document. The reason of the rule applies more 
 strongly to the execution of all public authorities, whether 
 conferred by general or special laws, where the exercise of 
 the power affects the property of the citizen. The authority 
 is conferred without his consent, he is not consulted in the 
 selection of the agent, he cannot control the acts of the officer, 
 nor is the officer answerable to him for his conduct. The au- 
 thority is delegated by law, it is reposed in the officer, not the 
 man. He acts in an official capacity. But for the protection 
 of the law he would be a trespasser in exercising the power, 
 and responsible to the citizen for his acts. When therefore 
 he attempts to execute the power, he must recognize the 
 source from whence he derives it, follow the requirements of 
 the law, and perform all acts in that character alone which 
 the law recognizes, otherwise the act is a nullity. The prin- 
 ciple is uniformly conformed toby all of the great departments 
 of government. The proclamations of the king bear upon 
 their face the official character of the act. The process of 
 the Courts runs in his official name, are attested by his chief 
 judicial officer, and authenticated with the seal of the Court. 
 The presiding officers of the two Houses of Parliament au- 
 thenticate the passage of all bills, and the legality of war- 
 rants, by their official signatures. And in this country every 
 
 officer, from the President down to an overseer of 
 * 347 * the .poor, verifies in this manner his official acts. 
 
 The rule extends to all official documents connected 
 with the sales of land, for the non-payment of taxes. 
 
 The statute of Vermont required the collector to advertise 
 
AUTHENTICATION OP THE DIFFERENT DOCUMENTS. 381 
 
 the delinquent list before selling the lands of non-residents, 
 to deposit with the town-clerk the newspaj er containing the 
 advertisements, and the clerk was directed to record them at 
 length in a book to be kept for that purpose. In Spear v. 
 Ditty,! the defendant relied upon a tax title, and offered 
 in evidence the record of the town-clerk, headed " collectors' 
 advertisements." The record showed that the advertisements 
 were simply signed " E. Spaulding," without the addition of 
 the word " collector.'' In the form of the advertisement pre- 
 scribed by law, the official title was added. The Court held 
 the sale void for the omission in the record of the town clerk. 
 The Court remarked : " It is not true that every man is pre- 
 sumed to be clothed with and to be exercising an official 
 capacity, because it seems to be needed for what he was at- 
 tempting. Such a principle would sweep away all official 
 signatures and designations. The statute form must be 
 strictly followed. Even a known public officer must so sign 
 everj'^ official document. It is difficult to see how any one 
 can act officially on paper, and not so state on the paper. It 
 must appear on the publication, by what power, and in what 
 capacity the person acts. And this cannot be supplied by the 
 record, headed ' collectors' advertisements.' The advertise- 
 ment in this case was not signed by Spaulding as collector, 
 nor did it in any way so import, and the landholders were 
 therefore no way informed that the signer of that advertise- 
 ment had any more right than any other man, to give such 
 notice, nor that he had such power as he undertook to exer- 
 cise." 
 
 In Isaacs v. Siiattuck,^ it appeared that the person who 
 made the sale, was both collector and town-clevk ; in the 
 former capacity he was required by law to sell and re- 
 turn the proceedings ; * in the latter he was to record * 348 
 the return and certify to the due publication of the 
 advertisement. His certificate was signed, " Jonas Stone, 
 collector." The sale was held void. The Court, referring to 
 the case of Spear v. Ditty, said, " It has been decided that 
 when one signs his name only, omitting the official designa- 
 tion, it is the same as if the signature .had been omitted, so far 
 
 1 9 Vt. 282. 2 12 Vt. 668. 
 
382 AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 as any official validity is concerned. It is difficult to perceive, 
 then, how the use of a wrong designation of office should be 
 of any greater force or validity. We must then, in the most 
 favorable view, consider the record, in the handwriting of a 
 stranger, and not certified by the town-clerk. This, we think, 
 is not sufficient, in a case like the present, where, with great 
 propriety, the utmost strictness of construction has always 
 been required." 
 
 It has already been shown that the assessment list must be 
 verified by the official signatures of the officers charged by 
 law with the duty of making it.^ (a) In Taylor v. French,^ 
 where the collector was required to file copies of the adver- 
 tisements with the town-clerk, whose duty it was to record 
 them at length, and certify to the fact and particulars of the 
 publication, the facts were, that following each advertisement 
 there was a simple statement of the clerk that the same was 
 inserted in a certain newspaper, giving the name, volume, 
 number, date, and place of publication of the paper, but none 
 
 1 Ante, p. 113; Scott v. Stearns, 2 Mich. N. P. 111. In this case, where the 
 certificate of the supervisors and assessors attached to the roils in following the 
 statutory form omitted the words in regard to personal property, "except ia 
 those cases wiiere the value of the same has been sworn to by the owner, his 
 agent or attorney," the assessments were held void. Johnson v. Goodridge, 
 15 Me. 29; Colby v. Russell, 3 Greenl. 227; Foxcroft u. Nevens, 4 Greenl. 72; 
 Kellar v. Savage, 20 Me. 199 ; Sibley v. Smith, 2 Mich. Gibbs, 498 ; see also 
 Johnson v. Elwood, 53 N. Y. 435, where it was held that the lack of verification 
 of an assessment roll by afiSdavit of the assessor as required by Laws of 1851, 
 ch. 176, made the tax deed void. See, however, p. * 265, note 1. Under the 
 ninth section of act of 1842, requiring an equalization of the rolls at the July 
 session of the board of supervisors, &c., where the record did not show who 
 constituted the board, or that a quorum was present, and was not signed by the 
 clerk or presiding ofiicer of the board, but showed that the " board of supervisors 
 met on tlie 29th of July, and proceeded to business," held, that the inierence is 
 that all the supervisors of the county were present, or at least a quorum, and that 
 if the contrary was the fact (the deed being prima facie evidence) it should have 
 been affirmatively shown. Held, also, that though the law requires a record to 
 be kept, it does not require it to be signed by any one, and while it is desirable 
 that these records should be signed, yet the omission was not a fatal error, but 
 at most only an irregularity. Lacy u. Davis, 4 Mich. 156 ; see also Bartlett v. 
 Lacy, 2 Ala. 161. 
 
 (a) Under R. S. ch. 6, § 56, a commitment prefixed to and specifically refer- 
 ring to the lists of assessments and signed by a majority of the assessors is a 
 sufficient authentication and compliance with the statute. Lowe v. Weld, 
 62 Me. 588 ; see also Bangor v. "Lancey, 21 Me. 472. 
 
 ^ 19 Vt. 49. 
 
AUTHENTICATION OF THE DIFFERENT DOCUMENTS. S83 
 
 of these statements were verified by any signature, private or 
 ofi&cial ; but at the end of the record, the town-clerk certified 
 that " he then (October 16) received the above and foregoing 
 eighteen advertisements for record, and recorded the same 
 from pages 42 to 60," and attested the same. The record 
 was held insufficient. By the Court : " It is evident that this 
 certificate must be confined to the recording of the advertise- 
 ments, and cannot extend to the statements in regard 
 to their publication. It does not profess * to extend * 349 
 any further. Neither does the certificate of the town- 
 clerk state that he received of the collector the newspapers 
 themselves, in which the publications were made, and that he 
 made the records of the advertisements from the papers them- 
 selves. We think the title under the vendue defective for 
 these reasons." 
 
 In Hannel v. Smith,i where the auditor of State was re- 
 quired " to transmit to the county auditor lists of land which 
 have been forfeited, &c., said lists to be certified and signed 
 by the auditor of State, and to have thereto affixed his seal 
 of office," and it appeared that the list in question was 
 signed " John Brough, auditor of State, by J. B. Thomas," 
 and the seal of the auditor's office was not attached to the 
 list, it was held void. By the Court : " This was not such a 
 verification of the list as the law required. It was not even 
 signed by the auditor, but by J. B. Thomas. And who is J. 
 B. Thomas? Plaintiff's counsel answer. The deputy of the 
 auditor of State ; and the auditor of State signed by his 
 deputy. By what authority ? It is replied, By the authority 
 which every public officer has to act by deputy. I know 
 that some public officers may act by deputy, such as sheriff's 
 clerks, &c., but I have yet to learn that the auditor of the 
 State of Ohio can act by any other authority than the one pre- 
 scribed by law, that is, the chief clerk in his office. Thomas, 
 however, does not sign as deputy nor as chief clerk. This 
 instrument is not only without the signature of the auditor, 
 but it is not verified by his official seal, nor is it therein cer- 
 tified that the list to which it is attached is correct. It is 
 defective, and would no more authorize the county auditor to 
 
 1 15 Ohio, 134. 
 
384 AUTHENTICATION OP THE DIFFERENT DOCUMENTS. 
 
 sell the land contained in the list, than a letter written by 
 the clerk of a Court, and directed to the shei'iff, informing 
 him that a judgment had been rendered in a certain cause, 
 would authorize that sheriff to levy upon and sell the lands 
 of a judgment debtor." In Taylor v. French, it was the 
 duty of the collector to return his proceedings, verified by 
 his ofiicial signature. The facts were, that two ad- 
 * 350 journments of * the sale had taken place, which was 
 attested by his signature, but no other part of the pro- 
 ceedings was thus verified. The return was held void. By 
 the Court : " The collector having simply signed his name to 
 the two adjournments, it cannot be a signing of the anterior 
 proceedings. It in no way professed to be so. This objec- 
 tion is fatal to validity of the vendue." 
 
 On the other hand, where the official character of the act 
 does, with reasonable certainty, appear upon the face of the 
 document, slight variances and omissions will not destroy 
 its validity, (a) Thus, in Isaacs v. Wiley,^ where the record 
 of the advertisement showed the name of Luther W. Brown 
 as collector, whereas Luther ff. was appointed to that office, 
 it was held suflScieut. By the Court: " In the present case, 
 in the absence of proof that two persons bearing the same 
 name, and distinguished by these initial letters, reside in the 
 same town, it certainly does require a very great stretch of 
 credulity to admit the construction that one person was ap- 
 pointed to this office and that another intruded himself into 
 his place, and assumed the burden of his duties. We think 
 it more rational to treat the names as being the same, but 
 capriciously varied to suit the taste or whim of the recording 
 officer." 
 
 In Sheldon v. Coates,^ James Hillman was sheriff of Butler 
 county, and ez officio collector of taxes. The certificate of 
 
 (a) Where the statute required the collector to " deliver a certified copy of 
 his list to the deputy secretary," who shall keep such copy at Concord " for 
 the inspection of all concerned," &c., and the copy of the list of taxes so deliv- 
 ered to the deputy secretary did not show that the State Treasurer's warrant 
 was under seal (as In fact it was), and contained- in the date " April," which was 
 not in the original, this was held not to vitiate the tax sale. Cahoon o. Coe, 
 62 N. H. 526. 
 
 ' 12 Vt. 674. a 10 Ohio, 278. 
 
AUTHENTICATION OP THE DIFFERENT DOCUMENTS. 385 
 
 sale signed by him was in his capacity of collector, and it was 
 held valid. By the Court : " It is a general rule, in sales by 
 public officers, that where there is a sufficient power to war- 
 rant a sale, a slight variance or omission will not be held to 
 be material.! But this, it is said, is a sale for taxes, where 
 principles stricti juris are to be applied. To this argument it 
 may be answered, that no substantial variance from the pro- 
 visions of the statute, so far as the signature of Hillman to 
 the certificate of sale is concerned, is by us perceived, &c. 
 Hillman, being by the act made collector, by virtue of 
 his office as sheriff, it seems to us * there can be no ob- * 351 
 jection to the certificate, whether signed by him in the 
 one or the other capacity. Pro hac vice, sheriff and collector 
 are synonymous terms." But it has been shown,^ that where 
 the same person holds different offices, ai^d the law requires 
 him to act in each of his official characters in the course of a 
 tax proceeding, and he gives the wrong designation of office 
 in authenticating an act, this stands upon the same principle 
 as if he had added neither official designation. 
 
 In Farrar v. Eastman,^ where the law provided, that if any 
 proprietor of common lands should neglect to pay the tax 
 assessed upon his share, the proprietors were authorized to 
 sell and convey the interest of the delinquent, one of their 
 number being delinquent, they sold his share, and afterwards 
 voted that " the collector be empowered to give a deed." 
 John Knox was the collector of the proprietors, and made 
 the deed in question. It was held valid. By the Court: 
 " If a deed, vote, or other transaction be susceptible of a 
 construction consistent with law, and with a rightful author- 
 ity in tlie party or parties granting, voting, or acting, that 
 construction should prevail. ' It is a general rule, that when- 
 soever the words of a deed, or of the parties without deed, 
 may have a double intendment, and the one standeth with 
 law and right, and the other is wrongful and against law, the 
 intendment which standeth with the law shall be taken.'* It 
 was competent for tlie proprietors to appoint the same person 
 to sell and convey, and a designation of the person as a 
 
 1 See 5 Cow. 530. 2 Ante, p. *348. 
 
 3 6 Greenl. 345. * Coke Lit. 42. 
 
 26 
 
386 AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 committee to convey, by the name of his office of collector, 
 is sufficiently certain. The incumbent of the office at the 
 time is intended. The collector was John Knox — the vote 
 designates the collector — John Knox, then, was intended." ' 
 
 ' Production of what purport to be the assessment rolls without proof of 
 their authenticity or the genuineness of the assessors' signatures, without proof 
 of the affidavit, without which the comptroller had no power to sell, is not 
 suflBcient evidence on which to rest a tax title. Stevens v. Palmer, 10 Bosw. 
 (N.y.)60. 
 
OF THE CONFIRMATION OP THE SALE. 387 
 
 CHAPTER XIX. 
 
 OF THE CONPIKMATION OF THE SALE. 
 
 In some of the States, the law requires the consent, appro- 
 bation, or Confirmation of the sale and conveyance, or fore- 
 closure of the tax deed by some Court of record. Where 
 such is the requisition, it must be complied with, or no title 
 vests in the purchaser, (a) It is a general rule of law, that 
 where the consent of any third person is required to the 
 execution of a private power, that, like every other condi- 
 tion, must be strictly performed.^ And when the consent of a 
 third person is required to a deed, in order to its validity, it 
 can have no operation until that consent is given.* There 
 are numerous treaties between the United States and Indian 
 tribes, whereby the latter have ceded their territorial rights 
 to the former, reserving a specific quantity of the granted 
 lands in favor of particular Indians or half-breeds. Such was 
 the case with the Winnebago treaty of 1829. In that treaty 
 it was provided, that the reservee should not sell and convey 
 the land without the consent and approbation of the President 
 of the United States. Unless such consent is given by the 
 President, the title of the Indian reservee does not pass. In 
 that case the object of the provision was to guard the Indian 
 against fraud and imposition ; and it is the practice of the 
 Indian Department, not to submit a deed, executed by an 
 Indian, to the President for his approval, until it satisfac- 
 torily appears that the land brought its fair market value, 
 
 (a) As to foreclosure being necessary to perfect the tax title, see State v. 
 Shaw, 28 Iowa, 80; see also Street v. Hughes, 20 Iowa, 181 ; Clark v. Connor, 
 28 Iowa, 315. As to the description of the land in the tax deed to be foreclosed, 
 see p. * 381, note ; p. *414, note. 
 
 1 Sugden on Powers, 263, 265 ; Hawkins v. Kemp, 8 Ea»t, 410 ; 10 Vesey, 
 308. 
 
 '■i 5 Wend. 532. 
 
388 OP THE CONFIRMATION OF THE SALE. 
 
 * 353 and that the consideration has * been paid or secured.' 
 Where an act of the legislature, or order of a Court, 
 requires the approval or confirmation of the sale, it is void 
 vrithout it.2 The same principle is more strongly applica- 
 ble to a tax sale and deed, when a confirmation of them is 
 required by law. The Ohio statute of January 80, 1822, 
 requires a confirmation and approval of the sale, by the Court 
 of Common Pleas of the county where the land lies, and the 
 entry of an order, directing the execution and delivery of a 
 deed to the purchaser.^ In Northorp v. Devore,Mt was held 
 that iin order of confirmation, which misrecited the day of 
 sale, was a nullity. In no case will the confirmation aid a 
 void title.^ 
 
 A statute of Arkansas, passed November 18, 1833,^ pro- 
 vided " the purchaser, or his heirs or legal representatives,^ 
 may at any time after the expiration of the teim allowed for 
 such redemption, publish a notice six weeks in succession, in 
 some newspaper printed at the citj^ of Little Rock, calling on 
 all persons who can set up any right to the land so purchased (a) 
 
 1 9 Pet. 711; Opinions of the Attorneys-General, ed. 1852, vol. 2, pp.465, 
 574, 631 ; vol. 3, pp. 209, 259 ; v«l. 4, p. 529. 
 
 ^ Williamson v. Berry, 8 How. (U. S.) 495, 496 ; Young o. Keogli, 11 lU. 642 ; 
 Rea V. McEachron, 13 Wend. 466 ; Curtis v. Norton, 1 Ohio, 336. 
 
 » Wilkins v. Huse, 9 Ohio, 154. 
 
 * 11 Ohio, 359. 
 
 ' Barger v. Jackson, 9 Ohio, 163. 
 
 6 See Digest of Arkansas, Statutes of 1858, ch. 170, p: 1052. 
 
 ' One who has taken a bond for a deed from the purchaser at the tax sale 
 may file a bill for confirmation. Scott v. Watkins, 22 Ark. 556. 
 
 la) A mortgagee out of possession, the holder of a mechanics' lien, or the 
 purchaser at a bankrupt sale, lias in any event such an "interest or claim,'' 
 whether valid or not, a.s entitles him to controvert the confirmation of tax titles 
 under the act of 1860. The words of the act are "claiming" or "having'' 
 "an interest," which do not mean that the "interest" must be a perfect equi- 
 table or legal title. Meeks v. Whatley, 48 Miss. 337. Proceedings under the 
 Mississippi statute said to be in the nature of a bill " quia timet," but extending 
 the remedy much farther. See Belcher v. Mhoon, 47 Miss. 619. Sec. 36, ch. 22, 
 Laws of 1859 of Wisconsin, requires all persons who were former owners of the 
 land, or those claiming under them, or claiming any interest therein, to be made 
 defendants to an action tliereunder. In Lybrand a. Haney, 31 Wise. 230, an 
 averment in tlie complaint in such an action against J. H. and S. H., that "the 
 defendant J. H. is the former owner of all the foregoing described lands, and the 
 defendant S. H. is the wife of said J. H , and the defendants claim the right to 
 have the possession " of all said lands, was held sufficient. 
 
OP THE CONFIRMATION OF THE SALE. 389 
 
 to show cause at the first term of the Circuit Court, which may- 
 be held in the county in which such lands are situated, six 
 months after the publication of such notice, why the sale so 
 made should not be confirmed." ^ In Black v. Percifield,^ the 
 defendant in error filed his petition, setting forth a purchase 
 at a tax sale, and praying a confirmation. The plaintiff in- 
 error filed her answer, setting forth that she was in posses- 
 sion of the land, and pointing out irregularities in the sale. 
 The answer was held insuflBcient. By the Court : " In her 
 plea, by way of answer, she does not aver how or in what 
 manner she came by the possession, or under whom she holds, 
 or whether her possession is adverse to the petitioner 
 or not. The duty devolves upon her to * show the * 354 
 kind and character of the possession, and if she failed 
 to do so, the legal presumption is, that she either holds un- 
 der the petitioner, and is his tenant by lease and entry, or 
 that she is a mere tort feasor, without any shadow or pretext 
 of right, and in either event she is not entitled to the privi- 
 lege of opposing the confirmation." It is not necessary that 
 the purchaser should be in the actual occupation in order to 
 file a bill for confirmation of his title.^ In Hunt v. McFadgen,* 
 it Was held, that when a purchaser bids off a certain tract of 
 land for the taxes, and refuses to pay the same, whereby the 
 collector is compelled to offer the land again, and the same 
 purchaser bids off a larger quantity of the same tract for the 
 same taxes, a Court of Equity will not confirm his title by the 
 
 ' The statute proTisions as to notice in proceeding for foreclosure of the equity 
 of the owner of land sold for taxes must be strictly pursued, and a notice specifying 
 certain lots and " other lots in the city and the unknown owners of the same," is 
 fatally defective under the Iowa statute. Gaylord v. Scarff, 6 Clarke (Iowa), 179. 
 So an original notice is defective which states that the letter "a," represents 
 the figure " 8 " in the description of the land, sucli substitution being made. 
 Abell V. Cross, 17 Iowa, 171. Such judgment of foreclosure is admissible in the 
 first instance in evidence in an action of right (in connection with the tax deed) 
 when regular on its face and containing findings showing jurisdiction, though it 
 might afterwards be shown void for want of jurisdiction to render it. Clark v. 
 Connor, 28 Iowa, 311. A judgment in such a suit rendered on default on notice 
 given by publication merely is void if it does not appear from the record that the 
 residence of the defendant " could not with reasonable diligence be ascertained." 
 Abell V. Cross, supra. As to necessary parties to such a suit, see Clark v. Connor, 
 supra. 2 1 Ark. 472. 
 
 8 Bonnell v. Roane, 20 Ark. 114. " 20 Ark. 277. 
 
390 OF THE CONFIRMATION OP THE SALE. 
 
 second purchase, as it would be a fraud on the rights of the 
 owner. But if he purchased the same quantity at the second 
 as at the first auction, it seems the purchase will be confirmed. 
 A proceeding upon such a statute, when instituted in a State 
 Court, and removed into the Circuit Court, conformably to the 
 act of Congress, constitutes a case over which the Supreme 
 Court of the United States has jurisdiction ; and the petition 
 to remove such a case from the State Court must allege that 
 the petitioners Avere " citizens " of some other State ; an alle- 
 gation that they were " residents " is not sufficient.^ The 
 proceedings under this statute are governed by the ordinary 
 rules of chancery practice.^ (a) 
 
 1 Parker v. Overman, 18 How. (U. S.) 137. 
 
 ^ Payne v. Danley, 18 Ark. 444. A decree of conflrmation cannot be ques- 
 tioned collaterally on the ground that the taxes had been paid, but it seems that 
 it would be otherwise in case of a direct proceeding to vacate the decree, there 
 having been no actual notice of the proceedings to confirm given to the owner. 
 Wallace v. Brown, 22 Ark. 118; see also Gaylord u. ScarfF, 6 Clarke (Iowa), 
 179. Under the Wisconsin law, where an action is brought by holder of a tax 
 title to bar the rights of the former owner if the answer alleges merely technical 
 defects and irregularities in the proceedings, such defence can be interposed only 
 upon making the deposit required by statute 1859, ch. 22, § 38. Wakeley v. 
 Nicholas, 16 Wise. 588. The intention of this statutory provision was to cut 
 off all defences against a tax deed in such action, resting merely on technical 
 grounds or irregularities in the proceedings not affecting the groundwork or 
 substantial justice of the tax unless such deposit is made, and to compel payment 
 of taxes in all cases where equity and fair dealing require that they should not 
 be avoided ; and this provision of the law is constitutional. Wakeley v. Nicholas, 
 supra ; Smith u. Smith, 19 Wise. 615. See note, p. 433. In the case of a tax 
 sale in 1857, and deed issued thereon in 1865, if the grantee brings his action 
 under ch. 22 Laws of 1859, to foreclose the tax deed, he waives the conclusive 
 effect of his deed as evidence, given by the act in force in 1857, and can claim 
 for it only the force allowed by the act of 1859. And the original owner in such 
 case can set up mere irregularities in the tax proceedings only on condition of 
 depositing the full sum required by said § 38, ch. 22, as amended by ch. 13 
 Laws of 1860. Knight v. Barnes, 25 Wise. 352. As to this proceeding not being 
 applicable to tax deeds executed by treasurer of Oskosh, see Finney v. Ford, 
 22 Wise. 173; Grimmer v. Sumner, 21 Wise. 179; Finney v. Ackerman, id. 268. 
 A grantee of the grantee in a tax deed is his "assign," within the meaning of 
 sec. 85 of said ch. 22, and may bring the action. Finney v. Ford, supra. In an 
 action by a tax-title claimant under said ch. 22, the defendant may set up in 
 defence any facts showing that the plaintiff was incapable as against him or his 
 grantor of taking title by tax deed or by deed for the taxes of the particular years 
 relied upon. Wilson v. Jarvis, 19 Wise. 597. 
 
 (a) The Maryland statute (Act of 1870, ch. 312), after providing that the 
 collector of taxes shall report the sale, &c., to the Circuit Court, directs that 
 
OP THE CONFIRMATION OF THE SALE. 391 
 
 " the Court to which such report shall be made shall examine the said proceed- 
 ings, and if the same appear to be regular and the provisions of law in relation thereto 
 have been complied with, shall order notice to be given by advertisement published 
 in such newspapers as the Court shall direct, warning all persons Interested in 
 the property sold to be and appear by a day certain in the said notice to be 
 named, to show cause, if any tliey have, \^hy said sale should not be ratified and 
 confirmed," held, that the proceedings and order being ex parte, the order is 
 preliminary only, and not intended to be final and conclusive, and that all 
 questions touching the validity of the sale properly arise upon the final hearing 
 for ratification. County Commissioners v. Clarke, 36 Md. 206. 
 
392 OP THE LOCATION OP THE LAND SOLD. 
 
 CHAPTER XX. 
 
 OF THE LOCATION OP THE LAND SOLD. 
 
 In sales of this character the law requires a specific location, 
 and certain description of the land sold, in all cases where a 
 less quantity than the entire tract offered, is struck off. In 
 some instances, the officer making the sale is authorized to 
 elect in what part of the tract the quantity shall be located, 
 and announce his election to the bidders previous to the sale. 
 Thus, in the Illinois statute of February 19, 1827,^ it is pro- 
 vided, that " the sheriff shall proceed to sell said property, or 
 so much of it as shall bring the amount of the tax and cost, 
 and the officer selling, shall, previous to the sale, designate 
 in what part of the tract the part sold shall be located, and 
 shall give his certificate and make his deed accordingly." In 
 other instances, the law itself locates the land sold, without 
 the intervention of any agency whatever. This was the case 
 in the Illinois statute of February 26, 1839,^ which declared 
 that " when a portion of the tract shall have been struck off 
 on any such bid, it shall be taken off the east side of said 
 tract, extending the whole length on the east side, and so 
 proportioned in width as to embrace the number of acres sold 
 as aforesaid." In the States of North Carolina and Kentucky, 
 the law authorized a sale of the least number of acres without 
 designation in terms, or authorizing the officer selling to locate 
 the part sold, but directing the officer to execute a certificate 
 
 of the quantity sold, which constituted the authority 
 * 356 of the county surveyor, to make a location of the * part 
 
 sold by actual survey ; and upon the return of the sur- 
 vey, the officer who made the sale was required to convey to 
 the purchaser, according to the metes and bounds of the sur- 
 vey thus made and returned.^ 
 
 • Gale's Statutes, m>, sees. 24 and 25. 2 Seo. 85. 
 
 5 Currie v. Fowler, 5 J. J. Marsh. 146 ; Jones v. Gibson, 2 Taylor (N. C), 41. 
 
OP THE LOCATION OP THE LAND SOLD. 393 
 
 Where a conveyance is made of a certain number of acres, 
 without locating it in any particular part of the tract, the 
 conveyance confers no election upon the grantee to locate the 
 quantity purchased, but the deed must be held void for uncer- 
 tainty.i Thus, a deed of « 10 acres in lot 26, in the 11th 
 range, in the town of Columbia," is void for uncertainty .^ 
 The present statute of Illinois provides, that when a less 
 quantity than a whole tract shall be sold, the part purchased 
 shall be located on the east side of the tract. 
 
 In Spellman v. Curtenius,^ the description of the land 
 offered for sale was : S. W. and S. E. 9, T. 8, N. R. 8 E., 
 and the sale was of one acre off the east side of the two par- 
 cels ; the two quarters were fractional, ran to a point on the 
 east, and therefore, strictly speaking, had no eastern side. 
 By the Court : " The intention of the law is, where less than 
 the whole tract is sold for taxes, that the quantity sold shall 
 be taken from the eastern part of the tract, and a line is to be 
 drawn due north and south, far enough west of the most 
 eastern point of the tract of land sold, to make the requisite 
 quantity. The law must have a practical effect, and because 
 a tract of land does not' happen to be in a form, so as to have, 
 strictly speaking, an east side, it is not to be presumed the 
 legislature intended such tract to be exempt from this general 
 provision of the revenue law. To give it such a construction, 
 would be emphatically sticking in the bark." 
 
 * But upon the same identical state of facts, the tax * 357 
 deed was held void, in Ballance v. Forsyth.* McLean, 
 J., in delivering the opinion of the Court, said, " In these 
 two fractional sections, there appear to have been about 150 
 
 1 Erwin v. Helm, 13 Serg. & Eawle, 151 ; Haven v. Cram, 1 N. H. 93 ; Jack- 
 son V. De Lancy, 11 Johns. 373 ; s. c. 13 Johns. 551 ; Jackson o. Eosevelt, 13 
 Johns. 97. See p. * 359, note (a). The opposite doctrine is asserted in Coxe v. 
 Blanden, 1 Watts, 533 ; but it is so utterly repugnant to the general principles 
 of law, that it cannot be sustained. This case is recognized in Hess u. Harring- 
 ton, 73 Penn. St. 448. 
 
 2 Harvey v. Mitchell, 11 Foster, 575. If the description of the land assessed 
 is definite and accurate, and is inserted in the tax deed, and the purchaser at the 
 sale buys a portion of it, such description in the tax deed of the portion sold as 
 will enable its boundaries to be determined by extrinsic evidence, applying the 
 description in the deed to the land, is sufScient. Brunn v. Murphy, 29 Cal. 326. 
 
 3 12 LI. 409. 4 13 How. (U. S.) 18. 
 
394 OP THE LOCATION OP THE LAND SOLD. 
 
 acres. It is not said in what form the acre is to be surveyed. 
 Certainty in such a case is necessary to make the sale valid, 
 for on the form of the acre its value may chiefly depend. 
 And there is nothing on the face of the deed, or in the pro- 
 ceedings previous to the sale, which supplies this defect." 
 It may be added, that the same want of specific locality of 
 the land sold, which would render void the anterior proceed- 
 ings, wiU also establish the invalidity of the deed, (a) 
 
 (a) Sec. 85, Act 169, Laws of Mich, of 1869, p. 355, provides that when less 
 than the whole of any parcel shall be sold for taxes, &c., " the portion thereof 
 sold shall be taken from the north side or north end of such parcel, and shall be 
 bounded on the south by a line running parallel with the northerly line thereof, 
 unless the same be an irregular fraction ; in which case the portion thereof so 
 sold shall be bounded on the south by a line running due east and west." See 
 p. * 381, note. 
 
OP THE AMENDMENT OF THE PROCEEDINGS. 395 
 
 CHAPTER XXL 
 
 OF THE AMENDMENT OP THE PROCEEDINGS. 
 
 It may be laid down as a general rule, that the power to cor- 
 rect an error committed in the progress of a proceeding ex- 
 clusively belongs to Courts of justice, and has no application 
 whatever to the proceedings of ministerial officers, (a) The 
 common law, independently of any statutory provision upon 
 the subject, recognizes the power of the Courts in all cases 
 in furtherance of justice, to amend their proceedings while 
 in paper ; that is, until the judgment is signed and perfected, 
 by its record and that of the anterior proceeding; but no 
 amendment was allowable, according to the strict rules of the 
 common law, after the ending of the term in which the judg- 
 ment was pronounced. Prior to that time, the proceedings 
 were regarded as in fieri only, and consequently subject to 
 the control of the Court. But by the English and American 
 statutes of amendment and jeofail, the power of the Court to 
 amend the record of their proceedings has been greatly en- 
 larged, and amendments may now be made where the justice 
 of the case requires it, after a motion in arrest of judgment, 
 upon' writ of error, and even after execution has been issued, 
 executed, and returned. This power of amendment belongs 
 to superior Courts of record alone. No inferior Court pos- 
 sesses it. No miuisterial officer is permitted, according to 
 the principles of the common law, to exercise such a power, 
 
 (o) Power to amend is in some cases given by statute. In Conway v. Young- 
 kin, 28 Iowa, 295, it was held, that the omitsiou of the assessor to insert the name 
 of a person whom he intended to assess jointly witli another, as tlie owners of 
 the property assessed, is an error tliat may properly be corrected by the clerk 
 of the board of supervisors, under § 747 of the Revision. But under that section 
 he cannot increase the assessment of property, tlie valuation of which he thinks 
 too low, when it is not shown that such valuation was the result of a mistake 
 or error, or that it was not proportionate to that put upon otiier property. Jones 
 V. Tiffin, 24 Iowa, 190. 
 
396 OP THE AMENDMENT OF THE PROCEEDINGS. 
 
 where the rights of third persons are concerned, for the simple 
 reason that he possesses no legislative or judicial power. To 
 the latter departments of government the power of amend- 
 ment alone attaches. The executive officers of the 
 *369 lawact at their peril in every * instance, where they 
 are intrusted with a power over the rights of the citi- 
 zen, and are not under the supervisory control of some Court 
 of record, touching the regularity of their proceedings. 
 
 Besides, no amendment is ever permitted in any case, 
 where the rights of parties in interest are to be affected, 
 except upon notice ; and notice is required in judicial pro- 
 ceedings alone. The acts of ministerial officers are to be 
 tested by the law which authorized them. When the act is 
 completed their power is functus officio, and if in the record, 
 return, or other evidence of their acts, they have failed to 
 conform to the requisitions of the law of the land, or to state 
 the facts as they actually transpired, the error cannot be 
 obviated by an amendment, because their power over the 
 subject is exhausted. By the record, as originally made, their 
 acts must stand or fall, (a) 
 
 Upon these principles, it is impossible to sustain a power in 
 the officer who sells land for the non-payment of taxes, or in 
 any officer connected with the proceedings to amend the record 
 of their acts after they have been made. In Blight v. Banks,' 
 the return of the register showed a sale of 1,900 acres, while 
 the certificate of the sale called for 4,900 acres ; afterwards, the 
 return which had been recorded in the auditor's office, was 
 altered by the auditor to correspond with the certificate. The 
 proceedings were held void. By the Court : " As the entry 
 and return of the sale by the register, and the record in the 
 auditor's office is kept in the custody of the officers of the 
 
 (a) If the description of the tract sold at the time of the sale is general, as 
 " fourteen feet " in a certain lot, or " one-eighth " of a certain lot, the sale is Toid 
 for uncertainty, and the defect cannot be cured by inserting a proper description 
 in the certificate of purchase or collector's deed. Eoberts v. Chan Tin Pen, 23 
 Cal 259. Where a tax roll showed an error on its face of ten cents in the aggre- 
 gate amount of tax carried out opposite a certain parcel of land, which error the 
 county treasurer corrected before sale, it was held, that as this did not injure the 
 owner it must be disregarded. Case v. Dean, 16 Mich. 12. 
 
 1 6 Mon. 206. 
 
OP THE AMENDMENT OF THE PROCEEDINGS. 397 
 
 law, and the certificate is kept by the purchaser, and operates 
 as a mere memorandum directory to the surveyor, and has no 
 validity in passing the title, we concede the preference to the 
 record, and conceive it ought to prevail as fixing the true 
 quantity. And although the return of the register, and 
 record of the auditor, have since been changed by the audi- 
 tor, to conform to the certificate, yet this change was not 
 authorized, and we cannot deem the sale valid for more than 
 1,900 acres." The same question was decided in Blight v. 
 Atwell.i 
 
 * The whole doctrine of amendment was discussed, * 360 
 and the power sustained, in Gibson v. Bailey, (a) The 
 facts were, that the return of the posting up of the warrant 
 for the town meeting, at which the tax was levied and the 
 officers elected, was illegal. It did not appear, from the 
 return, when the warrant was posted up, nor that it was 
 posted at a public place. Nor did it appear upon the face of 
 the town records that the collector took the oath of office 
 prescribed by law. A motion was made to permit the record 
 and return to be amended. By the Court : " It has already 
 been settled that the record of towns may be amended to 
 conform to the truth of the fact. (6) The amendment must 
 be made by the person in office at the time. The form in 
 which such amendments are to be made, has never yet been 
 settled. It will be very dangerous to sanction alterations of 
 the books themselves, by erasures and interlineations. And 
 we are of the opinion that they should be made only upon 
 
 1 7 Mon. 268. 
 
 (a) 9 N. H. 168. Where the rights of third parties have not intervened, the 
 records of the county convention voting the county tax may, upon proper proof, 
 be amended so as to show that tlie cleric of the convention took the oath of oflSce, 
 although tliere is nothing in the record, as originally made, indicating the proba- 
 bility that he did so. Jaquith u. Putney, 48 N. H. 138. See also Wliittier v. 
 Vaniey, 10 N. H. 291, 298, 299 ; 19 N. H. 290 ; 8 N. H. 613 ; 39 N. H. 393. So 
 where tlie rights of third parties have not intervened, a tax collector's return 
 that he put up the whole lot for sale may be amended, conformably with the 
 truth, so as to show that he offered for sale only so much of the lot as was neces- 
 sary to pay the tax and charges. Jaquith v. Putney, supra. The amendments 
 in this case (Jaquith v. Putney) were further held to be of such a nature that they 
 might be made after verdict, and when made judgment was rendered thereon. 
 See 10 N. H. 291. 
 
 (4) See 1 Dill, on Mun. Corp. §§ 232, 233, and the cases there cited. 
 
398 OF THE AMENDMENT OP THE PROCEEDINGS. 
 
 evidence showing the truth of the facts, and then, by drawing 
 out in form the amendment which the facts authorize. The 
 amendment, with the order under which it is made, may then 
 be annexed to the books where the original is recorded, so 
 that the whole matter will appear ; and in furnishing copies, 
 the original and amendment should both be furnished. 
 
 But it is objected by the demandant, that no amendment 
 ought to be made to her prejudice. That when she purchased, 
 these defects in the vendue title were apparent ; and that she 
 must be presumed to have purchased with knowledge that the 
 title was defective. The general rule is, that amendments 
 of records are made with a saving of the rights of third 
 persons, acquired since the existence of the defect. To 
 apply this rule, to all cases of defects in sales of land for taxes, 
 would, in effect, be very nearly denying a right to amend; 
 as the owner would attempt to defeat any amendment, by 
 conveying to some friend, who would bring a suit in his 
 behalf. It would, at least, be necessary to confine the appli- 
 cation of the principle to cases where the land had 
 * 361 been actually conveyed bond fide. But * instances 
 might exist where the purchaser, although he might 
 not have found upon the records all that was necessary to 
 make a formal and valid record, might have been well 
 assured, from what he did find, that all that was necessary 
 had in fact been done. Where what is necessary is, although 
 not formally stated, so far set down as to lead to a belief that 
 a correct record might have been made, there seems to be no 
 reason why a purchaser, who has access to the records, should 
 not take it, subject to a right to have the record put in form, 
 if the truth will warrant it. Where, on the other hand, 
 nothing appears upon the record in relation to any particular 
 fact necessary to make out a title, nor is any thing set down 
 from which it is naturally to be inferred that the fact existed, 
 a lond fide purchaser ought not to have his title defeated, by 
 supplying a record instead of amending a record." The 
 motion in that case was allowed, on condition that the pro- 
 posed amendment accorded with the facts. There does not 
 seem to be much objection to this doctrine, by which the 
 rights of third persons are saved, and the power is confined 
 
OP THE AMENDMENT OP THE PROCEEDINGS. 399 
 
 to cases when the law has, in fact, been complied with by the 
 officers, but a record of their proceedings has been imperfectly 
 made up, and where sufficient evidence of the compliance 
 appears upon the face of the record, either in express terms, 
 or by legitimate inference, from the facts actually stated. 
 Indeed, in such cases, the Court would uphold the title of the 
 purchaser, without any amendment at all ; treating all defects 
 as amended, which, according to the general principles of the 
 law, might be amended. 
 
 Such was the doctrine asserted in Atkins v. Hinman,^ 
 where, in a collateral action, amendments of the tax record 
 were permitted in the Circuit Court, and the Supreme Court 
 sustained them upon the ground, that they were only the 
 correction of clerical mistakes, and could prejudice no per- 
 son's right ; that they brought no new matter into the case, 
 and gave no additional efficacy to the proceedings, but 
 simply put them in stricter * conformity to the provi- * 362 
 sions of the statute. And it must be remembered that 
 these amendments were of the judgment and precept under 
 the Illinois statute of 1839, and the anterior proceedings 
 upon the files of the Court, furnished the facts whereon the 
 amendments were based. 
 
 In Pitkin v. Yaw,^ a motion was made to amend the pre- 
 cept, in an action of ejectment. Upon the trial of the cause, 
 it was refused. Treat, C. J. : '' If such an amendment is 
 allowable, it should only be made upon a distinct application 
 to the Court for the purpose. The application should have 
 no connection with any other case. A contrary practice 
 would introduce much confusion into judicial proceedings. 
 A Court engaged in the trial of a case, ought not to be 
 delayed and embarrassed by motion to amend the record of 
 another proceeding, which is but collaterally in question 
 before it. Such an application might involve the necessity 
 of bringing other parties and different interests before the 
 Court." (a) 
 
 1 2 Gilm. 451. 
 
 s 13 111. 251. Semble, that precept may be amended to follow judgment. 
 Eppinger v. Kirby, 23 111. 521. 
 
 (a) Where the certificate of publication of the collector's notice of his intended 
 application for judgment for taxes is deficient, the same may be amended by 
 
400 OF THE AMENDMENT OF THE PROCEEDINGS. 
 
 It was intimated in Young v. Thompson,^ that a judgment 
 upon the delinquent list might be amended, by adding the 
 date of its rendition, upon a proper application. It is not 
 allowable, in any case, for a ministerial officer, either with or 
 without the permission of a Superior Court, so to amend his 
 record of the proceedings, as to render a sale valid, which 
 was not valid before, or to vest a title in the purchaser, or to 
 divest the title of the owner, if the sale was not already per- 
 fect.^ If an amendment is allowed in any case, there must 
 be some limit, in point of time, to the exercise of the power ; 
 and there is no safer rule to adopt, than the analogy to be 
 drawn from the limitation of writs of error and bills of review. 
 In Means v. Osgood,^ the amendment of an extent was refused, 
 where six years had elapsed, and the rights of third persons 
 had intervened. In no case will an amendment be 
 * 363 allowed, * except upon notice to the parties in inter- 
 est.* And in every instance there must be something 
 upon the face of the proceedings to amend by — something 
 to show that what is sought by the amendment was originally 
 designed, but has been omitted by mistake or misprision.^ 
 
 order of the Court, upon notice being given to the opposite party, even after 
 judgment, provided it is done at the same term at whicli judgment was rendered. 
 Dunham v. Chicago, 55 III 357. See 18 III. 390. In Annan v. Baker, 49 N. H. 
 171, it was said, that an application to correct a mistake in the record of the col- 
 lector's return of the land sold and the description in the tax deed should be 
 made to the chancery side of the Court in a direct proceeding for that purpose. 
 
 1 14 111. 380. 
 
 2 Judevine v. Jackson, 18 Vt. 470 ; Langdon v. Poor, 20 Vt. 13. See Bay- 
 burn V. Kuhl, 10 Iowa, 92. It seems that an aflSdavit of assessors endorsed on 
 assessment roll by requirement of statute (not being a. jurisdictional fact) may 
 be amended. See Parish v. Golden, 36 N. Y. 465. 
 
 8 7 Greenl. 147. * O'Connor v. Mullen, 11 111. 57, 116. 
 
 » Luke V. Morse, 11 111. 587. 
 
OP THE TAX DEED. 401 
 
 CHAPTER XXII. 
 
 OP THE TAX DEED. 
 
 The tax deed is the instrument, whereby the officer of the 
 law undertakes to convey the title of the rightful proprietor, 
 to the purchaser at the tax sale. This deed, according to 
 the principles of the common law, is simply a link in the 
 chain of the grantee's title, (a) It does not ipso facto trans- 
 fer the title of the owner, as in grants from the government, 
 or in deeds between man and man. (6) The operative char- 
 acter of it depends upon the regularity of the anterior pro- 
 ceedings. The deed is not the title itself, nor even evidence 
 of it. Its recitals bind no one. It creates no estoppel upon 
 the former owner. No presumption arises upon the mere 
 production of the deed, that the facts upon which it is based, 
 had any existence. When it is shown, however, that the 
 ministerial officers of the law have performed every duty 
 which the law imposed upon them, — every condition essen- 
 tial in its character, — then the deed becomes conclusive evi- 
 dence of title in the grantee, according to its extent and 
 purport. We have seen, however, that in some instances the 
 deed is declared by statute to be primd facie evidence, either 
 of all the facts recited in it, or of a strict compliance, by the 
 officers, with every requisition of the law. In all such cases, 
 the deed is evidence of title to the extent of the interest 
 attempted to be conveyed.^ But the instant it is shown, by 
 
 (a) See p. * 296, note 2 The effect of any tax deed properly executed is to 
 be determined by the law in force at the time of the sale.. Woodman v. Clapp, 
 21 Wise. 350. Under the act of March 13, 1815, a deed from the treasurer for 
 lands sold for taxes to the commissioners is essential, and the curative clause of 
 the act of 1815 has no application to a sale where no deed is made. Hoffman 
 V. Bell, 61 Penn. St. 444. 
 
 (6) An actual adverse possession of the land does not prevent the operation of 
 the deed made by the commissioner of delinquent lands, conveying to a pur- 
 chaser the commonwealth's right to the land. Smith v. Chapman, 10 Grat. 446. 
 
 1 Ante, ch. 8. 
 
 26 
 
402 OP THE TAX DEED. 
 
 the party claiming adversely to the deed, that any substantial 
 prerequisite of the law has not been complied with, the 
 
 primd facie character of the deed is destroyed, all of 
 * 365 its * presumptions overthrown, and the deed becomes 
 
 mere " waste paper." ^ 
 And inasmuch as the evidence necessary to destroy the 
 presumptions raised by such a deed, is of a negative charac- 
 ter, the law does not require of the adverse party plenary 
 proof; it is enough that he introduces such evidence, as, in 
 the absence of all counter testimony, will afford reasonable 
 ground for presuming that the negative allegation is true ; (a) 
 and when this is done, the onus probandi is shifted to the 
 party claiming under the tax deed. The primd facie charac- 
 ter of the deed, as established by the statute, being thus 
 overthrown, the principle of the common law again attaches 
 to the transaction, and the grantee in the tax deed, or those 
 claiming under him, must prove, by satisfactory evidence, 
 the regularity of the proceedings.^ This principle conforms to 
 the general law, regulating the proof of negative averments.' 
 It has been attempted to be shown, that the legislature 
 cannot, constitutionally, declare a tax deed conclusive evi- 
 dence of a material fact, upon the existence of which, the 
 power to sell and convey depends,* though they may do so 
 in relation to formal requisitions. It is now proposed to ex- 
 amine the law of tax deeds in detail. 1. The deed must be 
 written, or printed, on parchinent or paper,^ or it may be 
 partly written and partly printed. It is said, however, that 
 
 » Sibley v. Smith, 2 Mich. (Gibbs) 486 ; Graves v. Bruen, 11 111.431 ; Tumey 
 «. Yeoman, 16 Ohio, 24 ; Fitch v. Casey, 2 G. Greene, 300 ; Ray v. Murdock, 86 
 Miss. (7 George) 692 ; Delaplaine v. Cook, 7 Wise. 44 ;. Eayburn v. Kuhl, 10 Iowa, 
 92 ; Scott V. Stearns, 2 Mich. N. P. Ill ; Biddleman v. Brooks, 28 Cal. 72; John- 
 son V. Elwood, 58 N. Y. 436 ; Biscoe v. Coulter, 18 Ark. 423 ; Ortou v. Noonan, 
 25 Wise. 672. See p. * 79, note 3. 
 
 (a) As to the amount of evidence necessary, see p. * 83, note 2. See also Cut- 
 tle V. Brockway, 24 Penn. St. 145. 
 
 '■i Graves v. Bruen, 11 111. 431; Sibley o. Smith, 2 Mich. (Gibbs) 486; 17 
 Mich. 220. 
 
 ' 1 Greenl. Ev. sec. 78 ; Calder v. Rutherford, 3 Brod. & Bing. 302. 
 
 * Ante, pp. * 80, » 83. 
 
 6 Coke, Litt. 229 a ; 2 Blackst., Com. 297 ; 14 Johns. 491 ; 2 Maule & Selwyn, 
 288. 
 
OP THE TAX DEED. 403 
 
 greater effect is to be given to the written part of a contract 
 or deed, where it is written in part and printed in part, and 
 it is doubtful, upon the whole instrument, what the intent of 
 the parties was.^ 2. The deed must be sealed, (a) The 
 statutes usually require, in terms, the sealing of the 
 deed. This was a requisition in the statute of * lUi- * 366 
 nois, of January 26, 1826.2 But sometimes the statute 
 simply directs the officer to execute "a deed of convey- 
 ance." ^ This ex vi termini means an instrument in writing, 
 sealed and delivered, and whatever else is necessary to con- 
 stitute the solemnity of a deed according to the principles of 
 the common law.* Besides, it is an established principle, 
 that no estate of freehold, for life, in fee or in tail can pass 
 by an instrument or writing not under seal.^ And where the 
 general statute law of the State declares that the manner of 
 conveying freehold estates shall be " by writing, sealed and 
 delivered," that law is as applicable to conveyances made by 
 a public officer as to those executed by private individuals. 
 
 Such was the rule laid down in Doty v. Beasley,^ which 
 was an action of trespass for cutting down and carrying away 
 timber, and the defendant justified under a tax sale. By the 
 Court : " He (the defendant) claims title by virtue of a pur- 
 chase made from the register at his sales for taxes, the 28th 
 
 1 3 Kent, Com. 260 ; 4 East, 136. 
 
 (u ) As to the manner of pleading the sealing of the tax deed, and the kind of 
 seal required in Wisconsin, see Dolan v. Trelevan, 31 Wise. 147 ; also Woodman 
 V. Clapp, 21 Wise. 367 ; Knox v. Huidekoper, id. 529. The private seal of the 
 person executing the deed is required, unless the statute otherwise provides. 
 Sturdevant v. Mather, 20 Wise. 676 ; Eaton v. North, 20 Wise. 449. Seal suffi- 
 ciently recorded, if indicated upon the record by the word " seal " within a scroll. 
 Huey V. Van Wie, 23 Wise. 618. Congress cannot, without the consent of the 
 State, impose a stamp duty upon tax deeds executed under the laws of the State ; 
 before ch. 159, Laws of 1863, therefore, a, stamp was not required upon a tax 
 deed in Wisconsin. Sayles v. Davis, 22 Wise. 225. Nor is a stamp required 
 since that act. Delorme v. Ferk, 24 Wise. 201. Such deed is admissible in evi- 
 dence, although not stamped at the time of the commencement of the action, if 
 it has been since stamped by the collector of the proper district, in pursuance of 
 the act of Congress of March 3, 1865. Knox v. Huidekoper, 21 Wise. 534. 
 
 2 Laws 1826, p. 78. 
 
 » Kevised Statutes, lU. 1845, p. 447, sec. 71. 
 
 * 1 Bibb, 333 ; 12 Johns. 197. 
 
 « Jackson v. Wood, 12 Johns. 73 ; Same v. Wendell, 12 Johns. 355. 
 
 6 2 Bibb, 14. 
 
404 OP THE TAX DEED. 
 
 day of NoYember, 1800, and obtained a certificate of the 
 purchase. On the 23d of October, 1805, he procured from 
 the register what (we presume) was intended by them as a 
 deed of conveyance. It is signed by the register, but he has 
 failed to annex a seal to it. The act regulating conveyances, 
 approved December 19th, 1796, declares ' that no estate of 
 inheritance or freehold, or for a term of more than five years, 
 in lands or tenements shall be conveyed from one to another, 
 unless the conveyance be declared by writing, sealed and 
 delivered.' This general regulation must have operation upon 
 all convej^ances, whether made by private individuals or pub- 
 lic officers, unless there be some subsequent act changing its 
 provisions. We have not found any provision to that effect." 
 The same principle was applied to a tax deed in 
 * 367 Shortridge *z;. Catlett.i It is presumed, however, that 
 under those statutes which authorize the sale and con- 
 veyance of a leasehold interest in lands, as in New York and 
 South Carolina, the lease need not be under seal.^ The 
 manner of sealing will of course depend upon the laws and 
 usages of each State where the deed is executed. Under 
 the old revenue laws of Illinois, tax deeds made by the audi- 
 tor of State were sealed with the official seal of the auditor's 
 office. Under the present laws, they are authenticated by 
 the private seal of the conveying officer. And it is pre- 
 sumed that in all cases where the statute directs the execu- 
 tion of a tax deed, and is silent as to the manner of sealing 
 it, the common law mode may be adopted ; that is, the pri- 
 vate seal of the person who executes the deed. Such are 
 the decisions in Pennsylvania, relative to deeds executed by 
 the county commissioners of the county, for land sold at tax 
 sales ; and where they use the seal of the county to authenti- 
 cate the deed, it is held void.^ But it may be read in evi- 
 dence, as the basis of an adverse possession.* 
 
 1 1 A. K. Marah. 587. 
 
 2 Fry 0. Phillips, 6 Burr. 2827 ; Holliday v. Marshall, 7 Johns. 211. 
 
 3 Watt «. Gilmore, 2 Yeates, 830 ; Huston k. Foster, 1 Watts, 478. See p.* 365, 
 note. 
 
 ' McCoy V. Dickinson College, 5 Serg. & Rawle, 254. Under the Wisconsin 
 Statute of 1859, the seal should be that of the county oT municipality, and not 
 that of the officer. Knox v. Huidekoper, 21 Wise. 527. 
 
OP THE TAX DEED. 405 
 
 3. It is essential to the validity of a tax deed that it should 
 be delivered by the officer, who is intrusted with the power 
 of executing it, and that it should be accepted by the grantee 
 named in it, or by some person authorized by him to receive 
 it. In this respect it stands upon the same footing as deeds 
 executed between private individuals. It is not necessary 
 that a patent should be delivered to the grantee of the gov- 
 ernment, in order to vest a title in him, but it becomes oper- 
 ative for that purpose when it is issued. A tax deed can be 
 regarded in no sense as a patent. The distinction between 
 them is obvious. A patent conveys the title of the govern- 
 ment, and is under the hand of the chief executive officer, and 
 the great seal of State ; while a tax deed simply passes the 
 owner's title, and is executed by the proper officer, under his 
 own hand and private seal.^ 
 
 * 4. The deed must recite the power under which * 368 
 it is made, otherwise it will be invalid.^ It does not 
 derive its validity from its capacity as an independent con- 
 veyance, to transfer the estate described in it, but from the 
 existence of the power, and a compliance with the conditions 
 prescribed by the creator of it. The title is derived from 
 the power, and the conveyance must bear upon its face an 
 acknowledgment of the power in pursuance of which it pur- 
 ports to have been executed, (a) This rule is applicable alike 
 to aU powers, whether public or private in their nature.^ 
 The uniform practice throughout the country has been to 
 conform to this rule. Every statute form of the deed not 
 
 1 HuUck V. Scovil, 4 Gilm. 159 ; Church v. GUman, 15 Wend. 658. See 
 p. • 79, note 2. 
 
 2 A deed in the form prescribed by statute 1852, § 5, is good, though it do not 
 show on its face that it is executed under the special statute power. Falkner v. 
 Dorman, 7 Wise. 388. 
 
 (a) In Missouri, it is held that a tax deed to be valid must show in its recitals 
 that the register liad power to sell and convey the land ; that the deed must state 
 facts and not the conclusions of the ministerial officer executing it as to their 
 sufficiency ; thus a recital that the lands therein described " were advertised 
 according to law," is insufficient Yankee v. Thompson, 51 Mo. 238 ; Spurlock 
 V. Allen, 49 Mo. 178 ; Large v. Fisher, 49 Mo. 307 ; Abbott v. Doling, 49 Mo. 
 802. See note (a), p. * 223 ; p. * 268, note (a). 
 
 s 2 T. R. 241 ; Jackson v. Roberts, 11 Wend. 425 ; Tolman v. Emerson, 4 Pick. 
 160. See also McDermott v. Scully, 27 Ark. 226 ; Call v. Dearborn, 21 Wise. 603. 
 
406 OP THE TAX DEED. 
 
 only recites the power under which it is executed, but usually 
 recites a compliance with all of the requisitions of the stat- 
 ute by which the power was created. No instance can be 
 found where a tax deed, or any other deed executed in pur- 
 suance of a public power, has been made in the form ordi- 
 narily in use among individuals in conveying land, and 
 bearing no recognition upon its face of the power under 
 which the of&cer acted. 
 
 5. Where the form of the deed has not been prescribed by 
 law, but the statute simply authorizes the execution of a deed 
 of conveyance to the purchaser, any deed, which, according 
 to the rules of the common law, would be sufficient to trans- 
 fer the title of the former owner, and vest the estate in the 
 purchaser, is regarded as an operative mode of conveyance, (a) 
 provided it recites the power under which it was made, and 
 is accompanied by proof that the law was strictly complied 
 with.i Bat where the statute prescribes the particular form 
 to be observed in the execution of the deed, that form becomes 
 substance, and must be strictly pursued, or the deed will be 
 !held void.2 (6) 
 
 (a) See Einstein v. Gay, 45 Mo. 62, where it was held that a tax deed purport- 
 ing to convey to the purchaser " all the right, title, and estate," of the State of 
 Missouri in and to the premises, and which does not purport to convey any thing 
 more, can pass no title to the purchaser. See p. 281, note 3. 
 
 1 Chandler v. Spear, 22 Vt. 388 ; Brown v. Hutchinson, 11 Vt. 569 ; Spear v. 
 Ditty, 8 Vt. 419 ; Bank of Utica v. Mersereau, 3 Barb. Ch. 528. 
 
 2 Chandler v. Spear, 22 Vt. 388 ; Kinney v. Beverley, 2 Hen. & Munf. 531 
 Smith V. Hileman, 1 Seam. 823 ; Atkins v. Einnan, 20 "Wend. 249 ; Breese, 4 
 15 Vt. 72 ; 22 Pick. 387 ; 11 Mass. 281 ; 1 East, 64 ; 1 Cowp. 32 ; 5 Gilm. 96 
 Boardman v. Bourne, 20 Iowa, 134. See also 21 Wise. 355. The deed must fol- 
 low the form prescribed by statute ; thus, where the deed did not state that the 
 person depositing the certificate of sale was the purchaser or his assignee, as was 
 contemplated in the form prescribed by Stat, of 1859, it was held void. Krueger 
 V. Enab, 22 Wise. 429. So where the name of the piurchaser was not stated as 
 required by form prescribed by Stat, of 1852. North v. Wendell, id. 431. 
 
 (6) But a compliance with that form is sufficient ; no greater fulness can be re- 
 quired. Hobson V. Button, 9 Kan. 477 ; Enox v. Huidekoper, 21 Wise. 627 ; Frentz 
 V. Elotsch, 28 Wise. 312. Where the deed recited a sale at Oskosh, in the county 
 of Winnebago, the statutory form not requiring any more particularity as to the 
 place of sale, held, that the deed need not recite further that the sale was at some 
 " public place," e. g., " the court-house." Frentz v. Klotsch, supra. A recital in a 
 tax deed, that the holder of the tax certificate has deposited the same " in the office 
 of the clerk of the board of supervisora m the county of H." (instead of " In the 
 
OP THE TAX DEED. 407 
 
 In Maxcy v. Clabaugh, where the statute form of 
 the deed * required a recital of the year for which the * 369 
 taxes were due, and the year was misrecited in the 
 deed, it was held void.i On the other hand, where the stat- 
 
 ofiSce of the clerk of the county board of supervisors of the county of R." ), and 
 the omission of the word " and " in the attestation clause, immediately before the 
 words "have hereunto subscribed," held, not to be fatal variation from the stat- 
 utory form ; especially as the statute only requires the deed to be in " substan- 
 tially " the form there given, " or other equivalent form." Lybrand o. Haney, 
 81 Wise. 230. In Kansas, where the statute does not require the deed to be in 
 the exact form prescribed, slight irregularities in form do not vitiate the deed '; 
 all that is required is that it shall be in substantial conformity to the form given 
 in the statute (§ 10, Comp. Laws, 1862, p. 878). Bowman v. Cockrill, 6 Kan. 
 311. So the omission of the word " several " before the words " tracts of land," 
 where that word occurs in parentheses in the statutory form given in § 50, oh. 22, 
 Laws of 1859 ; and a misrecital therein that H. J., the grantee, was the pur- 
 chaser at the tax sale, where it appeared from the face of the deed that H. J. was 
 not the purchaser, but was the assignee of the certificate, — do not invalidate the 
 deed. Austin v. Holt, 32 Wise. 478. Where the law requires the deed to be exe- 
 cuted by the clerk of the board of supervisors, but the statutes give tlie title of 
 the office in various ways, the description of the office in any of those ways in 
 the attestation clause is sufficient to identify the officer and meet the require- 
 ments of the law. Knox v. Huidekoper, 21 Wise. 527. 
 
 1 1 Gilm. 26. The form of the tax deed prescribed by the Illinois statute of 
 January 26, 1826, was as follows, to wit : — 
 
 The auditor of public accounts of the State of Illinois, to all who shall see 
 
 these presents, greeting ; Know ye that whereas I did, on the day of , 
 
 at the town of Vandalia, in conformity with all the requisitions of the several 
 acts in such case made and provided, expose to public sale, a certain tract of 
 
 land being (here insert the description of it), for the sum of , being the 
 
 amount of taxes for the year of (or years of, as the case may be), with the inter- 
 est (if any) and costs chargeable on the said tract of land ; and whereas, at the 
 time and place aforesaid, A. B. offered to pay the aforesaid sum of money for 
 (the whole tract or part thereof, as the case may be) which was the least quan- 
 tity bid for ; and the said has paid the sum of into the 
 
 treasury of the State. I have granted, bargained, and sold, and by these pres- 
 ents, as auditor of the aforesaid State, do grant, bargain, and sell (here describe 
 the tract purchased) to the said A. B. (or C. D. his assignee), his heirs and assigns ; 
 
 to have and to hold the said tract of land, to the said and his heirs 
 
 for ever ; subject, however, to all the rights of redemption provided for by law. 
 In testimony of which, the said auditor has hereuilto subscribed his name, and 
 
 affixed his seal this day of . 
 
 ——— , Auditor. [Seal.] 
 
 The form now in use in that State will be found ante, p. * 197. Where the 
 statute provided that a tax might be levied by sale if " not paid within fourteen 
 days after demand, &c.," and required that the deed should state the cause of 
 sale, a deed was held invalid which did not state that the tax was not paid within 
 fourteen days after demand. Harrington «. Worcester, 6 Allen, 576. In Wis- 
 
408 OF THE TAX DEED. 
 
 ute did not require the deed to state in what year the tax 
 was assessed, for the non-payment of which the premises 
 were sold, it was held valid.^ In the case last cited, which 
 was an equity case, it appeared that the statute of New York 
 required the comptroller's deed to be executed " in the name 
 of the people of the State ; " and the deed offered in evidence 
 did not purport to be so executed ; but it was proven upon 
 the hearing, that such had been the form used for twenty- 
 five years. The deed was held valid. 1. Because the maxim, 
 " that custom is the best interpreter of the law," was appli- 
 cable in this case. 2. That the deed, though not technically 
 executed in the name of the people, recited the statutes 
 under which the sale was made, and a compliance with all of 
 their requisitions, that the taxes were due to the State of 
 New York, that the purchase-money was paid into the treas- 
 ury of the State, and the deed was executed by the 
 * 370 comptroller of * the State ; and no one could doubt, 
 upon an inspection of the deed, that it was the inten- 
 tion of the officer who made the conveyance, to convey the 
 premises described in it, for and in behalf of the people of the 
 State, and not as an individual acting in his own right ; and, 
 3. That if the error in the form was a material one, it would 
 not justify a court of equity in declaring, that the purchaser 
 had no right to the land by virtue of his purchase ; but the 
 comptroller, if necessary, would be compelled to execute a 
 new deed in the proper form. 
 
 consin, a tax deed under ch. 66 of Laws of 1854, is rendered void by the omission 
 of the words " as the fact is," in the recital relative to the sale and that relative 
 to redemption. Lain <^. Cook, 15 Wise. 446 ; Lain v. Shepardson, 18 Wise. 69 ; 
 Condit V. Blackwell, 22 N. J. Eq. 481. See also Cutler v. Hurlbut, 29 Wise. 152. 
 So when those words are contained in the recital as to sale, but omitted in the 
 recital as to redemption. Wakeley v. Mohr, 18 Wise. 321. That the failure to 
 recite one of the requisites to a valid levy of a tax, in a deed in which all the 
 proceedings had in such levy and all other proceedings essential to its validity 
 are set out, is evidence by implication that the requirement omitted was not 
 complied with, see Long v. Burnett, 13 Iowa, 29. But see Pleasants v. Scott, 21 
 Ark. 370 ; Budd v. Bettison, id. 582 ; Moss v. Shear, 25 Cal. 38 ; Gavin v. Shu- 
 man, 23 Ind. 32. See pp. * 79, note 3, * 381, note. The recital that certain 
 facts appear from the records of the auditor's office is not equivalent to the recital 
 that they exist. White v. Flynn, 23 Ind. 46. 
 
 1 Bank of Utica v. Mersereau, 3 Barb. Ch. E. 528. 
 
OF THE TAX DEED. 409 
 
 6. Where the date of a tax deed was left blank, the Court 
 presumed that it was executed and delivered prior to the 
 passage of a statute which, it was contended, took away the 
 power of the ofi&cer to make the deed. The date of the deed 
 may be proved by parol, and in the absence of evidence, it 
 will be presumed to have been made at the proper time.^ 
 This is in accordance with the general rule ; the date is 
 regarded as non-essential, the deed taking effect from its 
 delivery, and when the date becomes material, in the course 
 of a litigation, an omission may be supplied, or the deed con- 
 tradicted, where a wrong date is given, by extrinsic evidence. 
 The law, however, will presume that a deed was delivered 
 on the day of its date.^ 
 
 7. Where the statute is silent as to the acknowledgment 
 of the deed, it is not essential to its validity, (a) And where 
 the statute expressly requires an acknowledgment, it is pre- 
 sumed that a tax deed will stand, in this respect, upon the 
 same footing with ordinary conveyances, under the general 
 laws ; the rule in such cases is, that the execution of the deed 
 may be proved in the mode prescribed by the common law, 
 and when thus proven, it will be as valid and effectual as 
 though it had been duly acknowledged. The acknowledg- 
 ment only dispenses with common-law proof of the execution 
 of the deed.^ 
 
 * 8. Whether the tax deed must be recorded as * 371 
 against subsequent purchasers from the former owner, 
 is a question upon which the authorities are divided. The 
 
 1 Thompson v. Schuyler, 2 Gilm. 271. 
 
 2 2 Lord Rayra. 1076 ; Perkins. 120 ; Touch. 55 ; 1 Cranch, 239 ; 4 Com. Dig. 
 tit. Fait. (B. 3) ; 2 Blackst. Com. 304 ; 2 Johns. 230 ;. 4 Johns. 230 ; 4 East, 477 ; 
 1 Bibb, 619 ; 9 Cow. 255 ; 6 Munf . 555 ; 5 Johns. 139. 
 
 (o) Under the revenue act of Nov. 23, 1857, § 33, of Missouri, the deeds exe- 
 cuted by the register are prima facie evidence of title in the purchaser only when 
 duly executed and recorded. A deed is not duly executed unless It be proved or 
 acknowledged in the manner provided by" the " Act relating to Conveyances," 
 R. C. 1855, p. 364, and without being proved or acknowledged, the deeds cannot 
 be recorded. Stierlein v. Daley, 37 Mo. 483 ; Dalton v. Fenn, 40 Mo. 109. 
 
 3 Graves c/. Bruen, 1 Gilm. 167 ; Thompson v. Schuyler, 2 Gilm. 271 ; Ken- 
 nedy V. Daily, 6 Watts, 269 ; Hogins v. Brashears, 8 Eng. 242. In Kansas, it ' 
 seems that a tax deed duly acknowledged is good even without witnesses. Steb- 
 bins V. Guthrie, 4 Kan. 353. 
 
410 OP THE TAX DEED. 
 
 affirmative is maintained in Vermont and Massachusetts,^ 
 while the contrary is the doctrine of the Illinois Courts.^ 
 This is an important question, and depends upon the fact, 
 whether a tax title is a derivative or an original one. This 
 subject will be fully discussed hereafter.^ It may, however, 
 be laid down as a general rule, that where the statute, under 
 which the proceeding takes place, in express terms requires 
 the record of the tax deed, a compliance with it is as important 
 as that of any other requisition of the law. The statute of 
 Illinois declares, that " the deed so made by the collector, 
 shall be acknowledged and recorded in the same manner as 
 other conveyances of real estate, and shall vest in the 
 grantee, his heirs or assigns, the title of the property therein 
 described." * 
 
 9. It may be laid down as a general rule, that the officer 
 on whom the power to convey is conferred, cannot execute a 
 conveyance to the purchaser, until the expiration of the time 
 limited by law for the redemption of the estate, (a) The 
 same rule of strictness, applied to the residue of the proceedings, 
 is equally applicable to this ; besides, the purchaser can acquire 
 no right whatever to the estate, until the time of redemption 
 has elapsed. A deed made prior to that time, would not only 
 seem to be illegal, but a useless act, so far as the purchaser 
 is concerned. It could not acquire any additional validity 
 from the fact, that the owner of the estate failed to redeem. 
 The officer having no power to deliver the deed, nor the pur- 
 
 1 Allen V. Everts, 3 Vt 10 ; Tilson u. Thompson, 10 Pick. 359. Recording 
 of tax deeds is required by statute in Missouri. Stierlein v. Daley, 37 Mo. 483 ; 
 Dalton V. Fenn, 40 Mo. 109. The corporate seal of the county official to a tax 
 deed is sufficiently recorded, if indicated upon the record by the word " seal" 
 written within a scroll. Huey v. Van Wie, 23 Wise. 613. 
 
 '' Graves v. Bruen, 1 Gilm. 167 ; 2 Gilm. 623 ; p. * 79, note 2. 
 
 3 Posl, ch. 37. 
 
 * Revised Statutes, 1845, p. 447. 
 
 (a) Annan v. Baker, 49 N. H. 161; Under the statute of Illinois, if the pur- 
 chaser at a tax sale allows the land to be again sold within two years, whether 
 for the same class of taxes or for other taxes properly assessed, e. g. municipal 
 taxes, his right to a deed is postponed until the expiration of two years from the 
 date of the second sale, during which time the land is subject to redemption, and 
 a deed obtained within the limitation from the second sale is void. Denike v. 
 Rourke, 3 Bissell (U. S. C. 0.), 39. 
 
OP THE TAX DEED. 411 
 
 chaser a right to accept it, before the expiration of the time 
 fixed for redemption, the officer must, at the proper time, 
 execute and deliver a new deed to the purchaser, or 
 redeliver the old one. The date of * the deed being * 372 
 immaterial, a redelivery of it, when the power to con- 
 vey attached, would undoubtedly be sanctioned by the Courts, 
 and the deed treated as an operative conveyance. 
 
 Where a married woman executes a deed, without the join- 
 der of her husband, it is void to all intents and purposes, yet 
 it is held, that a redelivery of the deed, after the death of 
 her husband, will pass the estate.^ 
 
 The statute of Illinois, which is undoubtedly similar in 
 principle to that of every other State, will fully illustrate this 
 doctrine. That statute provides, that, " immediately after 
 the expiration of the term of two years from the date of the 
 sale of any land for taxes, under the provisions of this act, 
 the sheriff shall make out a deed for each lot or parcel of 
 land sold, and remaining unredeemed, and deliver the same 
 to the purchaser upon the return of the certificate of pur- 
 chase." 2 The statute gave, to owners laboring under no 
 disabilities, two years from the date of the sale, to redeem.^ 
 It will be perceived that the language of the law does not 
 empower the officer to convey, until the expiration of two 
 years from the date of the sale.* 
 
 10. The power to convey, when it once attaches, is a con- 
 tinuing one, and the exercise of it is not barred by lapse of 
 time, (a) except so far as the general statutes of limitation, 
 which bar the right of entry upon the land, and the recovery 
 of the possession of it by action, may affect the rule. The 
 certificate of sale vests in the purchaser an equitable interest 
 in the land, and he has a right to be clothed with the legal 
 
 1 Perkins, 154 ; 1 Cowp 201 ; 8 Cow. 277. 
 
 2 Session Laws, 1838, 1839, p. 17, sec. 42. 
 ' Session Laws, p. 16, sec. 38. 
 
 * Under the Minnesota statute, a deed may be made before the expiration of 
 the period of redemption. Baker v. Kelley, 11 Minn. 480. 
 
 (a) In Eaton v. North, 32 Wise. S03,hdd, that the fact that twenty-seven years 
 had elapsed since the time of the tax sale, and fifteen years since the issue of the 
 former deed, did not invalidate the second deed, or deprive the grantee of his 
 right thereto. 
 
412 OF THE TAX DEED. 
 
 title at any time after the period of redemption has elapsed, 
 and before his right is barred by the statute of limitation ; 
 and even afterwards where the premises are not in the adverse 
 possession of another. Probably, in no instance can the officer 
 refuse to convey, upon the ground that the entry, or action, 
 of the purchaser is barred ; and upon mandamus, or bill in 
 
 chancery, the adverse possessor, not being a necessary 
 *373 party to either form of action, the Court * would not? 
 
 in this collateral manner, decide whether the purchaser 
 or adverse claimant had" the better title. 
 
 The repeal of the law under which the sale was made, does 
 not divest the purchaser's right to a deed, and a mandamus is 
 an appropriate remedy to compel its execution and delivery. 
 [ " The principle which seems to lie at the foundation of appli- 
 cations for this writ and the use of it is, that whenever a 
 legal right exists, the party is entitled to a legal remedy, and 
 when all others fail; the aid of this may be invoked." (a) ] 
 Under some circumstances, where numerous parties are inter- 
 ested in the question, and equity demands it, a bill in chan- 
 cery will doubtless be a concurrent remedy to compel the 
 specific execution of the contract of purchase. (V) But no 
 case is conceived of where the latter remedy would be abso- 
 lutely essential, to the protection of the rights of the pur- 
 chaser. The officer delivers, and the purchaser accepts, the 
 deed, without prejudice to the rights of the former owner, 
 
 (a) Accordingly, where a statute authorized the corporation of a city to sell 
 land for taxes, and to execute a lease of the same to the purchaser, if the owner 
 neglected to redeem within a specified time, the Court refused to grant a manda- 
 mus requiring the execution of such lease, although the time for redemption had 
 expired, where the corporation had failed to publish a notice, required to be pub- 
 lished afler the sale and before the expiration of the period of redemption, calling 
 upon the owner to come in and redeem, such failure making the legal right to 
 the lease defective. People v. Mayor, &c., of New York, 10 Wend. 397. So 
 where the statute provided that a tax deed should be conclusive of certain facts 
 and prima facie evidence of others, and E., the owner of a part of a tract of land, 
 not having paid the taxes on his part before the sale, had purchased the certificate 
 of sale of the whole tract, and refusing the redemption mon ey offered by S. for her 
 part, on the ground that she could only redeem the whole, sought by mandamus 
 to compel the issue to him of a tax deed, held, that he had neither a legal nor an 
 equitable right to such a deed, and the writ was refused. State ex rd. Eoe ». 
 Williston, 20 Wise. 228. See p. * 299 and notes. 
 
 (6) See 10 Kan. 382. See p. »299 and notes. 
 
OP THE TAX DEED. 413 
 
 except where the proceedings have been strictly regular. 
 "Whether the deed is executed voluntarily or cnmpulsorily, it 
 binds no one but the parties to it, the act being purely minis- 
 terial. For these reasons, it is clear that no lapse of time 
 will, as a general rule, extinguish the power of the ofBcer 
 to execute and deliver to the purchaser a deed for land pur- 
 chased at a tax sale. Nor are authorities wanting upon this 
 question. 
 
 In Graves v. Bruen,i the sale was on January 10, 1833, the 
 deed bore date January 2, 1840, and the title of the purchaser 
 was sustained. In another case, the sale was made March 3, 
 1834, and the deed was executed March 8, 1838 (upwards o 
 two years after the expiration of the time of redemption), but 
 this deed misrecited the year for which the taxes were due, for 
 the non-payment of which the sale was made. In consequence 
 of this mistake, a second deed was executed and delivered to 
 the purchaser, November 10, 1841, recitirig the said facts, and 
 the last deed was held valid, (a) It will be perceived, that 
 in this case, seven years and eight months intervened between 
 the day of the sale and the date of the corrected deed. And 
 in the Bank of Utica v. Mersereau,^ where many years 
 had * elapsed since the execution of the deed, which * 374 
 
 ' 1 Gilra. 167. 
 
 (a) Maxcy v. Clabaugh, 1 Gilm. 26. A treasurer, who has made a tax deed 
 so imperfect and irregular as not to pass the title, may, upon his own motion 
 (unless some statutory provision forbids it), where the law has been substantially 
 complied with, make a second or other deed, correct in fact and regular in form, 
 so as to invest the purchaser with the legal title. It was accordingly held, where 
 the deed made by the treasurer was void, as showing a sale in gross, that he 
 miglit execute a second and corrected deed, showing tlie sale in parcels iu accord- 
 ance with the facts as shown by the record of sales. McCready v. Sexton, 29 
 Iowa, 356 ; s. c. 4 West. Jur. 332 ; Parker v. Sexton, 29 Iowa, 421 ; s. c. 4 West. 
 Jur. 354 ; Hurley v. Street, 29 Iowa, 429 ; s. c. 4 West. Jur. 360 ; Johnson v. 
 Chase, 30 Iowa, 308 ; Gray v. Coan, 30 Iowa, 536. See also Woodman v. Clapp, 
 21 Wise. 350; 21 Wise. 355. See p. *299, note. When, however, the treas- 
 urer has executed to the purchaser a valid deed in compliance with the statute 
 and the sale, his power is exhausted, and he cannot divest or in any manner 
 affect the title thus conveyed by the execution of a second deed. Bulkley v. Cal- 
 lanan, 32 Iowa, 461. If a tax deed in evidence be informal, a second deed made 
 at the same time with the first to correct the mistake may be put in evidence ; 
 and, conceding one to have been informal or insufficient, it was held, not to be 
 error to allow it to be read, as it caused the opposite party no injury. Finley v. 
 Brown, 22 Iowa, 538. ^ 3 Barb. Ch. 528. 
 
414 OF THK TAX DEED. 
 
 did not comply with the statute in point of form, the Court 
 intimated that the error might be corrected by a bill in 
 chancery. 
 
 11. Another important question, in connection with the 
 deed, relates to the granting party, (a) Where the statute 
 authorizes a particular officer — e. g., the auditor, sheriff, col- 
 lector, treasurer, or county commissioners — to execute the 
 deed, there can be no doubt of the validity of it, when exe- 
 cuted by the officer who made the sale, provided his term of 
 office has not expired at the time of the execution of the 
 power. But the questions have been raised, whether the per- 
 son who made the sale can execute a conveyance after the 
 expiration of his term of office, or whether it must not be 
 made by his successor, and also, as to the power of a deputy 
 to make the deed. But all of these questions may be satis- 
 factorily answered, as well upon principle as by the adjudged 
 cases. The deed may be made by the successor, because it is 
 an official act connected with the office, and not a personal 
 trust reposed in the man who was the incumbent of the ofiSce 
 at the time of the sale. (6) Besides, the record of the pro- 
 ceedings which constitute the basis of the exercise of this 
 power, is, in legal contemplation, in the custody of the suc- 
 cessor, they belong to the files of his office — his predecessor 
 has no right to their possession.^ 
 
 It is equally true that the deed may be made by the per- 
 son in office at the time of the sale, although his term has 
 expired.^ (c) The power to sell and convey land for the non- 
 la) See p. *66, note (a). (b) See p. »85, note 2. 
 
 1 Bestor v. Powell, 2 Gilm. 119; Maxcy v. Clabaugh, 1 Gilm. 26. 
 
 2 In Donnel v. Bellas, 10 Casey, 157, it was held, that the amount of the taxes 
 and costs should be paid by the purchaser to the treasurer, and the deed delivered 
 by him during his term of office ; and that the treasurer had no authority to re- 
 ceire payment or deliyer the deed after his term of office had expired, although 
 it had been executed and acknowledged by him while in office. A tax deed 
 executed by the treasurer after the expiration of his term of office is " a mere 
 nullity ; as much so as if it had been executed by a stranger who never held the 
 office.'' Hoffinan v. Bell, 61 Penn. St. 444. " He could no more sell and con- 
 Tey than a dead man." Cuttle v. Brockway, 32 Penn. St. 45. In Miller v. Wil- 
 liams, 15 Grat. 213, it was hdd, that where one commissioner of forfeited land has 
 sold and received the price, his successor cannot make the conveyance without 
 an order of Court. 
 
 (c) But in Doe, dm. of Taylor v. Allen, 67 N. C. 846, it was hdd, that a 
 
OF THE TAX DEED. 416 
 
 payment of taxes due upon it, is, in its nature, entire, and is 
 analogous to sales made by sheriffs under execution, in 
 which case the officer who * sold may convey after his * 375 
 term of office expires.^ It is intimated, however, in 
 Graves v. Hayden, that the officer who sells must make the 
 conveyance, that his successor possesses no such power. 
 Such is not the law. The power is vested in the officer, not 
 the man. The facts by which the person is guided in the 
 execution of the power, can be ascertained only from the 
 records and files of the office. The power of the person who 
 made the sale to execute a conveyance, is an exception to the 
 general rule, which requires the deed to be made by the per- 
 son in office for the time being ; and this exception depends 
 upon two fictions of law for its support ; namely, the entirety 
 of the proceedings in selling the land of delinquents, and the 
 doctrine of relation. This exception, thus sustained, proves 
 the truth of the general rule, that the power of making a deed 
 is an official and not a personal trust. In the one case, there 
 is official and personal responsibility to secure the due exe- 
 cution of the power ; in the other, the only security of the 
 parties interested in the act, is in the integrity of the person 
 who performs it, and his liability to an action for a breach of 
 duty. The power of a deputy to sell and convey lands, 
 depends upon the power of his principal to make a deputy. 
 The general rule is, that every ministerial office may be per- 
 formed by deputy. The power of appointing a deputy is 
 therefore implied in all such cases. Whatever power may be 
 exercised by the principal may be performed by the deputy, 
 and is equally valid in the one case as the other, (a) But 
 the deputy must act in the name of his principal. An ac- 
 knowledgment 'of the deed in his own name is invalid. Nor 
 has he power to execute, acknowledge, and deliver a deed in 
 pursuance of a sale made by the principal officer. It would be 
 
 sheriff who sells land for taxes, and goes out of office before he makes a deed 
 therefor, cannot afterwards make such a deed. See also to the same point 
 Hightower v. Freedle, 5 Sneed, 312. 
 
 1 Graves v. Hayden, 2 Litt. 64 ; Elkin v. The People, 3 Scam. 207 ; 4 Bibb, 21. 
 
 (a) This question arose directly and was decided in Whitford v. Lynch, 10 
 Kan. 180, where it was held, that a deputy county clerk could execute a valid 
 tax deed in the name of his principal. See pp. * 82, note 1, and * 275. 
 
416 OP THE TAX DEED. 
 
 altogether irregular to permit the deputy to convey what had 
 been sold by the principal, or the principal to convey what had 
 been sold by the deputy. Permitting the sale of one to be 
 completed by the conveyance of the other, leads to confusion. 
 
 He who commences the execution of a power must go 
 * 376 on and complete it, * except where a term of office has 
 
 expired, in which case, either the late or present incum- 
 bent may exercise the power. No one can lawfully convey 
 what has been sold by another, except in the case referred to, 
 without the express power of the law, or the consent of the 
 party in interest.''^ 
 
 12. The next question in order is, to whom shall the deed 
 be executed ? The general rule is, that it must be made to 
 the purchaser at the tax sale, (a) unless the statute author- 
 izes a transfer of the bid, or an assignment of the certificate 
 of sale. (5) It has been shown alreadj', that the officer sell- 
 
 1 Wilsons V. Bell, 7 Leigh, 22. In Wilsons v. Bell, the Court decided that 
 where the deed recited that the sale was made hy the sheriff, but the deed was 
 made and acljnowledged by the deputy, as his, the deputy's own act, it was inef- 
 fectual to convey title. But Carr and Tucker, Judges, rely on thp fact that he 
 acknowledged the deed, not as the act of the sheriff, but as the act of the deputy 
 himself. See Flanagan o. Grinimet, 10 Grat. 431. Although under the Cali- 
 fornia statute the offices of tax collector and sheriff are vested in the same per- 
 son, they are still distinct, and an under sheriff, though authorized to act as 
 sheriff in his absence, cannot perform the duties of the sheriff as tax collector, 
 and a tax deed executed by him is inadmissible in evidence. Lathrop ». 
 Brittain, 30 Cal. 680. 
 
 (a) A deed executed by a commissioner for the sale of delinquent lands to 
 other persons than those reported by him to have been the purchasers of the 
 land avails nothing where his authority to make it does not appear, unless there 
 has been such a long acquiescence and possession under the deed as to justify 
 a presumption in its favor. Walton v. Hale, 9 Grat. 194. 
 
 (6) As to what does not constitute a sufficient assignment, see p. *299, 
 note 2. Parol evidence is admissible to show that an assignment of a tax sale 
 certificate was in fact made and delivered on a different day from that recited 
 in the tax deed. Slielton v. Dunn, 6 Kan. 128. Under Ch. 32, Laws of 1866, 
 where the grantee in a tax deed defective in form has assigned his interest, a 
 new deed issued in lieu of such defective one, to be valid, must run to the as- 
 signee and not to his assignor. But said act, which provides tiiat no new deed 
 shall be issued under its provisions after three years from the recording of the 
 insufficient or defective one, cannot be applied to deeds of that character which 
 had already been recorded more than three years before the passage of the act, 
 the legislature not having power to cut off the right of the grantee therein to a 
 proper deed, without giving him a reasonable time within which to exercise such 
 right. Eaton o. North, 32 Wise. 303. When an insufficient tax deed had been 
 
OF THE TAX DEED. 417 
 
 ing has no authority, upon principle, to substitute the name 
 of a third person for that of the successful bidder, even where 
 the latter consents to it.^ But upon the common-law prin- 
 ciples, the certificate of sale is not assignable, (a) The right 
 of the purchaser, prior to the execution of the deed, is not 
 only an equitable interest in the land, but that interest de- 
 pends upon a contingency which may or may not happen ; 
 in such cases the law does not regard the interest as an as- 
 signable one. Besides, the nature of the right is not such as 
 to be regarded as alienable, before the consummation of it 
 by the delivery of the tax deed. The certificate confers 
 upon the purchaser a simple right to demand and receive 
 from the owner the redemption money, and in default of 
 redemption, a deed of the premises sold. In this respect, it 
 is a mere chose in action, which in no case is assignable, but 
 where expressly permitted by positive law. When the re- 
 demption is effected, no statute requires a reconveyance of 
 the interest of the purchaser, to the owner. Upon the pay- 
 ment of the purchase-money, the land becomes ipso facto 
 discharged of the encumbrance. No interest in the land 
 itself becomes vested in the purchaser, until the time for 
 redeeming has expired. (6) Until that period arrives, 
 
 recorded more than three years before the act of 1866 took effect, a deed proper 
 in form issued in lieu thereof to the person named as grantee in the prior defec- 
 tive deed was good, although his interest had passed by deed to the plaintiff. 
 The deed was rightly made to the holder of the tax certificate. Eaton v. North, 
 supra ; State v. Winn, 19 Wise. 304. A deed executed in 1865 by the clerk of 
 supervisors to cure defects of a deed previously issued for lands sold to the 
 county for taxes in 1858, recited that the certificates were assigned by the county 
 to J. C. and by him assigned to the defendants ; held, that if not a ratification 
 of the previously unauthorized act of the clerk in making the assignment, yet 
 the recital in the deed concluded the county by estoppel from objecting that 
 the assignment was unauthorized, and the former owner of the land could not 
 avail himself of the original defect of authority. Woodman v. Clapp, 21 Wise. 
 350. 
 
 1 Ante, p. *278. 
 
 (o) On the first day of June, 1866, there was in Kansas no authority for the 
 assignment of a tax-sale certificate issued on a tax sale made prior to the year 
 1864, where the property sold had been bid off for the county and still remained 
 in the hands of the county ; and a tax deed, showing that the certificate upon 
 which it was executed was such a certificate and assigned on that day, is void 
 upon its face. Sapp v. Morrill, 8 Kan. 677. 
 
 (i) See pp. * 296, note 2, * 297. 
 
 27 
 
418 OP THE TAX DEED. 
 
 * 377 his interest is contingent. But between that * time 
 and the delivery of the deed, he has a perfect equity. 
 Having purchased the land, paid the consideration, received 
 a certificate of his purchase, and the owner having failed to 
 redeem, if the law has been complied with in every respect, 
 he is entitled to a deed, and may treat the transaction as an 
 agreement to convey and demand a specific execution of it. 
 Under these circumstances. Courts of law — the ordinary 
 forum of the party claiming under a tax sale — can take no 
 notice of an assignment until ,the interest of the purchaser 
 becomes absolute. But by statute, in many States, the cer- 
 tificate is assignable. When such is the case, the deed must 
 be executed to the assignee, upon proving, to the satisfaction 
 of the convejdng officer, a valid assignment. By the statute 
 of Illinois, the officer is authorized to convey to the purchaser 
 or his assignee, but it does not prescribe what evidence shall 
 be furnished to the officer, of the assignment. 
 
 In Wiley v. Bean,i the Supreme Court decided, that a tax 
 deed executed and delivered to the assignee of the purchaser, 
 and reciting the assignment, was primd facie evidence of a 
 regular assignment, (a) The reason of this decision was, 
 that whether the officer conveyed to the purchaser or his 
 assignee, did not in the slightest degree affect the interest of 
 the owner. This decision was not satisfactory to the entire 
 bar. It was insisted, that the assignment was an act in pais, 
 which was essential to the validity of the assignee's title, and 
 that he was as much bound to prove that fact as any matter 
 of record upon which his title depended ; that the statute did 
 not declare the deed primd facie evidence of the assignment, 
 
 1 X Gilm. 302. 
 
 (a) Where the statute makes the deed either conclusive or pnma ^Ci'e evi- 
 dence of the regularity of all the proceeding up to its execution, in the absence 
 of all proof showing that the certificates were not properly assigned, it will be 
 presumed that they were, and that the officer issued the tax deeds to the person 
 who was entitled to them ; the successive assignments intermediate between 
 the purchaser at the tax sale and the final assignee who procures the deed, need 
 not be recited therein. Cousins v. Allen, 28 Wise. 232 ; see also Stahl v. Roost, 
 34 Iowa, 475. So where the tax deed recites that the grantee held the tax cer- 
 tificates as " assignee of the treasurer " of said county, it must be presumed that 
 the treasurer bid off the land for the county, as he was authorized to do. Frentz 
 V. Klotsch, 28 Wise. 312. 
 
OF THE TAX DEED. 419 
 
 and therefore the question ought to be determined according 
 to the principle of the common law, which required a party 
 who asserted the existence of a fact to prove it. The owner 
 of the estate is directly interested in the question to this 
 extent ; he might be subjected to a double prosecution for 
 mesne profits, where he was in possession of the land, and 
 held over after the expiration of the time limited for a re- 
 demption, and the execution of the tax deed. If the 
 person named in the deed * as assignee, by fraud or * 378 
 otherwise, obtains the possession of the certificate of 
 sale, and forges an assignment upon the back of it, and the 
 deed is held primd facie evidence of the assignment, in an 
 action brought by the pretended assignee against the former 
 owner of the estate, and the latter having no means in his 
 power of proving the negative, the consequence would be that 
 a recovery of the land itself must take place, and the owner 
 subjected to an action for the back rents and profits of the 
 premises. It is evident that a judgment and satisfaction for 
 the rents, would constitute no bar to a second action by the 
 original purchaser ; and in such action the onus would rest 
 upon the former owner to prove that the assignment was gen- 
 'uine. The recital in the deed would not be evidence against 
 the purchaser. Why ? Because he was not a party to the 
 deed, and therefore not bound by any thing contained in it. 
 The same reason is equally applicable to the effect of the recital 
 as against the original proprietor. He was no party to the deed. 
 It was made against his wiU, perhaps without his knowledge, 
 by a public officer acting as the agent of the law, with no power 
 to bind any one by his acts, except so far as he conformed to 
 the requirements of that law. A recital never estops strangers, 
 nor are they evidence of the fact recited against any one save 
 him who made them, unless expressly declared to be so by 
 statute. Upon what principle, then, can the recital bind the 
 owner of the estate, in the case put ? It stands upon the same 
 footing with the declaration of a stranger. It is res inter alios 
 acta. The maxim is an important one, — indeed the most 
 important and practically useful of any rule of evidence, — its 
 effect is to prevent a litigant party from being concluded by 
 the acts, conduct, and declarations of strangers. On a princi- 
 
420 OF THE TAX DERD. 
 
 pie of good faith and mutual convenience, a man's own acts 
 are binding upon himself, and are, as well as his conduct and 
 declarations, evidence against him ; but it would be manifestly 
 unjust, that a man should be bound by the acts of mere unau- 
 thorized strangers ; and if a party ought not, upon principles 
 of natural justice, to be bound by the acts of strangers, so 
 neither ought their declarations, oral or written, to be 
 * 379 used as evidence against him. It is upon this * princi- 
 ple that a judgment is not binding upon the party 
 against whom it was rendered, unless he had notice of the suit, 
 and an opportunity of defence. Yet, according to the ruling 
 in Wiley v. Bean, the judgment of a mere ministerial officer, 
 upon the fact of assignment, is held to be evidence against a 
 stranger to the proceeding — where it may have the effect of 
 concluding his rights, because of the difficulty of proving the 
 negative. Because, therefore, the statute does not give the deed 
 this effect as evidence, because it is contrary to the common- 
 law rule relative to the onus of proof, because it falls within 
 the maxim, res inter alios acta, because it is not evidence 
 against the alleged assignor, and because it may result in- 
 juriously to the original proprietor, it may be safely affirmed that 
 the fact of assignment must be sustained by evidence aliunde: 
 This doctrine seems to be conceded by the Supreme Court 
 of the United States, in reference to patents issued to assignees 
 of land warrants under the laws of Virginia.^ The contrary 
 was intimated in Ohio.^ It is immaterial, however, which is 
 the true rule in this class of cases, as the patent is matter of 
 record, and ordinarily conclusive at law of every fact recited 
 in it, where the government had title, and the officer of the 
 law power to transfer it. It is very different with a tax deed, 
 as has been shown already. The fact of assignment is easily 
 proven. The deed is issued upon the surrender of the certifi- 
 cate, and the latter is usually preserved upon the files of some 
 public office. Suppose a deed is made by persons styling them- 
 selves heirs or devisees of a deceased land-owner, would it be 
 pretended that this statement would dispense with the pro- 
 duction of the will, or proof of the pedigree of the grantors ? 
 
 1 Bouldin v. Massie, 7 Wheat. 122 ; Clark v. Graham, 6 Wheat. 577. 
 
 2 2 Ohio, 415. 
 
OP THE TAX DEED. 421 
 
 There is no difference in principle, between the recitals of a 
 tax deed, and those contained in instruments of conveyance exe- 
 cuted by private individuals. In concluding this subject, it is 
 to be hoped, that when a decision is made affirming the doc- 
 trine in Wiley v. Bean, some satisfactory reason may be 
 assigned for * it. This is an age in which the Courts, * 380 
 the bar, and the people, demand the reason why a rule 
 is estabhshed ; they are never satisfied with the ipse dixit of 
 any judge. 
 
 13. Where a sale for taxes takes place during the lifetime 
 of the owner of the estate, and he dies before the period of 
 redemption expires, it is regular to execute and deliver the 
 deed, notwithstanding the intervention of his death. In this 
 class of cases, the conveyance is not made in the name of the 
 proprietor, nor under any authority derived from him, but in 
 the name of the State or the officer, in virtue of the authority 
 with which the latter is invested by law. No principle is per- 
 ceived whereby the death of the proprietor, between the time 
 of the sale and the execution of the deed, can affect the power 
 of the officer to convey, according to the requirements of the 
 statute. There is no sort of analogy between the case in ques- 
 tion, and the deed under an execution, where the defendant 
 dies prior to the sale. But where an execution is once levied 
 in the lifetime of the defendant, the sale may proceed, and a 
 conveyance may be executed in pursuance of it, notwithstand- 
 ing the death of the defendant.^ 
 
 14. The Illinois statute ^ declares, that " whenever any per- 
 son, either as original purchaser or assignee, is entitled to deeds 
 for more than one tract of land, under the same sale, he shall 
 have the right to require the sheriff to include all the said 
 tracts, or as many thereof as he may designate in one deed." 
 This provision "is a salutary one," says Chief Justice Treat, 
 " it avoids the inconvenience of having numerous conveyances 
 to real estate, situated in the same county, the title to which 
 originates in a common source. It also dispenses with the 
 unnecessary expense of the sheriff and recorder, in the exe- 
 cution and recording." ^ 
 
 1 Curry v. Fowler, 3 A. K. Marsh. 604. 2 Laws 1842, 1843, p. 238, sec. 3. 
 » Saiiman v. Frye, 1 Gilm. 664. 
 
422 OF THE TAX DEED. 
 
 15. A tax deed, which upon its face, bears evidence 
 * 381 of a * non-compliance with a substantial requisition of 
 the law, is a nullity.^ 
 
 1 McDermott v. Scully, 27 Ark. 226 ; Moore u. Brown, 4 McL. 211 ; s. c. 
 11 How. (U. S.) 414 ; Farrar v. Eastman, 1 Fairf. 191. The statute of Arkansas 
 prescribed the form of the tax deed, which contained many recitals, and among 
 others the day of sale and the person hy whom it was made, and declared the 
 deed conclusive evidence of title in the purchaser ; and it was held in Hogins v. 
 Brashears, 8 Eng. 242, that where the deed in its recitals showed that the sale 
 was made on the wrong day and by an ex-collector after the expiration of his 
 term of office, it was void upon its face and conveyed no title to the purchaser. 
 But a tax deed not showing on its face an actual violation of law is not void 
 simply because it does not show affirmatively that every thing has been done 
 that the law directs in the assessment, levy, and collection of the tax. Pleasants 
 V. Scott, 21 Ark. 370; Budd v. Bettison, 21 Ark. 582. See p. *79, note 3. In 
 an action to recover possession of real estate the defendant claimed title xmder 
 a tax deed executed under E. S. 1838, which makes the deed prima facie evidence 
 of the facts therein recited, which did not recite several of the facts necessary 
 to constitute a valid tax sale, held, that an instruction that such deed " is presumed 
 to be legal so far as is shown by the evidence in the cause " (the deed itself 
 being the only evidence offered of the facts necessary to authorize a sale for 
 taxes) was erroneous. McEntire v. Brown, 28 Ind. 347. A tax deed made by 
 statute prima facie evidence that all the prerequisites of the law have been 
 complied with which recites that the sale was begun on the first Monday 
 of December instead of the first Monday of October is not void on its face 
 as showing that the sale was made at a time not authorized by law. The 
 presumption is that the causes recognized by the statute (Eev., § 776) for 
 commencing the sale on the first Monday of some pionth subsequent to October 
 existed, and the omis is upon the party attacking the deed to show the contrary. 
 Love V. Welch, 33 Iowa, 192 ; Eldridge v. Kuehl, 27 Iowa, 160. Under a 
 statute (ch. 37 Code of Va. 1860) providing that the deed shall "set forth all the 
 circumstances appearing in the clerk's office in relation to the sale," and that 
 the grantee shall stand vested with all the estate, &c., " notwithstanding the 
 irregularity of the proceedings under which the grantee claims title unless such 
 irregularity appears on the face of the proceedings," held, that where it did not 
 appear with sufficient certainty by whom the sale was made, nor that the land 
 had in fact been assessed for taxes, nor for what year or years, nor the amomi 
 of taxes with which it was charged, and for which it was sold, that the deed was 
 void. Buchanan v. Reynolds, 4 West. Va. 681. But under a statute directing the 
 execution of a deed to the purchaser at the sale, " reciting the circumstances 
 thereof, and setting forth particularly and truly the amount of the purchase- 
 money," and providing that after the time of redemption has elapsed "the 
 regularity of the proceedings under which the purchaser at the sale claims title 
 shall not be questioned so as to affect such sale or title, unless such irregularity 
 appear on the face of the proceedings," held, that by "the circumstances of the 
 sale " which are to be recited in the deed, is not meant all the steps to be tak^ 
 by the various officers, which preceded the sale, but the circumstances attending the 
 sale itself; that such deed need not recite that the land had been advertised, and 
 that the recital of an insufficient advertisement is merely surplusage, and is not 
 
OP THE TAX DEED. 423 
 
 16. The deed must give a certain description of the land 
 conveyed,! (a) and conform in every respect to the mode of 
 designation, pointed out by the local law of the State where 
 it is executed, and, of course, conform to the description 
 adopted in the anterior proceedings. The decisions hereto- 
 fore cited, in reference to the degree of certainty required in 
 describing the land in the list, advertisement, judgment, pre- 
 cept, and other documents, are equally applicable to the de- 
 an irregularity on the face of the proceedings which will avoid the deed. Such 
 a deed (if shown to have been executed by a duly qualified ofllcer) furnishes 
 prima facie evidence of transfer of title, and the onus is cast upon the contesting 
 party to show by the face of the proceedings such irregularity as affected the 
 validity of the deed. Flanagan v. Grimmet, 10 Grat. 421 ; Hobbs v. Shumates, 
 11 Grat. 518. The statutory authority of a county (or other municipality) to 
 purchase land at a tax sale must be strictly pursued, and must be confined to 
 the express provisions of the statute conferring the power ; and there being no 
 authority for the county to purchase yom% with another person, a tax deed from 
 which it appears that the land was sold to the county and E. S. is void upon its 
 face. Sprague v. Coenen, 30 Wise. 209. In Kansas, a tax deed which does not 
 show that the land it purports to convey was sold for delinquent taxes is void 
 upon its face. Hubbard ?;. Johnson, 9 Kan. 632. So where by law tax-sale 
 certificates are not assignable, and the deed shows the assignment of the certifi- 
 cate and is executed to the assignee. Shoat v. Walker, 6 Kan. 65 ; Swope v. 
 Saine, 1 DiH. C. C. 416. 
 
 I Sutton V. Calhoun, 14 La. Ann. 209; see also King v. Potter, 18 Mich. 142. 
 
 (a) In Dolan v. Trelevan, 31 Wise. 147, the action was brought by a tax-title 
 claimant under ch. 22, Laws of 1859, to foreclose defendant's rights in the west 
 half of a certain forty-acre tract. The tax deed describes the land therein sought 
 to be conveyed as the whole of said forty-acre tract, except fifteen acres " in the 
 N. E. corner " thereof, and five acres in the north half of the south-east quarter 
 thereof: Held, (1) That the first exception must be taken to mean a tract of 
 land in the north-east corner in a square form containing fifteen acres. (2) That 
 the five acres excepted being described as in the south-east quarter of said forty, 
 any uncertainty in such description does not affect plaintiff's title to the west half 
 of said forty. (3) That the plaintiff is therefore entitled (upon the facts stated 
 in the complaint) to the relief sought, except as to that portion of the west half 
 of said forty included in the fifteen acres above described. In Annan v. Baker, 
 49 N. H. 172, the maxim. Id eertum est quod reddi cerium potest, was applied to the 
 description in a tax deed, the following description being held sufficient : 
 " Seven and three-fourths acres of the Samuel S. Baker homestead farm, so- 
 called, bounded thus : On the west by the highway leading from Holderness 
 village to Andrew Baker's farm ; northerly by land now owned by John B. Carr ; 
 easterly and southerly by the remaining part of said Baker farm," the land 
 being located by running equidistant lines on the north and west boundaries' 
 from the point of intersection of said north and west boundary lines so far as to 
 embrace the given quantity of land and uniting their extremities. See ch. xx. ; 
 also pp. * 124 et seq. 
 
424 OP THE TAX DEED. 
 
 scription contained in the deed. There may be instances, 
 however, where the description in the deed need not he as 
 exact as required in the assessment roll. Thus, in a case 
 where the deed was primd facie evidence of the regular- 
 ity of all the proceedings to the date of the deed inclusive, 
 where a statute required that where the tract is less, or 
 other than a subdivision of a section authorized by the 
 United States for the sale of the public lands, it shall be de- 
 scribed in the assessment by a designation of the number of 
 the lot or tract, or of other lands by which it is bounded ; and 
 the deed described the land as " the west half of the south- 
 west fractional quarter section of twenty-eight, in township 
 one, south of range twelve east, containing fifty acres, more or 
 less," and the southwest fractional quarter was not subdi- 
 vided by government ; but contained one hundred acres of an 
 irregular triangular shape, and patented as one parcel ; it was 
 held that the description was insufficient for the purpose of 
 assessment, but was sufficient for the purpose of a sale, as the 
 statute expressly provided for such an alteration of the de- 
 scription intermediate the assessment and sale by providing 
 for the payment to the township treasurer of the tax on " a 
 part of any lot or parcel of land which the tax payer will 
 clearly define," and for the return of the balance for non- 
 payment, and by providing for the payment on part of a tract 
 after the return to the Auditor-General, subsequent provi- 
 sion being made for the sale of all lands on which the taxes 
 remained unpaid.^ It only remains to state the cases which 
 have been decided, relative to descriptions in the deed itself. 
 
 In Tallman v. White,^ the addition of a false particular in 
 the description, which, in a deed between private individuals, 
 might be rejected as surplusage, where the description without 
 it would be certain, was held to vitiate a tax deed. The facts 
 of this case have been stated already.^ This descrip- 
 * 382 tion, namely : " one * hundred and forty acres of land, 
 in the Whitaker Reserve, in T. 6, R. 15," a tract of 
 land containing one thousand two hundred and eighty acres, 
 
 1 Amberg v. Rogers, 9 Mich. 332. 
 
 * 2 Comst. 66. 
 
 s Ante, * 125. See Bosworth v. Danzien, 25 Cal. 296. 
 
OP THE TAX DEED. 425 
 
 and known by the name indicated, was held void.i This de- 
 scription of the premises, " All the estate, right, or title the 
 owner had on the 31st August, last past, in and to a certain 
 lot of land and buildings in said N. P., and being taxed in the 
 name of H. I. ; being about ten acres of land on the easterly 
 side of the road that leads from O. to T. ; for a further de- 
 scription reference is had to a certain mortgage deed to W. A., 
 which is recorded in the N. P. registry of deeds, book 8, page 
 228," was held void for vagueness ; as it appeared that the 
 assessor's book contained no description of the location or 
 character of the lands taxed to H. I., and that the registry 
 book referred to contained no record of any mortgage to W. 
 A., as stated in the deed ; the phrase on " the easterly side 
 of the road, &c.," being altogether too vague and indefinite 
 as to location. 2 A deed of 2,500 acres, to be taken out of 
 the two-thirds of a certain league, " to commence at the be- 
 ginning quarter, and taken in a square, if it will admit of it," 
 is void for uncertainty of description, if the tract cannot be 
 contained in a square.^ A deed of " 640 acres of land ad- 
 joining Taylor & Moseby's Landing, in the said county of 
 Jefferson," is not a sufficient description within the act of 
 Arkansas, of 1836.* A grant by the owner of a specified 
 number of acres, in a particular tract, would undoubtedly 
 confer a right of election upon the grantee, and authorize 
 him to locate the quantity in any part of the tract he saw 
 proper to elect, and this upon the principle that a conveyance 
 must be held to pass some interest, if such effect may be 
 
 1 Burchard v. Hubbard, 11 Ohio, 316. 2 Tripp v. lie, 3 R. I. 51. 
 
 3 WofEord V. McKinna, 28 Texas, 36. 
 
 * Bonnell v. Roane, 20 Ark. 126. A tax deed which fixes the boundaries on 
 the north and west, and describes it as bounded on the east on land by which it 
 is in fact bounded only in part, and as bounded on the south on land which in 
 fact is separated from it by land of another person, is void for uncertainty. Hill 
 V. Mowry, 6 Gray, 551. The following description was held void for uncertainty^ 
 " One fourth No 5, R. 8, W. E. L. S." Larrabee v. Hodgkins, 68 Me. 412. A 
 description of the premises as lying in " Washington City, now called Port 
 Washington," the name in the recorded plat being " Wisconsin City," has been 
 held suflScient in a tax deed on proof that the locality was familiarly known to 
 citizens and conveyancers as " Washington City." Mecklem v. Blake, 19 Wise. 
 897. In California, a partially false description in an assessment roll, advertise- 
 ment, or tax deed, is not fatal unless the probable effect of the error would be to 
 mislead the owner. Bosworth v. Danzien, 25 Cal. 296, 
 
426 OP THE TAX DEED. 
 
 given to it, consistently with the rules of law, and that if un- 
 certain or ambiguous, it must be construed most strongly 
 against the grantor. 
 
 The most striking illustration of this rule is to be 
 * 383 found in * the case of Doe ex dem. Webb v. Dixon,i 
 where a lease for " fourteen, or seven years," was held 
 to be a lease for the latter term at the option of the lessee, 
 who alone had the option of determining it at the end of the 
 first seven years. Upon this ground, if A. conveys to B. fifty 
 acres oiit of a particular tract, without describing it by metes 
 and bounds, or some other certain description, the grantee 
 would have the right to elect in what particular part of the 
 tract he would take it ; the location, when once made, would 
 be conclusive upon the grantor ; and an exclusive possession 
 by the grantee, of that number of acres, would be evidence 
 of his election. But in this respect there is a wide difference 
 between the conveyance of the owner and a public officer. 
 The latter is a mere instrument to pass the title. The former 
 may sell upon his own terms, and may confer a right of elec- 
 tion upon his grantee ; and if no such right is granted in 
 express terms, the law will imply it, in order to effectuate the 
 grant. But power to grant such a right is not conferred upon 
 the officer of the law. It is not only unnecessary to the 
 objects to be effected by a tax- sale, but would be destructive 
 of the interests of the owner, if tolerated. The purchaser, 
 for instance, by locating the quantity so as to include a mine, 
 a spring, a water-power, or a dwelling and curtilage, might 
 render the residue of no value to the owner, and thus produce 
 a sacrifice of the property. In most statutes, a power is con- 
 ferred upon the officer to sell a part of the land upon which 
 the tax was due ; this was intended for the benefit of the 
 owner ; but a power to sell a part, with the right of election, 
 as to the location of it, would be ruinous to him.^ 
 
 17. Ordinarily, a tax deed takes effect and becomes opera- 
 tive as a conveyance at the time of its delivery by the officer 
 and " acceptance by the grantee, and not before.^ But the 
 
 1 9 East, 15. See Dann v. Spurrier, 8 Bos. & PuU. 399, 442. 
 
 2 Erwin v. Helra, 13 Serg. & Eawle, 151. 
 
 3 Hulick V. Scovil, 4 Gilm. 159. 
 
OP THE TAX DEED. 427 
 
 question, whether the doctrine of relation can have any appli- 
 cation to such a title, is an interesting one. The geneial 
 rule of law is, " that where there are divers acts con- 
 current, to make a * conveyance, estate, or thing, the *384: 
 original act shall be preferred, and to this the other 
 acts shall have relation." This rule is based upon a legal 
 fiction, or assumption, that a thing is true which is either not 
 true, or which is as probably false as true. It is applied only 
 where it is absolutely necessary, in order to advance the jus- 
 tice of a cause — to enforce a right or prevent a wrong. In 
 all cases its application must be consistent with the principles 
 of natural justice, the rule on this siibject being that a Court 
 will not endure that a mere form or fiction of law, introduced 
 for the sake of justice, should work a wrong contrary to the 
 real truth and substance of the thing. No fiction shall there- 
 fore extend to the injury of a party, its proper operation be- 
 ing to prevent a mischief, or remedy an inconvenience which 
 might result from a general rule of law. And whenever the 
 rights of a third person will be injuriously affected by the 
 application of the doctrine, Courts invariably refuse to be 
 governed by it.-^ The fiction has been applied in this wise : 
 A term of Court is regarded as one day in law, and every act 
 of the Court has relation to that day.^ An execution relates 
 to the judgment.^ Possession under a writ of habere facias, 
 issued upon a judgment in ejectment, relates to the time of 
 the commencement of the action.* A patent relates from 
 the delivery to the date of the patent, and from the date 
 when necessary to the entry or location of the land.^ A 
 deed, based upon an agreement to convey, relates to the 
 date of the latter.^ The acknowledgment of a deed relates 
 to' the time when it was delivered, ^ and so of the 
 registration of it.^ An * escrow relates to the first de- * 385 
 
 • Broom's Legal Maxims, 90. 
 
 2 1 T. R. 279 ; 7 T. R. 21 ; 3 Burr. 1596 ; 1 Willes, 39 ; Gi!m. 119. 
 
 3 Shelley's case, cited 3 East, 444. 
 
 * 2 Dana, 32; 4 Cow. 329. 
 
 5 3 Caines, 62; 2 Johns. 80; 12 Johns. 140; Cavender v. Heirs of Smith, 
 5 Iowa, 157. 
 
 8 1 Johns. Cas. 81 ; 2 Gaines's Cas. 301 ; 2 Johns. 519; 4 Johns. 230, 534. 
 ' 8 Ham. 87 ; 1 Cranch, 239. ' 7 Mass. 381. 
 
428 OP THE TAX DEED. 
 
 livery.i A deed made in pursuance of a power relates to 
 the date of the power.^ The enrolment of a bargain and 
 sale, under the English statute, relates to the date of the 
 deed.^ A copyhold estate relates from the admittance to 
 the surrender.* And livery of seisin relates to the delivery 
 of the deed of feoffment.* A sheriff's deed relates to the 
 time when the right of redeeming the estate has expired,* 
 and to the time when the judgment became a lien upon the 
 land for the purpose of protecting the rights of the purchaser 
 against intervening interests.^ A confirmation by a board of 
 land commissioners, organized under a special act of Con- 
 gress, relates to the time the claim was filed before them.* 
 These cases sufficiently illustrate the general rule of law in 
 regard to the doctrine of relation. The practical operation 
 of the rule is to defeat an adverse possession, to avoid inter- 
 mediate rights, to enable the party claiming an estate to 
 sustain actions for injuries done to the inheritance, and, in 
 general, to protect those rights of his, which attached at the 
 time the act took place, to which the consummating act of 
 title has relation. It has been regarded as questionable 
 whether this principle, or rather fiction, has any application 
 to tax titles. The only reason assigned why it has not, is, 
 that this class of titles being strieti juris, are regarded as a 
 kind of outlaw — beyond the pale of common sense, and the 
 general principles of law which were originally intended to 
 further justice, and protect the rights of parties litigant in 
 Courts of law and equity. This view of the subject deserves 
 but little consideration. Where the statute, under which 
 
 the sale takes place, is silent upon any point which 
 * 386 may * be objected against the right of the purchaser, 
 
 it is the duty of the Court to resort to those principles 
 of the common law which control in analogous cases. In- 
 deed the common law is the only recourse where the statute 
 is silent. There is more necessity for resorting to the fiction 
 
 1 1 Johns. Ch. 288 ; 1 Johns. Cas. 81 ; 18 .Johns. 644 ; 13 Johns. 285. 
 
 2 20 Johns. 537. » Burr. 2787. * Ibid. 5 Jbid. 
 
 « 3 Gilm. 365 ; 9 Mo. 524 ; 12 Mo. 146 ; 11 Ohio, 235 ; 3 Caines, 262 ; 2 Wend. 
 507; 7 Cow. 540; 13 Johns. 340; 20 Johns. 637; 1 Hill, 107; 16 Johns. 309; 
 3 Cow. 75 ; 4 Johns. 234. 
 
 ' Fell V. Price, 8 Gilm. 190. 8 lo How. 372. 
 
OP THE TAX DEED. 429 
 
 of relation in tax titles than in any other class of cases. 
 Their validity depends upon a series of acts, each of which is 
 intimately connected with the other, and the whole combined 
 constitute an entire proceeding. The assessment is the foun- 
 dation, and every subsequent act, particularly those in which 
 the State and the purchaser have an interest, must of neces- 
 sity relate to the principal act.i 
 
 There are but two cases which discuss this question. In 
 Ferguson v. Miles,^ which was an action of ejectment, the 
 plaintiff claimed title under a sheriff's sale made August 8, 
 1843, based upon a judgment and execution in favor of David 
 B. Hill and against George Morton, and in order to prove 
 title in the latter, the plaintiff offered in evidence a judgment 
 against the land for the taxes of 1840, rendered April 15", 
 1841, a precept issued thereon, dated April 24, 1841, the 
 register of sales showing a sale to Morton on April 29, 1841, 
 and a deed from the collector to Morton, dated May 11, 1843. 
 The defence proved that the tax deed was executed at the 
 instance of Hill, the judgment creditor, and delivered to him, 
 that the certificate of purchase was not surrendered at the 
 time of the execution of the deed, nor was the deed made 
 with the knowledge or assent of Morton, and that on June 
 20, 1844, a second deed was made and delivered to the agent 
 of Morton, conveying the estate to Morton, in pursuance of 
 the tax sale. Upon this state of facts the Circuit Court 
 excluded the tax deed of May 11, 1843. The plaintiff then 
 offered to read the tax deed of June 20, 1844, as evidence of 
 title in Morton, the judgment debtor, but it was rejected. 
 Thereupon the plaintiff prosecuted a writ of error. The 
 Supreme Court held the first deed inadmissible, because 
 it "was never delivered to and accepted by the 
 * grantee ; but that the second deed was competent * 887 
 evidence of title in Morton, at the date of the sher- 
 iff's sale, because two years had elapsed within which the 
 former owner was entitled to redeem, and that the deed of 
 
 1 By a somewhat analogous fiction it seems that money paid before it was 
 lawful to pay it, and remaining in the treasurer's hands, might be considered as 
 having been paid afterwards when the right to pay it had accrued. Wyman v. 
 Smith, 45 Me. 522. 
 
 ■' 3 Gilm. 358. 
 
430 OP THE TAX DEED. 
 
 June 20, 1844, related back to the period of time when that 
 right of redemption expired. The judgment was accordingly 
 reversed, and the cause remanded for further proceedings. 
 This case, it will be perceived, decides simply, that the inter- 
 est of a purchaser at a tax sale, after the period allowed for 
 a redemption has expired, and before the execution and de- 
 livery of the tax deed, may be sold under an execution, and 
 that a deed afterwards made, will relate back to the time 
 when the judgment debtor became entitled to a conveyance, 
 and that the title thus acquired, will enure to the benefit of 
 the purchaser, at the sheriff's sale. 
 
 In Donahoe v. Veal,^ the action was trespass q. e. f. to 
 recover treble damages under the statute of Missouri, for 
 cutting timber upon land claimed by the plaintiff. To sup- 
 port his title to the land, the plaintiff proved a sale of the 
 land for taxes, in June, 1848, to Thomas Donahoe, a deed 
 from Thomas Donahoe to him for the premises purchased at 
 the tax sale, bearing date April 18, 1849, a tax deed to 
 Thomas Donahoe, dated February 10, 1851, and proved the 
 trespass to have been committed by the defendant after the 
 tax sale, and execution of the deed from the purchaser, at 
 that sale, to the plaintiff, but before the execution of the tax 
 deed. The material provisions of the statute which governed 
 the rights of the plaintiff, were, that upon the sale, the of&cer 
 should execute and deliver to the purchaser a certificate of 
 the sale, that the owner might redeem within two years from 
 the date of the sale, and that if he failed to do so, the officer 
 who made the sale should convey to the purchaser. The 
 statute of 1845 made thfe deed primd fade evidence of title, 
 upon proof by the party claiming under it, that the requisi- 
 tions of the law had been complied with ; while the act of 
 1847 made the deed evidence per se, and cast the onus pro- 
 
 handi upon the former owner in order to defeat it. 
 * 388 * The Court held, that the plaintiff was not entitled 
 
 to recover, and Judge Gamble, in commenting upon 
 the two statutes declaring the legal effect of the deed, and 
 upon the rights of a purchaser at a tax sale made under them, 
 remarked : " The two acts, while they differ, in putting the 
 
 > 19 Mo. 381. 
 
OF THE TAX DEED. 431 
 
 onus upon different parties, do not, in the necessity of a com- 
 pliance with all the requirements of law which are to be 
 observed before the execution of the deed. The principle 
 still remains untouched, that a person claiming to hold land 
 under a sale for taxes, can only maintain his title when the 
 law has been strictly pursued. It is to be observed, that in 
 neither of these acts is there any intimation that the deed is 
 to afford any evidence of title in the purchaser, prior to its 
 date. In the absence of any such provision, the deed, can 
 have no such effect, unless the previous proceedings contem- 
 plated the passing of the title to the purchaser before the 
 time appointed for making the deed. If the law did not pro- 
 pose to give the purchaser the title to the land, until two 
 years should elapse from the time of the purchase, then it 
 did mean that the title should remain in the owner for that 
 period, and the right of the purchaser was, to receive his 
 redemption money, with a high penal interest during the 
 delay of redemption. It appears very clearly to be the design 
 of these two acts, that the title to the property sold for taxes 
 shall remain undisturbed until the deed is actually executed 
 by the register, and that until that act is performed, the title 
 is in the former owner. Such being the design of the acts, 
 the doctrine of relation cannot be apphed to such deed, to 
 give it an effect and operation contrary to the meaning of the 
 law, by allowing the person claiming under it, to maintain, 
 not only actions of trespass for injuries done after the sale, 
 and before the conveyance by the register, but actions for 
 the rents, issues, and profits accruing during that period. 
 The whole scheme of these acts very plainly shows, that 
 such a construction, or application of the fiction of relation 
 to such a case, would be contrary to the intention of the leg- 
 islature." 
 
 The Illinois and Missouri cases are in direct conflict with 
 each other. The former admits a relation to the time 
 when * the right of redemption expires, the latter * 389 
 denies the operation of the fiction altogether. The 
 reasoning in Donahoe v. Veal is not satisfactory. The fact 
 that the statute makes the deed, and not the certificate of 
 sale, primd facie evidence of title, cannot affect the question. 
 
432 OF THE TAX DEED. 
 
 When the right of redemption expires, the title of the owner 
 is completely divested, and the purchaser becomes seised of 
 an indefeasible estate of inheritance. True, his title is an 
 equitable one, but he has a right, at any moment, to demand 
 a deed, by which he wUl become clothed with the legal title. 
 Prior to the delivery of the tax deed, the estate must reside 
 in some one — it cannot be regarded as in abeyance — and 
 some one must have a right of action for any injury to it. 
 The former owner cannot sustain an action in such case — 
 because his title is gone. Unless the purchaser may sue, the 
 trespasser must go unpunished. It is therefore equitable 
 that by means of the doctrine of relation, the purchaser 
 should be permitted to maintain an action of trespass for an 
 injury to the inheritance intermediate the time when the 
 right of the owner to redeem expires, and the execution and 
 delivery of the tax deed. It has been decided, that a party 
 to an ejectment suit cannot read, as evidence of title, a tax 
 deed executed and delivered after the demise in the declara- 
 tion ; ^ he may show a title anterior to, but not one after the 
 demise laid in the declaration.^ 
 
 18. The question sometimes arises, whether a power to sell 
 land for the non-payment of taxes, confers, by implication, the 
 power to execute a deed to the purchaser. Ordinarily, a power 
 of sale carries along with it the authority to execute and dehver 
 to the purchaser the usual instrument of conveyance. It is a 
 general rule, that every grant of power necessarily carries with 
 it all the usual, ordinary, and necessary means for the exercise 
 of that power.^ And in the case of a power of sale, it would 
 seem reasonable that this principle should apply. The sale is 
 the substantial, and the conveyance the formal, part of the 
 transaction. In cases of private agency, it is difficult to per- 
 ceive why the agent cannot convey, as well as sell, under 
 * 390 a * power to do the latter. If the owner of the estate 
 can trust his agent to fix the terms of sale, the law 
 may surely sanction his act in conveying the land, where but 
 
 » Pitkin 1). Yaw, 13 HI. 251. 
 2 11 111. 547. 
 
 ' Thus, it is said that the right to tax InvolTes the power, to enforce payment 
 by sale of the lands. Biscoe v. Coulter, 18 Ark. 423. 
 
OP THE TAX DEED. 433 
 
 little discretion is necessary, compared with tliat to be exer- 
 cised in the sale upon which it is based. This doctrine has 
 been applied to tax sales in Maine and Illinois,^ but it is most 
 emphatically repudiated in Indiana and Michigan.^ 
 
 In Doe V. Chunn, which presented the question whether a 
 municipal corporation, having simply a power to sell land for 
 taxes, could, after a sale, make a deed to the purchaser, the 
 power was denied, because, 1. The power was in derogation 
 of the common law ; 2. A corporation can exercise no implied 
 powers ; and 3. The power to sell did not imply the power to 
 convey, because the general law, authorizing proceedings 
 against delinquents, treated the sale and conveyance as sepa- 
 rate and independent acts. The question was put to the 
 Court, how is the purchaser to obtain his right ? to which it 
 was replied, " The method is not pointed out by legislative 
 authority ; it is a case not provided for .in the statute, and a 
 Court of law cannot supply the defect." And in Sibley v. 
 Smith, he power of the auditor of the State to convey lands 
 sold by him for taxes, was denied upon similar grounds. 
 These decisions appear extremely unjust, and contrary to law 
 and reason. Can it be supposed, for an instant, that the leg- 
 islature ever intended to authorize the sale of a tract of land, 
 receive the purchase-money, and then refuse to clothe the 
 purchaser with the title to it ? The idea seems absurd. The 
 purchaser can buy the land, but acquire no title to it, — he 
 may pay his money to the State, and yet receive no value for 
 it. A Court of equity cannot aid him, because that Court has 
 no more power to supply a casus omissus in a statute than a 
 Court of law possesses. If Courts were as astute in supply- 
 ing such a defect, as they are, occasionally, in getting 
 rid of the positive requirements of a * statute, it is * 391 
 presumed they would be able to sustain a. conveyance 
 made under such circumstances, by unanswerable arguments. 
 
 1 Farrar v. Eastman, 5 Greenl. 345; Bruce v. Schuyler, 4 Gilm. 273, 274. 
 
 2 Doe V. Ohnnn, 1 Blackf. 336, 838; Sibley v. Smith, 2 Mich. (Gibbs) 490. 
 
 28 
 
434 VARIANCES. 
 
 CHAPTER XXIII. 
 
 OP VARIANCES BETWEEN DIFFERENT DOCUMENTS AND RECORDS 
 RELATING TO THE PROCEEDINGS. 
 
 The validity of a tax title depending upon the regularity of 
 all the proceedings, each document or record, in the series of 
 acts necessary to the consummation of the title, must not only 
 be legal on its face, but correspond with the preceding one 
 iipon which it is based, in all essential particulars. The pro- 
 ceedings are, in one sense, an entirety, and must be consistent 
 throughout. This is requisite, not only with a view to the 
 legal identification of the document or record, but the power 
 of sale and conveyance in a great measure depends upon such 
 consistency. The assessment is the incipient act in the ac- 
 quisition of title, and all of the subsequent proceedings are 
 based upon it ; each act in the series must, therefore, not only 
 conform to the assessment, but correspond with its own im- 
 mediate antecedent, in every thing which is essential to its 
 legal identity, (a) Any material and substantial variance 
 between the document or record in question, and those which 
 preceded it in point of time, is fatal to its validity ; while 
 trifling errors and omissions in matters of form, which do 
 not affect the power of the officer, nor destroy the identity of 
 the document or record as a part of the entire proceedings, 
 
 (a) Where a county was divided after assessment and before sale, and by such 
 division the land was included within the new county, held, that the certificate 
 of sale for taxes and the deed relate back to and are founded upon the assessment 
 roll and return, and as the description of the land in the certificate and deed in 
 the case above stated followed that given in the roll and return,which was correct 
 when the latter were made, the deed was sufficient. Some additional words, as 
 " in the county of Oconto at the time of assessment and return, but now in the 
 county of Shawano," might not have vitiated, but they were unnecessary. 
 Austin V. Holt, 32 Wise. 478. And in Pursell v. Porter, 20 La. Ann. 323, it was 
 htld that where the names of streets, &c., had been changed between the date of 
 the assessment and the deed, and the deed, In describing the premises, used the 
 new names, thus varying from the assessment and other previous proceedings, 
 the deed was, nevertheless, good. 
 
t ! 
 
 VARIANCES. 435 
 
 may be disregarded.^ (a) This is the onlj'^ true rule to adopt. 
 When it is considered, that all human affairs and dealings are 
 connected together by innumerable links and circumstances, 
 forming one vast context, without any chasm or inter- 
 ruption, and undistinguished by the artificial * bounda- * 393 
 ries and definitions of right and wrong prescribed by 
 the law, it is, in the nature of things, impossible that a trans- 
 action, detailed in records and documents, can be identical 
 with the facts whicb actually transpired, if the record or doc- 
 ument, relied upon as proof, vary from the facts in the 
 slightest particular, be the variance, in its own nature, ever 
 so insignificant. It is easy, therefore, to see, that to require 
 this, as it were, natural and absolute identity between the 
 fact and the proof, in all matters of detail and form, would be, 
 at the least, highly inconvenient, if not wholly impracticable. 
 Hence it is, that an artificial and legal identity, as contradis- 
 tinguished from a natural identity, must be resorted to as the 
 proper test of variance between different parts of an entire 
 transaction.^ This is the philosophical ground upon which the 
 doctrine of variance, between the pleadings and evidence in a 
 cause, is based. There the strict rule is, that the allegations 
 and proofs must correspond. A party cannot be permitted 
 to allege upon the record, one cause of action or ground of 
 defence, and prove another, because it would operate as a 
 surprise upon the adverse party. But this rule is modified 
 by another, that it is sufficient to prove the substance of the 
 issue. In relation to written instruments, the rule is probably 
 more strict. There, every descriptive averment must be 
 strictly proven ; but this rule^ too, is qualified by the doctrine 
 of idem sonans, surplusage and immateriality. The principle 
 to be extracted from the rules of pleading and evidence, in 
 
 1 Pitkin V. Yaw, 13 III. 251. 
 
 (a) See p.* 350, note (a); p.* 435, note. There must be evidence to identify 
 the tract assessed with that sold and described in the writ. Hess v. Harring- 
 ton, 73 Penn. St. 448, and cases there cited. A certificate of sale of" eleven tracts 
 of land, containing 23,640 acres lying in 13th district, sold as the property of 
 Assure Assure," does not sufficiently identify the land so as to enable the Court 
 to decree title on a bill to set up a tax sale. Quinby & Co. v. North American 
 Coal, &c., Co., 2 Heiskell, 596. 
 
 2 Starkie's Ev., part 4, pp. 1526, 1527. 
 
436 VARIANCES. 
 
 relation to variances is, that the legal identity of the instru- 
 ment in question is the only test. The rule and the reasons 
 upon which it is founded are equally applicable to variances 
 between different documents relating to the sale of land for 
 taxes. But on the other hand, where the variance affects 
 the question of power, or destroys the legal identity of the 
 document or record, it furnishes a decisive objection to a title 
 derived under it. Many such variances have been noticed in 
 
 the preceding chapters. 
 * 394 * In Fitch v. Casej,^ (a) the land against which the 
 
 proceeding was had, was a town lot, sixty feet front by 
 one hundred and forty deep. The west fifth of the lot was 
 assessed, the west two-fifths were returned as delinquent, the 
 west third was advertised for sale, the west two-fifths sold, 
 and the tax deed conveyed the west two-fifths. The sale was 
 held void. Kinney, J. : " These variances we think sufBcient 
 to vitiate the entire sale, and defeat the collector's deed. 
 The objections are of a serious character, and the evidence 
 shows a manifest violation of some of the most important 
 provisions of the statute. Two-fifths of the lot were sold and 
 a deed made, when but one-fifth was assessed for taxes. The 
 
 1 2 G. Greene, 300. 
 
 (a) The north-east quarter of a section of land was assessed, as appears by 
 the assessment roll, as follows : — 
 
 " N.E. J of N.E. i — 38 80-100 acres — ralnation, $T5. 
 N.W. J of N.E. i — 39 21-100 acres — valuation, $75. 
 S. i of N.E. J — 80 acres — valuation, §150." 
 
 The tax roll described the land as the " N.E. i — valuation, $300," and the 
 whole quarter-section was sold by the Auditor-General in one parcel : Held, that 
 this was such a departure from the statute (Laws of 1869, p. 37) requiring the 
 supervisor to deliver to the township treasurer a copy of the corrected assessment 
 roll, with the taxes for the year, annexed to each valuation, as to render the sale 
 void. Held, further, that a party claiming under an Auditor General's deed 
 made upon such a sale is not entitled, under Session Laws of 1865, p. 374, to 
 judgment " for the amount he has paid for the land with interest and costs," the 
 State having acquired no lien (on account of the land's not being rijA^/u/Zy ossessed) 
 wliich could be transferred to him. Tumble v.. Square, 1 Mich. N. P. 137. 
 Where the treasurer's notice of sale of land for taxes described the land as the 
 " south quarter of the east half " of a certain tract, and the land was assessed, 
 returned, sold, and conveyed as the " south half of the east half" of said tract, 
 the variance was held to render the deed void. Sprague v. Coenen, 30 Wise. 
 209. 
 
VARIANCES. 437 
 
 oflB.cer sold a part on which no tax was levied, and therefore 
 on it no tax encumbrance existed. The west third only was 
 advertised, and yet the west two-fifths were sold. A portion 
 of the lot was sold, without the previous notice required by 
 the statute having been given. These discrepancies and 
 omissions are fatal to the validity of the sale, and hence no 
 title passed to the purchaser." In Indiana, a variance in the 
 description of the land, between the delinquent list and the 
 judgment, was held fatal.i 
 
 In Smith v. Bodfish,^ the deed recited the levy of a tax of 
 one cent and four mills per acre on a township containing 
 23,414|- acres, amounting to 1923.00. The record of the 
 county commissioners showed a tax of eight cents and two 
 mills per acre, amounting to $1,920.00. In the absence of 
 any explanation, the sale was held void, because of the vari- 
 ance in the amount of the tax. The Court remarked, that if 
 the aggregate amount of the tax due upon the land had been 
 reduced from the amount named in the levy to that recited in 
 the deed, by a portion of the owners of the township paying 
 their share of the tax, which was probably the case, this fact 
 should have been recited in the deed, or proved by the party 
 claiming under the tax sale. Where the land was 
 listed and assessed in * the name of Allan Gillespie * 395 
 and James Gaily, and advertised as the property of 
 Charles Gillespie, the variance was held fatal.^ Under the 
 act of Congress authorizing a sale of the land of delinquent 
 tax-payers, a parcel of land was listed in the name of 
 John Hood, and described as a tract containing 30,000 
 acres : the deed recited a sale of, and conveyed 30,000 acres. 
 It appeared, however, that Hood was the owner by patent of 
 a 15,000 acre tract alone. The Court held the sale void 
 upon the ground of the variance in the quantity, but inti- 
 mated an opinion, that if the parcel of land was identiiied by 
 oral evidence, the sale might be sustained.* Where the 
 
 1 Smith V. State, 5 Blackf. 65. 2 27 Me. 289. 
 
 5 Watt V. Gilmore, 2 Yeates, 330. The assessment of land for taxes, and 
 the advertisement and sale of the land for the non-payment of the taxes, must be 
 in the same name, whether of the true owner or others or unknown owners. 
 Bettison v. Budd, 21 Ark. 578. 
 
 * Hood V. Mathers, 2 A. K. Marsh. 556. 
 
438 VARIANCES. 
 
 judgment is against eight lots, and the deed recites a sale of 
 two only, the variance renders the sale void.^ The judgment 
 must be treated as void, or else the eight lots regarded as an 
 entire tract, and sold accordingly. The proceeding must 
 have some consistency about it. The same doctrine was 
 maintained in Ohio, where nine lots were assessed together, 
 and each was sold and conveyed separately .^ So where the 
 tax judgment is fop ninety-nine cents, and the precept recites 
 a judgment for one dollar and twenty-five cents, the variance 
 is material and fatal.^ 
 
 1 Pitkin V. Yaw, 13 111. 251. » Wiley v. ScovUle, 9 Ohio, 43. 
 
 3 Pitkin V. Taw, itbi supra. 
 
FRAUDULENT SALES. 439 
 
 CHAPTER XXIV. 
 
 OF SALES ACTUALLY AND CONSTRUCTIVELY FRAUDULENT. 
 
 It has been already remarked, that the Talidity of a tax sale 
 depends, not only upon the authority of the officer to sell, but 
 on the fairness of the transaction. The maxim is, that fraud 
 vitiates every thing, (a) Contracts of whatsoever dignity, 
 if tainted with fraud, are void at law and in equity. By it, 
 the most solemn proceedings of Courts of justice are avoided. 
 And we are informed by high authority, that even an act of 
 Parliament, conceived in fraud, may be declared a nullity. 
 There is nothing in the nature of tax sales, which exempts 
 them from the operation of this general maxim. On the con- 
 trary, a morq rigid scrutiny into their fairness is demanded, 
 because of the gross inadequacy of the price usually paid at 
 such sales, and the great inducements held out for the perpe- 
 tration of fraud in the conduct of them. Positive fraud occa- 
 sionally infects these sales. (6) Instances have occurred where 
 the collector and purchaser have combined to defraud the 
 owner by a sale and division of the spoil, where the taxes were 
 
 (a) See Slater v. Maxwell, 6 Wall. (U. S.) 268 ; McCready v. Sexton, 29 Iowa, 
 375. Mere inadequacy of price, however, is not a valid objection to a tax sale. 
 Slater v. Maxwell, supra. That fraud is a defence to a tax suit, see State a. 
 Central Pacific R.R. Co., 7 Neb. 99. 
 
 (6) General averments of fraud amount to nothing, unless the facts constituting 
 the fraud are distinctly and specifically averred, and unless also those facts do, in 
 law and fact, constitute fraud ; thus though any sheriff who is concerned in the pur- 
 chase of any land at a tax sale is liable to a penalty of $5,000, to be recovered by in- 
 dictment, yet where the bill merely charges generally that the sheriff was inter- 
 ested in the purchase of certain land8,without showing how this interest made the 
 sale fraudulent, and without any allegation that by the combination between the 
 sheriff and purchaser it was intended to prevent competition in bidding, or that 
 such was the effect, or that any other person did bid or desired to bid for him- 
 self, this does not amount to fraud. Twombley v. Kimbrough, 24 Ark. 459. 
 Where a combination is entered into by the collector and the principal bidders 
 at a tax sale to prevent competition at the sale, and that the lands should be 
 
440 FRAUDULENT SALES. 
 
 in fact paid by the owner. Also, where an agent intrusted 
 with funds to pay the taxes, violated his trust, and by a 
 similar arrangement with the purchaser, permitted a sale. 
 These, and positive frauds of a similar character, of course 
 render the sale void.^ 
 
 Though positive frauds sometimes occur, the most numerous 
 kind are those usually denominated constructive ; or that class 
 of frauds which may be inferred from the violation of public 
 or private confidence ; from the privity of the purchaser with 
 the title sought to be divested, or on account of their beipg 
 contrary to public policy. Such sales are void, not so 
 * 397 much * because they are opposed to the letter, as to 
 the spirit of the revenue laws, and the principles of 
 good faith which the common law exacts in transactions of 
 this nature. A partnership or contract formed for the pur- 
 chase of land at tax sales, is against the policy of the law ; 
 and if such contract be entered into for the express purpose 
 of making such purchases, it is a fraud on the owner of the 
 property, and the purchaser acquires no title. 
 
 The case of Dudley et al. v. Little et al.^ is a strong author- 
 ity in support of this position. The question arose upon a 
 bill in chancery, in which the complainants alleged that they 
 were the heirs of Israel Ludlow, and, as such, the owners of 
 the land in controversy ; that 370 acres of this land, of the 
 value of three dollars per acre, were purchased by the defend- 
 ant for $38.73. The bill then charged that a fraudulent 
 combination had been formed between the defendant and 
 sundry other persons, to purchase large tracts of land at said 
 sale, for the purpose of speculation ; that it had been agreed 
 between the defendant and those who were to participate in 
 the profits of the speculation, that the defendant alone should 
 
 struck oflf to one of the parties for the sums charged to the respectire tracts, and 
 bidding was thus prevented, the Court will enjoin the collector from making a 
 deed to a party to the fraud. Gage v. Graham, 57 III. 144. 
 
 1 Schenk v. Peay, 1 Dill. C. C. 268. Where the officer conducting a tax sale 
 agrees with the purchasers to receive a portion only of the taxes due at the sale, 
 such agreement is illegal, and a sale under the agreement is also illegal. Conway 
 V. Cable, 37 111. 82. Such a sale is not rendered valid by a subsequent law 
 declaring the agreement and sale valid and binding. Ibid. 
 
 2 2 Ham. 504. 
 
FRAUDULENT SALES. 441 
 
 bid at the sale ; that the other partners in the contract should 
 advance their respective portions of the purchase-moneys, and 
 receive their share of the profits ; and that in pursuance of 
 such fraudulent contracts, the defendant purchased the com- 
 plainants' land, and obtained a deed therefor. The prayer of 
 the bill was to set aside the tax deed, &c. To this bill a 
 demurrer was interposed, which was overruled, and a decree 
 entered according to the prayer of the bill. In the opinion, 
 the Court say : " Such combinations have, necessarily, a 
 direct tendency to prevent competition, which it is the duty 
 of the legislature and the policy of the law to encourage. 
 Over a sale of this description the owner has no control ; he 
 cannot refuse a bid, or adjourn the sale, or fix a sum below 
 which the property shall not be struck off. The sale is 
 managed by the agent of the State. The owner is not 
 consulted. The highest bidder becomes the purchaser, 
 although the sum bid be less than a hundredth part 
 * pf the value of the property. This being the case, * 398 
 any combination which has a tendency to reduce the 
 price of the property by preventing competition, must operate 
 as a fraud upon the owner. The effects of such combinations 
 cannot be controlled by any vigilance on the part of the 
 owner. It frequently happens that large quantities of land 
 are offered for sale on these occasions, in the absence and 
 without the knowledge of the owner ; and if such combinations 
 are permitted, all the persons present at the sale might form 
 themselves into companies, and by an agreement not to bid 
 against each other, might purchase in the whole of every 
 tract offered for the amount of tax due upon it. We do not 
 mean to say that partners cannot purchase property at a tax 
 sale, for the convenience of the business they are engaged in, 
 when speculation is not their object ; but that a partnership 
 or combination cannot legally be formed for the purpose of 
 making such purchases." Upon the same principle, any 
 agreement or understanding between two or more bidders at 
 such sales, that one of them only shall bid upon a particular 
 tract of land, that they will not bid against each other or that 
 thev will bid in turn, if carried into execution, is void, whether 
 the parties to the combination are to share the profits or not ,- 
 
442 FBAUDULENT SALES. 
 
 because its direct effect is to diminish competition, (a) A 
 custom exists in some of the western States, among the 
 regular attendants upon sales of this character, that no one 
 of them shall bid in competition with another, who alleges 
 that he has a claim upon the land offered for sale. By claim 
 is understood any colorable or defective title to the whole or 
 any portion of the land put up. Such customs are clearly 
 void, and, if acted upon, render the sale illegal.^ It is a well- 
 settled principle, that all agreements whereby parties engaged 
 not to bid against each other at udicial or statutory sales 
 are void. They are unconscientious, against public policy, 
 
 have a tendency to affect injuriously the character 
 * 399 * of sales at public auction, and to mislead private 
 
 confidence. They operate virtually as a fraud upon 
 the owners of the property. This principle has been applied 
 to judicial sales, judgments, decrees, and orders, to sales made 
 by persons acting under a power conferred by a special statute, 
 and to those made bj-^ public officers under the authority 
 delegated to them by the public laws of the land.^ 
 
 (a) Kerwer v. Allen, 31 Iowa, 578. So where the comhiration among tlie 
 purchasers is not to bid against each other, or to bid in turn, evidence that such 
 course was pursued is admissible in the first instance, though it is not shown 
 tliat defendant, who was a purchaser thereat, was a party to the combination, as 
 the direct efiect of such a combination is to prevent competition. Kerwer t>. 
 Allen, supra. But evidence that the purchaser at the tax sale by his misconduct 
 prevented competition with him by the bidders present in reference to many 
 pieces of land bid for b^ him, is not admissible to impeach the validity of tlie 
 sale where it is not shown that such conduct extended to or was in some way 
 connected with the tract in controversy ; and whether evidence of such alleged 
 misconduct, even if connected with the particular tract in controversy, would 
 be admissible as against a bona fide grantee, may well be questioned. Eldridge 
 V. Kuehl, 27 Iowa, 160. When a purchaser bids oflF property at a tax sale, the 
 fact that a combination existed to prevent certain lands from being sold to other 
 bidders, but to which he was not a party and of which he was ignorant, will not 
 vitiate his purchase. Case v. Dean, 16 Mich. 12. 
 
 1 But there is no reason or law to prevent an individual who holds a defective 
 title from purchasing a better one at a tax sale ; and if he stands in no relation of 
 trust to the owner, and is not implicated in any frand against him, his measures 
 to perfect his title by a purchase at a tax sale will not enure to the benefit of the 
 owner. Coxe v. Gibson, 3 Casey (Penn.), 160. A grantee in a warranty deed 
 from one who had no valid title, not having taken possession under the deed, 
 may take title by purchase of a tax certificate. Sturdevant v. Mather, 20 Wise. 
 676. 
 
 2 1 Story's Eq., § 293. 
 
FRAUDULENT SALES. 443 
 
 The propriety of its application to tax sales has never been 
 questioned, and the Ohio case is an unanswerable argument 
 in its favor. So, if underbidders or puffers are employed at 
 the sale, to enhance the price and deceive other bidders, and 
 they are, in fact, misled, the sale will be held void as against 
 public policy.^ 
 
 There is still another class of frauds proper to be noticed, 
 such as purchases made by those who are bound by covenant, 
 or upon legal or equitable principles, to pay the taxes, and 
 yet suffer the land to go to sale for the purpose of acquiring 
 a title against the owner, under whom they claim the ppsses- 
 sion, or to whose title they are in some manner privy .^ The 
 adjudged eases fully and clearly illustrate the extent of this 
 rule. A mortgagor in possession, who has conveyed with 
 warranty, is bound to pay the taxes, and prevent a sale of 
 the estate ; and if he acquires a tax title, it enures to the 
 benefit of the mortgagee.^ So where the mortgagor conveys 
 the estate in pledge by simple quitclaim. Nor can the 
 mortgagee acquire any title at a tax sale, whereby the mort- 
 gagor may become barred of his equity of redemption, whether 
 he is in or out of possession.* The person in whose name 
 
 ' 1 Story's Eq. § 293. 
 
 2 Blake v. Howe, 1 Aikens, 306 ; Willard v. Strong, 14 Vt. 582 ; Coppinger v. 
 Rice, 38 Cal. 408; see also Miller v. Williams, 15 Grat. 222; 44 111. 370; 26 Dl. 
 507. 
 
 ' Fuller V. Hodgdon, 25 Me. 243 ; Gardiner v. Gerrish, 23 Me. 46 ; Frye v. 
 Bank of Illinois, 11 111. 367 ; Coombs v. Warren, 34 Me. 89 ; Williams v. Hilton, 
 35 Me. 547 ; Faure v. Winans, Hopkins, Ch. 283. So where one, holding title 
 from the mortgagor subject to the mortgage, takes a tax title. Avery v. Judd, 
 21 Wise. 262 ; e.g., a second mortgagee before or after purchase at a foreclosure 
 sale. Smith v. Lewis, 20 Wise, 350. See also Porter v. Lafferty, 33 Iowa, 254 ; 
 Edgerton v. Schneider, 26 Wise. 385. And the fact that the deed was issued to 
 the husband of the purchaser, who acted as her agent in the purchase, does not 
 change the rule. Edgerton v. Schneider, supra. He who pending an injunction 
 sued out by himself to restrain the enforcement of a mechanic's lien obtains a 
 tax title to the property upon which the lien is sought, is thereby guilty of 
 attempting to obtain an unconscionable advantage, and will not be allowed to 
 use his tax title to defeat the mechanic's lien. McLaughlin v. Green, 48 Miss. 
 207. But where it does not appear that a deed of conveyance contained any 
 covenants of seisin or warranty, tax deeds subsequently acquired by the grantor 
 do not enure to the benefit of the grantee, and the grantee cannot claim to have 
 had possession thereunder so that the statutory limitation applicable to such a 
 possession would run in his favor. Snyder v. Palmer, 29 Wise. 226. 
 
 i McLaughlin v. Green, 48 Miss. 209 ; Brown v. Simons, 44 N. H. 475, where 
 
444 FRADUDLENT SALES. 
 
 the land was listed and assessed for taxation [and whose 
 duty it is to pay the tax] can acquire no additional title by 
 purchasing it at the sale.^ [And where it appears that one 
 was in possession of land, claiming title thereto, when certain 
 taxes accrued, it must be presumed that the land was 
 assessed to him as owner or occupant, as the law required, 
 and that it was his duty to pay the taxes ; and he could, 
 therefore, acquire no title by a purchase at the sale for 
 
 such taxes.^] And one in possession of and claiming 
 * 400 title, * acquires no additional title by such purchase, 
 
 if the taxes were a lien upon the land at the time of 
 his taking possession ; whether the land were taxed to the 
 occupant, or to one having no claim or title, or as non-resi- 
 dent.^ («) So the purchaser at a tax sale, of land in which 
 
 the mortgagee was in possession, taking the rents and profits. See also Taylor 
 V. Snyder, Walk. Ch. 492 ; Moore v. Titman, 44 111. 370, and cases cited. In 
 Williams v. Townsend, 31 N. Y. 411, where a mortgage provided that the 
 mortgagor should pay the taxes and assessments, and in default of so doing that 
 the mortgagee might discharge the same and collect them as a part of his mort- 
 gage ; upon the failure of the mortgagor to pay the taxes and the purchase of 
 the land at the tax sale by the mortgagee, it was held that no such relation of 
 trust or confidence existed between the mortgagor and mortgagee as to preclude 
 the latter from becoming a purchaser. See also Sturderant v. Mather, 20 Wise. 
 585. In Fisk v. Brunette, 30 Wise. 102, it was held that where one holds the 
 legal title to land for another and as security for money advanced, if he buys in 
 the tax certificates, he holds them also in trust, and he must be regarded as 
 having purchased them for the protection of the estate and the mutual benefit of 
 himself and his cestui que trust ; and he is entitled as against the cestui que trust to 
 interest upon the amount paid therefor only at seven per cent, and not at twenty- 
 five, the rate which such certificates bear where no such trust relation exists. 
 Nor can a purchaser, at a foreclosure sale tinder a first mortgage, the second 
 mortgagee not having been made a party to the proceedings, cut off the right 
 of such second mortgagee to redeem, by purchasing a tax title. Anson e. 
 Anson, 20 Iowa, 55. That a person who has conveyed in trust or a cestui que 
 trust cannot acquire a title adverse to the trust by purchase of a tax title, see 
 Phillips V. Zerbe Eun Imp. Co. 25 Penn. St. 56. 
 
 1 Douglass II. Dangerfield, 10 Ohio, 152; Ballance v. Forsyth, 13 How. (U. S.) 
 18 ; Voris v. Thomas, 12 111. 442 ; Glancy v. Elliott, 14 111. 456 ; Chambers v. 
 Wilson, 2 Watts, 495; Garwood v. Hastings, 38 Cal. 223. 
 
 2 Whitney v. Gunderson, 31 Wise. 359 ; Jones v. Davis, 24 Wise. 229 ; Bassett 
 V. Welch, 22 Wise. 175. Qucere, whether the assignee of one who purchases 
 under such circumstances by showing that he was ignorant of those circumstances 
 may maintain his title. Bassett v. Welch, supra. 
 
 " Lacey v. Davis, 4 Mich. 162. See McMinn v. Whelan, 27 Cal. 300; Moss 
 V. Shear, 25 Cal. 38 ; Dubois v. Campau, 24 Mich. 368. 
 
 (a) So if a person is in possession, claiming the land as his own when the 
 
FRAUDULENT SALES. 445 
 
 he has an interest as heir, acquires no additional title.^ (a) 
 One in possession of a tract of land at the date of the assess- 
 ment, may purchase at the sale, unless it appears that he was 
 bound to pay the tax^s, in which event he can acquire no 
 title by his pur chase. ^ 
 
 In Blakely v. Bestor,^ the defendant set up an outstanding 
 tax title, and it appeared that he was in possession of the land 
 at the time of the assessment and sale, and the Court refused 
 to presume that he was bound to pay the taxes : " It is 
 
 tax is levied and the sale made, it is his duty to pay the taxes, though he has no 
 paper title, and is a trespasser. Under such circumstances he cannot acquire 
 title by neglecting to pay the taxes and purchasing at the tax sale. Barrett v. 
 Araerein, 36 Cal. 322; see also Eeily v. Lancaster, 39 Cal. 354; Kelsey v. 
 Abbott, 13 Cal. 609. Where the grantee in a tax deed, being in possession 
 under it, suffers the land to be sold for taxes accruing subsequently to his 
 possession and purchases the certificate, it seems that such purchase is merely 
 a redemption, and he cannot take a deed based upon such certificate and maintain 
 an action under ch. 22, Laws of 1859. Lybrand v. Haney, 31 Wise. 230. But 
 one who in 1865 took out valid tax deeds, based upon sales for the taxes of 1858 
 and 1861, and went into possession under them, was under no obligation to pay 
 the delinquent taxes of the years from 1859 to 1864 inclusive, he not being in 
 possession nor the owner of the land ; and he may take deeds upon the sales 
 tor such taxes, and bring the action provided by said ch. 22, to quiet his title 
 under said deeds. Lybrand v. Haney, supra. In Tweed v. Metcalf, 4 Mich. 
 579, it was held, that though it is not competent for one to acquire a cumulative 
 title to lands by allowing them to be sold for taxes after he has taken possession 
 of them by virtue of a tax deed (see Lacey v. Davis, 4 Mich. 152), yet he may 
 bid upon the same lands at a tax sale before the time of redemption under his 
 former purchase has expired, and have the benefit of his bid, he being before 
 that time under no obligation to pay the tax. And in Eaton v. North, 29 Wise. 
 75, It was held that the party holding a junior tax deed (not being in possession 
 under it) is under no greater obligation to pay the taxes thereafter assessed upon 
 the land than one holding an earlier tax deed ; and he may abandon all claim of 
 title under it and acquire title under a deed for taxes assessed upon the land after 
 he took such earlier deed. Where the south half of a section of land was assessed 
 as one parcel, although owned by different parties in severalty, and the owners of 
 some of the lots paid their part of the tax before sale, and the residue of the land 
 on which the tax was unpaid was sold for taxes, and the owner of a lot in the 
 portion so sold took a tax deed of the whole ; lield that he took no title, he being 
 in default in not paying liis own tax. Cooley v. Waterman, 16 Mich. 366. 
 
 1 Piatt V. St. Clair's Heirs, 6 Ohio, 93 ; Choteau v. Jones, 11 111. 322 ; Dubois 
 V. Campau, 24 Mich. 368. 
 
 (a) So the purchase of the property at a tax sale by the agent of the admin- 
 istrator of the deceased late owner of the land, while he or his tenants are in 
 posssssion, passes no title. Bernal v. Lynch, 36 Cal. 146. 
 
 2 Bowman v. Cockrill, 6 Kan. 331. 
 3 13 111. 708. 
 
446 FRAUDULENT SALES. 
 
 insisted that the defendant is not in a position to avail him- 
 self of an outstanding tax title, be it ever so regular, for the 
 reason that he is shown by the record to have been in posses- 
 sion of the premises at the time the taxes accrued, and the 
 sale took place, wherefore it is said it was his duty to have 
 paid the taxes, and that he ought not to be permitted to avail 
 himself of a tax title acquired through his default. This 
 may or may not be so. It does not necessarily follow that 
 because a person is in possession of premises, he is bound to 
 pay the taxes assessed upon them. He may occupy them as 
 a tenant, under an agreement that his landlord shall pay the 
 taxes, and in such case there could be no obligation on the 
 tenant to pay them, particularly if, in pursuance of the agree- 
 ment, they were listed for taxation in the landlord's name.^ 
 Supposing the tax title to have been regular, the defendant 
 has the light, primd facie, to introduce it in evidence. When 
 introduced, it would be competent for the plaintiff to avoid 
 it, by proving that the defendant occupied a position, while 
 it was maturing, which made it his duty to have paid the 
 taxes, and which forbids his taking advantage of a title 
 
 acquired through his default. This proof, the person 
 * 401 seeking to avail * himself of the tax title, should have 
 
 an opportunity to rebut or explain by other evidence." 
 [The fact of possession when the taxes accrued (when an 
 objection) only goes to the validity of the tax deed as a con- 
 veyance of title and not at all to its admissibility as evi- 
 dence.^ Likewise, though the owner can acquire no title by 
 purchasing at a tax sale made on his own default of payment 
 of the taxes, yet the fact that lands are assessed to and sold 
 in the name of a particular person does not alone preclude 
 his purchase of them at the tax sale and acquiring title 
 thereto, if he is under no obligation to pay the taxes, and 
 
 1 It is lawful for a tenant in possession to purchase at tax sale the land of his 
 landlord, and the sale, if valid, not only extinguishes the landlord's title, but 
 cuts off the lease. Bettison v. Budd, 17 Ark. 546 ; Ferguson v. Etter, 21 Ark. 
 160. But where a tenant permitted land to be sold for taxes which he liad 
 covenanted to pay, and after expiration of his term took ar assignment of the 
 tax title, he was compelled to quitclaim to the owner. Shepardson v. Elmore, 
 19 Wise. 424 ; see also Carithers v. Weaver, 7 Kan. 110. 
 
 2 Gilman v. Riopelle, 18 Mich. 163. 
 
FRAUDULENT SALES. 447 
 
 they were assessed to him without any agency of his own ; 
 and a tax deed, regular but for the objection that the person 
 to whom the land was assessed became the purchaser, 
 ought to be received in evidence ; and the opposite party 
 may then show that the purchaser occupied such a position 
 as made it his duty to pay the taxes, (a)] A vendee cannot 
 acquire a title adverse to his vendor, by the purchase of the 
 land at a tax sale.^ Nor can an agent, whose duty it is to 
 pay the taxes, become the purchaser of his principal's 'land 
 at such a sale .2 (6) Nor can one tenant in common in such 
 case, acquire a title in exclusion of the rights of his coten- 
 
 (a) Pleasants v. Scott, 21 Ark. 370. 
 
 1 Voris V. Thomas, 12 111. 442 ; Bailey v. Doolittle, 24 111. 577 ; Glancy v. 
 Elliott, 14 III. 456; Oliver v. Croswell, 42 111. 41. See Quinn v. Quinn, 27 Wise. 
 168. 
 
 2 Oldhams v. Jones, 5 B. Men. 458 ; Matthews v. Light, 82 Me. 305 ; Bar- 
 tholomew V. Leech, 7 Watts, 472; Baker u. Whiting, 3 Sumner, 475; Huzzard 
 V. Trego, 35 Penn. St. 9 ; Schedda v. Sawyer, 4 McLean, 181 ; Krutz v. Fisher, 
 8 Kan. 90 ; Barton v. Moss, 32 111. 50 ; nor can one who has agreed to pay the 
 taxes purchase for his own benefit at the price of a redemption a tax title upon 
 which the time of redemption has expired. Coxe v. Walcott, 27 Penn. St. 
 154. 
 
 (i) The fact of agency is a question of fact for a jury. Lamb u. Irwin, 
 69 Penn. St. 436. If the agent of the original owner, being furnished by him 
 with money to redeem from the second of two tax sales, fraudulently takes an 
 assignment of the certificate and has the deed issued to himself, quaere, whether 
 the purchaser at the prior sale can in any_ case set up such fraud against a party 
 claiming under the second sale, or whether this can only be done by the owner 
 and those in privity with him ? But such fraud cannot be set up to defeat the 
 title of a party claiming under the second sale being a subsequent purchaser for 
 value, unless the knowledge of it at the time of his purchase Is brought home to 
 him. Knox v. Leidgen, 23 Wise. 292. Proof that defendant in ejectment who 
 claimed under a tax title, had cut and sold wood from the land (receiving the 
 proceeds) while acting as plaintiff's agent in respect thereto, was admissible to 
 show that he had money in his hands which he ought to have applied to the 
 payment of the tax for which the land was sold. And the fact that, in an action 
 to recover from such agent moneys so received, plaintiff would have been com- 
 pelled at common law to sue in assumpsit, and waive the tort, does not render 
 such evidence inadmissible in this action for the purpose of showing that defend- 
 ant could not acquire title under the tax deed, though it shows him guilty of a 
 fraudulent violation of duty. McMahon v. McGraw, 26 Wise. 614. Such agent 
 cannot acquire a tax title as against his principal merely because the latter has 
 been in default in remitting funds to pay the taxes, but must first distinctly 
 notify the principal that he renounces the agency. McMahon v. McGraw, 
 supra. 
 
448 PRArDULENT SALES, 
 
 ants.i (a) But after the tax title has matured in the hands 
 of a stranger, it is said that one tenant in common may pur- 
 chase and hold adversely to his cotenants.^ Nor can a tenant 
 for life purchase and hold adversely to the remainder-man or 
 reversioner. It is the duty of the tenant for life to cause all 
 taxes assessed upon the estate during his tenancy to be paid ;^ 
 and if he neglects it, and thereby subjects the land to be 
 sold to pay such taxes, and purchases it in himself, or suffers 
 a stranger to purchase, and then procures a release to him- 
 self, he can acquire no right to the estate against the owner 
 in fee .4 (6) 
 
 • Lewis V. Eobinson, 10 Watts, 354 ; Williams v. Gray, 8 Greenl. 207; Brown 
 V. Hogle, 30 111. 119; Dubois v. Campau, 24 Mich. 360; Page v. Webster, 
 8 Mich. 263 ; Baker v. Whiting, 3 Sumner, 475 ; Chickering w. Failes, 38 111. 342; 
 Adm'rs of Downer v. Smith, 38 Vt. 464 ; State ex rd. Eoe v. Williston, 20 Wise. 
 228 ; Butler v. Porter, 13 Mich. 292 ; not eyen it seems after partition, if the tax 
 was assessed before partition. Maul o. Eider, 51 Penn. St. 377. And it seems 
 to make no difference that the purchase was not direct, but l)y assignment from 
 the purchaser at the sale. Ihid. See Lloyd v. Lynch, 28 Penn. St. 419. 
 
 (a) But where a mortgage of land and the foreclosure judgment and sale 
 purported to be of the whole premises, but the purchaser acquired in fact only 
 an undivided part, and became in law tenant in common with the mortgagor, 
 who, after the foreclosure and sale, had acquired the remaining interest in the 
 land, it was held that such purchaser might take title to the remainder, by pur- 
 chase of an outstanding tax deed of the whole, his claim of title to the whole 
 under the foreclosure sale being adverse to the mortgagor. Wright ». Sperry, 
 21 Wise. 3:1; see also same case, 25 Wise. 617; see also Frentz ». Klotsch, 
 28 Wise. 312, where the right of a tenant in common to buy in an outstanding 
 tax title for his exclusive benefit is discussed, but not decided. In a summary 
 proceeding to eject a tenant holding over, he cannot show in defence a tax title 
 in a third party acquired since the commencement of his tenancy. The tax 
 deed does not operate to transfer the lease, or change possession. Qucere, as 
 to the effect of an attornment. Chase v. Dearborn, 21 Wise. 57. 
 
 2 Kirkpatriok v. Mathiot, 4 Watts & Serg. 251 ; Reinboth v. Zerbe Eun Imp. 
 Co. 29 Penn. St. 139. For a full discussion of the rights and duties of a tenant 
 in common in reference to the payment of taxes and acquiring tax titles upon 
 the common property, see Dubois v. Campau, 24 Mich. 360. 
 
 3 Phelan u. Boylan, 26 Wise. 679; Johnson v. Smith, 6 Bash (Ky.), 102; 
 Arnold v. Smith, 3 Bush (Ky.), 163. 
 
 ^ Varney v. Stevens, 22 Me. 331 ; Prettyman v. Walston, 34 111. 175, 191; Big- 
 gins V. Crosby, 40 111. 261 ; Patrick v. Sherwood, 4 Blatch. C. C. 112. 
 
 (6) Where a tenant by curtesy, in possession, took a tax deed for taxes due 
 before his teiiancy commenced, held, that if he could acquire title at all thereby, 
 he held it for the benefit of the reversioners as well as for his own benefit ; and 
 where in such case his wife's title had been by deed to her before marriage in 
 
FRAUDULENT SALES. 449 
 
 But in Branson v. Yancey et al.,^ which was a bill in chan- 
 cery by the purchaser at an execution sale, against Yancey's 
 heirs, to set aside a tax deed, executed and delivered to the 
 widow of Yancey, and subject the land to the payment of their 
 debts, it was held by the Court, that " a widow, who after the 
 death of her husband, occupies his residence, his children, some 
 of them of age, living with her, is under no obligation to pay 
 the tax accruing thereon between his death and the assignment 
 of her dower. Therefore, a purchase by her of the premises 
 for such taxes made after the assignment of dower, without 
 actual fraud, will not be set aside in favor of her husband's 
 creditors." Henderson, J., dissented, saying, " It was the 
 duty of the occupant to keep down encumbrances, and 
 any acquisition of * title made' by her, growing out of * 402 
 her omission, is for the benefit of all concerned." 
 
 In Woodburn v. Farmers and Mechanics' Bank,^ where one 
 became the judgment creditor of another, and after the judg- 
 ment became a lien on the land in question, the premises were 
 sold for taxes, upon an assessment against the judgment debtor, 
 and the creditor purchased in the property at the tax sale ; and 
 afterwards caused an execution to be issued upon his judg- 
 ment, and permitted a stranger to purchase the property at the 
 execution sale, without informing him of his tax title, it was 
 held that the conduct of the judgment creditor was a fraud 
 upon the execution purchaser, and that the latter was entitled 
 to the land. 
 
 It seems to be a debatable question whether the officer in- 
 trusted with the power of sale may purchase the land. This 
 
 her maiden name, and there was nothing of record to show who were the heirs- 
 at-Iaw of the grantee so named, or that such tenant was in possession as such 
 suryiving husband, held, that equity would interfere to protect the rights of the 
 reversioners, which were liable to be lost by a conveyance of the land to one 
 purchasing without notice of the facts. In such a case the decree should be that 
 on payment by the reversioners of their ratable proportion of the cost of the tax 
 deed, the title conveyed thereby should vest in them, subject to the life-estate 
 of the tenant; and that the decree should be recorded in the registry of deeds. 
 Where the tenant had also taken a tax deed which he fraudulently refused to 
 record, the decree should further require him to put such deed upon record, and 
 should provide as above in reference to the title conveyed by it. Phelan v. Boy- 
 Ian, 25 Wise. 679. 
 
 1 1 Dev. Eq. 77. ^ 5 Watts & Serg. 447. 
 
 29 
 
450 FRAUDULENT SALES. 
 
 question fairly arose in Chesnut v. Marsh,^ was discussed by 
 the counsel, but not decided by the Court. There, the clerk 
 of the County Commissioners' Court, who was required by law 
 to assist the sheriff in making the sale, whose duty it was to 
 keep a register of the sale, to execute certificates of purchase, 
 and through whom alone a redemption could be effected, was 
 the purchaser. The question, however, principally argued 
 upon this branch of the case, was, as to the jurisdiction of a 
 Court of law to declare the sale void. It was urged that this 
 class of frauds was peculiarly within the province of a Court 
 of equity. 
 
 The Case of Fox v. Cash,^ arose upon a statute very much 
 like that of Illinois ; the sale was made to the clerk and sus- 
 tained. By the Court: "The clerk to the commissioners is 
 not forbidden by law, to be a purchaser of land sold at public 
 sale by the commissioners for arrears of taxes. Nor is it so 
 opposed to the policy of the law as to make it iniquitous and 
 void. The sale is open to all, except the commissioners them- 
 selves, who are the vendors, and cannot, therefore, both 
 * 403 buy and sell. The * clerk is merely the scrivener, or 
 ministerial agent of the commissioners. He is, it is true, 
 employed or appointed by the commissioners, subject to their 
 directions and instructions ; and without any independent 
 authority or control over such sales, has no power in ordering, 
 arresting, or continuing them, or in directing to whom the 
 lands shall be stricken down. Every thing he does in rela- 
 tion to them, must necessarily be in subservience to the direc- 
 tions of the commissioners." ^ 
 
 In Nalle v. Fenwick,* the question as to the right of the 
 deputy sheriff to purchase at the tax sale, arose, but was not 
 discussed. It seemed to be conceded, however, that in this 
 respect the sale was unobjectionable. In Yancey v. Hopkins,^ 
 where the sheriff who made the sale became the purchaser, the 
 title was held valid in his hands. But in this case there was 
 
 1 12 lU. 173 ; 14 111. 223. s 1 Jones (Penn.), 206." 
 
 ^ The clerk of an auction sale for taxes may purchase. Wells v. Jackson 
 Man'g. Co., 47 N. H, 235 ; a tax collector cannot purchase, directly or indirectly, 
 at his own official sale. Chaadler v. Moulton, 83 Vt. 245. 
 
 « 4 Rand. 591. 
 
 5 1 Munf. 419, 437. 
 
FRAUDULENT SALES. 451 
 
 a general custom, recognized in a public statute, and proved in 
 the case itself, for sheriffs and their deputies to buy land at tax 
 sales. Roane, J., said: "While there was no express inhibi- 
 tion at that day, in any statute, against the sheriff's bidding for 
 his own private emolument, such inhibition is not, on the other 
 hand, to be inferred from the reason of the principle on which, 
 in other cases, it has been held that certain descriptions of 
 persons are disabled to purchase property offered for sale by 
 themselves. The inhibition, in those cases, seems to arise 
 from the confidence placed in, and the intimate knowledge 
 acquired by, trustees, commissioners of bankruptcy, auction- 
 eers, &c., which would enable them, if permitted to purchase, 
 to avail themselves of facts coming to their knowledge, in 
 their several characters, and by withholding them from others, 
 to lessen the prices of the articles exposed to sale, to their 
 own emolument. But in the case in question, no confidence 
 has been reposed in the sheriff, and no facts have come to his 
 knowledge which he might abuse to his own advantage ; he 
 has no other information on the subject than is derived from 
 the books of the commissioners, as aforesaid ; it would 
 be too much to suppose him * cognizant of the partic- * 404 
 ular circumstances attending all the tracts of land in 
 his county. This case, then, does not seem to fall within the 
 reason of ihe principle before mentioned ; and it is not shown, 
 by any adjudged case, that the inhibition has, in England, 
 been extended to sheriffs or collectors, though, I presume, the 
 case must have occurred in a thousand instances." Again, it 
 was remarked in the same opinion, that a bid by the sheriff 
 " might be absolutely necessary to counteract combinations to 
 defeat the collection of the revenue, whether arising from the 
 sympathy of the by-standers, or other causes." A statute 
 was afterwards passed in Virginia, prohibiting the sheriff and 
 his deputies from acquiring title to land, under tax sales. 
 
 In Taylor v. Stringer,^ where the deputy was the purchaser, 
 the title was held void in the hands of a bond fide purchaser, 
 who claimed title under the deputy. In Pennsylvania it has 
 been held, that a county commissioner may purchase, in his 
 own right, unseated land duly sold for taxes at a price exceed- 
 
 1 1 Grat. 158. 
 
452 FRAUDULENT SALES. 
 
 ing the taxes and costs; as when the bidding reaches that 
 point his duty to the county as a commissioner is ended so far 
 as regards his duty to purchase for the county. But he can- 
 not purchase for himself at a price less than the taxes and 
 costs. In case the bids do not reach the taxes and costs, a 
 sale can only be ' made to the commissioners in their official 
 capacity and for the use of the county.' In Kentucky it was 
 decided that though it would be against the policy of the law 
 to permit a deputy register of the land-office to become a 
 purchaser of non-resident lands on a sale made by the register, 
 . yet the purchase might riot for that reason alone be absolutely 
 void, but it could only be sustained by its appearing to be in 
 every respect, fair, free from all suspicion, and made for a full 
 and adequate consideration .^ It must be confessed, that no 
 difference in principle exists between a purchase by a sherifp, 
 at his own sale, and that of a collector selling land for the non- 
 payment of taxes assessed upon it. The same policy which 
 forbids the former, is equally opposed to the latter.^ When 
 this subject again comes before the Court, it ought to be care- 
 fully considered, for the decisions cited above maybe regarded 
 
 as innovating upon principles which have heretofore 
 * 405 been regarded as landmarks. * In a recent case in 
 
 Vermont * it was expressly held that a tax collector 
 selling land to pay taxes, cannot, either by himself or his 
 agent, purchase such estate, and his title is void against the 
 former owner, who may maintain ejectment for the land, 
 although he does not redeem within the time allowed by law. 
 
 1 Cuttle V. Brockway, 8 Casey (Penn.), 45 ; s. c. 12 Harris (Penn.), 145. But 
 in Russel u. Reed, 27 Penn. St. 166, it was held, that while the county niigiit 
 refuse to ratify such a purchase, and might insist on charging the commissioners 
 individually with the arrears of taxes and the costs of sale in a case where the 
 conveyance to the commissioners was for more than the taxes In arrears and 
 costs of sale, yet that was a matter entirely between the county and her own 
 commissioners, and that the title of the owner was nevertheless divested by such 
 sale. The remarks in Cuttle v. Brockway, supra, do not overthrow nor were 
 they intended to interfere in any respect with the case of Peters v. Heasley, 10 
 Watts, 208, upon this point. 
 
 2 Morton v. Waring, 18 B. Mon. 72. In this case it was held, that $1^ 
 for 800 acres of land was not an adequate consideration. 
 
 3 Lazarus v. Bryson, 3 Bin. 58. 
 
 i Chandler v. Moulton, 33 Vt. 245, citing 14 Pick. 356 ; 3 N. H. 144 ; 6 Conn. 
 475. 
 
LANDS NOT SUBJECT TO TAXATION. 453 
 
 CHAPTER XXV. 
 
 OP THE EFFECT OF THE SALE AND DEED, WHERE THE LAND SOLD 
 WAS EXEMPT FROM, OR NOT SUBJECT TO, TAXATION. 
 
 The fact that the land is subject to taxation, is the basis of 
 the power to sell it, in case the owner proves delinquent. If 
 the sovereign power of taxation has never attached to the 
 laud, or having once legally attached, the land is exempted 
 from the operation of the taxing power, then it cannot be 
 sold, (a) A sale under such circumstances is void to all in- 
 tents and purposes.^ In all cases, if the person taxed, or the 
 subject-matter of taxation be not within the jurisdiction of 
 the officer who makes the assessment, all subsequent proceed- 
 
 (a) So a sale of a tract of land, a part of which constitutes the homestead of 
 the delinquent tax-payer, is (under § 766 of the Revision, declaring that " the 
 homestead is liable to be sold for no tax save that which is due on itself exclu- 
 sively "), void in toto. Stewart v. Corbin, 25 Iowa, 144 ; Penn a. Clemans, 19 
 Iowa, 372. In Maryland, it is held, that after a decree has been passed by a 
 Court of equity for the sale of real estate, and trustees appointed to make tlie 
 sale, the property is under the control and jurisdiction of the Court, and a tax 
 collector has no power to seize and sell the same, or any part thereof, for taxes 
 due ; his duty is to apply to the Court to have the taxes paid out of the proceeds 
 of the sale. County Commissioners of Prince George Co. v. Clarke, 36 Md. 206. 
 As to the distribution of the fund, payment of municipal claims therefrom, and 
 the divestiture of the lien therefor on failure to claim from the fund in Court, 
 under the Municipal Claims Act, see Smith v. Simpson, 60 Penn. St. 168, and 
 the cases there cited. A sale for taxes, when the lien therefor has been divested 
 by a failure to claim the taxes from the fund in Court, passes no title. Smith v. 
 Simpson, supra. But in California, it is held, that a judgment against land on 
 I. Street for improvements on J. Street, for which it could not legally be taxed, 
 Is voidable, and not void ; and that as to whether void or voidable, no distinction 
 exists between judgments for taxes and for other causes of action. Mayo v. Ah 
 Loy, 32 Cal. 477. 
 
 ' Dresback v. McArthur, 6 and 7 Ohio, 307 ; Seager v. Kearsage Mining Co., 
 Aud.-Gen.'s Keport (Mich.), 1873, p. xxxviii. ; Buckley v. Osburn, 8 Ohio, 180; 
 Dyer v. Branch Bank of Mobile, 14 Ala. 622 ; Coney v. Owen, 6 Watts, 435 ; 
 Sandford v. DeCarap, 8 Watts, 542; Bott v. Perley, 11 Mass. 169; Love v. Wil- 
 bourn, 5 Ired. 346 ; Taylor v. Miles, 5 Kan. 498 ; Hobson v. Dutton, 9 Kan. 477. 
 
454 LANDS NOT SUBJECT TO TAXATION. 
 
 ings by mere ministerial officers, acting under a warrant or 
 other authority to enforce the collection of the tax, are 
 deemed utterly void, the assessment being coram nonjudice} 
 The owner is not bound to enjoin the sale of his land under 
 such circumstances, or resort to his remedy against the ofB- 
 cers, but may contest the validity of the sale whenever the 
 purchaser or his grantee attempts to recover the possession, 
 or establish his title to the land.^ Where the constitution 
 itself exempts the land from taxation, it is clear that the 
 legislature have no power to levy and collect taxes upon 
 
 it.^ And it would seem to be equally clear, that 
 * 407 * where the people, in the exercise of their sovereign 
 
 power, in the formation of a constitution with the view 
 to their admission into the Union as an independent State, 
 stipulate with the federal government to exempt a particular 
 ciass of land, or lands held or to be held by particular per- 
 sons, from taxation, no substantial reason can be assigned 
 against the validity of the exemption.* But the question, 
 though settled by the weight of authority, is a debatable one, 
 as to the power of the legislature to exempt lands from tax- 
 ation — indeed, to exempt any species of property or class of 
 persons from the operation of the taxing power, (a) The 
 right to do so has been repeatedly afSrmed,^ and the exemp- 
 tion treated as a contract, the inviolability of which is guar- 
 anteed by the Constitution of the United States.^ However, 
 
 1 Nichols V. Walker, Croke, Car. 394 ; Perkins v. Proctor, 2 Wils. 382; Thurs- 
 ton V. Martin, 3 Sumn. 497 ; Rowe v. Blakeslee, 11 Conn. 479. 
 
 i Dyer u. Branch Bank of Mobile, 14 Ala. 622. 
 
 s Brewster v. Hough, 10 N. H. 138 ; Hardy v. Waltham, 7 Pick. 108. 
 
 * Ante, pp. * 9, * 10. 
 
 (a) For an exhaustive discussion of the subject of exemptions from taxation, 
 see Cooley's Const. Lim. p. * 514, et seq. 
 
 5 Tax Cases, 12 Gill & Johns. 117, and cases there cited. The legislature 
 may exempt from taxation, if there is no constitutional prohibition; but 
 where there is no consideration therefor, such exemption is subject to repeal. 
 Wash. University v. Eowse, 42 Mo. 308 ; Home of the Friendless v. Rowse, id. 
 361. 
 
 ^ New Jersey v. Wilson, 7 Cranch, 164 ; Atwater i^. Woodbridge, 6 Conn. 
 223; Osborne v. Humphrey, 7 Conn. 335; Landon v. Litchfield, 11 Conn. 251; 
 Gordon v. Appeal Tax Court, 3 How. (IT. S.) 183; Terrett v. Taylor, 9 Cranch,, 
 43 ; Finney v. Fellows, 15 Vt. 526 ; Backus ... Lebanon, 11 N. H. 20 ; State i'. 
 Bank of Smyrna, 2 Houston (Del.), 99. 
 
LANDS NOT SUBJECT TO TAXATION. 455 
 
 in Parker v- Redfield.,i the Court remark : " Were this now 
 an open question, we might well doubt whether it would be 
 in the power of one legislature by a general law to tie up the 
 hands of succeeding legislatures; and whether a statute, 
 exempting a particular species of property from taxation, is 
 in the nature of a contract of perpetual obligation. But 
 these decisions 2 are imperative upon us, and we yield to 
 their authority." At a later period, the same Court said, 
 " It is certainly a very high act of legislative power to grant 
 an exemption from all future taxation, so as effectually to tie 
 the hands of future legislatures, under any and all future 
 emergencies. But this has been held to be properly done ; 
 and it is sanctioned by the highest judicial authority." ^ 
 And in Brewster v. Hough,* the Supreme Court of 
 New * Hampshire, without expressly deciding the * 408 
 point, held this 'language in relation to this important 
 question : " There is no doubt that the legislature may pro- 
 vide, by general laws, for the exemption of certain classes of 
 property from taxation, as well as exempt it, in fact, by omit- 
 ting it, in the description of property required to be taxed. 
 Such exemptions will be valid until the law is repealed. But 
 it may well be doubted whether the legislature may contract 
 with the citizen for the permanent exemption of his property 
 from taxation. There is no express grant of such power in 
 the constitution. The power of taxation is essentially a 
 power of sovereignty or eminent domain, and it may well 
 deserve consideration, whether the power is not inherent in 
 the people, under a republican form of government, and so 
 far inalienable, that no legislature can make a contract by 
 which it shall be surrendered, without express authority for 
 that purpose, in the constitution, or in some other way di- 
 rectly from the people themselves. The legislature may 
 grant exclusive privileges, and make many other contracts, 
 &c. But there is a material difference between the right of 
 a legislature to grant lands or corporate powers, or money, 
 
 1 10 Conn. 490. See also Minot v. Philadelphia, &c., E.R. Co., 2 Abbott (V. S.), 
 323. 
 
 2 6 Conn. 223 ; 7 Conn. 335. 
 
 3 Seymour v. Hartford, 21 Conn. 481. * 10 N. H. 138. 
 
456 LANDS NOT SUBJECT TO TAXATION. 
 
 and a right to grant away the essential attributes of sover- 
 eignty, or the right of eminent domain. These do not seem 
 to furnish the subject-matter of a contract. But it is unnec- 
 essary to decide this point." (a) The reasoning against the 
 power of exemption by special contract, with particular indi- 
 viduals and corporations, is overpowering ; it is simply, that 
 every exemption, from its very nature, withdraws the prop- 
 erty exempted from the operation of the taxing power, and 
 thus increases the burdens of the rest of the property holders 
 in the State — and that the right of the legislature, a body 
 acting under the delegated authority of the people, in whom 
 all power is inherent, to part with one of the attributes of 
 sovereignty for a consideration, thus making sovereignty an 
 article of merchandise — cannot be supported upon principle 
 or authority. It is true, that the solidity of a principle or 
 rule of construction is not ordinarily to be tested hj extreme 
 
 cases ;i but where great injustice may be done, if a 
 * 409 given power * is once conceded to the legislature, it 
 
 furnishes a strong argument against the power, for 
 the power of legislation is limited by the principles of natural 
 justice, as well as the letter of the constitution. It is to the 
 natural law we resort, for the purpose of securing equality in 
 the levy of taxes.^ Now, suppose the taxable property of a 
 State to be one hundred millions of dollars in value, and the 
 necessities of the government require a revenue of one hun- 
 dred thousand dollars, but the legislature, in the same law 
 which levies the tax, exempts half of the entire value of tax- 
 able property from the levy, the consequence is, that the tax 
 of those who are not thus exempt, will be exactly double the 
 amount it would have been if all had been taxed equally. 
 When such a power is once conceded, the Courts can pre- 
 scribe no limit to its exercise, therefore it ought to be denied 
 in toto. No weighty and insurmountable reason has, as yet, 
 been assigned for the incorporation of such a principle into 
 our constitutional code. On the contrary, so repugnant is 
 the doctrine to every Court of justice, that in order to re- 
 
 (a) See ante, p. * 7, note, also Bank v. New Albany, 11 Ind. 139. 
 
 1 8 Johns. 420, 421 ; 12 Johns. 483. 
 
 2 Ante, pp. * 6, * 7. 
 
LANDS NOT SUBJECT TO TAXATION. 457 
 
 Strain its operation, they have adopted the rule that every 
 exemption must be couched in such plain and unambiguous 
 language, as to satisfy the Court, beyond doubt, that the 
 legislature intended to create the exemption. Such a right 
 can never arise by mere implication, and all laws granting 
 the exemption are to be most strictly construed. The deci- 
 sions upon this branch of the doctrine are uniform, and ad- 
 mit of no exceptions to the general rule.^ (a) 
 
 1 Kendrick v. Farquar, 8 Ohio, 197 ; Armstrong v. Treasurer of Athens Co., 
 10 Ohio, 235 ; Cincinnati College u. State, 19 Ohio, 110 ; Anderson u. State, 23 
 Miss. 459 ; Stewart v. Davis, 3 Murphy, 244 ; Chegaray v. Jenliins, 3 Sandf. 
 409 ; Providence Bank v. Billings, 4 Pet. 514 ; Louisville Canal v. Common- 
 wealth, 7 B. Mon. 160 ; Brewster v. Hough, 10 N. H. 138 ; Howell v. Maryland, 
 3 Gill, 14; Piatt V. Rice, 10 Watts, 352; Seymour v. Hartford, 21 Conn. 481; 
 Baltimore v. State, 15 Md. 376 ; Bank of Republic v. Hamilton, 21 111. 53 ; Hart 
 u. Plum, 14 Cal. 148 ; Hannibal R. R. v. Shacklett, 30 Mo. (9 Jones) 550 ; Peo- 
 ple V. Roper, 35 N. Y. 629 ; State v. Parker, 3 Vroom, 426 ; Detroit Young 
 Men's Society v. Mayor, 3 Mich. 182 ; Tucker v. Furgeson, U. S. C. Ct. Western 
 Dist. of Mich. Aud.-Gen.'s Report, Mich. 1873, p. xvi.j Pacific R. R. Co. c. 
 Cass Co., 53 Mo. 17 ; Trustees of M. E. Church v. Ellis, 38 Ind. 3 ; St. Peter's 
 Church V. Co. of Scott, 12 Minn. 395 ; Wash. University v. Rowse, 42 Mo. 308 ; 
 Biscoe V. Coulter, 18 Ark. 423 ; Portland S. & P. R. R. Co. ... City of Saco, 60 
 Me. 196 ; State v. Mayor, 35 N. J. Law, 157; Buffalo City Cemetery v. City of 
 Buffalo, 46 N. Y. 506; State v. Bank of Smyrna, 2 Houston (Del.), 99, holding 
 that when an exemption from taxation exists, it lasts only during the continu- 
 ance of the charter, and unless expressed when the charter is renewed and ex- 
 tended, the power to tax will revive. See alio, as to this last point, Gordon v. 
 The Appeal Tax Court, 3 Howard, 133. See also Lefevre v. Mayor, &c., 2 
 Mich. 586; 1 Wash. Ter. R. 195; Bradley v. McAttee, 7 Bush (Ky.), 667; 8 
 Bush (Ky.), 508 ; 2 Abbott, U. S. 323; Washburn College v. Com'rs of Shawnee 
 Co., 8 Kan. 344 ; Vail ;;. Beach, 10 Kan. 214 ; St. Mary's College u. Crowl, 10 
 Kan. 442 ; the last three cases holding that it is the use of property which deter- 
 mines whether it is exempt or not under Const, art. 11, § 1, exempting all prop- 
 erty used exclusively for State, county, municipal, literary, educational, scientific, 
 religious, benevolent, and charitable purposes. Where a statute exempted from 
 taxation " such real estate belonging to " library, benevolent, &o., institutions 
 "as shall be actually occupied by them for the purposes for which they were 
 incorporated," and certain real estate was deeded to a church in fee " to the end 
 that they might from time to time as they should deem necessary erect there- 
 upon any buildings or improvements suitable for ecclesiastical, literary, or 
 benevolent purposes,'' and was leased to the Sisters of Charity for thirty years at 
 a nominal rent for charitable purposes and was actually occupied for such pur- 
 poses : qucBre, whether the premises, while held and occupied under this lease, 
 are exempt from taxation under the statute as " real estate belonging " to the 
 Sisters of Charity, the Court being equally divided on the question. Sisters of 
 Charity v. City of Detroit, 9 Mich. 94. 
 
 (a) But see Milwaukee and St. Paul Railway Co. v. Crawford Co., 29 Wise. 
 
458 LANDS ITOT SUBJECT TO TAXATION. 
 
 In the language of the Supreme Court of New Jersey: "A 
 contract like this contended for, which is to bind future leg- 
 islatures, to the end of time, from raising the necessary taxes 
 for the support of the government, and the exigencies 
 * 410 of the * country, on a considerable district of the ter- 
 ritory of the State, ought at least to be clear and ex- 
 plicit, free from all doubt and uncertainty, not depending on 
 implication or construction."^ It is also held, that this 
 power of exemption cannot be exercised by counties, towns, 
 and municipal corporations, unless it is expressly conferred 
 upon them.^ When, however, this power of exemption is 
 clearly exercised by the legislature, effect must be given to 
 it by the Courts.^ 
 
 The constitution of Maine provided that lands which be- 
 longed to the commonwealth of Massachusetts " shall be free 
 from taxation, while the title to said lands remains in the 
 
 116. The constitutional provision that " Laws shall be passed taxing hy a uni- 
 form rule. ... all real and personal property according to its true ralue," &c., 
 except certain exempted kinds therein ennumerated, amounts to an inhibition 
 on the legislature from exempting other real property. Fletcher v. Oliver, 25 
 Ark. 289. 'For » full discussion of the rule of uniformity and equality in taxa- 
 tion, see cases cited in note (a) page * 6. An exemption of personal property in 
 a district from the operation of an act taxing property for a local improvement 
 is contrary to the rule of equality and uniformity. People v. Whyler, 41 Cal. 
 351. 'SeealsoPrimmtJ.Bellville, 59 111.142. See also note (6) p. * 106. So as 
 to the exemption of the taxable property of a railroad company in a county from 
 payment of school tax. Crosby v. Lyon, 37 Cal. 242. So as to the exemption 
 of growing crops from taxation. People v. Gerke, 35 Cal. 677. So as to im- 
 provements on real estate. People i;. Mining Co., 37 Cal. 54 ; Primm v. Bellville, 
 supra, the exemption (by ordinance) in this case being also contrary to the city 
 charter. See also' People v. McCreery, 34 Cal. 433 ; People v. Eddy, 43 Cal. 386, 
 on the subject of exemption of private property being unconstitutional. Under 
 its charter the Good Samaritan Hospital was " exempted from taxation of every 
 kind." JETdd, that the exemption did not cover special assessments for improve- 
 ments of the street fronting it. Sheehan v. Good Samaritan Hospital, 60 Mo. 
 155. So exemption from " taxes and assessments " AeW not to include local 
 assessments for grading, &c. State v. Mayor, 35 N. J. Law, 157 ; but see State 
 V. Mayor, 36 N. J. Law, 478, in which, however, the terms seem to have been 
 defined by statute. So as to an exemption from " all public taxes, rates, and 
 assessments." Buffalo City Cemetery v. Buffalo, 46 N. Y. 506. See also Lefevre 
 V. Mayor, &c., 2 Mich. 586 ; Broadway Baptist Church v. McAttee, 8 Busli 
 (Ky.), 608. 
 
 1 State V. Wilson, Peningt. 300. 
 
 - Mack V. Jones, 1 Foster, 393. 
 
 ' State Bank v. People, 4 Scam. 303 ; 2 Har. 80, and the cases above cited. 
 
LANDS NOT SUBJECT TO TAXATION. 459 
 
 commonwealth." In one case it appeared that Massachu- 
 setts had contracted to sell the land, but the vendee had not 
 fuUy complied with the conditions of the contract, though 
 the contract was in full force. This property was taxed and 
 sold, as the property of the vendee, and it was held that the 
 land was exempt, and the sale void. By the Court: " This 
 (the provision in the constitution) was intended to mean the 
 legal title, and not the equitable, for it might be perfectly 
 useless to assess and sell lands belonging to the common- 
 wealth, to which an individual had such an equitable and 
 conditional title as exists in the case before us ; the condition 
 might never be performed ; and if performed, no legal or 
 equitable process could compel Massachusetts to execute a 
 deed conveying the fee. We are, therefore, of opinion, that 
 the tax iu question was illegally assessed, and that therefore 
 it is void, and, of course, nothing passed by the officer's sale 
 to the plaintiff."! Lands belonging to the State, or other 
 taxing power, of course are not taxable, and a sale of them 
 is, therefore, illegal.^ (a) 
 
 1 Emerson v. County of "Washington, 9 Greenl. 88. 
 
 2 Buckley v. Osborn, 8 Ohio, 180 ; McGoon v. Scales, 9 Wal. 23 ; Stewart 
 V. Shoenfelt, 13 Serg. & Rawle, 230. See also State v. Shaw, 28 Iowa, 76, as to 
 the statutory exemption of the interest of the State in lands mortgaged to the 
 school fund. See also Reynolds v. Weiss, 27 Wise. 450. In Biscoe v. Coulter, 
 18 Ark. 423, held that an exemption cannot arise by implication from the fact 
 that the State has a contingent mortgage interest in the land, the State not being 
 regarded as the owner of the land so mortgaged so as to exempt it from taxation. 
 See State of Georgia u. Atkins, 3-5 Geo. 315 ; and 1 Abbott U. S. 22, holding 
 that the term " corporation " in the U. S. internal revenue acts does not include 
 a State, and that the income of the State from the W. & A. R. R., owned and 
 managed by the State, is not subject to taxation under those acts. But the 
 interest of the United States in the Union P. R. R. Co., though chartered and 
 aided by Congress, is not such as to exempt the company from taxation by a 
 State through which the road is located and operated. Union Pacific R. R. Co. 
 V. Lincoln Co., 1 Dill. C. C. 314. Property taken possession of and occupied by 
 the national government will not be exempt from State taxation on that account, 
 unless the title and ownership thereof be vested in the United States. Speed v. 
 St. Louis County Court, 42 Mo. 382. In this case there was no evidence that 
 the government ever asserted any claim or title whatever to the property. It 
 was used as the exigencies of the times demanded and then abandoned to the 
 lawful owner. 
 
 (a) So also as to the property of a municipal corporation. People v. Doe G., 36 
 Cal. 220 ; Low v. Lewis, 46 Cal. 549. But in State v. Haight, 36 N. J. Law, 
 471, it was hdd that it does not follow that if the State should lease a portion of 
 
460 LANDS NOT SUBJECT TO TAXATION. 
 
 It is held in Ohio and Michigan, that lands sold by 
 * 411 the * United States, but upon which sale patents have 
 not been issued, whereby the legal title remains in the 
 Federal Government, are not exempt from taxation, by impli- 
 cation or express law. i(a)- [But land which has belonged 
 
 tlie public domain, that the lands so leased would be exempt from taxation ; 
 whether lands of the State conveyed by statute for a term of years, or for any 
 other term, are taxable or not, depends not on the qualities of the estate so 
 granted, but on the legislative intention expressed in such act. Taxing or 
 assessing property in general terms is taxing or assessing the fee, and not a par- 
 ticular interest or estate, and an assessment in general terms of land belonging 
 to the United States is void. Wright v. Cradlebaugh, 3 Nev. 341. The pro- 
 vision of the Nevada statutes which makes the tax deed " conclusive evidence 
 of the title," if constitutional (which it seems it is not), can only mean that the 
 recitals cannot be contradicted, and if the deed shows on its face that the land 
 belonged to the United States when assessed, and purports to convey a fee, and 
 there is no evidence of any one's having a possessory claim, the deed cannot be 
 received in evidence. Wright v. Cradlebaugh, 8 Nev. 341. 
 
 ' Gwynne v. Neiswanger, 15 Ohio, 867 ; Astrom v. Hammond, 3 McL. 107 ; 
 Carrol v. Perry, 4 Mc.L. 25. See ante, p. * 5, note. 
 
 (o) Lands held by a railroad company under land-grant acts of Congress, 
 which have never been certified or set apart, and which are incapable of identi- 
 fication, are not taxable. Cedar Rapids & Mo. R.E. Co. v. Woodbury Co., 29 
 Iowa, 247. But where, by completing a twenty-mile section of their road, the 
 railroad company has become legally and absolutely entitled to one hundred and 
 twenty sections of land, in accordance with said acts of Congress, and the lands 
 in question have been set apart and withheld from sale by the general govern- 
 ment, as belonging to the grant, and are susceptible of identification, and have 
 been identified, the certificates of the governor of the State, and from the land 
 department of the general government, being necessary only as evidence of a title 
 already existing, held, that such lands are subject to taxation. Iowa Homestead 
 Co. v. Webster Co., 21 Iowa, 221 ; Dubuque & Pacific R.R. Co. v. Webster Co., 
 21 Iowa, 235. See also Tucker v. Furgeson (U. S. C. Ct.), West. Dist. of Mich., 
 reported in Aud.-Gen.'s Report, 1873, Mich., p. xvi. A mere contingent, condi- 
 tional, and inchoate equity obtained by a railway company in lands lying within 
 an Indian reserve, but which does not amount to a title, either legal or equitable, 
 the title to the lands remaining in the United States, or in the Indians, or in both, 
 till the performance of every condition of the contract, is not subject to taxa- 
 tion ; thus where, under a conditional purchase of said land by a railway com- 
 pany, no patent was to be issued for the land till all the conditions of purchase 
 were fulfilled, and if any one condition was not fulfilled, the company was to for- 
 feit all its interest in said land, and the same was to be sold again to other par- 
 ties, and where it appeared from the nature of the contract and the character of 
 the parties that time was an essential ingredient of the contract, no title, legal or 
 equitable, passed to the company until it fulfilled every condition of the contract, 
 and the land in such case was not subject to taxation. Commissioners of Doug- 
 las County V. Union Pacific Railway Co., 5 Kan. 616. So where, by ch. 98, Laws 
 of 1853, and ch. 112, Laws of 1856, of Wisconsin, the Fox and Wisconsin Im- 
 
LANDS NOT SUBJECT TO TAXATION. 461 
 
 to the Federal Government does not become subject to taxa- 
 tion under the laws of the State, until the specific tract has 
 
 provement Company became the agent of the State to make the improrementa 
 required by the acts of Congress granting the lands to the State for that purpose, 
 and where, by said ch. 112, a conditional grant in farm to said company of all 
 lands unsold, to take effect upon the execution by the company of a certain trust 
 deed to trustees to secure the State in the application of the proceeds to the 
 making of the improvements and payment of debts already contracted for, &c., 
 the company taking no estate in the land, it being provided by sec. 10, Act of 
 1856, that " when all the purposes of this act are accomplished, and not before,the 
 said trustees shall convey to the company the interest of the State in the said lands, 
 work and other property mentioned," which purposes were not accomplished 
 at the time when the taxes in question were assessed, held, that under the act 
 of 1856 the State was not divested of its title to the lands so as to render them 
 liable to taxation under the general laws of the State in 1863. Denniston v. 
 The Unknown Owners, 29 Wise. 351. Although lands sold by the United States 
 may be taxed before the government has parted with the legal title by issuing 
 a patent, this principle is to be understood as applicable only to cases where tlie 
 right to the patent is complete, and the equitable title fully vested without any 
 thing more to be paid or any act don§ going to the foundation of the right. 
 Hence, where there has been a land grant to a railroad company to aid in the 
 construction of its road, and prepayment by the grantee of the cost of surveying, 
 selecting, and conveying the lands granted is required by the statute making 
 the grant before any of the lands " shall be conveyed," and the grant contains a 
 proviso that any of the lands granted and not sold by the company within three 
 years after the final completion of the road, shall be liable to be sold to actual 
 settlers under the pre-emption laws, at a specified price per acre, the proceeds to 
 be paid to the company, held that it is not competent for a State to embarrass 
 these rights by a sale of the land for taxes. Railway Company v. Prescott, 
 16 Wallace, 603, reversing 9 Kan. 38. In Puget Sound Agricultural Co. v. Pierce 
 County, 1 Wash. Ter. 180, the plaintiff having been organized in Great Britain, 
 and still being a foreign corpdration, and a majority of its members still continu- 
 ing to be non-residents and subjects of a foreign government, and where it was 
 admitted on the part of appellants as follows : That appellants have claimed to 
 be owners of the lands on which they are required to pay taxes by the appellee, 
 and have had the same surveyed and platted, and the plat filed in the office of 
 the Surveyor-General for the Territory of Washington ; that tlie United States 
 in surveying the adjacent lands has stopped the section lines at the boundaries 
 of said claim, and have not included the same in the public surveys ; that a 
 portion of said land included within said claim has been occupied as a military 
 station by the United States, said government paying rent therefor to appellants ; 
 that appellants have attempted by legal process to eject persons occupy ing portions 
 of said land, and claiming the same under the provisions of the donation law. 
 And where it was admitted by the appellees as follows : That a large portion of 
 said lands are unenclosed, and a portion thereof occupied and claimed by citizens 
 of the United States adversely to appellants under, as they allege, the provisions 
 of the donation law ; that American citizens in Pierce county who have lived 
 over four years on their donation claims have not been taxed for the same, 
 though outside of the claim of appellants ; nor is there any tax levied on any 
 
462 LANDS NOT SUBJECT TO TAXATION. 
 
 been by some act of the government, segregated from the 
 body of the public lands, and at least an equitable title 
 
 real estate in said county other than the lands of appellants ; that the government 
 of the United States has not designated the metes and bounds of the claim of the 
 Puget Sound Agricultural Company except by recognizing the metes and bounds 
 set out by the company in its instructions to the Surveyor-General ; that the land 
 occupied by the United States as a military station, and for which rent was paid 
 to appellants, had some old buildings thereon since torn down, the said general 
 government still occupying said land and paying rent therefor ; the existence of 
 the said company and their rights being recognized by the treaty with Great 
 Britain of June 15, 1846, the fourth article thereof providing that "the farms, 
 lands . . . belonging to the Puget Sound Agricultural Company . . . shall be 
 confirmed to said company," held, that these words recognized in said company 
 an immediate vested interest in their lands, &c., without further legislation by 
 Congress ; that though the fee to the lands is not in the company, and may not 
 vest till further legislation, yet it is believed that the United States hold the fee 
 in trust for them ; and they have such an equitable estate as subjects them to 
 taxation ; that the company by its own acts and admissions in connection with 
 the action of the government is estopped from denying the boundaries as taken 
 by the assessor ; that the company having defined its boundaries and filed its 
 plat, no question oi segregation arises in the case. As to " Indian Lands," so called, 
 it was held in the ease of the Kansas Indians, 5 Wal. 737, that the State of Kansas 
 has no right to tax lands held in severalty by individual Indians of the Shawnee, 
 Wea, and Miami tribes, under patents issued to them by virtue of the treaties 
 made with those tribes respectively in 1854, and in pursuance of sec. 11 of the 
 Act of June 30, 1859 (11 Stat, at Large, p. 431). That if the tribal organization 
 of Indian bands is recognized by the political department of the national govern- 
 ment as existing, the fact that the primitive habits and customs of the tribes 
 when in a savage state have been largely broken into by their intercourse with 
 the whites does not authorize a State to regard the tribal organization as gone, 
 and the Indians as citizens of the State where they are and subject to its laws. In 
 the case of the Shawnee tribe, the treaty provided that " Congress may hereafter 
 provide for issuing to such of the Shawnees as may make separate selections 
 patents for the same, with such guards and restrictions as may seem advisable 
 for their protection therein." The patents conveying the ultimate title in fee- 
 simple contained a restriction " that said lands shall never be sold or conveyed 
 by the grantee or his heirs without the consent of the Secretary of the Interior 
 for the time being." In the case of the Wea tribe the patents were like those 
 given to the Shawnees. The treaty with the Miamis of June 5, 1854, after 
 providing similarly to that of the Shawnees that Congress may authorize the 
 issumg of patents for the selected lands under restriction, provides that the lands 
 so patented " shall not be Uable to levy, sale, execution, or forfeiture," and the 
 patents contained the same restrictions as those to the Shawnees : Held (over- 
 ruling Blue Jacket v. Johnson County, 3 Kan. 299, and Commissioners of JMiami 
 County V. Wanzop-pe-chee, 3 Kan. 364), that rules of interpretation favorable 
 to our Indian tribes are to be adopted in construing our treaties with them ; that 
 the words " levy, sale, and forfeiture" are not to be confined to levy and sale 
 under ordinary judicial proceedings only, but are extended to levy and sale by 
 county ofacers also for non-payment of taxes. See also Swope v. Purdy, 1 DiU. 
 
LANDS NOT SUBJECT TO TAXATION. 463 
 
 thereto vested in the grantee.'] There is a controversy as 
 to the right which the purchaser at the tax sale acquires 
 
 C. C. 349. In Fellows v. Denniston, 23 N. Y. 420, the act (ch. 254 of 1840) 
 authorizing the taxation and sale of Indian lands without any reservation of the 
 rights of Indian occupants secured by treaty was held to be unconstitutional 
 and void. Where Indians being in possession of lands the enjoyment of which, 
 " without disturbance by the United States," has been secured by treaty with 
 the Federal government, with the assurance that " the lands shall remain theirs 
 until they choose to sell them," the State in which the lands lie has no power 
 to tax them either for ordinary town and coimty purposes, or for the purpose 
 of surveying them and opening roads through them ; and a statute of a State 
 authorizing a sale of such lands for taxes so laid is void, even though providing 
 that " no sale for the purpose of collecting the tax shall in any manner aflfect the 
 right of the Indians to occupy the land." The New York Indians, 5 Wal. 761 
 (overruling on this point Fellows v. Denniston, supra). Where Indians under 
 arrangements approved by the United States agree to sell their lands to private 
 citizens and to give possession at the expiration of a term of years named, a 
 taxation of the lands before the efflux of the term is premature, even though a 
 sale for the non-payment of the taxes might not take place until after the time 
 when, if they fulfilled their agreements, the Indians would have left the land, and 
 even though the sale would be subject to the proviso named in the preceding 
 paragraph. A deed under a sale for taxes, and purporting to convey the lands 
 to the purchaser, even with the qualification of such a proviso, would in law be 
 a disturbance of the Indian tribe. The New York Indians, supra (overruling 
 Fellows V. Denniston, supra) ; see aJso Farrington v. Wilson, 29 Wise. 383. 
 Under the Kickapoo treaty of 1862, providing that all lands sold under the 
 provisions of article five of said treaty shall be forfeited to the government if not 
 fully paid for according to the provisions of said treaty, and providing also that 
 
 1 Whitney v. Gunderson, 31 Wise. 359. In this case an act of Congress, in 
 1860 (12 U. S. Stats, at Large, p. 857, ch. 122), declared that the title to a cer- 
 tain tract of land, confirmed to G. P. by certain commissioners appointed under 
 a former act, described as " a parcel of ground lying on the west side of Fox 
 River, at Green Bay, immediately below the first creek that empties into said 
 river, about 15 acres in front on said river, and extending back indefinitely," was 
 thereby ratified and confirmed ; and that the commissioner of the general land 
 office should cause said tract to be surveyed in the same manner as other private 
 claims to lands at Green Bay had been surveyed, and that he be required to issue 
 a patent thereon, &c., and it was held, that tfie specific land granted by this act 
 was not ascertained and separated from other lands, so as to vest in the grantee the 
 equitable title of any specific tract of land, and that therefore said land was not 
 subject to taxation until after survey was made and approved by the executive 
 department of the government. See also Palmer v. Boling, 8 Cal. 384. Where 
 land of the United States has been entered under a spurious land warrant, and 
 the entry suspended to give the locator opportunity to substitute a valid warrant 
 or pay the price in money, the land is not subject to taxation by the State, — 
 such locator having no title to it, legal or equitable, Calder v. Keegan, 30 Wise. 
 126, citing, as authority for the decision, Gibson v. Chouteau, 13 Wall. 92. 
 
464 LANDS NOT SUBJECT. TO TAXATION. 
 
 under such circumstances, and the remedies to be adopted 
 to enforce it, which will be discussed in a subsequent chap- 
 ter. 
 
 " none of said lands shall be subject to taxation until the patents have been issued 
 therefor ; after said land has been sold to the Atchison and Pike's Peak Railroad 
 Company, and by them sold to an individual who has made valuable and lasting 
 improvements thereon,but before said lands have been paid for, and before patents 
 have been issued therefor, Md, that neither said land nor the improvements 
 thereon are taxable. Parker v. Winsor, 5 Kan. 362. Under a statute exempting 
 from taxation " the property of all Indians who are not citizens, except lands 
 held by them by purchase," held, that the lands reserved by treaty to a member 
 of the tribe (not being a citizen) and subsequently patented by the United States 
 to him were not held " by purchase," within the meaning of the provision, and 
 were exempt from taxation, the word " purchase " in this connection meaning, 
 an acquisition for a valuable consideration. Harrington v. Wilson, 29 Wise. 383. 
 As to the exemption from taxation of agricultural college lands in Iowa, see 
 Trustees of Agricultural College v. Webster Co. 34 Iowa, 141. As to exemption 
 of indemnity swamp lands belonging to a county and situated in another county 
 than the one owning them, see County of Guthrie v. County of Carroll, 34 Iowa, 
 108. In Kansas, lands entered or pre-empted prior to the third Tuesday of 
 August, 1860, were held liable to be taxed for that year. Watterson v. Kirkwood, 
 8 Kan. 463. 
 
PAYMENT OF THE TAX. 465 
 
 CHAPTER XXVI. 
 
 OF THE EFFECT OF THE SALE AND DEED, WHERE THE TAXES HAVE 
 BEEN PAID BEFORE THE SALE. 
 
 The delinquency of the owner is the essential fact upon which 
 the power of sale rests, (a) The authority of the government 
 extends only to those cases where the owner neglects to pay 
 the tax in arrear voluntarily. When this neglect is shown, the 
 coercive remedies of the law may be resorted to, and not before. 
 The law in substance declares, that the tax assessed shall con- 
 stitute a lien upon the land, and if the tax is not paid within 
 a specified time, the officer charged with the duty is authorized 
 to sell. The right to sell is therefore founded on the fact of 
 the non-payment of the tax. If the tax be paid before the 
 sale, the lien of the State is discharged, and the right to sell no 
 longer exists. When the owner has performed all of his 
 duties to the government, no Court would sanction, under any 
 circumstances, the forfeiture of his rights of property. The 
 law was intended to operate upon the unwilling and the neg- 
 ligent citizen alone. Legislative power, extends no further. 
 The sale involves an assertion by the officer that the taxes are 
 due and unpaid, and the purchaser relies upon this, or on his 
 own investigations, and his title depends upon its truth. The 
 title of the purchaser is contingent, so far as it may be affected 
 by proof establishing the fact that the tax had been paid before 
 the sale was made. This is an implied condition, annexed to 
 every grant of this kind, founded on a sound construction of 
 the law, the power of the government in collecting taxes, and 
 the principles of natural justice. The constitution and the 
 ordinary law, he is bound to know, and justice is pre- 
 sumed to have * a lodgment in the breast of every man * 413 
 
 {a) So to confer jurisdiction to render judgment against the land. Schaeifer 
 V. People, 60 III. 179. 
 
 80 
 
466 PAYMENT OP THE TAX. 
 
 — even in that of a purchaser at a tax sale, who is said to 
 have " but little conscience." 
 
 Therefore, every purchaser takes a deed subject to the con- 
 dition that the taxes have not been paid, and if his title is 
 defeated, he must look to the government for that relief which 
 such a case may require, (a) The return of the delinquent 
 list will justify a sale by the oificer, unless the taxes were paid 
 to him in person, or he had knowledge of the fact of pay- 
 ment, but as between the owner and purchaser, the return is not 
 conclusive evidence of the fact of non-payment. The validity 
 of the sale and conveyance necessarily depending upon the 
 fact of delinquency, when this is drawn in question, it is com- 
 petent to prove payment ; and in permitting the owner to make 
 this proof, no rule of law is violated ; it is not permitting parol 
 evidence to impugn or destroy a written contract, but it is con- 
 sistent with the deed ; and if the deed is thereby defeated, it 
 arises upon the proof of a fact, upon which, by law, the opera- 
 tion of the deed was made to depend, at the very time of its 
 execution. It would be a monstrous doctrine to hold other- 
 wise.^ 
 
 (aj In Iowa, under sec. 762 of the Eevision, providing for the correction of 
 illegal and erroneous taxes, and that a sale for any such shall not affect the title 
 conveyed by the treasurer's deed, provided any portion of tlie taxes for which 
 the land was sold was legal, it was held that the fact that the taxes were paid for 
 one of the years for which the land was sold will not invalidate the sale. Hurley 
 V. Powell, 31 Iowa, 64, following Eldridge v. Kuelil, 27 Iowa, 160. Where a 
 suit brought to restrain the collection of a city tax on certain lots for its alleged 
 illegality was compromised between the plaintiff therein and tlie city attorney, 
 with the knowledge and concurrence of the council, on an agreement that the 
 taxes sliould be discharged and the city should be permitted to use the lots for a 
 certain time as a street, held, that these facts constituted as valid a defence against 
 a deed of said lots executed by the city for said taxes as if there had been a 
 formal vote of the council authorizing such compromise ; the agreement o( tlie 
 city to discharge the taxes for the consideration aforesaid, and its subsequent 
 acceptance of the consideration, estopped it from selling the lots for said taxes 
 and acquiring title as purchaser ; and one who claims under the city is bound 
 by the estoppel. Kneeland v. Oilman, 24 Wise. 39. 
 
 1 Curry v. Hinman, 11 111. 420; "Walton v. Gray, 29 Iowa, 440; Seager v. 
 Kearsage Mining Co., Aud.-Gen. R. Mich., 1873, p. xxxviii.; Jackson v. Morse, 
 18 Johns. 441 ; Blight v. Banks, 6 Mon. 206 ; Rowland v. Doty, 1 Barring. 3, U; 
 Hunter v. Cochran, 3 Barr, 105; Douglierty v. Dickey, 4 Watts & Serg. 146; 
 Stanley c. Smith, 1 Car. Law, 511; s. c. Eat. Ed. 124; Aukney v. Albright, 
 8 Har. (Penn.) 157; Wallace v. Brown, 22 Ark. 118. See p. *354, note; see 
 also Twyss u. Chevallie, 4 West Va. 463; 23 Iowa, 167; Lohrs v. Miller's 
 
PAYMENT OP THE TAX. 467 
 
 The same principle is applied to a sheriff's sale under execu- 
 tion ; there it is held that a sale, based upon a satisfied judg- 
 ment, is absolutely void ; ^ though in one case it was held, that 
 a sale to a bond fide purchaser would be sustained unless the 
 satisfaction appeared of record.^ The tenacity with Which the 
 courts adhere to the doctrine that a sale and deed are nullities, 
 where the taxes were in fact paid prior to the sale, is most 
 strikingly illustrated by the cases of Rowland v. Doty, 
 Jackson v. * Morse, and Curry v. Hinman, to which the * 414 
 reader is referred — they are the leading cases upon this 
 poirit.^ 
 
 Where a tract of land containing 390 acres, was owned in 
 common, and one of the cotenants listed an undivided third in 
 his own name, and duly paid the tax due upon his share, and- 
 the whole tract was listed the same year as the property of the 
 other tenant, and sold for the tax assessed upon it, the sale 
 was held void.* Two surveys interfered, and the owner of the 
 
 Lessee, 12 Grat. 4.52 ; Reading v. Finney, 73 Penn. St. 467 ; Gaylord v. Scarff, 
 6 Clarke (Iowa), 179 ; Sprague v. Coenen, 30 Wise. 209 ; 50 III. 262, 268. When 
 a tract of land is assessed for the taxes of several years, and the taxes have been 
 paid for one or more of the years, but the land is sold for the whole amount 
 assessed, this renders the sale void. Kinsworthy v, Mitchell, 21 Ark. 145. So 
 a sale for taxes for a year in which it is shown that the land was twice assessed 
 and the tax once paid, is invalid. Eayner v. Lee, 20 Mich. 384. A collector has 
 no power to receive payment of tax and execute a. receipt therefor before it is 
 assessed ; and where, subsequent to such payment, a new collector is appointed 
 who proceeds to assess and sell, equity will not enjoin the sale. Cossart v. 
 Spence, 23 Ark. 374. A lawful tender of the tax to the oflBcer authorized to 
 receive it is tantamount to an actual payment, and ipso facto divests the authority 
 of the officer to sell such land for taxes. Schenk <;. Peay, 1 Dill. C. C. 269 ; 
 Loomis V. Pingree, 43 Me. 299. And though the land is assessed in another 
 name, a tender by the owner will prevent a valid sale. Kinsworthy v. Austin, 
 23 Ark. 375. See p. * 173. A collector has no legal right to receive Tennessee 
 bank paper in payment of taxes, and where land has been advertised for sale, a 
 tender, to be effectual to stop the sale, must be for the whole of the taxes, penalty, 
 and costs. Hunt v. McPadgen, 20 Ark. 277. 
 
 1 6 Ohio, 430 ; 4 Wend. 474 ; 56 111. 262. 2 i Cow. 622. 
 
 3 But after a decree of foreclosure under a tax deed under the Iowa statute, 
 it is too late to show in subsequent proceedings payment of tax. Gaylord v. 
 Scarff, 6 Clarke (Iowa), 179. So after a judgment for the tax in Pennsylvania. 
 Cadmus v. Jackson, 52 Penn. 295. See p.- * 854, note. 
 
 * Jones V. Gibson, 2 Taylor (N. C), 41. Payment of taxes by one tenant in 
 common on the joint property inures to the benefit of both, and is considered as 
 payment by both tenants. The party making the payment can look to the otherfor 
 contribution. Chickering v. Failes, 38 lU. 342 ; McConnell v. Konepel, 46 111. 519. 
 
468 PAYMENT OF THE TAX. 
 
 junior survey paid the taxes due upon his entire tract, which 
 of course included a part of the elder survey; afterwards, 
 the land embraced in the senior survey was sold for taxes, 
 and it was held that no title passed by the sale to any part 
 of the interference.^ It has been held that where, by the 
 mistake of the land-OM'ner himself, he pays the tax upon a 
 tract of land which does not belong to him, and was not 
 assessed in his name, the sale, under such circumstances, is 
 legal.2 
 
 On the other hand, where the owner pays upon the right 
 tract, but the money thus paid to discharge the lien upon his 
 own land, is appropriated, by the mistake of the officer, to 
 another tract, this was held to be a valid payment, and the 
 sale of the land void.^ (a) [Payment of the tax to an ofScer 
 
 1 Hunter v. Cochran, 3 Barr, 105. 
 
 2 Stepliens v. Wells, 6 Watts, 325. [If a stranger, without title, pays taxes on 
 a part of a tract of unseated land, without defining its location or boundaries, it 
 will not deieat the title of the purchasers of the whole tract. Crum v. Burke, 
 1 Casey (Penn.), 377. In Pennsylvania, by act of 1862, No. 233, in case of asale 
 of unseated land for taxes, which may be interfered with by the title or survey of 
 other claimants, the latter may, within two years after the sale, pay to thecounty 
 treasurer the amount of the tax assessed upon so much of the land as is included 
 in his claim, and the costs, together with the additional twenty-five per cent on the 
 same, equal to the proportionate part so included within his claim, which shall be 
 a redemption as effectual for the amount within his lines of claim, as if it had been 
 for all the land within the lines of said interference.] Where property was assessed 
 to an unknown owner and sold for the tax, and a deed executed to the purchaser, 
 the fact that the agent of the owner of the lot paid the tax on the wrong lot by 
 mistake, is not such a mistake as a Court of equity will relieve against. Moss 
 ^. Mayo, 23 Cal. 421. 
 
 3 Dougherty v. Dickey, 4 Watts & Serg. 146. The author is indebted to Judge 
 Lowrie, of Pennsylvania, for the following copy of a very able opinion recently 
 
 (a) In the absence of fraudulent collusjon, it will not avail as against a tax title 
 after decree of foreclosure under a tax deed that the owner of land was told by the 
 county treasurer that no tax was assessed on the land. McGahen v. Carr, 6 Clarke 
 (Iowa), 831. Payment of the taxes assessed upon parts of lots described as the 
 whole should have been described in the assessment roll must be treated as a pay- 
 ment of the whole tax upon the lots, the owner having in good faith so intended 
 it; and no action can be maintained under ch. 22, Laws of 1859, upon tax deeds 
 of part thereof assessed, sold, and conveyed by an unauthorized description to 
 foreclose the interest of the owner therein. Merton a. Dolphin, 28 Wise. 456. 
 By tlie erection of Polk township in 1851 all of warrant 4023, containing 1026 
 acres, except 16 acres, remained in Polk; the 16 acres were thrown into Heath 
 township. Up to 1869 it was assessed in Polk, and taxes paid in Polk ; it was 
 
PAYMENT OF THE TAX. 469 
 
 not * authorized By the law to receive it of the tax- * 415 
 payer (as to the treasurer instead of the collector'), will 
 
 delivered by him in the Supreme Court of that State, and which has not yet been 
 reported. A part of the opinion sustains tlie doctrine of the text relative to the 
 misapplication of the payment of a tax, and the residue will be interesting and 
 useful to the bench and the bar. The case referred to is that of Laird v. Heister. 
 [Since reported in 12 Har. (Penn.) 452.] Lowrie, J. : " It is important to notice 
 that the laws to enforce the payment of taxes on unseated lands give no direc- 
 tions at all relative to the mode in which any of the tax books shall be kept, except 
 so far as they are involved in the general direction, that such land ' shall be val- 
 ued and assessed in the same manner as other projierty.' And though some 
 directions are given for advertising, yet, even in this, irregularities are declared 
 not to affect the sales ; and then there is, besides, a general declaration that no 
 irregularities in the assessment, process, or otherwise, shall be .allowed to affect 
 the title of the purchaser. Taking this thought witli us in reading these laws, 
 we readily discover the following, which are ruling principles in the present 
 cause : — 
 
 1. Tlie forms in which assessments of unseated lands are made and entered, 
 and the mode of certifying or transmitting them to the county treasurer, are 
 matters of official practice entirely at the discretion of the commissioners of the 
 several counties, subject only to the condition of being intelligible ; and they 
 must be expected to be very various. [See Heft v. Gephart, 05 Penn. St. 518 ; 
 holding that the maxim, omnia prmsumuntur rite esse acta, applies to whatever 
 method may be adopted and whatever evidence of official action may exist in 
 the commissioners' office.] This is merely an expression of the principle that 
 allows all sorts of public functionaries to adopt .and direct tlieir own forms of ful- 
 filling their duties, in cases wherein they are not fully and adequately directed by 
 law. It was overlooked when it was attempted (3 Watts, 260) to indicate the 
 form in which unseated land taxes ought to appear in the commissioners' office, 
 and the attempt has given rise to some confusion. 
 
 2. The authority of the treasurer to sell unseated land for taxes depends upon 
 the facts that the land was unseated at the time of the assessment ; that a tax 
 
 afterwards assessed as 4023 in the warrantee's name as 726 acres ; 300 acres were 
 assessed in the s.ame name and number in Heath; the change was not made by 
 the board of revision and was without the knowledge of the owner, who paid all 
 the taxes demanded for 4023 as in Polk: The 300 acres were sold tor taxes as 
 assessed in Heath. Held, that the purchaser took no title ; the return of the 
 assessors fixing the identity of a tract and its liability to taxation is binding on 
 the commissioners, and the assessment in Polk, being for 4023, and taxes paid 
 accordingly, was a discharge of the tract, though assessed as 726 acres. The num- 
 ber of the acres is simply descriptive, and would not overturn the number of the 
 tract, the name of the warrantee, and the duty of the assessor to assess and return 
 in single tracts according to their ownership. Brown v. Hays, 66 Penn. St. 229. 
 A tract lay in Centre County ; by division of the county part was thrown into 
 Clearfield, .and was there sold as unseated for taxes. Held, that the fact that taxes 
 for the whole tract had been assessed and paid in Centre County did not relieve 
 the part in Clearfield from sale. Patton v. Long, 68 Penn. St. 260. 
 
470 PAYMENT OP THE TAX. 
 
 * 416 not render the subsequent * sale void*, although the duty 
 of the collector would have been, upon receipt of the 
 money, to have paid it over to the same treasurer.^] 
 
 appears to have been, and was, in fact, assessed upon it hy the proper officers ; 
 and that the tax has been due for one whole year, and remains unpaid. The 
 absence of either of these facts involves exemption from the penalties of the acts 
 of 1804 and 1815. 
 
 3. This authority has been restricted by construction, in some instances, for 
 the protection of innocent persons who, relying on the customary forms of taxa- 
 tion, may have been led into tlie mistalien supposition tliat tliere was no tax 
 charged upon the land, but only against the owner personally. 3 Watts, 260 ; 
 4 Watts & Serg. 133 ; 8 Penn. St. 169 ; 14 Penn. St. 404. 
 
 4. Tlie tax books in the oflSces of the commissioners and treasurer are not 
 intended to give notice of the liability of land for taxes, but are merely tlie mode 
 in which the tax accounts are kept ; and they are open to be corrected or proved 
 erroneous, when any interests depend upon the facts expressed by them. 
 
 5. Placing land taxes on the collectors' duplicates is not of itself a declaration 
 by the taxing oflScers that the land is seated, and has no tendency to mislead any 
 one into the supposition that the land is not to be charged as unseated; though a 
 departure from a well-known usage in this regard has been allowed such an 
 effect. If the law had made the tax lists, instead of the tax laws, notice to the 
 world of the liability of land for taxes, then, of course, the tax lists would need to 
 possess those qualities of certainty and completeness that are appropriate to their 
 function of giving notice. They do not give notice of the liability, but merely 
 define its amount. And if they were to stand for notice, then they ought to affect 
 both parties ; but no matter how full, complete, and regular may be all the entries, 
 they furnish no foundation for the faith of purchasers that is not swept away by 
 proof that the taxes were really paid, or that the land was seated ; nor do they 
 bind the person if the land is in fact unseated. If we say that a tax on land is 
 no lien upon it unless it appears in the list as unseated, or is placed upon an 
 unseated list, then the tax is good for nothing ; for, being actually unseated, the 
 owner is not personally liable for it. 
 
 6. The purpose of an inquiry into the mode in which the tax books are kept 
 in any county is generally to show how they ought to be understood by the Court 
 and jury ; and it is relevant to notice the usages of the ofSce in keeping them, 
 prior and up to the time of the entry that is to be interrupted ; but when a new 
 usage has been introduced, the old ones may cast no light upon the entries made 
 under it. 
 
 7. When the owner of an unseated tract of land goes to the treasurer and 
 offers to pay to him all the taxes upon it, and does pay the amount demanded by 
 him, and the treasurer credits the payment to another tract and sells this, it is a 
 good payment, and the sale is void. The unseated land laws are intended to 
 enforce the payment of taxes, and their purpose is fulfilled when the duty is per- 
 formed. If a man has really and in good faith performed his duty herein to the 
 satisfaction of the proper oflicers, his land is safe. If it be sold after that, it is 
 
 1 Young V. King, 3 R. I. 196. So payment of part of the taxes and costs avails 
 nothing. Heft v. Gephart, 65 Penn. St. 518. 
 
PAYMENT OF THE TAX. 471 
 
 * No instance is remembered where the law does not * 417 
 permit the owner to pay the tax and charges npon liis 
 land at any time before a sale takes place. " He may arrest the 
 uplifted hammer of the auctioneer, when the cry for sale is 
 made, if it be done before a bond fide bid has been made." ^ 
 It is evident, that a payment after sale can have no effect 
 whatever.^ 
 
 The payment of the tax, being matter in pais, may be 
 proved by oral evidence ; it is not necessary to introduce the 
 collector's books or his receipt, (a) or produce the assessment 
 
 througli tlie error of some officer which cannot be visited on the owner ; for the 
 State does not mean that the owners of unseated lands shall warrant the fidelity 
 or competency of its officers. The sale' involves an assertion by the treasurer 
 that the taxes are unpaid, and the purchaser relies upon this, or on his own inves- 
 tigations, and his title depends upon its truth. 
 
 8. When the commissioners purchase unseated land for taxes duly assessed 
 and unpaid, the provisions of the law, curing all irregularities in the assessment 
 and process, and giving five years for redemption, are as ample a protection to 
 their title as that which is furnished for other cases, by the limitation in the acts 
 of 1804 and 1824. 
 
 9. When the commissioners do thus purchase unseated land, and within or 
 after five years allow of its redemption and convey it accordingly, the transac- 
 tion, by its very nature, discharges the public duty, rescinds the commissioners' 
 title, and revests that of the next preceding owner. If a stranger thus redeems, 
 he discharges the public duty without acquiring the title for himself. (4 Watts 
 & Serg. 298; lOPenn. St.) 
 
 Without any further specification the counsel will understand that these prin- 
 ciples affirm all the important rulings involved" in the charge of the learned 
 President of the Common Pleas, and in the offers of evidence. As to the rest 
 it is sufficient to say that we do not perceive that there was any irrelevant or 
 incompetent evidence admitted, or any questions of fact submitted to the jury 
 without evidence, or any improper instructions given to them." 
 
 1 Early v. Doe, 16 How. (U. S.) 617, 618. So under the act of Congress of 
 1862, payment of the taxes prior to the sale is sufficient ; and, though the act 
 requires the payment to be made by the owner, it need not necessarily be made 
 by the owner in person. It is enough that it be made or tendered by him 
 through some friend or agent, compensated or uncompensated, or through any 
 other person willing to act in his behalf, and not disavowed by him. Bennett v. 
 Hunter, 9 Wal. 326 ; affirming 18 Grat. 100 ; Tacey v. Irwin, 18 Wal. 549. 
 
 2 Collins V. Barclay, 7 Barr, 67. Purchase by a mortgagee at tax sale is not 
 payment of the tax, nor does it operate to discharge the assessment or deprive 
 the owner of his right of redemption under the statute. Williams v. Townsend, 
 31 U, y. 411. 
 
 (a) A collector's receipt for taxes is an official paper which the law requires 
 him to give, and is therefore prima facie evidence of payment of the tax in suits 
 between third persons. Jolinstone v. Scott, 11 Mich. 232. But the fact of pay- 
 ment may always be proved by parol, whether a receipt was taken for it at the 
 
472 PAYMENT OP THE TAX. 
 
 roll, but the collector or other officer to whom the payment 
 was made, the agent of the owner, or any person present at 
 
 time or not. Hammond u. Hannin, 21 Mich. 383. In Daniels v. Burso, 40 111. 
 307, held, tliat a receipt purporting to be the act of the collector of taxes for 
 " teety-seven dollars," containing also a column headed " total tax," which footed 
 up in figures " $21," was competent evidence, and that it was a question for the 
 jury to determine what " teety-seven dollars " meant, which they could readily 
 do by observing the footing up of the column headed " total tax." The receipt 
 described the premises by No. " 5," placed in a column headed " lot," and " 9 " 
 in the next column, headed " block ; " then followed " 8 " in the column headed 
 " lot," but with no number opposite thereto in the column headed " block." 
 Seld, that it was also a question for the jury as to wliieh block lot " 8 " was sit- 
 uated in, and the evidence was sufficient to justify their finding it in block " 9." 
 Where parts of lots claimed by the plaintiff under tax deeds were parcel of a 
 paper-mill property, owned and occupied by defendants, tax receipts showing full 
 payment of the taxes upon property designated therein as " paper mill," " where 
 paper mill is situated," &c., were held admissible in evidence with parol evidence 
 for defendants, although the premises were also inaccurately designated by lots 
 and blocks in said receipts. It was for the jury to determine upon the whole 
 evidence whether the receipts were intended to cover the property in dispute. 
 Orton V. Noonan, 25 Wise. 672. So a tax receipt, which erroneously states the 
 number of acres in a tract of land, but describes a legal subdivision, is sulficient, 
 and the statement of the quantity is immaterial. Morrison v. Norman, 47 111. 
 477. So under the act of 1839, of Illinois (see post, ch. xxxix.), the important 
 question is, were the taxes duly paid, and by the person claiming title, or by 
 some person for him, it being sufficient to show the fact by such evidence as will 
 satisfy a jury trying tlie cause. A receipt, unless coupled with a contract, is only 
 prima facie evidence, and may be rebutted or explained by parol. Elston v. 
 Kennicott, 46 111. 187 ; s. c. 52 111. 272, and cases there cited. See also 21 Mich. 
 383; 43 111. 167. A tax receipt simply showing that " dollars " were received, 
 and failing to state that whatever amount was received was in full of the taxes 
 assessed, and where there is no character opposite the figures to indicate what 
 they were designed to represent, is fatally defective. Cook ». Norton, 43 111. 391 ; 
 B. c. 48 111. 20 and 61 111. 286. But if the dollar mark is prefixed to the first of 
 a column of figures, and also to the total of the column, this shows sufficiently that 
 the amounts making up the total were dollars. Cook v. Norton, supra. And a 
 receipt which names the year for which the taxes were paid without giving the 
 month or day of payment, sufficiently shows payment of the taxes of that year, 
 under the limitation law requiring payment of taxes for seven years. Ibid. 
 Receipts for taxes, like other receipts, may be explained, and are not conclusive, 
 under the limitation law of 1839, upon the question on whose account and for 
 whom payment of taxes has been made. Rand v. Scofield, 43 111. 167. A receipt 
 " in full for taxes, interest, and costs of the within certificate," being indorsed on a 
 tax certificate, which was indorsed in blank, it was held, that it might be shown 
 by parol whether the money was received for an assignment of the certificate or 
 for the purpose of redemption. Woodman v. Clapp, 21 Wise. 350. Receipts for 
 taxes over thirty years old would be admissible in evidence without proof of exe- 
 cution, therefore the testimony of a witness who swears that he has seen such 
 receipts, and that they have been burned, but cannot give the name of the treas- 
 
PAYMENT OP THE TAX. 473 
 
 the time of the payment, are competent witnesses to prove 
 the fact.i [But the letters " Pd." on the county treasurer's 
 book, opposite the taxes, are not any evidence that the pay- 
 ment was before the sale. So proof of a payment of the tax 
 for the year 1795, is not admissible as tending to show a pay- 
 ment of the tax of 1817, 1818, and 1819, for which land has 
 been sold.^ 
 
 urer or tlie particulars of the receipts, is admissible. McReynoUs v. Loiigen- 
 berger, 57 Penn. St. 13. So where a tax receipt is alleged to be signed by a 
 person not having an official character, it is proper to show by parol that the 
 receipt was given in good faith, on the payment of the taxes, and by a person 
 connected with tlie collection of the revenue, and duly credited on the collector's 
 books ; and if the receipt misdescribe the premises upon which the taxes were 
 intended to be paid, such misdescription may be so explained by parol, as to show 
 what premises were intended to be embraced in the receipt ; and erasures and 
 alterations appearing on tlie face of the receipt may be shown to have been 
 made by the person giving it, and under circumstances which rebut any allega- 
 tions of fraud on the part of the holder. So, too, if the receipt does not specify 
 the j-ear for which the taxes were paid, such omission may be supplied by parol 
 evidence. Elston v. Kennicott, 46 III. 187. If, from the payment of State taxes for 
 succession of years, there arises a presumption that tlie tax of an earlier year 
 had been paid, that presumption may be rebutted by proof; and, in ascertaining 
 whether the tax of such earlier year was or was not paid, the books kept by the 
 State Treasurer may be received in evidence. Hodgdon v. Wight, 36 Me. 326. 
 The fact that the land was not returned delinquent by the town treasurer is 
 admissible and unexplained, perhaps conclusive, evidence that the taxes had been 
 paid. Lewis r. Disher, 2-5 Wise. 441. The record of the county clerk's office, 
 showing a sale of the premises for taxes for a certain year and redemption there- 
 from, will be deemed decisive evidence of such sale and redemption against the 
 testimony of one who states merely from his recollection that he paid the taxes 
 regularly each year for a series of years, embracing that for which the tax sale 
 is shown by the record to have been made. Holbrook v. Dickinson, 56 111. 497. 
 
 1 Dennett v. Crocker, 8 Greenl. 239 ; Adams v. Beale, 19 Iowa, 61. The same 
 principle was settled at nisi prius, in England, in an action upon a covenant " to 
 pay all taxes and assessments upon the land," and is reported in Campbell or 
 Espinasse, but the author is unable to make a special reference to the volume 
 and page where it may be found, although he has cited it on several occasions 
 at the bar. 
 
 2 Aukney. ti. Albright, 20 Penn. St. 157. Nor is the word " paid " evidence 
 that the payment was made by the person in whose name the land was listed. 
 Irwin V. Miller, 23 III. 401. The entry "paid" in county treasurer's books does 
 not operate to discharge tax unless followed by actual payment, and operates by 
 way of estoppel only in favor of those actually misled. Ambler v. Clayton, 23 
 Iowa, 173. In order that the payment of the tax avail, it must be the same tax 
 for which the land was sold, or the tax levied on the land that year, though 
 assessed in a different name ; whilst the title was in the county it could not be 
 prejudiced by the payment of taxes other than those for which it liad been sold. 
 Bussel V. Werntz, 24 Penn. St. 337. A payment in an illegal and void currency 
 
474 PAYMENT OP THE TAX. 
 
 is a nullity. Kichards v. Stogsdell, 21 Ind. 74. By the Vermont statute, pay- 
 ment must be in money only, and a payment by a town order is no discharge of 
 the tax, either as to the State or town. Although the constable may discharge 
 a tax without payment, as required by the warrant as between him and the party 
 taxed, yet, if he does, he becomes liable for the amount, and its payment can be 
 enforced against him or his sureties ; his act cannot be regarded as official or as 
 done in behalf of the State or town. Sawyer v. Springfield, 40 Vt. 305. See 
 p. * 413, note 1. Under the act of March 20, 1812, authorizing the county com- 
 missioners to estimate taxes which had been paid by a settler of land, under 
 contract with a warrant-holder, and, after deducting the proportion which should 
 have been paid by the settler, to sell the part belonging to the warrantee for the 
 adjusted portion paid by the settler for the use and benefit of the warrant-holder, a 
 sale in 1838 for taxes of 1801 to 1807 inclusive, was held void, the taxes being pre- 
 sumed to be paid after so long an interval, in default of positive proof to the con- 
 trary. The act under which the sale took place was designed to give a remedy in 
 behalf of persons who had paid taxes which ought to have been paid by others, 
 and not to collect a tax which had never been paid at all ; and the claim for taxes 
 was regarded by the Court as a private debt, and barred by the statute of limi- 
 tations. McLaughlin v. Kain, 45 Penn. St. 113. 
 
EEDEMPTION FROM THE SALE. 475 
 
 CHAPTER XXVII. 
 
 OF THE EFFECT OP THE SALE AND DEED WHERE A REDEMPTION 
 FROM THE SALE HAS BEEN MADE. 
 
 The purchaser, whether he acquires an equitable title to the 
 laud evidenced by a certificate, or the legal estate by virtue 
 of a deed of conveyance, takes the estate subject to all of the 
 rights of redemption which are reserved by the statute under , 
 which the sale was made. His title is a conditional one. 
 The sale may have been made, and all of the previous proceed- 
 ings conducted in strict conformity with the law, and yet a 
 redemption by the owner will defeat the contingent title of the 
 purchaser. This is evident. The purchaser acquires his right 
 to the estate under the same law which confers the privilege 
 of redeeming upon the owner. That law is the. source of his 
 title, and by it his rights must be determined. If no redemp- 
 tion is effected, the estate becomes absolute in him.^ (a) 
 
 On the other hand, if the owner redeems, within the time 
 and m the manner prescribed, the interest acquired by the sale 
 is ipso faeio gone for ever.^ (6) Where a right of redemption 
 
 1 Cooper V. Brockway, 8 Watts, 163 ; Byington v. Rider, 9 Iowa, 66G. 
 
 (a) That a redemption is not a, payment of tlie tax within the meaning of the 
 exception in tlie limitation law of 1844, p. 22, sec. 12 (the exception being in 
 the following words, " except in cases where the taxes shall actually have been 
 paid"), see Lindsay v. Fay, 28 Wise. 177. 
 
 - Blight V. Banks, 6 Mon. 206 ; Taylor v. Steele, 1 A. K. Marsh. 316. But a 
 redemption after an invalid sale does not strengthen an owner's title. Cuttle v. 
 
 (6) Under §§ 102, 116, ch. 15, R. S. 1849, the State had a right to redeem 
 from tax sales lands mortgaged for loans from the school fund ; and the provisions 
 of ch. 205, Laws of 1859 (requiring the clerk of the county board or city to enter 
 upon his records the redemption of such land, and the county or city treasurer 
 to pay the amount due for redemption to the holder of the certificate of sale, 
 which amount was placed by the State to the credit of the county, &c.), were 
 sufficient to work a redemption of such lands io\A prior to the passage of that 
 act, when the right of redemption had not expired before its passage. No change 
 whatever was made or attempted to be made in the contract of sale. It was 
 
476 REDEMPTION FROM THE SALE. 
 
 is given to owners who labor under no disability whatever, the 
 usual course is to deliver to the purchaser a certificate of the 
 sale, which entitles him to a deed unless the redemption is sea- 
 sonably made. But, sometimes a deed is executed and deliv- 
 ered to the purchaser immediately after the completion of the 
 sale, or lodged in some public office as an escrow to take effect 
 in case a redemption is not made.^ And where a deed 
 * 419 is made * after the expiration of the ordinary period of 
 
 Brockway, 32 Penn. St. 45. And wliere land once sold is subsequently sold for 
 taxes of subsequent years, such subsequent sale will not divest the interest of the 
 purchaser under the first one, if the owner redeems from such subsequent sale; 
 nor will such redemption by the owner invest him with the interest of the 
 purchaser under the prior sale, nor in anywise affect the same; tlie re- 
 demption simply does away with the effect of the sale redeemed from. Gray 
 V. Coan, 30 Iowa, 536. So where C. bought land in 1860 sold for the taxes of 
 B., and received a deed which sale was not redeemed from ; and in 1862 he 
 bought the same land again at a tax sale and received a deed, which sale was 
 redeemed from by the former owner, C. receiving the redemption money; C. 
 afterwards sold his interest to D., giving him both deeds and assigning the deed 
 of 1862, supposing that conveyed his wliole interest, but afterwards C. refused 
 to assign tlie first deed, held, that receiving the redemption money of 1862 did 
 not estop C. and his assignee from claiming under the deed of 18C0; that the 
 sale of 1862 did not divest the title under the sale of 1860, but was simply a 
 means of coercing payment of his own taxes with costs as a penalty for his 
 neglect ; and by reason of the sale of 1860 the former owner when he paid the 
 redemption money had no right in the land, and his payment was that of a 
 stranger and voluntary. Cooper v. Bushley, 72 Penn. St. 252. 
 
 I Ante, eh. 16, pp. * 296, * 297. * 
 
 essentially the same as though the State Treasurer had personally redeemed the 
 land by paying the amount due on the certificate to the proper clerk. Where a 
 deed was issued in 1862 upon such a sale, notwithstanding the act of 1859, and 
 possession had thereunder for more than three years, an action to recover the 
 land might still be maintained by the original owner, and the statutory limitation 
 would not apply, — the statute expressly excepting cases where the land has 
 been redeemed, and the land having been redeemed in accordance with law as 
 above stated. Reynolds v. Weiss, 27 Wise. 450 ; see also latter part of note, 
 p. *431, as to what constitutes a redemption. Where land of Jenks was bought 
 by the commissioners for the county at a tax sale, and after the lapse of five 
 years sold by them at private sale and without advertisement to Wright, wliich 
 sale was for that reason invalid, and the com.inissioners afterwards transferred 
 the land to Jenks by indorsement on the deed to them upon payment of taxes, 
 &c., held, that the commissioners having a right to permit a redemption at any 
 time before a sale, this, though in form a sale and conveyance, was in fact a 
 redemption by the owner and not a sale, and that the title was revested in Jenks. 
 Jenks u. Wright, 61 Penn. St. 410 ; see also Lybrand u. Haney, supra, p. * 400, 
 note (a). 
 
REDEMPTION FROM THE SALE. 477 
 
 redemption allowed to those who are not legally inca- 
 pacitated to protect their own rights, it usually, in express 
 terms, or by implication arising upon the construction of the 
 deed compared with the law under which it was made, con- 
 tains a condition, that the estate of the purchaser shall be 
 defeated in case a redemption is made by an infant, feme covert, 
 or lunatic, within a certain period of time after their respective 
 disabilities are removed.^ 
 
 Thus the Illinois statute of January 26, 1826, prescribes 
 the form of the deed to be executed,^ which form, after grant- 
 ing the land to the purchaser or his assigns, contains this clause, 
 namely : " subject, however, to all the rights of redemption 
 provided for by law." Whatever form the transaction is made 
 to assume, by the particular statute under which the sale and 
 deed are made, the substance of it is that the purchaser 
 acquires a contingent title, dependent upon the non-redemp- 
 tion from the sale by those in whose favor the right is 
 reserved.^ 
 
 1 Under the Arkansas statute, infants and married women liave no longer time 
 to redeem tiieir lands than other non-resident owners of land. Smith v. Macon, 
 20 Ark. 17. Under the Iowa statute, extending time in which minors may 
 redeem, the minor must be the owner at tlie time of the sale; subsequently 
 acquired ownership is not covered. Burton v. Hintrager, 18 Iowa, 348. Under 
 the Wisconsin statute, where minors, after sale for taxes but before conveyance, 
 acquired by descent an equitable interest in land under an agreement of sale made 
 with tlieir ancestor by W., the owner, and the land was subsequently conveyed 
 to them by W. in fulfilment of such agreement, they were held entitled to the 
 extended time of redemption. Jones v. Collins, 16 Wise. 594. The language of 
 the Iowa statute was "if the real property of any minor or lunatic is sold for 
 taxes, the same may be redeemed," &c. The language of the Wisconsin statute 
 was " whenever the lands of minors shall be sold for taxes, the same shall be 
 redeemable," &c. 
 
 2 Ante, p. • 369. 
 
 3 The Illinois statutes, being more familiar, are here inserted as illustrations 
 of the general nature of these redemption laws. 1. The act of September 17, 
 1807, provides " That all persons shall be allowed two years to redeem their land ; 
 residents by paying the price it sold for with one hundred per cent thereon to the 
 clerk of the Court of Common Pleas, in their respective counties; the non-resi- 
 dents by paying at the same rate to the auditor, which money the said clerks and 
 auditor shall pay to the respective purchasers, their agents, or attorneys, when- 
 ever thereto required, and of the receipts of which they shall keep a record in 
 their respective offices, which at all times shall be evidence sufHcient to vacate 
 the sales as aforesaid." Pope's Statutes, 577, sec. 16. 
 
 2. The statute of March 27, 1819, contained the same provision, with this 
 
478 REDEMPTION FROM THE SALE. 
 
 * 420 * The question — Who may redeem ? (a) — is prob- 
 ably more important than any other connected Avith 
 
 addition, namely : " Provided always, that when any property sold for taxes by 
 virtue of this act, shall belong to heirs, any of whom are not of lawful age, the 
 same lands may he redeemed as aforesaid, at any time within one year after the 
 youngest heir heeomes of age." Laws, 1819, p. 317, sec. 11. 
 
 3. By the act of February 19, 1827, it was enacted that " Any lands which 
 shall he sold by the auditor for the taxes and costs thereon, may be redeemed at 
 any time within two years from the day on which the same were sold, by paying 
 into the State treasury (upon the auditor's certificate, as in other cases) double 
 the amount of the. taxes, interest, and costs for which they were sold. Lands 
 belonging at the time of sale wholly or in part to heirs under lawful age, maybe 
 redeemed at any time before the expiration of one year from the time when the 
 youngest of said heirs becomes of full age ; but no person shall be permitted to 
 redeem any lands sold for taxes, unless he shall at the same time pay into the 
 treasury all taxes which may have become due subsequently to such sale, together 
 with interest thereon, at the rate of six per cent per annum," from the time they 
 became due. Whenever any person or persons, after the expiration of two years 
 from tlie time when any tract of land was sold for the taxes thereon, shall apply 
 to the auditor to redeem such land under the provisions of this act relative to 
 lands owned by minor heirs, it shall be incumbent on the person or persons so 
 applying, to produce to the auditor a certificate from the judge, clerk, or other 
 proper officer of the proper Court having jurisdiction of wills and testaments, and 
 intestate estates, that it appears from the records of said Court that such person 
 or persons are the legal heir or heirs of the former owner of said tract of land; 
 and that said former owner died before the day on which said land was sold for 
 taxes ; and also certifying the real age of the youngest of said heirs. In cases 
 where there has been no will, nor any settlement of the intestate estate before the 
 Court to which such jurisdiction appertains, such heir or heirs shall go before 
 some Court of record, and exhibit proof of his, her, or their heirship, minority, 
 and present age ; and on producing the certificate of the clerk of such Court to 
 the above facts, such heir or heirs shall be entitled to the same rights ot redemp- 
 tion as above provided. Such certificate shall bear the signature of the clerk of 
 the Court, the genuineness of whose authentication shall be certified by the judge, 
 and the ofiScial character of such judge shall be certified by the secretary of the 
 State in which such proof shall be exhibited, with the seal of said State affixed to 
 such certificate. Whenever any heir shall redeem any land as aforesaidj the 
 
 (o) In Arkansas, where a resident's lands were assessed to a non-resident, 
 and advertised and sold as non-resident lands, the law then in force (Gould's 
 Digest, oh. 148), making no provision for redemption of a resident's lands, but 
 it being held that the status of the lands as resident or non-resident was fixed and 
 determined after judgment passed upon the assessment lists, it was here held that 
 the resident owner had a right to redeem according to the status of the land as 
 non-resident, it having been sold as such. Garibaldi v. Jenkins, 27 Ark. 453. In 
 Iowa, the right of a minor to redeem real estate sold for taxes is a transferable 
 interest which may be conveyed by deed so as to enable the transferee to redeem. 
 Stout V. Merrill, 36 Iowa, 47. 
 
REDEMPTION PROM THE SALE. 479 
 
 this subject. The terms * of the statutes are, that " the^ * 421 
 owner," (a) " the party in interest," (J) or " any per-" 
 
 written evidence on which his right to redeem the same is founded, shall be deliv- 
 ered to the audilor, and by hira filed in liis office." 
 
 4. The act of February 27, 1833, tlius provided : " Any lands which may be 
 sold at any time as aforesaid, for taxes, interest, and costs due thereon and unpaid, 
 may be redeemed at any tinje within two years from the date of such sale by 
 paying to the clerk of the County Commissioners' Court of the proper county, for 
 the use of the purchaser or purchasers, double the amount of the taxes, interest, 
 and costs for which the same may have been sold. Lands that may belong at 
 the time of such sale, in the whole or in part, to heirs under lawful age, may be 
 redeemed at any time before the expiration of one year from the time tlie youngest 
 of said heirs shall become of full and lawful age ; but no person shall be permitted 
 to redeem any land sold for taxes, interest, and costs, as aforesaid, unless he shall 
 at tlie same time pay to said clerk all taxes whicli may have become due subse- 
 quent to each sale, together witli interest thereon at tlie rate of six per centum 
 per annum, from the time they become due ; and if any purchaser of land sold 
 for taxes sliall suffer the same to be sold before the expiration of two years allowed 
 for the redemption of the same, the person whose lands have been thus sold may 
 redeem the same from both sales, by paying to the said clerk, for the use of the 
 first purchaser, the tax and costs of the first sale, and for the use of the second 
 purchaser, double the amount of the taxes, interest, and costs for which the same 
 may have been sold at such second sale. Wiien any person or persons shall 
 apply to the clerk as aforesaid to redeem any lands sold for taxes under the pro- 
 visions of this act, relative to minor heirs, it shall be incumbent on the person or 
 persons so applying, to produce to said clerk a certificate of the judge, clerk, or 
 other proper ofilcer of the proper Court having jurisdiction of wills and testaments, 
 and intestate estates, that it appears from the records of said Court that such per- 
 son or persons are the legal heir or heirs of the former owner of said tract or 
 tracts of land, and that such former owner died before the said tract of land was 
 sold for taxes, and also certifying the true age of the youngest of such heirs, and 
 in cases where there has been no will, nor any settlement of such intestate estate 
 before the Court to which such jurisdiction appertains, such heir or heirs shall go 
 
 (a) The county auditor cannot lawfully refuse to receive from the owner of 
 the patent title the amount of money, when tendered in time, necessary to redeem 
 the same from a sale for taxes, on the ground that there is an outstanding tax 
 title to the same lands in some one else, and therefore he is no longer the owner of 
 the lands. Lancaster v. County Auditor, 2 Dill. C. C. 478. The owner of lands 
 sold for delinquent levee taxes under ch. 1, act of Dec. 2, 1858, and purchased by 
 a private individual, may redeem therefrom within two years from the day of 
 sale as well as when the land is purchased by the levee commissioner. Heard v. 
 Walton, 89 Miss. 888. 
 
 (b) Under the act of Congress of 1862 a lien creditor of the owner of the fee is 
 an " owner of the land " within the meaning of those words as used in said act, 
 for the purpose of paying taxes on the land on which he has a judgment or attach- 
 ment lien ; and one having an attachment lien on lands sold for taxes may 
 redeem them from such sale. Sclienk v. Peay, 1 Dill. C. C. 269. 
 
480 REDEMPTION FROM THE SALE. ^ 
 
 * 422 son " may redeem. The term owner is less * extensive 
 in its signification than either of the other expressions. 
 
 before some Court of record and exhibit proof of his, her, or their heirship, 
 minority, and age ; and on producing the certificate of the clerk of such Court to 
 the above facts, such heir or lieirs Shall be entitled to all the rights of redemption 
 as are hereinbefore allowed ; also such certificate of heirship shall bear the signa- 
 ture of the clerk of the proper Court, the sufficiency of whose authentication shall 
 be certified by the judge of such Court : and in all cases where such certificate 
 shall be made without this State, tlie official character of such judge shall be 
 certified by the Secretary of State or Territory in which such proof shall be exhib- 
 ited, with the seal of the State or Territory thereto affixed, and the certificate 
 containing the evidence on which the right to redeem is predicated shall in every 
 case be delivered to the said clerk, and by him filed and preserved in his office." 
 Laws 1833, pp. 531, 532, sees. 10 and 11. 
 
 5. Tlie statute February 26, 1839, made this provision relative to a redemp- 
 tion ; namely : " Lands and real estate sold under the provisions of this act may 
 be redeemed from such sale at any time before the expiration of two years from 
 the date of such sale, by any person who will pay to the clerk of the County Com- 
 missioners' Court of the proper county double the amount for which the same 
 was sold, and all taxes accruing after such sale, together with the interest on the 
 amount of each year's tax, at tlie rate of six per cent per annum, from the first 
 day of September in each year, until paid ; and in all cases where lands are 
 redeemed as aforesaid, the person owning the land when it was listed for taxation, 
 and the heirs or assigns of such person, sliall be considered as restored to all the 
 rights whicli he, she, or they had in and to such land at the time the same was 
 listed for taxation. Lands and real estate which at the time of sale belonged to 
 infants, /c;nfs cocert, or lunatics, may be redeemed upon tlie terms specified in the 
 preceding section, at any time within one year from the time the disabilities of 
 such person shall cease to exist ; and if there be several infants owning a joint, 
 or joint and several, interest in any lands or real estate sold for taxes, such infants, 
 or any one of them, may redeem the same from such sale at any time within one 
 year after the youngest one of them shall arrive at the age of twenty-one years ; 
 and any person claiming the right to redeem land under the provisions of this 
 section shall produce to the clerk of the County Commissioners' Court of the 
 proper county, the affidavit of some credible person, stating who owned the same 
 at the time of the sale thereof, and if the owner was a feme covert at the time of 
 sale, stating that fact ; or if there were several infant owners, stating that fact, 
 and stating the age of the youngest of such infants ; and if the clerk sliall be sat- 
 isfied from the facts stated in the affidavit that the lands proposed to be redeemed 
 are subject to redemption under the provisions of this section, or any other law 
 of the State, he shall file the affidavit so presented, and permit the lands to be 
 redeemed upon the conditions which are or may be required by law ; and such 
 redemption shall operate to restore to the owner or owners of the land, his, her, 
 or their heirs or assigns, all rights which he, she, or they had in and to the same ■ 
 at the time of sale ; provided, however, that the certificate of redemption shall 
 not be evidence of any other fact than that the redemption money was paid. 
 Affidavits presented to the clerks of the County Commissioners' Court of the 
 several counties in tills State to enable persons to redeem lands sold for taxes, 
 may be taken before any judge or clerk of a Court of record in this State, and 
 
REDEMPTION PROM THE SALE. 481 
 
 Ordinarily, ownership means the right by which a thing be- 
 longs to some one in particular, to the exclusion of all other 
 persons. The owner is he who has dominion of a thing, 
 which he has a right to enjoy and do with as he pleases, 
 even to spoil or * destroy it, except so far as he may be * 423 
 restrained by law, or some covenant or agreement. It 
 is the highest grade of title. Under the statute of Illinois, 
 which gave to the owner the right to recover a penalty of 
 eight dollars for every tree cut upon his land by a trespasser, 
 the Supreme Court held, that, to authorize a recovery, the 
 plaintiff must be the owner of the fee.^ The same principle 
 was recognized in an insurance cause, upon a question rela- 
 tive to the representation of ownership by the assured.^ But 
 
 certified under tlie hand, and seal of such judge or clerk, or they may he taken 
 before any judge or clerk of a Court of record without the State, and certified as 
 aforesaid." Laws 1838, 1839, pp, 16, 17, sees. 38, 40. 
 
 6. The statute of Marcli 3, 1845, thus provided, that "Real estate, sold under 
 the provisions of tliis chapter, may be redeemed at any time before the expira- 
 tion of two years from the date of sale by the payment, in specie, to the clerk 
 of the County Commissioners' Court o£ the proper county, of double the amount 
 for which the same was sold, and all taxes accruing after such subsequent taxes 
 have been paid to the collector, as may be shown by the collector's receipt, by 
 the person redeeming, with six per cent interest thereon, from the first day of 
 May in each year, up to the time of payment; provided, that if the real estate 
 of an infant, feme covert, or lunatic, be sold for taxes, the same may be redeemed 
 at any time within one year after such disabiUty be removed upon the terms 
 specified in this section." R. S. 1845, p. 447, sec. 69. 
 
 7. And by the act of February 12, 1853, it is enacted, that " Real property, 
 sold under the provisions of this act, may be redeemed at any time before the 
 expiration of two years from the date of sale, by the payment, in specie, to the 
 clerk of the County Court of the proper county, of double the amount for which 
 the same was sold, and all taxes accruing after such sale, with ten per cent in- 
 terest thereon, from the day of sale, unless such subsequent tax has been paid 
 by the person for whose benefit the redemption was made ; which fact may be 
 shown by the collector's receipt ; provided, that if the real property of any 
 minor heir,/eme covert, or lunatic, be sold for taxes, the same may be redeemed 
 at any time within one year after such disability be removed, upon the terms 
 specified in this section, which may be made by their guardians or legal repre- 
 sentatives." Laws 1853, p. 81, sec. 43. 
 
 There are other laws relative to the redemption of lands forfeited to the State, 
 or bid off by the several counties, which contain similar provisions, and therefore 
 need not be set forth at large. 
 
 J Wright V. Bennett, 3 Scam. 258 ; Whiteside v. Divers, 4 Scam. 336 ; Jarrott 
 V. Vaughn, 2 Gilm. 132. 
 
 2 Illinois Mutual Fire Insurance Co. v. The. Marseilles Manufacturing Co., 1 
 
 Gilm. 236. 
 
 31 
 
482 REDEMPTION FROM THE SALE. 
 
 where a widow petitioned for an assignment of her dower, 
 and in her petition alleged that her husband was " Joint 
 owner and proprietor " of the land, &c., it was held that this 
 language did not import an inheritable interest.^ On the 
 other hand, in construing the redemption laws, the Courts 
 hold that the word owner is a generic term, which embraces 
 the different species of interest which may be carved out of a 
 fee-simple estate. This construction is the only one which 
 can effectuate the intention of the legislature, and protect 
 the interests of all parties concerned in the land sold for the 
 non-payment of taxes. In the same estate there may exist a 
 fee-simple and life-interest, or a leasehold.^ The estate may 
 have been mortgaged to secure a debt, (a) and judgment 
 creditors may have liens upon it, and the land may be in the 
 adverse possession of a stranger to the title, and whose pos- 
 session may be ripened into a right. Each is an owner accord- 
 ing to the extent of his interest or claim, and each has a right 
 to protect bis interest by a redemption from the tax sale. No 
 one can complain of this — the government collects its tax, 
 and the purchase-money is refunded to him who claims under 
 
 ' Davenport v. Parrar, 1 Scam. 315. 
 
 2 [And it was expressjy held in Byington v. Rider, 9 Iowa, 566, that a lessee 
 for life, for years, or at will, is an owner within the meaning of § 505, Code of 
 1851, and, as such, entitled to redeem ; although his interest was acquired after 
 the tax sale, and although the redemption he made without the knowledge of 
 the owner of the fee.] 
 
 (a) Under a statute (Gen. Stats, ch. 12, §§ 36, 42) enabling the mortgagee 
 to redeem, held that his assignee may also redeem, as by the contrary construc- 
 tion the mortgagee having parted with his interest could not redeem, and if the 
 assignee were not allowed to redeem his right might he cut ofE. Faxon v. Wal- 
 lace, 98 Mass. 44. And if the real estate sold for taxes has since tlie sale been 
 held by one in possession adversely to the purchaser, the tender or payment 
 under Gen. Stats, ch. 12, § 36 for the purpose of redemption should be made to 
 such purchaser, and not to one to whom he, while thus disseised, has made a 
 deed thereof. Faxon u. AVallace, supra. On a new trial of said case, evidence 
 having been offered tending to prove that the deed of the purchaser of the tax 
 title to his vendee was delivered on the land, and that thus the purchaser's title 
 passed, held, that a tender of the proper amount, if made to the purchaser of the 
 tax title, although he has conveyed the land to a third party by a recorded deed, 
 and wliere tlie party making the tender has always remained in the undisturbed 
 possession of the land, and has had no claim to the land made on him, and is not 
 proved to have had actual notice of the delivery of such deed on the land, was 
 nevertheless properly made. Faxon v. Wallace, 101 Mass. 444. 
 
REDEMPTION FROM THE SALE. 483 
 
 the tax sale. Take the case of the judgment creditor : 
 the * debtor by collusion with the purchaser might *424 
 divest himself of title so as to defraud the creditor, un- 
 less the latter had a right to redeem, and thus disencumber 
 the land and subject it to his lien. It may therefore be laid 
 down as a general rule, that any right, whether in law or 
 equity, whether perfect or inchoate, whether in possession or 
 action, amounts to an ownership in the land — and that a 
 charge or lien upon it constitutes a person claiming it, an 
 owner, so far as it is necessary to give him the right to 
 redeem. 1 
 
 No judicial proceedings take place upon an application to 
 redeem (except in Ohio), the officer, who receives the money 
 and executes the certificate of the redemption, acts in a minis- 
 terial capacity, and his decision is not conclusive upon the 
 purchaser ; the party who redeems acts at his peril. If it 
 turns out that he had no interest whatever to be protected by 
 the redemption, his act of redemption can neither vest title 
 in him, nor divest that of the tax purchaser. It would seem, 
 then, that the doctrine is, that any person claiming an interest 
 in the land has a right primd facie to redeem. But if it turns 
 out that he had no such ownership as to authorize the redemp- 
 tion, his act is a harmless one. Another reason which may be 
 assigned for this position is, that the law does not provide for 
 settling questions of title before the redeeming officer. The 
 act is not judicial in its nature, and no notice is provided by 
 law in favor of the purchaser. It surely was never contem- 
 plated that rights should be affected without an opportunity 
 of being heard. The authorities fully sustain the principles 
 contended for. 
 
 1 An administrator may redeem. Bowers v. Williams, 34 Miss. (5 George) 
 324. So the heir of a mortgagee. Burton u. Hintrager, 18 Iowa, 348. So a 
 married woman in conjunction with her husband during coverture, or a mort- 
 gagee, or reversioner. Plumb v. Robinson, 13 Ohio (n. s.), 298. So a man 
 holding and occupying land under a bond for a deed from the owner upon his 
 performance of certain stipulations within a limited time, and with «, right to 
 use the premises meanwhile, has such an interest that he may, upon tender of 
 the amount of taxes, costs, and interest, maintain a, bill in equity under stat. 
 1856, c. 239, § 4, to compel a purchaser at a sale for non-payment of taxes to 
 release his title to him. Rogers v. Rutter, 11 Gray, 410. See Adams v. Beale, 
 19 Iowa, Gl. 
 
434 REDEMPTION FROM THE SALE. 
 
 Thus, in Dubois v. Hepburn,^ the plaintiff deduced a regular 
 title from the commonwealth, and the defendant relied upon 
 a tax sale, the regularity of which was not questioned, but 
 the plaintiff attempted to defeat it by proof of an offer to 
 redeem. The evidence was that one Robert Quay, who 
 claimed an undivided interest in the land, in right of his wife, 
 and who had made an ineffectual effort to partition the land 
 among the several tenants in common, offered to pay the 
 * 425 amount necessary *to redeem to the treasurer, which the 
 [ treasurer declined to receive. The law of Pennsylvania, 
 under which this question arose, was in these words : " If the 
 owner or owners of land sold as aforesaid, shall make or cause 
 to be made, within two years after such sale, an offer or legal 
 tender of the amount of the taxes for which the said lands 
 were sold, and the costs, together with the additional sum of 
 twenty-five per cent on the same, to the county treasurer, who 
 is hereby authorized and required to receive and receipt for 
 the same, and to pay it over to the said purchaser on de- 
 mand ; and if it shall be refused by the said treasurer, or in 
 case the owner or owners of lands so sold shall have paid the 
 taxes due on them previously to the sale, then, and in either 
 of these cases, said owner or owners shall be entitled to re- 
 cover the same by a due course of law, but in no other case, 
 and on no other plea, shall an action be sustained." The 
 Court held that Quay had such an interest as to entitle him 
 to redeem, and that the offer to pay was equivalent to the 
 tender or payment of the money. The grounds of the de- 
 cision are important, as the Court laid down these rules as 
 applicable to the right of redemption under the law in ques- 
 tion : 1. That such laws are to be liberally construed, and not 
 narrowed down by a strict construction, (a) 2. That any 
 person having a legal or equitable interest in the land may 
 redeem, whatever may be the evidence of his title. (J) The 
 
 I 10 Pet. 1. 
 
 (a) Rice v. Nelson, 27 Iowa, 148. 
 
 {6} And in Curl v. Watson, 25 Iowa, 35, it was held that " where a party, by 
 reason of owning any interest in the property sold for taxes, has a right to 
 redeem, he may redeem the whole, and the purchaser may require him to 
 redeem the whole if any." See also Rice v. Nelson, 27 Iowa, 148. But in 
 Jacobs V. Porter, 34 Iowa, 345, this was explained to mean " that the right to 
 
REDEMPTION FROM THE SALE. 485 
 
 Court remark : " A law authorizing the redemption of land 
 so sold, ought to receive a liberal and benign construction in 
 favor of those whose estates will be otherwise divested, 
 especially where the time allowed is short, an ample in- 
 demnity given to the purchaser, and a penalty is imposed 
 on the owner. The purchaser suffers no loss ; he buys with 
 the full knowledge that his title cannot be absolute for two 
 years ; if it is defeated by redemption, it reverts to the lawful 
 proprietors. It would, therefore, seem not to be necessary 
 for the purposes of justice, or to effectuate the objects of the 
 law, that the right to redeem should be narowed down by a 
 strict construction. In this case, we are abundantly satisfied 
 that it comports with the words and spirit of the law, to 
 consider any person who has any interest in lands 
 * sold for taxes, as the owner thereof, for the purposes * 426 
 of redemption. Any right, which in law or equity 
 amounts to an ownership in the land ; any right of entry 
 upon it, to its possession, or enjoyment, or any part of it, 
 which can be deemed an estate, makes the person the owner, 
 so far as it is necessary to give him the right to redeem, (a) 
 The decision of this case does not make it necessary to go 
 further than to determine that Quay, as a part owner, had a 
 right to redeem ; that he caused an offer to redeem to be 
 
 redeem and the obligation to redeem are reciprocal and coextensive. That is 
 to say, the purchaser at the tax sale may compel or require the minor to redeem 
 all he has a right to redeem or none ; " and Curl v. Watson, so far as the lan- 
 guage used conveyed the idea that a minor owning a part might redeem the 
 whole, is overruled. In tliat case tlie other part-owner, who was a minor and 
 entitled to redeem, was not before the Court ; and the request to limit the 
 redemption was first made by counsel for defendants in their argument to the 
 Court, and not upon issues made with reference to limiting the right of redemp- 
 tion to less than the whole. It was accordingly held in Jacobs v. Porter that the 
 riglit of a minor to redeem, after attaining his majority, land sold at a tax sale 
 during his minority, is, both upon general principles and upon construction of 
 the statutes upon that subject, " limited to the real property of the minor, that 
 is, to his right and interest in the land sold," and does not extend to that of other 
 owners or tenants in common holding undivided interests with him, so as to 
 enable him to redeem the whole property after the expiration of the time for 
 redemption allowed to his adult co-owners. Followed by Miller v. Porter, 35 
 Iowa, 166 ; Stout v. Merrill, 35 Iowa, 60. 
 
 (a) See also Eice v. Nelson, 27 Iowa, 148, where a holder of a deed for an 
 unassigned right of dower was allowed to redeem not merely a part, or to the 
 extent of the dower interest, but the whole estate. 
 
486 REDEMPTION FEOM THE SALE. 
 
 made to the treasurer within two years, as well as to the de- 
 fendant, both of whom refused to accept the redemption 
 money. This brings the case within the provisions of the 
 law; it does not require a payment or tender; an offer and 
 refusal is made equivalent to a receipt of the money by the 
 treasurer, and authorizes a recovery of the land by suit, as 
 if no sale had been made." 
 
 In Chapin v. Curtenius,^ which was an ejectment, the plain- 
 tiff, to defeat a tax title relied on by the defendant, read in 
 evidence a certificate of redemption executed by the proper 
 officer ; the defendant thereupon offered to prove that said 
 certificate was issued by the officer, without there being on 
 file in his office any evidence or papers to authorize the grant- 
 ing of the certificate. The Circuit Court refused to admit 
 such testimonj^ and the defendant excepted. The judgment 
 was affirmed by the Supreme Court. Treat, C. J. : " The 
 certificate of redemption, in this case, being in proper form, 
 was clearly admissible in evidence. It proved the payment 
 of the redemption money by the heirs of Freeman ; and it 
 appeared from the other evidence in the case, that they had 
 a clear right to redeem. This proof showed a valid redemp- 
 tion from the sale to the defendant, and that the heirs 
 were reinstated in all their former rights in the premises. 
 The certificate itself was not evidence of such a redemption. 
 The statute only makes it evidence of the payment of the 
 redemption money, leaving the right to redeem to be es- 
 tablished by other proof. The question whether there has 
 been a valid redemption of the lands of infants, 
 * 427 * does not necessarily depend on the fact that the 
 clerk has or has not preserved the proof upon which 
 the redemption was founded. The statute requires an afBda- 
 vit of the facts to be presented to the clerk, and filed by him. 
 Two objects are contemplated by this requisition. The affi- 
 davit furnishes the evidence upon which the clerk is to 
 determine the right of the party to redeem ; and it is to be 
 preserved for the benefit of all who may be interested in the 
 land. The mere failure of the clerk to file the affidavit, ought 
 not to prejudice the party making the redemption. If the 
 
 1 15 111. 427. 
 
REDEMPTION FROM THE SALE. 487 
 
 evidence is not preserved, he should be permitted, when the 
 validity of the redemption is drawn in question, to show that 
 he had a good right to redeem. So, if the decision of the clerk 
 is not conclusive, and he allows a redemption upon insufficient 
 proof, the party should be permitted to sustahi his right to 
 redeem when put in issue. The ruling of the Court upon this 
 branch of the case was unexceptionable." 
 
 Under the statute of Ohio,^ this question was presented to 
 
 1 It is deemed advisable to set forth the Ohio statute at large, because it is the 
 only one which provides for judicial proceedings upon the application to redeem, 
 and because it is more perfect in its details than any other. The act of March 3, 
 1831, provided " That all lands and town lots which have been, or may hereafter 
 be, sold for taxes, may be redeemed at any time within two years from and after 
 the sale thereof; and all lands and town lots belonging to minors, femes covert, 
 insane persons, or prisoners in captivity, and which have been, or hereafter may 
 be, sold for taxes, may be redeemed at any time within two years from and after 
 the expiration of such disability. That all applications for the redemption of 
 lands or town lots sold for taxes, shall be made to the Court of Common Pleas 
 of the county In which such lands or town lots are situated ; and if any such tract 
 be divided by a county line, application for the redemption thereof shall be made 
 in the county in which such land was sold. That the party intending to make 
 application for the redemption of any land or town lot, sold for taxes, shall give 
 notice in some newspaper printed in the county in which he intends to make 
 such application, if any be printed therein, and if none be printed therein, then 
 in some newspaper circulating in such county ; which notice shall describe the 
 land or lot, in the same manner that it was described on the tax duplicate, at the 
 time of the sale thereof; stating the quantity in the original tract, tlie quantity 
 sold, the name in which the same stood charged with taxes at the time of the 
 sale, and the name of the person to whom sold ; and shall state that application 
 will be made to the Court of Common Pleas, at their next session in said county, 
 for an order of redemption ; and shall be inserted in such newspaper at least six 
 weeks successively prior to the sitting of said Court. That the party intending 
 to make such application, shall, at the time of publishing the aforesaid notice, 
 deposit, with the clerk of the Court to which tlie application is to be made, an 
 amount of money equal to that for which such land or lot was sold, and the 
 taxes subsequently paid thereon by the purchaser, or those claiming under him, 
 together with interest, and fifty per centum per annum on the whole amount paid 
 by such person, including costs. That if the Court to which such application 
 shall be made, shall be satisfied that due notice has been given, as required in the 
 third section of this act, and that the deposit required by the preceding section 
 has been made, they shall proceed to examine the testimony of such applicant, 
 relative to his right of redemption, and the counter testimony of the adverse 
 party, if any be offered. And if, on such examination, the Court shall be satisfied 
 that the applicant is entitled to redeem such land or town lot, they shall make 
 an order of redemption, which shall vest in the applicant all tlie title which 
 passed by such sale, and shall award restitution of the premises, and direct that 
 
488 REDEMPTION FROM THE SALE. 
 
 * 428 * the Supreme Court in Masterson v. Beasley,i upon 
 
 certiorari. It appeared, that in November, 1826, an 
 
 * 429 application was made * to the Common Pleas by Beas- 
 
 ley, as agent of the minor heirs of Massie. In sup- 
 port of the application, Beasley produced the certificate of 
 the auditor of State, showing that 100 acres of land charged 
 
 the applicant pay the costs of the application ; and the Court shall, at the same 
 time, order the money so deposited as aforesaid, to be paid to the adverse party. 
 That when any joint tenants, tenants in common, or coparceners sliall he entitled 
 to redeem any land or town lot, sold for taxes, and any of the persons so entitled 
 shall refuse to join in the application for an order of redemption, or from any 
 cause cannot be joined in such application, the Court may entertain the applica- 
 tion of any one of such persons, or so many as shall join therein, and may make 
 an order for the redemption of such proportion of said land or lot, as the person 
 or persons making such application shall be entitled to redeem. That in case 
 any lasting and valuable improvements shall have been made by the purchaser 
 at a sale for taxes, or by any person claiming under him, or any land or town 
 lot, for which an order of redemption shall be made, as aforesaid, the premises 
 shall not be restored to the person obtaining such order, until he shall have paid 
 or tendered to the adverse party the value of such improvements ; and if the 
 parties cannot agree on the value of such improvements, the same proceedings 
 shall be had in relation thereto as shall be prescribed in any law existing at the 
 time of such proceedings, for the relief of occupying claimants of land ; provided 
 that no purchaser of any land or town lot, sold for taxes, nor any person claiming 
 under him, shall be entitled to any compensation for any improvements which 
 he shall make on such land or town lot, within two years from and after the sale 
 thereof. That the person obtaining an order for the redemption of any land or 
 town lot, as aforesaid, shall, within thirty days after the date thereof, cause a 
 certified copy of such order, with the seal of the Court affixed thereto, to be 
 recorded among the records of deeds, in the county wherein such land or lot is 
 situated." The amendatory act of March 16, 1839, provided, " that any person or 
 persons entitled to redeem lands or town lots sold for taxes, or his or their agent 
 or attorney, may, at his or their discretion, tender to the purchaser or purchas- 
 ers,- or his or their agent or attorney, the amount of taxes, interest, and penalty 
 due thereon, under the provisions of the fourth section of the act aforesaid, instead 
 of depositing the same with the clerk of the Court, as prescribed in the said fourth 
 section ; and if the said purchaser or purchasers, his or their agent or attorney, 
 will not accept the same, the owner or owners, his or their agent or attorney, may 
 make an application to the Court of Common Pleas for the redemption of the 
 same, as provided for in the act to which this is an amendment ; and the costs 
 of such application shall abide the event of the same, as in other cases, any pro- 
 vision in the act to which this is an amendment to the contrary notwithstanding. 
 This act, and that to which tliis is amendatory, shall apply, not only to sales for 
 taxes under the laws of the State, but also to all sales for taxes of lands or lots 
 under or by virtue of the laws or ordinances of any city or town corporate." 
 1 3 Ohio, 301. 
 
REDEMPTION FROM THE SALE. 489 
 
 with taxes in the name of John Jonett, had been sold to Mas- 
 terson, the respondent, on December 29, 1823, for the taxes 
 of 1821, 1822, and 1823, for the sum of $5 ; he also produced 
 the auditor's receipt, showing that the amount required to 
 redeem had been deposited with the auditor, December 20, 
 1825 ; and it appeared further, that the notice of the applica- 
 tion had been duly given. The bill of exceptions shows that 
 a patent from the United States to the heirs of Massie was 
 produced, and that proof of pedigree, and the ages of the 
 respective heirs, was also proved. Masterson then introduced 
 a judgment of the U. S. Court against Massie's heirs, an 
 execution issued thereon, and a sale and conveyance by the 
 marshal to Charles Johnson. The grounds on which the 
 application was resisted, were : 1. The agency of Beasley 
 was not shown. 2. The title was in Johnson, and not in 
 Massie's heirs. The Common Pleas held that the application 
 to redeem ought to be sustained, and made an order accord- 
 ingly. This judgment was aiSrmed. By the Court : " The 
 law for the redemption of land sold for taxes is equitable in 
 its provisions, and ought to receive a liberal interpretation. 
 It provides for the security of the purchaser, and protects 
 his right in any event. If the land be redeemed, the pur- 
 chaser's money and interest must be refunded in all 
 cases ; and if the applicant has not been under * any * 480 
 legal disability, he must pay fifty per cent in addition, 
 and must also pay for any improvements which may have 
 been made by the purchaser. Such being the conditions of 
 a redemption, the purchaser cannot complain, nor can he 
 expect a rigid construction of the statute against the appli- 
 cant. An examination of the record, certified from the 
 Common Pleas, shows that the proceedings on the part of 
 the applicants, have been technically correct. The question, 
 whether Beasley was legally authorized to represent the 
 minor heirs of Massie, does not in any degree affect the 
 merits of the case, nor does it concern the rights of the pur- 
 chaser. The Court below were satisfied with the evidence 
 of his authority. The guardians of the minors have not 
 questioned it, nor can the purchaser be permitted to do so. 
 
490 KEDEMPTION FROM THE SALE. 
 
 As the redemption is made in the name and for the benefit of 
 the heirs, there is no ground for apprehending the improper 
 meddhng of a stranger. It is a matter of but little moment 
 in what way the agent derives his power. He acts as an 
 attorney in fact, and if his authority is not disputed by his 
 principal, no other person has a right to complain, because 
 none other have been injured. The purchaser of the tax 
 title must receive everj' thing to which the law entitles him, 
 before the order for a redemption can be operative. The 
 second error assigned is not exactly true in point of fact. 
 The sale by the marshal does not necessarily show that the 
 heirs of Massie have been divested of their legal title. The 
 validity of that sale depends on the legality of the judgment 
 and subsequent proceedings which the heirs are at liberty to 
 contest ; and having this privilege, they must be permitted 
 to protect themselves and their possessions against others. 
 If this objection to the right of redemption by the heirs 
 should prevail, their right to contest the title claimed under 
 the marshal would be of but little use ; for, whatever might 
 be the result of such a contest, their title would be lost by 
 the collector's sale. But the statute does not require the 
 person who applies to redeem, to show a legal title in him- 
 self. The only provision on that subject is, that if, on ex- 
 amination, it shall appear to the Court that the claim- 
 *431 ant has a legal right to redeem such * land, or any 
 part thereof, the Court shall adjudge the same to him, 
 &c. It is no part of the duty of the Court to decide ques- 
 tions of title on applications like this. They are to inquire 
 whether the party has a right to redeem, and not whether 
 he has a perfect title to the land. In the Virginia Military 
 District, where the land in question is situate, it may happen 
 that one person claims under a junior entry not carried into 
 grant, while another has the possession, and a patent on an 
 elder entry, each party believing himself to have the better 
 title. In such a case, it would be difficult to decide who had 
 the right to redeem ; if the construction of the plaintiff be 
 correct. In a Court of law, the patent must prevail. In a 
 Court of equity, the person holding the junior entry might 
 
REDEMPTION FROM THE SALE. 491 
 
 prevail. This and similar eases will show the embarrassment 
 to which the Court of Common Pleas may be exposed, if 
 they are to decide questions of title on applications of this 
 kind. A stranger having no interest in the land, will not 
 incur the trouble and expense of redeeming in his own name, 
 or his own right ; but if such an attempt should be made, it 
 could not succeed, because it is confessedly the duty of the 
 Court to require satisfactory evidence of a right to redeem. 
 The applicant must show that he, or those for whom he pro- 
 fesses to act, are in some way connected with the title to the 
 premises, as by deed, descent, contract, or possession under 
 claim of title, either of which will be sufEcient.i (a) An 
 
 1 Although none but the owner or party interested has a right to redeem 
 against the purchaser's consent, yet if he accepts the redemption money, the sale 
 is avoided and the redemption enures to the benefit of tlie riglitful owner, (b) 
 And although the purchaser thereupon assigns his legal title to the party paying 
 the money, he thereby acquires no title which he can convey to a third person 
 as against the former owner, the transaction not being a sale but a redemption, 
 and the money paid under a claim of a right to redeem. Cox v. Sartwell, 9 
 Harris (Penn.), 480. And see Orr v. Cunningham, 4 Watts & Sergeant, 294. 
 
 (a) Where Mrs. H., a resident at the time of Virginia, devised in April, 1863, 
 certain lands in that State and the District of Columbia to N. in trust for two 
 married women, and, on bill filed by the cestuis que trust, the Supreme Court of 
 the District of Columbia appointed M. trustee in place of N., held, though the 
 appointment was invalid as to the land in Virginia, yet as he was apparently 
 clothed with tlie legal title, acted as such trustee, and was treated as such by 
 the cestuis que trust, the tax commissioners under the act of June 7, 1862 (12 
 Stat, at Large, 423, 424, which provided that if the owner of land be under 
 a legal disability, the trustee or other person having charge of the person or 
 estate of such owner may redeem the land sold for unpaid taxes), were author- 
 ized to allow him to redeem the lands in Virginia, sold under the said act, in 
 wliieh such cestuis que trust were interested ; that M. was a person " having 
 charge " of their estate within the meaning of said act ; that § 7 of the Amend- 
 atory Act of March 3, 1865 (13 Stat, at Large 502), which declares that "no 
 owner shall be entitled to redeem unless, in addition to the oath prescribed by 
 existing laws, he shall swear that he has not taken part with the insurgents in 
 the present rebellion," &c., applies only to owners seeking in person to redeem, 
 
 (6) But if a stranger to the title pays redemption-money to the treasurer, the 
 owner cannot avail himself of it, nor will the title of the purchaser be affected. 
 See Byington v. Bookwalter, 7 Clarke (Iowa), 512; Penn v. Cleraans, 19 Iowa, 
 ,372. After lands of an estate have been duly sold by the administrator, the 
 heirs cannot redeem from a prior tax sale as they have no interest in the land. 
 Cousins V. Allen, 28 Wise. 232. 
 
492 REDEMPTION FROM THE SALE. 
 
 equitable title, or a naked possession may give a legal right 
 of redemption under the statute, which was not intended to 
 require investigations of title, further than may be neces- 
 sary to prevent impertinent applications.^ This being 
 *432 our * view of the subject, it follows tbat the pro- 
 ceedings, and the order of the Court below, must be 
 affirmed." 
 
 The principle that this class of laws should be construed 
 liberally, was sustained in Patterson v. Brindle,^ and in 
 Winchester v. Cain.^ (a) In Shearer v. Woodburn,* it was 
 held that a purchaser at an execution sale of land, over which 
 the debtor exercised acts of ownership, and who was reputed 
 to be the owner, was entitled to redeem. 
 
 The general law which authorizes the sale of land for the 
 non-payment of taxes assessed thereon, embraces as well the 
 land of infants as that belonging to adults ; ® and under a stat- 
 ute authorizing a redemption by " orphans," minors acquire 
 no rights whatever.^ [And if at the time of sale, the period 
 
 and not to trustees, &c., redeeming for others ; and that § 7, Act of March 3, 
 1865 (13 Stat, at Large 502), providing that when redemption is made the tax 
 commissioners shall certify the fact to the secretary of the treasury, who shall 
 repay tlie purchaser by draft on the treasury his purchase-money and interest, 
 and that the purchaser shall deliver possession to the owner redeeming, only 
 prescribe the duty of the secretary and purchaser when redemption is made, but 
 do not make tlie performance of the duty of the purchaser to deliver possession 
 dependent upon the previous performance of the duty resting on the secretary; 
 and the owner is entitled to recover possession without showing that tlie certif- 
 icate of redemption has been forwarded to the secretary'and that the purchaser 
 has been paid. Corbett v. Nutt, 10 Wallace, 464, affirming s. c. 18 Grat. 624. 
 
 ' See Corbett o. Nutt, 10 Wallace, 464, 475 ; Byington v. Bookwalter, 7 Clarke 
 (Iowa), 512. See also Plumb v. Robinson, 13 Ohio (n. s.), 298 ; Adams v. Beale, 
 19 Iowa, 61. 
 
 2 9 Watts, 99. 
 
 3 1 Robinson (Louisiana), 421. And see People </. Detroit, 8 Michigan, 14, 
 holding that the owner of an undivided interest in lands in Detroit may redeem 
 such interest from a sale made of the whole land for city taxes since the char- 
 ter of 1857, by paying a proportionate amount of the whole tax. See also 
 Burton v. Hintrager, 18 Iowa, 848 ; Jones v. Collins, 16 Wise. 594 ; 49 N. H. 170. 
 
 (a) Faxon v. Wallace, 98 Mass. 44. 
 
 4 10 Penn. St. 511 ; s. c. 11 Penn. St. 341. 
 
 6 Elliott «. Gerrard, 1 A. K. Marsh. 472 ; Hood v. Mathers, 2 A. K. Marsh. 
 558. See Smith v. Macon, 20 Ark. 17. 
 o Downing v. Shoenberger, 9 Watts, 298. 
 
REDEMPTION FROM THE SALE. 493 
 
 allowed for redemption is only three years, such period cannot 
 be constitutionally enlarged by a subsequent act to four years, 
 although such act be passed before the three years have ex- 
 pired. Such a law impairs the obligation of the contract of 
 sale, although at the time of such attempted extension of 
 time the purchaser had not received his deed, but only 
 a certificate of the sale ; and such an act cannot affect 
 the rights of an assignee of a tax certificate issued before the 
 passage of the act, although the assignment was made and the 
 tax deed executed to him after its passage and the deed was 
 in the form which that act prescribed. If in the hands of the 
 original owner the tax certificate was protected by the consti- 
 tution, it is equally so in the hands of the assignee, ^j A 
 widow claiming dower in land sold for taxes in the lifetime 
 of her husband, has no right to redeem under the statute of 
 Illinois, passed February 26, 1839, which confers such right 
 upon '■'■femes covert." ^ That statute applies to married women 
 who owned the land at the time of the sale, and not to those 
 who claim a contingent interest in right of their husbands.^ 
 In Cbapin v. Curtenius* an agent was permitted to re- 
 deem without proof of his authority. So in * Master- * 433 
 son V. Beasley.^ A power of attorney to sell land 
 authorizes the attorney to redeem from a tax sale, because 
 his power of sale may prove ineffectual, unless the power 
 of disencumbering the land is \ested in him by implication.^ 
 So of a power " to take care of land." '' 
 
 1 Bobinson v. Howe, 13 Wise. 341. As to whether the time of redemption 
 from sales already made can be constitutionally shortened, see Adams v. Beale, 
 19 Iowa, 61. See p. *299. The law in force at the time of sale, and not that 
 in force at the time of assessment, determines the period of redemption. Negus 
 V. Yancey, 22 Iowa, 57. 
 
 'i The interest of the wife in the homestead is covered by Iowa Revised Stat- 
 utes of 18G0, § 779, which provide that " the real property of a married woman " 
 may be redeemed at any time within one year after coverture ceases ; her in- 
 terest in the homestead is present and fixed, and not remote or contingent. 
 Adams v. Beale, 19 Iowa, 61 ; Pfiffner v. Krapfel, 28 Iowa, 34. 
 
 3 Finch V. Brown, 3 Oilman, 488. 
 
 « 15 111. 427. 
 
 6 3 Ohio, 301. 
 
 6 McCord V. Bergautz, 7 Watts, 487. 
 
 ' Patterson v. Brindle, 9 Ohio, 98. 
 
494 REDEMPTION PROM THE SALE. 
 
 The redemption must of course be made within the time 
 fixed by law, or the purchaser's title will become absolute.^ (a) 
 
 1 [There may be a permissive redemption after that period ; and whether a 
 certain tiiin-.-mtion was intended as a redemption or as an ordinary purchase 
 is a question of fact for the jury. Coxe v. VVolcott, 3 Casey (Penn.), 154.] So 
 where unseated lands are sold for taxes and bought by county commissioners, 
 there may be a permissive redemption after the five years. Pluladelphia u. 
 Miller, 49 Penn. St. 440. But tlie payment of the taxes by the owner 
 subsequent to the sale would not affect a bond fide vendee of tlie commissioners 
 purchasing in ignorance of this fact. Lyman v. Philadelphia, 56 Penn. St. 503. 
 So acceptance by a purchaser at a tax sale of the redemption money paid in by 
 former owner, ratifies the issue of the certificate of redemption. Byington v. 
 Hampton, 13 Iowa, 23. But where one who claims to be owner of the land in 
 fee purchases a tax title, and then receives the redemption money from such 
 sale from the clerk of the board of supervisors deposited by another person who 
 also claims to be owner, this will not estop the purchaser from denying the title 
 of the redemptioner. Terrell v. Grimmell, 20 Iowa, 393. Where the time of 
 redemption is past, and there is a conditional waiver of the tax title, the condi- 
 tion must be strictly performed before the waiver can be taken advantage of. 
 McCuUoch V. Dodge, 6 R. I. 346. The fact that the owner of the land was, at 
 time when tax accrued, at time of sale, and during period of redemption, a resi- 
 dent of a State in rebellion, does not excuse non-payment of the tax, nor entitle 
 him to redeem. Finley v. Brown, 22 Iowa, 538. 
 
 (a) The statute of Wisconsin authorizing the redemption of lands sold for 
 taxes "at any time before the deed executed upon such sale is recorded " (Laws 
 of 1859, ch. 22, § 18) is not void as impairing the obligation of a contract or 
 divesting a title previously acquired by and absolutely vested in the holder of 
 the deed, it having always been the law that there might be a redemption at 
 any time before the tax deed was recorded (R. S. 1849, ch. 15, § 102) ; and 
 a deed wliich has been left with the register for record, having the date of its 
 reception indorsed thereon, but which has neither been spread upon the record 
 nor entered in the general index as required by sec. 142, ch. 13, R. S. (sec. 
 143 declaring that a deed so entered in the index shall be considered as re- 
 corded at the time so noted) is not " recorded " within the meaning of said stat- 
 ute relating to redemption. International Life Insurance Co. v. Scales, 27 Wise. 
 640. Whetlieranentry in the index, without the deeds being actually recorded m 
 extenso, would be sufficient to preclude the right of redemption (a right favored in 
 the law) is not here decided, but the Court intimate an opinion that " the Courts 
 might perhaps reasonably construe the statute authorizing it " (redemption), " in 
 the language above quoted, to signify or intend an actual recording in extenso." 
 International Life Insurance Co. c. Scales, snp7-a. Where the land sought to 
 be redeemed was struck off to Miami County in Sept., 18G2, for the taxes of 
 1860, and Sept. 26, 1864, tax deeds for said lands were made to the county, 
 which under the decisions of the State were void (see note (a) p. * 296) ; 
 and on Sept. 14, and Oct. 1, 1866, deeds for the same were executed by 
 the county commissioners to A. and B. respectively, but the original tax-sale 
 certificates never were assigned to said A. and B. nor to any one else; and 
 on the loth day of September, 1868, the relator being the owner of the land, 
 
REDEMPTION FROM THE SALE. 495 
 
 [In Holloway v. Claik,i it was held that the provisions of the 
 limitation act of Illinois, of 1839, requiring minors to redeem 
 within three years after their majority, by paying to the person 
 who paid the tax, the amount thereof and interest, did not 
 take from the minor the right to redeem within one year after 
 his majority, by paying double the amount to the collector, &c., 
 according to the revised statutes, chapter eighty-nine, section 
 sixty-nine. And if the minor pays the necessary amount to 
 the clerk, and the purchaser accepts the money from him, he 
 thereby admits the riglit of the minor to redeem under the 
 statute. Under the Pennsylvania act of 1815, if the owner 
 
 tendered tlie full amount of tbe taxes, interest, and costs, then due on said land, 
 to the county treasui-er, and demanded a certificate of redemption tlierefor, 
 which was refused. Held, that under § 111, Gen. Stats. 1054, providing that 
 "any person whose lands have, prior to the passage of tliis act, been sold for 
 taxes to any county, and remain in the liands of said county, may redeem the 
 same by paying," &c. ; " or the county treasurer may transfer in the manner pro- 
 vided in tliis act the certificate of sale of said lands to any one wlio will pay all 
 back tax, costs of sale, and ten per cent interest," the relator was entitled to 
 compel the issue to him of such certificate of redemption by mandamus. Tarr v. 
 Haughey, 5 Kan. 625. Where, within the time aMowed by the general law to 
 redeem certain lands sold for taxes, the owner, having been in the military ser- 
 vice, made tender, under the act of March 12, 1867, of the amount of the tax 
 for which it was sold with six per cent interest, which was refused, he then filed 
 his petition to enjoin the delivery to tlie purchaser of his tax deed ; the Court, 
 after tbe proceeding had remained in Court till after the time of redemption 
 allowed by the general law had expired, decided the act relied on unconstitu- 
 tional and the claim of the owner invalid, but allowed him to add to his tender 
 the amount required by law to redeem, although the time of redemption had 
 lapsed, and on payment of costs made the injunction perpetual. Held, that the 
 rule irjnoranlia legis, &c., did not apply to such a case, especially as the delay 
 beyond the time of redemption was caused in part by tlie action of tlie Court, 
 and that equity in the premises properly relieved against such mistake of law. 
 Harney v. Charles, 45 Mo. 157. Under the 4th section of the act of March 13, 
 1815, which allows a redemption "two years after such sale," it was held in 
 Cromelien v. Brink, 29 Penn. St. 522, that land sold for taxes on the 10th of 
 June, 1850, and redeemed on the 10th of June, 1852, was redeemed in time ; the 
 time begins to run from and after the day of sale. See also liockland & Ve- 
 nango Coal Co. </. McCalmont, 72 Penn. St. 227. For a review of the ancient 
 authorities in relation to computation of time " from the date," " from the day of 
 the date," &c., see Pugh u. Buke of Leeds, 2 Cowper, 714 ; 3 Eng. Com. Law, 
 K. 1st series, 367. See also Cromelien v. Brink, sw;jra. In Iowa it is held that 
 it is the tax deed and not the tax sale that divests the title of the owner; and if 
 a redemption takes place before the execution of the deed, it djvests the lien of 
 the tax, and leaves the land as free as if the taxes had been paid before the sale. 
 Lake v. Gray, 35 Iowa, 44. ' -7 111. 483. 
 
496 REDEMPTION FROM THE SALE. 
 
 was a minor at the time of sale, he had two years after his 
 majority in which to redeem, but if be was then an adult, and 
 died before the two years expired, leaving minor heirs, they 
 had not two years after majority in which to redeem, but only 
 two years from the time of sale.^] And the mode and manner 
 pointed out by the statute must be pursued.^ (a) The proper 
 
 1 McCormack v. Russell, 1 Casey (Penn.), 185. 
 
 " See Stewart v. Brooks, 28 Mo. 62. 
 
 (a) Jolmson, residing in Maryland, owned lands in Pennsylvania; they were 
 sold to Rogers in 1834 for taxes ; in 1836, he/ore the time for redemption had expired, 
 Johnson called on Rogers to inquire about the land, when Rogers told Johnson 
 he had bought it to save it for the family, and signed a paper agreeing to 
 reconvey on being paid the costs, with twenty-fiv,e per cent, &c., at any time 
 when Johnson should require : held, that this was evidence of a redemption 
 outside of the treasurer's office where at law it would have been made ; that the 
 condition of repayment must be performed to make it eflTective ; that the taxes, 
 costs, &e., and twenty-five per cent did not represent the price of the land, but 
 only Rogers's inchoate title ; and Johnson having been prevented from redeem- 
 ing by Rogers's voluntary agreement was not bound to pay for his own title, 
 and Rogers was estopped from claiming as vendor of the land after the time for 
 redemption had passed; and Rogers having occupied and used the land and 
 received profits from it more than tlie amount due him for taxes, &c., no 
 payment of them to him was necessary to enable Johnson to recover the land. 
 Rogers i/. Johnson, 70 Penn. St. 224. So in Laing i/. McKee, 13 Mich. 124, 
 where defendant having purchased complainant's land at a tax sale, on being 
 offered by complainant, shortly before the time for redemption expired, the 
 amount of his bid with twenty-five per cent interest thereon for an assignment 
 of his certificate, promised to send complainant such assignment and accept tlie 
 amount of his bid and intere.st within two or tliree days; and complainant, 
 relying upon liis promise, permitted the time for redemption to expire without 
 redeeming, after which defendant procured a tax deed, and upon a tender 
 subsequently made of his bid, interest, and charges refused to accept the same, 
 or to convey said land to complainant : held, that defendant's conduct, under 
 the circumstances, was a fraud upon complainant, and that the latter was entitled 
 to a decree against him for the conveyance to him of said land. See also Judd 
 V. Mosely, 30 Iowa, 423, in which the facts are nearly similar to those in Laing 
 V. McKee, supra, but in wliich the decision is based upon the doctrine of implied 
 trust (instead of fraud) enforceable in equity. See also Mather v. Hutchinson, 
 25 Wise. 27, where redemption was prevented by fraudulent collusion between 
 the officer and certificate holder. In Louisiana, in a suit by the owner to redeem 
 lands sold for taxes, the judgment decreeing him to be the owner and putting 
 him in possession should require him to repay to the purchaser the amount of 
 his bid with interest, &c., as required by law. Coleman v. Baker, 24 La. Ann. 
 524. So the judgment that plaintiff be permitted to redeem upon payment of 
 a certain sum found due to defendant upon an accounting, should provide for 
 interest upon that sum from rendition of judgment to time of payment. Ksk v. 
 Brunette, 30 Wise. 102. 
 
REDEMPTION FROM THE SALE. 497 
 
 officer must act as the agent of the law, in effecting the 
 redemption, or the redemption will be ineffectual. The 
 owner, at his peril, must pay to the officer the full amount 
 necessary to redeem the estate,^ (a) and it is important to look 
 
 * That when the owner offers to pay the taxes and redeem the land, it is the 
 duty of the treasurer to demand all that should be paid, and that the owner can- 
 
 (a) Where land was sold for taxes while see. 43 of the Revenue Act of Feb. 
 12, 1853 (Gross's Comp. 606), was in force, which required that the redemption 
 money from such sales should be paid in specie, it was held incompetent for the 
 legislature after sale to provide for the redemption to be made in United States 
 legal-tender notes ; and so much of the act of Jan. 12, 1863 (Sess. Laws, p. 82, 
 § 2), as provided for such redemption from sales theretofore made, was uncon- 
 stitutional and void. People v. Kiggs, 56 111. 483. Nor did the several acts of 
 Congress of 1862 and 1863, making United States treasury notes a legal tender 
 for debts, make such notes a legal tender for the redemption of lands sold for 
 taxes before their passage and while the Eevenue Act of Feb. 12, 1853, requiring 
 such redemption to be made in specie, was still in force. People v. Kiggs, supra, 
 citing Bronson v. Eodes, 7 Wal. 299 ; Butler v. Horwitz, 7 Wal. 258 ; Hepburn v. 
 Griswold, 8 Wal. 603. When a right has become vested, the legislature has no 
 power to impose penalties or terms as a condition to tlie assertion of the right. 
 Nor have they power, where an individual has permitted his land to pass to a 
 void sale for taxes, to enact that he shall not be allowed to assert his paramount 
 title, as against a tax title acquired at such a sale without payment of the 
 redemption money. The act of Feb. 21, 1861 (Sess. Laws, 1861, p. 170), 
 imposing such conditions, was construed to be prospective only in its operation. 
 Conway v. Cable, 37 III. 82. The same act (Sess. Laws, 1861, p. 170), as well 
 as the provision of the general revenue law (Rev. Stat. 1845, p. 448, § 73), 
 requiring payment of all the taxes due and assessed upon land before a tax title 
 to it can be questioned, also held unconstitutional, as compelling a party to buy 
 justice, in Reed v. Tyler, 56 111. 288 ; Wilson u. McKenna, 52 III. 43. See 
 p. *354, note; see also Hart v. Henderson, 17 Mich. 218; Cooley's Const. 
 Lim., p. * 369. In Maine, it is held that under their statute the defendant is not 
 required to tender taxes, &c , till the plaintiff has made out a prima, fame case ; 
 and then if he attacks the tax title he must make the tender required by the 
 statute. See Orono v. Veazie, 57 Me. 517 ; s. c. 61 Me. 433 ; see also French v. 
 Patterson, 61 Me. 208 ; Phillips v. Sherman, 61 Me. 551, the last case holding 
 that no tender need be made when several parcels have been sold in gross, so 
 that the proper amount to be tendered cannot be determined. Where several 
 distinct parcels, one of which was a, homestead and exempt from sale for any 
 taxes other than those levied thereon, have been improperly sold in gross, the 
 purchaser cannot object to a redemption by parcels. And in such case he 
 has a right to receive only the consideration money paid by him for the amount 
 redeemed, with penalty and interest thereon, regardless of the fact whether 
 assessed and taxed at more or less than its actual or relative value. So where 
 land, part seated and part unseated, has been assessed and sold together for the 
 gross tax, the owner is not obliged to pay the tax on the seated portion before 
 he can redeem the unseated, as the sale of that portion was ..legal. Dietrick v. 
 
 32 
 
498 REDEMPTION FROM THE SALE. 
 
 carefully into the law and the facts, in order to ascertain 
 * 434 the precise sum due. The law and the order, * of the 
 
 not be damaged by the treasurer's neglect, see Price v. Mott, 52 Penn. St. 315 ; 
 Bubb V. Tompkins, 47 Penn. St. 359. Where a petition to redeem a lot from 
 a tax sale under which the period of redemption had expired, alleged that the 
 plaintiff, who was a non-resident of the State, upon learning that his lot had been 
 sold for delinquent taxes, by his agent applied to the clerk, and informed him 
 that he desired to clear the same from all claims or liens on account of tax sales, 
 whereupon the clerk examined the books and informed him that the amount 
 required for that purpose was .§16.40, which was paid, whereupon the clerk 
 issued to him a redemption certificate from a sale made for the taxes of the year 
 subsequent to the sale in question, and assured him that that was all there was 
 against the lot ; that he paid the taxes for the two years following the last sale, 
 and then rested with the impression that all antecedent taxes had been paid, it 
 was held that the facts averred would not entitle the plaintiff to redeem from, 
 nor affect the rights of the defendant holding said tax title through several mesne 
 conveyances ; that a general offer to the clerk to pay all taxes in arrear, or to 
 redeem property sold for taxes, as in this case, without offering any specific 
 amount, or without redeeming or requesting to redeem from the specific tax sale 
 under which the defendant claims, would not raise an equity in favor of plaintiff 
 for relief as against an innocent purchaser. Bolinger v. Henderson, 23 Iowa, 165 ; 
 but see Lamb v. Irwin, infra. In Noble v. BuUis, 23 Iowa, 559, however, it was held 
 that a mistake of fact may be a ground of equitable relief to the owner in a case of 
 tax sale and redemption, as well as in any other case ; and accordingly where a 
 person whose land had been sold for taxes, upon hearing of it, went to the clerk to 
 redeem the same.who finding the record of a second sale that had been subsequently 
 made by mistake for the taxes of the same year, and never having observed the 
 other sale, advised the owner that it required a certain amount to redeem, which 
 was thereupon paid by him, the clerk delivering to him a certificate of redemption 
 from the second sale, the owner having no knowledge of but one sale, and in- 
 tending to, and supposing lie was redeeming from a valid sale, held, that these facts 
 entitled the owner to the benefit of his redemption, which operated in equity to 
 defeat defendant's legal title, which would otherwise have vested in him by his 
 tax deed ; and that, upon his paying to the holder of the tax deed his redemption 
 money, penalty, and interest, he was entitled to have the tax deed cancelled and 
 
 Mason, 57 Penn. St. 40 ; Penn u. Clemens, 19 Iowa, 372. A law requiring as 
 a condition of redemption payment of thirty per cent interest on taxes paid by 
 purchaser subsequent to sale, in addition to the amount bid at the sale and thirty 
 per cent thereon, is not unconstitutional. Mulligan v. Hintrager, 18 Iowa, 171. 
 A law (§§ 6, 7, ch. 106, Gould's Digest) requiring an applicant to recover lands 
 sold for taxes to file an affidavit of tender and refusal of the tax and costs, with 
 one hundred per cent interest thereon, and twenty-five per cent upon all subse- 
 quent costs and taxes, and tlie full value of improvements, is not unconstitutional : 
 Craig V. Flanagin, 21 Ark. 319 ; Pope v. Macon, 23 Ark. 644 ; and may be made 
 to an action of ejectment as well as to a bill in chancery. Pope v. Macon, supra. 
 But it does not apply to a bill to remove a cloud from complainant's title. 
 Cliaplin V. Holmes, 27 Ark. 416. 
 
REDEMPTION FROM THE SALE. 499 
 
 inferior tribunal levying the tax, will show the rate of the 
 levy for the year in question. The costs, interest, penalty, 
 and back taxes, can be readily ascertained by comparison of 
 the law and facts.^ The parties in interest cannot be too 
 
 his title as against ft quieted. In Lamb o. Irwin, 69 Penn. St. 436, it was held 
 that where a party in redeeming claims to have paid all taxes demanded, in order 
 to be relieved as to any not demanded, it must appear that the fault was with 
 the treasurer exclusively. The party must have demanded a search for all sales, 
 and not allowed the treasurer to believe that a particular sale only was asked 
 for. The Court, in rendering their opinion, say, " We discover no error in the 
 principles given to the jury governing the offer of Benjamin May to redeem the 
 land from all tax sales." The charge to the jury on this point thus approved 
 was as follows : " If Benjamin May, having the deed of Clark's minor daughter, 
 went to the treasurer, telling him that Lavinia Clark'was still a minor, and that 
 he wanted to redeem the land and pay all taxes against it since the death of 
 Richard L. Clark, and the treasurer, in pursuance of such demand, made an 
 examination, and made one account purporting to be all that was against it, 
 and Messrs. May and Lamb, believing it to be all that was against it and all that 
 was demanded, it would be a good redemption, notwithstanding the sale of 1852 
 was omitted altogether. In a word, if the omission was the fault of the oflScer, 
 and not of those redeeming, it would be a good redemption, and your verdict 
 should be for the defendants. If Mr. May knew of this sale of 1852, or any other 
 sale, and did not call the attention of the treasurer to it, the redemption is not 
 good, and your verdict should be for the plaintiff for the half." See also Hodg- 
 don V. Wight, 36 Me. 387 ; see also Dietrick v. Mason, 57 Penn. St. 40, where 
 it was held that if an owner ofl'ers to redeem his land it is the duty of the treas- 
 urer to state the taxes and costs to be paid, and if he misstate the amount it 
 will not affect the redemption. And if a redemption is prevented by the miscon- 
 duct of the public officer through whom the redemption is to be effected, the tax 
 title cannot be sustained. But when the officer has furnished the necessary 
 information to the party seeking to redeem, and the party neglects to avail 
 himself of such information, he cannot by mere neglect on his part make it the 
 duty of the officer to furnish him the same information a second time ; in such 
 case it is not to be presumed that the failure to redeem was owing to the neglect 
 of the officer to furnish such information a second time. Van Benthuysen v. 
 Sawyer, 36 N. Y. 150 ; s. c. 36 How. Pr. 245. A co-tenant, after judgment 
 and sale for taxes, can only redeem by paying whole tax. People ex ret. Pres- 
 burg V. McEwen, 23 Cal. 54. Where part of the land (a homestead under the 
 Iowa statute) sold in gross is redeemed, only a pro rata part of the money paid 
 at the tax sale is to be paid with penalties and interest, whether the part redeemed 
 was taxed at more or less than its true relative value. Penn ;;. Clemans, 19 Iowa, 
 372. 
 
 1 Under the Revenue Act of Illinois of 1845, as amended in 1853, interest on 
 the taxes for each year is to be computed from the legal day of sale in such year, 
 and not from the day of the first sale under which the tax purchaser claims. 
 Comstock V. Cover, 35 111. 470. As to interest under the Kansas statute, see 
 Farnum u. Bowker, 4 Kan. 114. As to what must be paid in order to redeem 
 under the Iowa statute, see Mulligan v. Hintrager, 18 Iowa, 171 ; Byington u. 
 
600 REDEMPTION FROM THE SALE. 
 
 circumspect in their examination, with a view to ascertain the 
 amount of the redemption money. The maxim de minimis, 
 &c , possesses no healing virtues, in case the owner makes a 
 bhinder in this respect. Tiie maxim, as has been shown, is 
 seldom applied in favor of the purchaser, and it is presumed 
 to be equally inapplicable against him. Tlic condition imposed 
 upon the former owner is usually plain and easily understood; 
 and it is his duty to comply with its exact terms. Courts will 
 construe the law liberally in his favor, but his acts must be 
 construed like those of the officer and purchaser, where duties 
 are imposed upon them. 
 
 In Bright v. Boyd,i where the law peimitted a minor to re- 
 deem within eight years from and after the sale, the facts were, 
 that the purchaser at the tax sale conveyed to a stranger, and by 
 mesne conveyance the title became vested in one Oilman ; a 
 tender was made to Gilman in season, but he refused to receive 
 it, and the only question was, whether the tender ought not 
 to have been made to the purchaser at the Sale. Story, J. : 
 " We think otherwise ; for, upon the natural and indeed almost 
 necessary construction of the statute, the right of redemption 
 must be against the party who is possessed of the tax title, at 
 the very time of the redemption ; for such party alone is en- 
 titled to the redemption money, as holding the conditional es- 
 tate ; and a tender to any other person, in whom the title is 
 no longer vested, would displace his rights, and might deprive 
 him of the intervening charges, which had been incurred by 
 him, and for which he might justly claim remuneration under 
 the statute." [A tender of the proper amount by one having 
 a right to redeem, to the proper officer, (a) and, within the 
 time allowed by the act of redemption, Avill operate to defeat 
 the title of the purchaser at the tax sale.-] 
 
 The Mississippi statute required the owner, in case he 
 desired to redeem, to tender the amount necessary to effect 
 
 Hampton, 13 Iowa, 23 ; Curl v. Watson, 25 Iowa, 35 ; 35 Iowa, 487. As to 
 Arkansas statute, see Stephens v. Holmes, 26 Ark. 48 ; see also State v. Bowker, 
 4 ICan. 114 ; 24 Wise. 217 ; 24 Ark. 4. l 1 Story, 478. 
 
 {a) Payment of redemption money to one who was in fact acting as deputy 
 clerk of the county board of supervisors, although not legally appointed such, 
 held to be a valid redemption. Taylor !■. Rountree, 28 Wise. 391. See also 
 p. * 423, note (a). 2 Schenk v. Peay, 1 Dill. C. C. 269. 
 
REDEMPTION PROM THE SALE. 501 
 
 the redemption to the purchaser. In Bacon v. Conn,^ 
 the * complainant made the tender in due season — but * 435 
 afterwards demanded the surrender and cancellation 
 of the tax deed ; it was held, that this latter demand did not 
 vitiate the tender, and a decree of cancellation was en- 
 tered, (a) [In Halsej-- v. Blood, 5 Casey (Penn.), 319, it 
 was held, that money left by the party redeeming, with the 
 county treasurer, must be left unconditionally ; and that the 
 treasurer was bound to pay it over to the purchaser without 
 auy of the conditions attempted to be imposed upon it.] 
 The code of Louisiana authorized a redemption, upon con- 
 dition that tlie owner would pay to the purchaser the amount 
 of his bid, with all costs and charges, eight per cent interest, 
 and the value of all improvements made upon the land ; it 
 was held, that an offer to redeem and a refusal by the pur- 
 chaser to render an account, were equivalent to a redenip- 
 tion.2 [And if the purchaser refuses to receive the money 
 tendered and to release the benefit of his purchase, the owner 
 may have relief in equity and compel him, his heirs or assigns, 
 to do so.^] 
 
 The receipt or certificate of the proper officer is primd facie 
 evidence of a redemption.* (J) Or the records of the office 
 
 1 1 S. & M., ch. 348. 
 
 (a) A tender of redemption money, which the person to whom it was made 
 refused to accept, but which, upon its being left with him against his wisli, he 
 afterwards refused to give up, is sufficient. Rogers v. llutter, 11 Gray, 410. In 
 an action by minors under § 779 Rev. to redeem, to save costs they must ten- 
 der tlie taxes paid by defendant and keep tlie tender good. Curl v. Watson, 25 
 Iowa, 35. 
 
 2 Brooks V. Hardwick, 5 La. An. 675. A tender, in Massachusetts, after 
 advertisement, but before sale, need not include any fee for a levy upon the land, 
 or travel to make a return to State and County treasurers, or for a commission 
 on the tax. Converse v. Jennings, 13 Gray, 77. A tender must be unconditional, 
 and for the use of the purchaser, his heirs or assigns, and where made with a 
 collusive understanding that it shall be refused, it is not sufficient. Woodbury 
 y.. Sliackleford, 19 Wise. 55. " Sperry v. Gibson, 3 West, Va. 522. 
 
 .1 Taylor v. Steele, 1 A. K. Marsh. 316 ; Byington v. Ryder, 9 Iowa, 566. So 
 is the treasurer's sale book as to unseated lands. Huzzard v. Trego, 35 Penn. 
 St. 9. A tax sale of school-lands is not invalidated by the fact that at the time 
 of the sale it had been marked "redeemed" on the books of the office, and a 
 receipt to that effect had been given to the certificate holder, when this was done 
 by mistake, and it had not been in fact redeemed. State v. Commissioners, 13 
 Wise. 409. 
 
 (6) Where. the certificate of tax sale described certain lots sold as in "Hoxie's 
 
502 EEDEMPTION PROM THE SALE. 
 
 where the redemption is effected, or sworn copies thereof 
 may be resorted to. (a) Loose declarations of parties will 
 not be admitted in questions of this character.^ A mandamus 
 is an appropriate remedy, where redemption is improperly 
 refused by a public officer .^ The law of New York and Illi- 
 nois, relatiye to redemption notices, has been stated in a pre- 
 ceding chapter, but a case relative to the mode of computing 
 time in this class of cases may be stated in this connection. 
 The statute of New York made it the duty of the city author- 
 ities to give at least six months' notice to redeem from tax 
 sales, before the expiration of two years after such sale by 
 publication in a newspaper, at least once in each week, for 
 four weeks successively. In the People v. The Mayor of New 
 York,^ the notice to the owner was valid, if lunar months 
 were intended by the statute, otherwise it was void. 
 * 436 The Court held, * that solar months were designed. 
 By the Court : " Does the word months, in the stat- 
 ute, mean lunar or calendar time ? The general rule which 
 must be applied to this case is, that unless there is something 
 in the statute indicating that the legislature intended calen- 
 dar time, this term must be construed to be a lunar month. 
 I am of opinion there is enough in the statute authorizing such 
 a conclusion. It allows the owner two years from the time 
 of the sale within which he may redeem, and requires the 
 corporation to give public notice, at least six months before 
 
 Add." (meaning " Hoxie's Addition to Des Moines"), and the certificate of 
 redemption described tlie lots by numbers, but omitted the name of any town 
 or addition, referring, howerer, with accuracy to the sale, its date, the amount, 
 and the years for which sold, and that the purchaser had since paid a certain 
 amount of taxes thereon, hdd, that, under the circumstances, the identity was 
 sufBlciently established to admit in evidence in an action of right the certificate 
 of redemption, for the purpose of showing that a redemption had been made. 
 Rice V. Nelson, 27 Iowa, 148. In Kansas, the redemption receipt or certificate, 
 in order to be of any validity (under § 87, ch. 118, Laws of 1866 ; § 102, eh. 107, 
 Gen. Stats. 1868), and admissible in evidence to prove the fact of redemption, 
 must be countersigned by the county clerk. Sheltdn v. Dunn, 6 Kan. 128. See 
 p.* 417, note (a). 
 
 (a) But the failure of the treasurer to enter a memorandum of the redemption 
 of land in the list of tax sales is not sufficient to invalidate the redemption ; the 
 party redeeming cannot be held responsible for the omission of the officer. 
 Byington v. Bookwalter, 7 Iowa, 512. 
 
 1 Lane v. Sharpe, 3 Scam. 567. ^ j-j^u.^ „. Brown, 3 Gil. 488. 
 
 3 10 Wend. 394. 
 
REDEMPTION PROM THE SALE. 603 
 
 the expiration of that period, for four weeks. Now, as calen- 
 dar time is used, by the legislature in fixing the period for 
 redemption, it is a just and reasonable inference that tliey in- 
 tended to use it in fixing upon the division or period of time, 
 specifying the notice to be given the owner to redeem. As 
 the one period, in express terms, is calendar time, and the six 
 months immediately succeed it, and were intended to include 
 part of it, it should be construed to mean the same, other- 
 wise we must believe the legislature intended to fix different 
 periods by different calculations of time, in the same breath, 
 and on the same subject-matter, and without any conceivable 
 purpose." [If the purchaser at the tax sale is in possession of 
 the land at the time of the sale, and is indebted to the tax- 
 payer for rent in a sum more than the amount of the tax, 
 this has been thought to operate as an immediate redemption, 
 and the deed to him would become inoperative.^] 
 
 1 Gaskins v. Blake, 27 Miss. (5 Cuehman) 677. In this case it was said that 
 the rule would be the same whether the purchaser was in possession as tenant by 
 contract as a trespasser or claiming to own the land. 
 
504 EXCESS OR ABUSE OP AUTHORITT. 
 
 CHAPTER XXVIII. 
 
 OF THE EFFECT OF THE SiLB AND DEED, WHERE THE OFFICER 
 HAS ABUSED OE EXCEEDED HIS AUTHORITY. 
 
 It is a general principle, that if, in the execution of an au- 
 thority conferred by law upon a public officer or private indi- 
 vidual, an abuse or excess of the authority occurs, the entire 
 proceedings under the authority are rendered void, and the 
 person committing the act complained of as an abuse or ex- 
 cess, becomes' a trespasser ah initio. And it is immaterial 
 whether the authority is derived from the common or statute 
 law. In each instance the act is illegal, but the remedy 
 may vary according to the circumstances of each particular 
 case.i («.) On the other hand, the abuse or excess of an 
 authority in fact does not render the entire execution void, 
 but only the illegal part of the transaction. But even in this 
 case the Courts must be enabled to separate that which was 
 properly done, from that part which there was no authority 
 for doing. The same principle is applied to the execution of 
 all private authorities, and to powers of appointment and rev- 
 ocation growing out of the statute of uses. There an exces- 
 sive execution of the power does not vitiate and taint the 
 entire act, but only so much as constitutes the excess, pro- 
 vided the excess can be seen and separated. 
 
 1 The Six Carpenters' Case, 8 Co. 140 ; Bagshawe v. Goward, Cro. Jao. 147 ; 
 Taylor v. Cole, 3 Terra, 292 ; Wiuterbourne u. Morgan, 11 East, 395 ; Anscomb 
 V. Shore, 1 Campb. 285 ; Messing v. Kemble, 2 Campb. 115 ; 1 Wilson, 154 ; 2 
 W. Bl. 1218; Bacon Abr., tit. Trespass; 1 Chitty, PI. 185 (11 Am. ed. 1851) ; 
 5 B. & C. 485 ; 2 Johns. 191 ; 10 Johns. 253, 369. 
 
 (a) Mere nonfeasance does not make a trespasser ah initio ; there must be such 
 a positive act as, if done without authority, would be a trespass. See second 
 resolution in the Six Carpenters' Case, 8 Coke, 146 ; reported also in 1 Smith's 
 Lead. Cases, pt. 1, p. * 216, marginal paging. Gardner v. Campbell, 15 Johnson, 
 401 ; Gates v. Lounsbury, 20 id. 427 ; Hale v. Clark, 18 Wend. 498 ; Bell v. North, 
 4 Littell, 133 ; Waterbury v. Lockwood, 4 Day, 257 ; Shorland v. Govett, 5 B. & 
 C. 485; Ferrin v. Symonds, 11 N. H 303 ; Adams v. Rivers, 11 Barb. 394. 
 
EXCESS OB ABUSE OF AUTHOHITY. 505 
 
 * The rule is thus laid clown by Sugden : " Where * 438 
 there is a complete execution, and something ex abun- 
 dante added, which is improper, there the execution shall be 
 good, and only the excess void ; but where there is not a 
 complete execution of a power, and the boundaries between 
 the excess and execution are not distinguishable, it will be 
 bad. If a man, having a power to lease for twentji-'One years, 
 lease for forty, that will be good in equity pro tanto, because 
 it is a complete execution of the power, and it appears how 
 much he has exceeded it." ^ But it seems to be a debatable 
 question, whether a Court of law will support an execution 
 of the power under such circumstances. The authorities are 
 divided upon the point.^ While such is the general doctrine 
 relative to the excessive execution of private poAvers, it is be- 
 lieved that no case can be found where tlie jorinciple has been 
 applied to a naked statute power. In the last-mentioned class 
 of cases, the execution must be held good or bad in toto. There 
 is no middle ground to be taken. The .cases already cited 
 abundantly prove, that where the officer abuses his authority 
 by selling more land than is necessary to pay the tax, his act 
 is void.^ [So where the collector of the tax had been enjoined 
 by a Court of chancery, a sale of the land taxed, pending the 
 injunction, is irregular,* and may be set aside in chancery.] 
 
 But the strongest case in illustration of the doctrine, and 
 which is placed upon invulnerable grounds, is that of Jones v. 
 Gibson.^ The facts were, that a tract of 390 acres was listed 
 for taxation ; the land belonged to tenants in common, one of 
 whom before the sale, paid the tax due upon his undivided 
 third. The law provided, that unless a less quantity than 
 the * whole tract was bid for at the sale, the officer should * 489 
 convey to the governor for the use of the State. The 
 
 1 Sugden on Powers, ch. 3, sec. 9. 
 
 2 Adams u. Adams, Cowp.'651; Campbell f. Leach, Amb. 740; Eoe «. Pri- 
 deaux, 10 East, 158. 
 
 3 Ante, pp. * 287, * 288; Mason v. Fearson, 9 How. (U. S.) 248; O'Brien v. 
 Coulter, 2 Blackf. 421. 
 
 [* Williams v. Cammack, 27 Miss. (5 Cushman) 210. In this case the injunc- 
 tion had been served on the sheriff, who read the injunction before he sold, but 
 stated tliat he should sell anyhow.] 
 
 s 2 Taylor (N. C), 41 ; Eatty, Ed. 480. 
 
506 EXCESS OR ABUSE OP AUTHORITY. 
 
 law further provided, that when a less quantity than the whole 
 should be sold, it should be surveyed and set apart to the pur- 
 chaser by metes and bounds. Two years' taxes were due upon 
 the land. The entire tract was offered for sale, and 389 acres 
 of it were purchased by the paintifffor the taxes in arrear. 
 The land was duly surveyed, and a deed executed and delivered 
 to the plaintiff, in pursuance of the sale and survey. The 
 question was thus presented to the Court of Appeals, after a 
 verdict for the defendant : " If, upon these facts, the plaintiff 
 is entitled to recover the whole of the 389 acres, or any undi- 
 vided part thereof, then the verdict is to be set aside ; other- 
 wise to stand." Seawell, J. : " There is no analogy in principle 
 between this case and those of selling for taxes, without due 
 advertisement ; in which cases such sales have been held good. 
 There, the officer did no more than he was authorized to do ; 
 here he has. He has in this case sold an entire tract for taxes 
 on the whole, when no tax was due for one-third part. He has 
 not been satisfied with this ; but has sold«for the raising of two 
 years' taxes upon the whole, when, by law, he had no right to 
 sell at all, and which appears on the face of the deed. The 
 purchaser, therefore, cannot show his title, without exhibiting 
 on the face of it an abuse of the authority under which the 
 sheriff acted. But it is insisted, that so far as the sheriff could 
 have sold, his sale ought to be effectuated ; and cases of powers 
 derived from contract have been relied on. Now, it may be a 
 general rule, that in such cases the Courts will sustain them, 
 where they have been executed in such way that the act which 
 the agent had authority to do, was properly done, and was 
 capable of being separated from that which there was no au- 
 thority for doing. But how, in the present case, can such sepa- 
 ration be made ? The selling of the land was not in a proper 
 manner ; for the sum raised was three or four times as much as 
 the officer had authority to demand. No one, therefore, caa 
 tell how much would have been required to raise the tax legally 
 
 demandable. If this were a case of private' agency, we 
 * 440 therefore see no * principle upon which a Court could 
 
 presume to collect an intention to execute a power ; for 
 the act done, and the effect which results from an operation of 
 the act, if it is to have any, are as essentially different from a 
 
EXCESS OR ABUSE OP AUTHORITY. 507 
 
 proper exercise of the power as any two acts could be. In 
 those cases of private powers, where the act has been done 
 which the power authorized, though the agent may have done 
 more — and the authorized act has been done in such way 
 that it may operate consistently with the authority — if inno- 
 cent persons are likely to suffer, the law has said ' that it will 
 intend from the act and its effects, that the agent designed 
 to execute his authority, but has only done so in a bungling 
 manner.' But we think in the case of public officers, whose 
 authority is not derived from any individual, that the law is 
 clear, that whenever they transcend their authority, the whole 
 act is void ; that the law will not for them, nor for any one else, 
 presume they intended to act properly. ^ The sheriff, there- 
 fore, being a public officer, and having exceeded the limits of 
 his authority, the whole of his act is void, and consequently the 
 plaintiff cannot recover. The act of assembly under which 
 the sheriff sold, directs him to sell to the person who will pay 
 the taxes and charge of advertisement, for the smallest number 
 of acres ; and if no one will pay them for less than the whole 
 tract, to execute a deed to the governor for the use of the State. 
 And when they are sold to an individual, the same act requires 
 that the quantity purchased shall be separated from that not 
 sold, by an actual survey made by the county surveyor, and 
 the sheriff is to execute a, deed accordingly. From the state of 
 the facts it appears impossible that the present deed can prevail 
 to its full extent ; and by what rule or principle can its opera- 
 tion be directed ? It cannot, in justice, be said, that it shall 
 be confined to the two-thirds, excepting one acre, because it 
 is impossible to say how much land it would have required to 
 raise the tax legally demandable ; and on this score it is re- 
 peated, that the purchaser by his own deed bears testimony 
 against the justice, as well as legality, of his claim. But 
 if the * deed is to be confined to the two-thirds, where * 441 
 is the excepted acre to be found ? Not in the deed ; but 
 it must require something further to be done, either by the con- 
 sent of the parties, or the compulsory process of law ; such a 
 resort is clearly at variance with what the legislature contem- 
 plated to follow from the act it authorized the sheriff to do." 
 
 1 Six Carpenters' Case, 8 Co. 146. 
 
508 EXCESS OR ABUSE OP AUTHORITY. 
 
 Still another distinction is taken by Cruise : " There is a mate- 
 rial difference, in common-law powers, between a naked power 
 or bare autiiority, and a power coupled with an interest. In 
 the case of a naked power, if it is exceeded in the act done, 
 it is entirely void. But in that of a power coupled with an 
 interest, it is good for so much as is within the power, and 
 void for tlie rest only." ^ The power to sell land for the non- 
 payment of a tax, is, as we have seen, a naked power,^ and Sir 
 Edward Sugden calls it a " common-law authority." ^ Jt m^y 
 be laid down, then, as a general rule, that if a naked power 
 be not pursued, the execution of it is void, both at law and 
 in equity.* 
 
 ' 4 Cruise, Dig. Tit, 32, ch. 13, sec. 2, citing Jenk.'205. 
 2 Ante, p. » 32. 
 
 ^ Sugden on Powers, cli. 1, sec. 1. 
 
 * Waldron u. McComb, 1 Hill, 111 ; Clarke v. Courtney, 5 Pet. 319 ; Taylor 
 V. Galloway, 1 Hamra. 232. 
 
COVENANTS OF THE OFFICER. 509 
 
 CHAPTER XXIX. 
 
 OF THE COVENANTS OP THE OFFICER, CONTAINED IN THE TAX 
 
 DEED. 
 
 It is a very tmiisual thing for a statute to require covenants 
 to be inserted in a tax deed, by -which the State, officer, or 
 former owner, are to become bound in the event that the 
 title of the grantee proves defective, (a) But in New Hamp- 
 
 (a) If a tax title proves invalid, tlie purchaser at the tax sale cannot maintain 
 an action to recover back tlie money paid by him as the consideration of the 
 purchase, and the expenses of defending his title. Lynde v. Melrose, 10 Allen, 
 49. See also Emerson v. County of Washington, 9 Greenl. 88 ; Treat v. Orono, 
 26 Me. 217 ; Sawyer v. Vaughan, 25 Me. 337 ; Indianapolis v. Langsdale, 29 Ind. 
 486 ; holding that, in the absence of fraud, accident, and mistake, the action does 
 not lie. Neither does an action lie by the purchaser against the collector to 
 recover damages for omitting to give the notice required by the ordinance. The 
 rule caveat emptor applies to such a case. Hamilton v. Valliant, 80 Md. 139. But 
 in Corbin v. City of Davenport, 9 Iowa, 239, where the owner of the lot sold had 
 paid the taxes before the sale, the plaintiff (the purchaser at the sale) was allowed 
 to recover the consideration money, with interest at six per cent from date of 
 payment, but not at the rate of fifty per cent per annum, the rate charged delin- 
 quents. In this case the question of the liabilitj' of the city for the considera- 
 tion money was not discussed, but was conceded by counsel and Court ; and the 
 only question litigated was as to the rate of interest. In Rice y. Auditor-General 
 (decided at the July Term, 1874, Sup. Ct. of Mich.), it was /leW, that the auditor- 
 general can only refund moneys upon the failure of tax titles when required so 
 to do by positive statutes. That the State only guarantees tax titles in cases 
 provided by the statutes, and in other cases the purchaser must be content with 
 the title obtained at the tax sale. The State does not assume responsibility for 
 the irregular conduct of local officers, better known to the tax purchaser than 
 to the State authorities. That sec. 103 of the old tax law (Laws of 1858, p. 190), 
 providing that the auditor-general shall refund, with interest, moneys received 
 from the sale of lands sold for taxes, when the title thereto has been annulled 
 pursuant to law, means that the right to reimbursement depends upon a judg- 
 ment annulling or acting directly upon the title, and not one where the title is 
 merely introduced as evidence and held defective : sees. 101 and 102 provide for 
 judicial pr ceedings (held unconstitutional in VValdby v. Callendar, 8 Mich. 430) 
 of a chancery nature to affirm or annul the title, and this was the judgment 
 referred to in sec. 103. The statute of 1863 (Laws of 1863, p. 196) authorizes 
 reimbursement when there was no jurisdiction over the land, or where there has 
 been a payment or attempted payment of the taxes actually levied, so that the 
 State has received double payment, or has assured the land-owner that no tax 
 
510 COVENANTS OP THE OFFICER. 
 
 shire and Vermont, the form of the deed prescribed by law 
 contains a covenant, substantially, that the officer making the 
 conveyance had, in his capacity as such officer, good right to 
 sell and convey the estate, and that he would warrant and 
 defend the same against the lawful claims of all persons. 
 
 In Gibson v. Mussey,i it was held that the intention of the 
 legislature in requiring this particular form of deed, was to 
 make an operative conveyance of the land where the pro- 
 visions of the law had been complied with, and not to bind 
 the officer by this involuntary covenant ; that they acted 
 upon the assumption that the deed would not be effectual to 
 pass the title, unless the usual common-law covenants of 
 title were inserted in it. In delivering their opinion, the 
 Court say : " That the collector is not liable upon such cov- 
 enant. He is expressly required to execute such a deed, and 
 for the purpose of 'passing the title in law.' It would be 
 much more rational to hold that the deed passed the title to 
 the land, without regard to the regularity of the previous pro- 
 ceedings, than to hold the collector liable on covenants which 
 
 he has no option whether to omit or not. If the con- 
 * 413 tract was voluntary, and personal, as in the * case of 
 
 executors or administrators, who sell land under an 
 order of a Probate Court, the collector would, no doubt, be 
 liable. But it is believed no case can be found where a public 
 officer is required to execute a contract in a specified form, 
 and does so execute it that he has been holden liable on any 
 express promise or covenant therein contained." 
 
 The case of Wilson v. Cochran,^ was an action upon such 
 a covenant, against the officer who executed the deed. It 
 
 existed, and does not apply to this case. See also p. *394, note a. See also 
 Warner v. Outagamie County, 19 Wise. 611 ; Curtis v. Supervisors of Brown 
 County, 22 Wise. 167. (The' last two oases, hovverer, were proceedings under 
 sec. 27, ch. 22, Laws of 1859, and not at common law.) The assignee of a tax 
 certificate, and holder of a tax deed, which turn out to be void, cannot recover 
 from the county the amount paid by him if he has since become the owner of 
 the lots sold for taxes, and it appears that the taxes for which they were sold are 
 unpaid. Curtis v. Board of Supervisors of Brown County, supra. But to the 
 point that the consideration money paid may be recovered back when the assess- 
 ment (or tax) was void for want of jurisdiction, as money paid without considera- 
 tion, see Chapman v. Brooklyn, 40 N. Y. 380. See also Jay v. Oxford, 3 Greenl. 
 131. 1 11 Vt. 212. 2 14 N. H. 397. 
 
COVENANTS OF THE OFFICER. 611 
 
 was admitted that the tax sale was illegal because of errors 
 in the assessment, and that the grantee of the plaintiff had 
 been evicted, and the plaintiff compelled to refund. The 
 Court rendered judgment for the defendant, remarking : " It 
 seems to be settled, that if persons acting in alieno jure, vol- 
 untarily enter into covenants, no principal being bound, the 
 party making the covenant will be bound personally, as in 
 the case of executors, administrators, and guardians. But 
 this case is not within that rule, as the defendant has not 
 voluntarily entered into these covenants, except so far as he 
 may voluntarily have taken the office of collector. Having 
 accepted the office, and made the sale for the payment of 
 the taxes assessed, so far as it appears in the regular per- 
 formance of his duty, the statute gave him no option as to 
 the form of the conveyance to be executed in pursuance of 
 the sale. Though required to be inserted in the form of a 
 personal covenant, we are of the opinion that it could not 
 have been the intention of the legislature that the collector 
 should be personally chargeable upon them for the full value 
 of the land sold, or even for the amount of the considera- 
 tion. The collector is a public officer, and the greater por- 
 tion of the consideration goes into the public treasury. That 
 the officer, for the small pittance of fee which falls to his 
 share, should be required to take all the responsibility of the 
 title, would be exceedingly strange. But the covenant, as it 
 stands, is a good covenant of warranty against the claims of 
 all persons ; and if held to be a warranty against defects in 
 the assessment, must .also extend to all other defects 
 in the title * through which the purchaser might be * 444 
 evicted. The fact that the deed commences with a 
 description of the grantor as collector, negatives the suppo- 
 sition that he is to assume such responsibility. It is the deed 
 of a public officer, made in his public capacity. The cove- 
 nants are not personal, but official, and the action must fail." 
 It may be remarked that it would be extremely unjust to 
 hold the collector responsible upon a covenant, which he 
 entered into under the compulsion of a statute form, for a 
 defect in the title of the purchaser at the tax sale, growing 
 out of the fraud, neglect, or ignorance of the person who 
 
512 COVENANTS OF THE OFFICER. 
 
 listed and assessed the land, a proceeding in which the col- 
 lector took no part whatever, and who had no manner of 
 control over the officer who did in fact conduct it. Whether 
 the collector might not be responsible for his own omissions, 
 neglect, and other irregularities upon such a covenant, is 
 undecided. No objection, however, can be perceived to a 
 recovery of the consideration money in such a case. Even 
 an action on the case would lie against him, in which the 
 purchaser, if he sustained his action, would recover the full 
 amount of damages actually incurred. The only argument 
 against a recovery upon the covenant is, that it is a compul- 
 sory one ; the answer to which is, no one is compelled to 
 accept an office, but if he does so, he assumes the full meas- 
 ure of responsibility for faithful execution which the law 
 has imposed upon the incumbent for the time being. Where 
 the officer voluntarily covenants against his own acts, and 
 for the regularity of the anterior proceedings, there is no 
 question of his liability to the covenantee, his heirs and 
 assigns. This is conceded in the foregoing cases, and is fully 
 sustained by the authorities in those which are analogous in 
 principle. 
 
CONSENT OF OWNER TO IRREGULARITIES. 613 
 
 CHAPTER XXX. 
 
 OP THE CONSENT OP THE OWNER TO IRREGULARITIES IN THE 
 PROCEEDINGS; AND OF ESTOPPEL. 
 
 It may be laid down as a general rule of law, that where an 
 irregularity — of such a character as to affect the power of 
 the officer to sell — takes place in any part of the proceed- 
 ings, and the owner of the land, being aware of the fact, is 
 silent, and takes no steps to prevent the sale, but permits it 
 to proceed, or even actually consents to waive the irregular- 
 ity, a sale under such circumstances will not be recognized 
 in a Court of law. The officer derives his authority from 
 the law, and not from the owner. He must obey the law, 
 and not the orders of a private individual. When he keeps 
 within the pale of his authority, minor irregularities may be 
 cured, or waived, by the party in interest, without impairing 
 the official character and validity of the proceedings ; but 
 the authority itself or any substantial link in the series of 
 acts which are necessary to establish the existence of the 
 power, cannot be supplied or enlarged, so as to give official 
 character and validity to acts not authorized or sanctioned 
 by the plain provisions of the statute, (a) 
 
 This was the doctrine established by the Supreme Court 
 of Alabama, in the case of Scales v Alvis,^ where the statute 
 provided, that the collector should advertise the delinquent 
 list three months prior to the sale ; and the facts were, that 
 the advertisement was first inserted January 4, 1843, an- 
 nouncing, that the sale would take place February 1, 1843, 
 
 (a) Where, after an invalid sale of unseated lands to the county, the commis- 
 sioners, treating it as a nullity, continued to tax the land, a county commissioner, 
 bidding more than the taxes and costs, is competent to purchase at a regular 
 treasurer's sale, founded on such new assessment; and he is not estopped, by 
 reason of his official character, from setting up a title thus acquired against the 
 .former owner. Cuttle v. Brockway, 32 Penn. St. 46. 
 1 12 Ala. 617. 
 
 83 
 
614 CONSENT OF OWNER TO IBBEGULARITIES. 
 
 and the collector, discovering his error, amended the adver- 
 tisement, by changing the day of sale to April 4 ; but this 
 
 was done after the first publication, so that the full 
 * 446 three months' notice, * required by law, was not, in 
 
 fact, given. The collector notified the delinquent 
 owner of the error, and the latter consented to it. The 
 Court held that the sale was a nullity, and the consent of 
 the owner did not cure the irregularity. 
 
 The same principle was applied in Kentucky, to a sheriff's 
 sale, where the officer seized and sold more land of the judg- 
 ment debtor than was necessary to satisfy the execution. 
 This was an irregularity which, by the law of Kentucky, 
 rendered the sale void ; but it further appeared in the case 
 that the debtor had consented to the levy, and actually received 
 the surplus of the sale money. The sale was declared illegal 
 and void, and the judgment debtor was not estopped at law 
 from relying upon the error to defeat the title of the pur- 
 chaser.^ In this case the Court intimated, that if the sale 
 had any validity at all, it derived it from the individual acts 
 and private authority of the debtor, and that, probably, a 
 Court of equity would treat the proceeding as creating a 
 contract by way of estoppel, and compel the completion of 
 the purchaser's title. 
 
 And in Buchannon v. Upshaw,^ the Supreme Court of the 
 United States held, that where the owner of land recognized 
 a sale of it, made by a person who had no authority to sell, 
 there was a privity of contract between the owner and pur- 
 chaser, which a Court of equity would enforce. Whether 
 this doctrine is applicable to a tax sale, and whether a Court 
 of equity would undertake to supply a want of power in the 
 officer, by the simple consent of the owner — substitute a 
 private, in lieu of a public, authority to do an act — and en- 
 force a sale of a valuable tract of land for a trifling consider- 
 ation — an unconscionable bargain — has never been decided. 
 It is predicted, however, that such a case would find but 
 little favor in that fqrum ; and it will be shown hereafter, 
 that a tax sale which is void at law, can, in no conceivable 
 
 ' Isaacs V. Gearheart, 12 B. Mon. 231. 
 
 2 1 How. (U. S.) 56. See 18 Ohio St. 246. 
 
CONSENT OP OWNER TO IRREGULARITIES. 515 
 
 case, be aided by a Court of equity. No act done under a 
 statutory power, which is void for non-coinphance with the 
 letter and spirit of the law, can be aided there. Chancery 
 possesses no dispensing or substitutional power.^ 
 
 1 A tender to redeem admits the amount due, and is a waiver of any irregu- 
 larity in the assessment or sale. Burton a. Hintrager, 18 Iowa, 348. See Ires 
 B. North Canaan, 83 Conn. 402, where the Court, having found that the plaintiff 
 had assented to the assessment of personal property in a town other than where 
 he resided where it legally ought to have been taxed, held that he was estopped 
 from denying the legality of the assessment. See also Telle v. Green, 28 Ind. 
 184. So in Ferguson v. Landram, 6 Bush (Ky.), 230, it was held, that persons 
 are estopped from denying the constitutionality of a local statute by partici- 
 pating in the procurement of its passage, by ratifying, acquiescing in, or approv- 
 ing it after its passage, and by becoming recipients of benefits under it; and all 
 such persons are held to be liable to the tax authorized by such enactment, 
 although it is unconstitutional and invalid as to all other persons. See also 
 authorities there cited. In an action to recover taxes where one has requested 
 a reassessment, he cannot object to it on the ground of want of authority of the 
 oflScers to make it. Burr v. Wilcox, 13 Allen, 269. So equity will not relieve 
 against an erroneous assessment where the error arose from following a list 
 handed in by the party complaining, but will leave the party to his legal remedy. 
 Hubbard v. Winsor, 15 Mich. 146. Where one of the parties claiming title to 
 land had made in the capacity of collector, which office he formerly held, a tax 
 deed of the land, under which the other party claims, and such tax deed is void 
 by reason of stating a sale in lump, whereas the sale was in parcels, as appeared 
 by the tax certificate, the party who made the deed is not estopped to set up 
 the defect in the deed. Byam v. Cook, 21 Iowa, 392. But the fact that taxes 
 levied upon assessments made in the same manner in previous years (eighteen 
 years in this case) had been paid by the owners of the property creates no estoppel 
 upon their objecting to the validity of the assessment in question. Cruger v. 
 Dougherty, 43 N. Y. 107. 
 
616 CORPORATION SALES. 
 
 CHAPTER XXXI. 
 
 OF SALES OF LAND FOR TAXES, UNDER THE CHARTERS AND ORDI- 
 NANCES OF MUNICIPAL AND OTHER CORPORATIONS. 
 
 A MUNICIPAL corporation possesses no authority to levy and col- 
 lect taxes upon property situated within its corporate limits, 
 unless under an express grant from the legislative power of the 
 State. The power to tax is one of the highest attributes of 
 sovereignty. It involves the right to take the private property 
 of the citizen without his consent, and without other compensa- 
 tion than the promotion of the public good. Such interference 
 with the natural right of acquisition and enjoyment guaranteed 
 by the constitution, can be justified only when public necessity 
 clearly demands it. Being a sovereign power, it can be exer- 
 cised only by the general assembly, when delegated by the 
 people, in the fundamental law ; much less can it be exercised 
 by a municipal corporation without a further unequivocal 
 delegation by the legislative body.^ [And when the legislat- 
 ure grants that high power to another tribunal, it can only 
 be exercised in strict conformity to the terms in which the 
 power is granted ; and a departure in any material respect wiU 
 be fatal to the attempt to exercise it : ^ but municipal taxes are 
 levied by virtue of the same general authority as the State and 
 county taxes ; and a sale by municipal authority is essentially 
 a sale by State authority, (a)] But the legislature have com- 
 petent authority to delegate the power of taxation to municipal 
 corporations, for the purpose of enabling them to carry into 
 effect the trust committed to their charge.^ (6) AU lands 
 
 » Mays V. Cincinnati, 21 Ohio, 273 ; Sharp v. Speir, 4 Hill, 76. 
 
 2 Judge of Camphell County Court v. Taylor, 8 Bush (Ky.), 206. 
 
 (a) Denike v. Rourke, 3 Bissell (U. S. C. C), 39. 
 
 s New Orleans v. Turpin, 13 La. An. 56 ; Daily v. Swope, 47 Miss. 367 ; 
 Bradley v. McAttee, 7 Bush (Ky.), 667 ; Osborne v. Mayor, 44 Ala. 493. 
 
 (6) But the legislature cannot compel a municipal corporation to incur a debt 
 without its consent, to issue its bonds against its will for the erection of a public 
 
COBPOBATION SALES. 517 
 
 and other property are held on the implied condition that they 
 may be taxed equally for general and local purposes.^ But in 
 all cases, the corporation to whom the power is committed, 
 must exercise it according to the principles which control the 
 exercise of the taxing power under the constitution.^ 
 And they must conform to the mode * and manner of * 448 
 levying and collecting the tax prescribed by the charter 
 which constitutes their organic law.^ (a) They take no 
 powers whatever by implication, unless absolutely necessary 
 to carry into effect some power expressly delegated to them. 
 
 park or for any other improvement. People ex rel. Park Commissioners of Detroit 
 V. Tlie Common Council, not yet reported ;^ will be in 28 or 29 Mich. People 
 ex rel. v. Mayor of Chicago, 51 111. 17. See also People v. Salomon, 51 Id. 37 ; 
 Hessler v. Drainage Commissioners, 53 111. 105; People ex rel. Park Commis- 
 sioners V. Moffat, Mayor, &c., to be reported in 28 or 29 Mich. Mills v. Charle- 
 ton, 29 Wise. 415. But § 5, Art. 9, Const, of 111., providing that " the corporate 
 authorities of counties, townships, school districts, cities, .towns, and villages, 
 may be vested with power to assess and collect taxes for corporate purposes," 
 was held not only to limit local or corporate taxation to local or corporate pur- 
 poses, but was also intended as a, limitation upon the power of the legislature 
 to grant the right of corporate or local taxation to any other persons than the 
 corporate or local authorities of the municipality or district to be taxed, and 
 that the right of taxation cannot be granted either to private persons or private 
 corporations. Harward v. St. Clair Drain Co., 51 111. 130 ; Gage v. Graham, 57 
 111. 144; People v. Mayor, &c., of Chicago, 61 111. 17; People v. Canty, 55 111. 
 38 ; Lovingston v. AVider, 53 111. 302 ; East St. Louis v. Witts, 59 111. 155 ; The 
 People u. Salomon, 51 111. 37 ; Hessler o. Drainage Commissioners, 53 111. 105. 
 So portions of a county not endowed by the act attempting to authorize the tax 
 with any of the elements of a municipal corporation, being merely portions of 
 the territory composing a county, cannot be authorized by the legislature to 
 create a debt which must be paid by taxation. County Court of Madison Co. 
 0. The People, 58 111. 456. As to the delegation of this power by a de facto gov- 
 ernment see O'Byrne v. Mayor, &c., 41 Geo. 331. 
 
 1 Cheaney v. Hooser, 9 J3. Mon. 330 ; Talbot v. Dent, 9 B. Mon. 526 ; Hope 
 V. Deaderick, 8 Humph. 1. 
 
 2 Hope c/. Deaderick, 8 Humph. 1 ; Pitch v. Pinckard, 4 Scam. 69 ; though 
 there may be no special limitation in charter, yet the power is limited by the 
 object and law of the creation of the municipality, and can be exercised only for 
 legitimate municipal purposes. Foster v. Kenosha, 12 Wise. 616. 
 
 a Mack V. Jones, 1 Poster, 393 ; Dillingham v. Snow, 6 Mass. 547 ; Williams- 
 port V. Kent, 14 Ind. 306 ; Stetson v. Kempton, 13 Mass. 272. 
 
 (a) There is nothing in chap. 105, Laws of the 7th General Assembly (Rev. 
 1860, § 1144), defining who shall make tax deeds under sales for municipal taxes, 
 but this matter is left to the provisions of the several charters, — the object of 
 this statute was to give a uniform effect to the deeds made to the purchasers At 
 sales for municipal taxes and a like method for the foreclosure of the equity of 
 redemption. Street v. Hughes, 20 Iowa, 131. 
 
518 COEPOEATION SALES. 
 
 The rule is thus laid down in Sharp v. Speir.^ " A corpora- 
 tion must show a grant, either in terms or by necessary impli- 
 cation, for all the powers which it attempts to exercise ; and 
 especially must this be done when it claims the right, by taxing 
 or otherwise, to divest individuals of their property without 
 their consent. The exercise of the corporate franchise being 
 restrictive of individual rights, cannot be extended beyond the 
 letter and spirit of the act of incorporation. The power to 
 sell is a high prerogative power." The power is a limited one,^ 
 and must be strictly construed and pursued.^ Thus, although 
 the State may resort to summary proceedings to coUect a tax, 
 by imprisoning the body, or selling the goods or lands of the 
 delinquent, it is otherwise with a corporation, unless there is 
 an express grant in their charter.* (a) By the common law, 
 corporations cannot make a by-law to enforce the payment of 
 taxes by warrant to distrain and sell the goods and lands of a 
 party who has neglected to pay his dues. When the taxes are 
 legally assessed, they become a debt due to the corporation, and 
 if not paid must be recovered in due course of law.^ An ac- 
 
 1 4 Hill, 76. 
 
 2 West School District of Canton v. Merrills, 12 Conn. 436 ; Kemper v. Mc- 
 Clelland, 19 Ohio, 324. 
 
 s NichoU u. Nashville, 9 Humph. 252. See Dean «. Madison, 9 Wise. 402; 
 Drake v. Phillips, 40 111. 388; Louisville v. Bank of Kentucky, 3 Mete. (Ky.) 
 148 ; Lott V. Boss, 38 Ala. 166 ; Knox v. Peterson, 20 Wise. 247. 
 
 * See Ham v. MiUer, 20 Iowa, 450; Alexander v. Helber, 35 Mo. 334; Mc- 
 Inerny v. Reed, 23 Iowa, 410. 
 
 (a) Thus, likewise, a grant to a city of " power to hvy and collect a special 
 tax " on lots for curbing, macadamizing, &c., does not include the power to sell 
 and convey in case of the non-payment of the tax. Nor will such power be 
 inferred from an express provision in the charter, to the effect that the collection 
 of taxes provided for shall be enforced, as may be provided for by ordinances of 
 the city ; but the grant is not by reason of such silence nugatory, as the city 
 may provide for the collection of the tax by due course of law in the institution 
 of judicial proceedings. Merriam v. Moody's Executors, 25 Iowa, 163; see also 
 Ham V. Miller, 20 Iowa, 450. But in HaskeU v. City of Burlington, 30 lows, 
 232, hdd, that ch. Ill, p. 153, Laws of 1868, which confers upon cities not then 
 possessing it power to sell personal and real property for delinquent taxes, ap- 
 plies as well to taxes delinquent before the act was passed, as to those becoming 
 delinquent thereafter ; and that thus construed said act is not unconstitutional 
 as not being of uniform operation, for it affects equally all cities in like situa- 
 tion ; nor as impairing the obligation of contracts, nor interfering witli vested 
 rights, for it pertains only to the remedy. 
 
 ' Bergen v. Clarkson, 1 Halsted, 352. 
 
CORPORATION SALES. 519 
 
 tion of assumpsit is the appropriate remedy to recover the tax, 
 in all cases where the charter is silent as to the mode of collec- 
 tion.i And where express power was conferred upon a town 
 corporation, to levy taxes and sell lands for the non-pay- 
 ment of them, * but the charter was silent as to the * 449 
 power of the corporation to convey the land sold to the 
 purchaser at the sale, it was held that the power of conveyance 
 could not be exercised by the town. 1. Because a corporation 
 can exercise no implied powers, (a) 2. Because such a power 
 is in derogation of the common law ; and 3. The power to sell 
 does not include the power to convey.^ Again, a municipal 
 corporation has no authority, except by express grant, to ex- 
 empt any property within its corporate limits, from taxation.^ 
 Such a power can neither be exercised by means of a general 
 ordinance, exempting a particular class of property, nor by 
 means of a stipulation in a grant or conveyance, transferring 
 a parcel of land owned by the corporation.* Nor has a muni- 
 cipal corporation the power to declare that the collector's deed 
 shall be conclusive, or eyen. primd facie evidence of a compli- 
 ance with all the prerequisites of the ordinance, providing for 
 the sale of lots within the town or city limits for the non-pay- 
 ment of taxes due and unpaid thereon. The legislature alone 
 possesses the power to make and alter rules of evidence.^ 
 Corporation taxes can in no sense be regarded as public taxes, 
 within the meaning of any general law of the State. They 
 are local to aU intents and purposes, and special in their char- 
 acter. Therefore no general law, regulating the taxing power 
 
 1 Mayor v. Howard, 6 Har. & J. 383 ; Dugan v. Mayor, 1 Gill & J. 499. 
 
 (a) A municipal corporation possesses and can exercise the following powers, 
 and none others : (1.) Those granted in express words. (2.) Those necessarily 
 implied, or necessarily incident to the powers expressly granted. (3.) Those 
 absolutely essential to the declared objects and purposes of the corporation ; and 
 any fair doubt as to the existence of a power is resolved against the corporation. 
 Merriam v. Moody's Executors, 25 Iowa, 170. In Knox v. Peterson, 21 Wise. 
 247, it was hM, that the powers of corporations tn the sale and conveyance of 
 land for taxes are only such as are expressly given by statute. 
 
 2 Doe V. Chunn, 1 Blackf. 336. But see Biscoe v. Coulter, 18 Ark. 423, where 
 it is said, arguendo, that the right to tax implies the right to sell. 
 
 3 Fitch V. Pinckard, 4 Scam. 69 ; Mack v. Jones, 1 Foster, 393. 
 * Fitch V. Pinckard, supra ; Mack v. Jones, supra. 
 
 5 Fitch V. Pinckard, supra. 
 
520 COBPORATION SALES. 
 
 of the State at large, can be construed in any given case as 
 embracing taxes levied by such corporations. 
 
 Upon this principle, it was held in Shoalwater v. Armstrong,^ 
 that a general statute, declaring a tax-deed made in pursuance 
 of a sale for " public taxes," primd facie evidence of conform- 
 ity with the requisitions of the law, and authorizing the 
 respective collectors to make a report of the delinquent list to, 
 and apply for a judgment thereon, in the Circuit or other Court 
 of their respective counties, did not apply to taxes assessed by, 
 and due to, a municipal corporation. It is said to be " a 
 * 450 principle of * common justice that the same property 
 should not be twice burdened for the same tax ; and, 
 consequently, in construing general powers, bestowed on 
 towns and cities to impose taxes, a construction ought not to 
 be given, which would subject the property of any individual or 
 corporation to double taxation, unless required by the express 
 words of the statute, or by necessary implication." ^ 
 
 Where, by charter, a municipal corporation is authorized to 
 assess taxes " according to law," the general law regulating 
 taxation is intended ; and the general law in force at the time 
 of the assessment and collection of the tax, is the law by which 
 the corporation is to be controlled in the exercise of the power 
 granted, and not the one in force at the time of the enactment of 
 the charter. Such a construction ought not to be placed upon 
 the charter, as would prevent the corporation from participat- 
 ing in the improvements of the system of taxation which may 
 be made from time to time, by the laws of the land.^ The cor- 
 poration possesses no power either to assess a tax not author- 
 ized by charter, or to change or modify the public laws of 
 the land, regulating the taxing power.* And it is presumed, 
 that when the charter is silent as to the principles, mode, 
 and manner of taxation, the analogies to be drawn from the 
 general statutes of the State, in relation to the taxing power, 
 ought to be adopted by the corporation, in the execution of 
 
 1 9 Humph. 217. 
 
 2 State Bank v. Savannah, Dudley, 182, citing 10 Mass. 514; 17 Mass. 
 461. 
 
 3 Ontario Bank v. Bunnell, 10 Wend. 186. 
 * Mack V. Jones, 1 Foster, 393. 
 
CORPORATION BALES. 521 
 
 their local power of taxation.^ Such are the general principles 
 to be extracted from the adjudged cases, relative to the nature, 
 extent, and mode of exercising the taxing power, by municipal 
 corporations. 
 
 In deducing title, under a sale for taxes, made in pursuance 
 of the charter and ordinances of a city or town corporation, 
 it is necessary for the purchaser, or those claiming under him, 
 to prove (unless by charter the tax-deed is madeprimd 
 facie * evidence of title), 1. The existence of a corpo- *451 
 ration, by evidence of the charter and its acceptance by 
 the inhabitants, (a) The charter may be proved by an exem- 
 plification of it under the great seal of State, or the production 
 of the pripted statute book containing it ; or if, by the charter, 
 it is made a public act, the Courts will probably take judicial 
 notice of it. The corporation records, showing an organization 
 under, and acts done in pursuance of, the charter, will be evi- 
 dence of its acceptance by the inhabitants ; ^ and, 2. A strict 
 compliance with all of the requirements of the charter and 
 ordinances in force at the time the proceedings took place, 
 and under which they purport to have been made.^ What 
 provisions of the charter and ordinances are to be regarded 
 as peremptory requirements, depends upon the same general 
 principles discussed in the other chapters of this work. If 
 there is any difference between sales for taxes, made under 
 the general laws of the State, and those made in pursuance 
 of. the charter and ordinances of a municipal corporation, 
 
 1 Doe V. Chunn, 1 Blackf. 336 ; Mack v. Jones, 1 Foster, 393. 
 
 (a) Notwithstanding tiie doctrine of the text, it is deemed that acceptance of 
 the charter or act of incorporation is unnecessary in the case of municipal corpo- 
 rations, unless the act is expressly made conditional. Unless the act otherwise 
 provides, a. municipal corporation is legally in existence as soon as the act of 
 incorporation goes into effect. See 1 Dill. Municipal Corp. (2d ed.), § 23, and 
 cases there cited. 
 
 2 Fitch V. Pinckard, 4 Scam. 69. 
 
 » Fitch 0. Pinckard, 4 Scam. 69 ; Shoalwater v. Armstrong, 9 Humph. 217 ; 
 Doe V. Chunn, 1 Blackf. 336 ; Ronkendorff u. Taylor, 4 Pet. 349 ; Corporation of 
 Washington v. Pratt, 8 Wheat. 686 ; Mason v. Fearson, 9 How. (U. S.) 248 ; Kay- 
 burn V. Kuhl, 10 Iowa, 92. A power to sell being derived from charter, an ordi- 
 nance cannot affect the validity of a sale made according to directions of char- 
 ter. Thompson v. Carroll, 22 How. (U. S.) 422. It seems an assessment made 
 pursuant to an ordinance is not invalid because the presiding officer of the coun- 
 cil did not sign the ordinance. Blanohard v. Bissell, 11 Ohio (n. s.), 96. 
 
522 CORPORATION SALES. 
 
 the strictness required in the latter is greater than in the 
 former class. It may be added, that no instance is known 
 where a corporation tax sale has been maintained by the 
 Courts. 
 
 There are instances of tax sales made under a power con- 
 tained in the charter of a private corporation, which it may 
 be proper to notice in this connection. On April 15, 1803, the 
 legislature of Ohio incorporated " the proprietors of the half 
 million acres of land lying south of Lake Erie, called sufferers' 
 land," for the purpose of enabling the proprietors to extinguish 
 the Indian title to their lands, to cause them to be surveyed, 
 and to make partition among themselves. Along with other 
 special powers conferred upon the corporation, the charter of 
 Ohio provided, " that to defray all necessary expenses of said 
 
 company, in purchasing and in extinguishing the Indian 
 * 452 claim of * title to the land, surveying, locating, and 
 
 making partition thereof, as aforesaid, and all other 
 necessary expenses of said company, power be, and the same 
 is hereby given to, and vested in, the said directors and their 
 successors in office, to levy a tax or taxes (two-thirds of the 
 directors present agreeing thereto) on said land, and have 
 power to enforce the collection thereof." And it was further 
 provided, " that all sales of rights, or parts of rights, of any 
 owner or proprietor in said half million acres of land, made 
 by the collector shall be good and valid, so as to secure an 
 absolute title in the purchaser ; unless the said owner and 
 proprietor shall redeem the same within six calendar months 
 next after the sale thereof, by paying the taxes for which the 
 said right or rights, or parts thereof, had been sold, with 
 twelve per cent interest thereon, and costs of suit." It was 
 also provided, " that said directors shall have power and au- 
 thority, and the same is hereby given to them and their suc- 
 cessors, to do whatever shall to them appear necessary and 
 proper to be done, for the well ordering and interest of said 
 owners and proprietors, not contrary to the laws of the State." 
 And it was further provided, " that supplies of money which 
 shall remain in the hands of the treasurer after the Indian 
 title shall be extinguished, and said land located, and partition 
 thereof made, shall be used by said directors for the laying 
 
CORPORATION SALES. 523 
 
 out and improTing the public roads in said tract, as this as- 
 sembly shall direct." The act contained no provision in favor 
 of the rights of infants or /ernes covert. In 1806, the legislat- 
 ure of Ohio levied a tax upon the lands of this corporation, 
 and declared it a perpetual lien. On May 5, 1808, the directors 
 assessed a tax upon each shareholder in the corporation, for 
 the purpose of defraying the State tax, levied as aforesaid, 
 and other necessary expenses of the corporation. 
 
 In Beaty v. The Lessee of Knowler,^ the lessors of the plain- 
 tiff, in error, were infant shareholders in the corporation afore- 
 said, and their interest in the lands of said corporation was 
 sold, under the charter and vote of said corporation, to 
 pay the * assessment aforesaid. The defendant below * 453 
 claimed under this sale. The Circuit Court instructed 
 the jury, that the directors of the corporation had no power to 
 assess said tax, and that the infant lessors were not concluded 
 by such assessment. The jury found a verdict accordingly, 
 and the defendant prosecuted a writ of error from the Supreme 
 Court of the United States, where the judgment was affirmed. 
 The Court based their decision upon these grounds : that the 
 power to impose a tax on real estate, and sell it, in case of fail- 
 ure to pay the tax, was a high prerogative, and never should 
 be exercised where the right was doubtful ; and there was no 
 express power to assess a tax for the purpose of discharging 
 that levied by the general law of the State ; that it could not 
 be implied from the language of the charter, authorizing the 
 levy of a tax, " to defray all necessary expenses of said com- 
 pany ; " on the contrary, it clearly appeared that it was not 
 the intention of "the legislature to look to the corporation 
 for the payment of the tax assessed under the general law, 
 but to the land itself, for the law declared the tax a lien upon 
 the land.2 
 
 1 4 Pet. 152. 
 
 2 Inasmuch as this case Is the only one of any importance whieli illustrates 
 the nature and extent of the taxing power conferred upon mere private corpo- 
 rations, it is deemed appropriate to set forth the reasons of the Court at large. 
 Judge McLean delivered the opinion of the Court in these words : " It is not 
 contended, in tliis case, that this company could derive corporate power to do 
 any act in Ohio in relation to the sufferers' land, under the statute of Connecticut. 
 All their powers must be derived from the law of Ohio. This law, it is insisted, 
 is a private act, not designed for public purposes, and consequently cannot affect 
 
524 CORPORATION SALES. 
 
 * 454 * The case of Thompson v. Gotham,^ involved the 
 validity of a tax title derived from the same source as 
 
 the rights of any individual who did not assent to its provisions ; that the pro- 
 vision declaring it to be a public act does not alter the principle, for the rights 
 described under it are of a private nature, being limited to those who have an 
 interest in the land ; and it is denied that any evidence of assent has been shown 
 by the lessors of the plaintiff' or their ancestor. Several authorities were cited, 
 as having a bearing upon the objections thus stated. The names of the sufferers 
 are published in the Connecticut act or resolution in 1792,with the amount allowed 
 to each, as his indemnity for losses sustained. In this act is found the name of 
 the ancestor of the lessors of the plaintiff. His right'descended to them, subject 
 to the same conditions by which it was originally held. The provisions of the 
 law of incorporation, that it should be considered a public act, must be regarded 
 in course of justice, and its enactments noticed, without being specially pleaded, 
 as would be necessary if the act were private. That a private act of incorpora- 
 tion cannot affect the right of individuals who do not assent to it, and that in 
 this respect it is considered in the light of a contract, is a position too clear to 
 admit of controversy. But, in the present case, this objection seems not to have 
 been made in the Court below, where proofs of the assent, if necessary, might 
 have been submitted to the jury. From the nature of the riglit asserted, and 
 the circumstances under which it was originated, this Court cannot doubt that 
 the assent of the proprietors may be fairly presumed, both to the act of Con- 
 necticut, and to that of Ohio. Rights have been protected and regulated under 
 those laws, and to the provision of the latter are the claimants indebted, in a 
 great degree, for the present value of the remainder of the land, which they still 
 hold ; and, as has been well argued, if they participate in the benefits of the law, 
 they can set up no exemption from its penalties. The main question in the case 
 is, whether the directors have the power, under the act of incorporation, to assess 
 a tax on each proprietor's share, to pay a tax to the State. That a corporation 
 is strictly limited to the exercise of those powers which are specifically conferred 
 on it will not be denied. The exercise of a corporate franchise, being restrictive 
 of individual rights, cannot be extended beyond the letter and spirit of the act 
 of incorporation. In the second section of the act, power is given to the directors 
 to extinguish the Indian title, under the authority of the United States when 
 obtained ; to survey and locate the land into townships, or otherwise to make 
 partition ; and to defray all necessary expenses in carrying these objects into 
 effect ; and to meet these and all ' other necessary expenses of said company,' 
 the directors are authorized to levy a tax or taxes on said land, and to enforce 
 collection thereof. As the power to tax for the purpose of paying a tax to the 
 State is not found among the enumerated powers of the directors, it must be 
 derived, if it exists, under the words ' all other necessary expenses of said com- 
 pany ; ' or under the tenth section, which provides ' that the directors shall have 
 the power to do whatever to them shall appear necessary and proper to be done, 
 for the well ordering and interest of the proprietors, not contrary to the laws of 
 the State.' In the favor of this construction, it has been ingeniously argued, 
 that partition not having been made of the land, it could not be entered for 
 taxation, as required by the law of the State. That the half million of acres 
 
 9 Ohio, 170. 
 
CORPORATION SALES. 625 
 
 that litigated in * the preceding case. The defend- * 455 
 ant, who set up the tax title, proved a legal levy of the 
 
 must be entered on the duplicate of the collector as one tract, and that it would 
 be impracticable for the collector to ascertain and collect from each proprietor 
 his just proportion of the tax. That many of the proprietors are non-residents, 
 and that any proportion of them, being desirous of paying their part of the tax, 
 would not be discharged by doing so ; as a part of the entire tract, involving 
 their interests, would be liable to be sold for any balance of the tax which re- 
 mained unpaid. Whether partition was made of the land when the directors 
 assessed the tax, does not appear, nor is it considered a fact of much importance 
 in the case. No argument^ drawn from convenience can enlarge the powers of 
 the corporation. Was the tax imposed, a ' necessary expense of said company,' 
 within the meaning of the act ? That these words would cover the expense of 
 necessary agents to assess and collect a tax legitimately imposed by the directors, 
 is clear, and also other incidental expenses, arising from carrying into effect the 
 powers expressly given ; but do they invest the directors with a new and sub- 
 stantive power ? If they do, how is the exercise of the power to be limited ? 
 Must it depend upon the discretion of the directors to determine all necessary 
 expenses of the company ? Ample provisions are found in the State law impos- 
 ing a land tax, for the assessment and collection of the tax . A lien is held on 
 all the taxable land in the State, whether entered for taxation or not ; and if the 
 tax should not be paid by a time specified, the collector was authorized, after 
 giving notice, to sell the smallest part of the tract which would bring the amount 
 of the tax. For the convenience of non-residents, district collectors were ap- 
 pointed, who were required to hold their offices at places named in the act. The 
 eoUector for the district including the sufferers' land, held his office at Warren, 
 within what is called the reservation of Connecticut. The law imposing the tax 
 operates upon the land in controversy, and raises a lien, the same as on any other 
 taxable land in the State. It appears, therefore, that it was not the intention of 
 the legislature to look to the corporation for the payment of the tax assessed 
 under the law, but to the land, as in all other cases. And if any part of the land 
 has been sold by the State, in which minors Iiad an interest, under the law, they 
 had a right to redeem it within a year after they became of age. This is an 
 important provision, and is not contained in the act of incorporation. The 
 agents of the State were paid for their services out of the tax collected ; those of 
 the corporation by the company. It would seem, therefore, that the tax collected 
 by the State would be less expensive to the proprietors than if collected by their 
 own agents, and less hazardous to their rights, as the interests of the minors were 
 protected. If, therefore, the argument drawn from convenience could have any 
 Influence, it could not operate favorably to the power of the directors. The 
 power to impose a tax on real estate, and to sell it where there is a failure to 
 pay the tax, is a high prerogative, and should never be exercised when the right 
 is doubtful. In the preamble to the Ohio act of incorporation, there is a refer- 
 ence to the Connecticut act, and to the cession of the reserve, by that State, 
 to the Union, and a statement that it was annexed to the State of Ohio. And as 
 a reason for the passage of the act, it is stated, that said ' half million of acres of 
 land are now within the limits of Trumbull county, in said State, and are still 
 subject to Indian claims of title ; wherefore to enable the owners and proprietors 
 of said half million acres of land, to purchase and extinguish the Indian claim 
 
526 CORPOEATION SALES. 
 
 * 456 tax, the appointment of a collector, * and his qualifica- 
 tion, and also a deed from the collector, which recited 
 the charter of the corporation, thfe assessment of the tax, the 
 default of the owner, the order of sale, the notice of sale, and 
 the sale itself. The circuit judge charged the jury that the 
 tax title was invalid. A verdict and judgment was thereupon 
 rendered for the plaintiff. The defendant moved for a new 
 trial, which motion was overruled by the Supreme Court, 
 upon the ground that there was no proof that the sale was 
 advertised in conformity with the charter and ordinances of 
 the corporation — that such notice was a prerequisite to the 
 validity of the sale — that the onus was upon the defendant 
 
 of title to the same (under the authority of the United States, when the same 
 shall be obtained), to survey and locate the said land, and to make partition 
 thereof to and among said owners and proprietors, in proportion to the amount 
 of land which is or shall be by them respectively owned,' &c. These are the 
 objects to be accomplished by the act of Incorporation, and which could not be 
 attained by the individual efforts of the proprietors. In the eleventh section 
 of the act, it is provided, ' that supplies of money which shall remain in the 
 hands of the treasurer, after the Indian title shall be extinguished, and said land 
 located and partition thereof made, shall be used by said directors for the laying 
 out and improving the public roads in said tract, as the legislature should direct.' 
 From a careful inspection of the whole act, it clearly appears, that the incorpora- 
 tion of the company was designed to enable the proprietors to accomplish specific 
 objects, and that no more power was given than was considered necessary to 
 attain these objects. The words ' all necessary expenses of the company,' can- 
 not be so construed as to enlarge the power to tax, which is given for specific 
 purposes. A tax to the State is not a necessary expense of the company, within 
 the meaning of the act. Such an expense can only result from the action of the 
 company in the exercise of its corporate powers. The provision in the tenth 
 section, that the ' directors shall have power to do whatever shall appear to them 
 to be necessary and proper to be done, for the well ordering of the interest of 
 the proprietors, not contrary to the laws of the State,' was not intended to give 
 unlimited power, but the exercise of a discretion, within the scope of the author- 
 ity conferred. If the words of this section are not to be restricted by the other 
 provisions of the statute, but to be considered according to their literal import, 
 they would vest in the directors a power over the land, only limited by their 
 discretion. They could dispose of the land and vest the proceeds in any manner 
 which they might suppose would advance the interest of the proprietors. It is 
 only necessary to state this consequence, to show the danger of such a construc- 
 tion. The restriction, imposed in other parts of the statute, very clearly demon- 
 strates that it was not the intention of the legislature to invest the directors with 
 such a power. Upon a full view of the various provisions of the act of incorpora- 
 tion, the Court do not find a power given to the directors to assess a tax, as has 
 been done, in the case under consideration, to pay a tax to the State." 
 
CORPORATION SALES. 627 
 
 to prove the fact — that the recital in the deed was not 
 evidence in his favor. 
 
 There is another class of tax titles somewhat analogous to 
 those derived under the charter of the corporators and share- 
 holders in the " sufferers' tract." In the early settle- 
 ment of * the New England States, it was usual for the * 457 
 legislatures of the several colonies to grant a township, 
 or other large body of land, to a number of proprietors, or 
 grantees, in fee, to hold as tenants in common. These tenants 
 in common were created quasi corporations, with power to 
 manage their common lands. They were authorized to assess 
 taxes upon each share and collect the same, for the purpose 
 of improving the estate and paying off incidental charges. 
 Each share was liable for the tax assessed against its proprie- 
 tor, and the corporators, or the major part of them, had power 
 to sell and convey, through the agency of a committee or 
 single ofi&cer, appointed for the purpose, in case the proprietor, 
 against whom the tax was assessed, proved delinquent. The 
 modus operandi of the proceeding was to warn a meeting of 
 aU the proprietors, under a warrant from the justice of the 
 peace, or in some other manner, according to the particular 
 statute under which the power was conferred, and the meet- 
 ing voted a tax upon the whole tract held in common, and ap- 
 portioned it according to the interest of each tenant ; notice 
 was then given to pay the tax ; in case of default, the meeting 
 appointed a committee, or single person, to sell and convey, 
 . first giving notice by a publication in a newspaper or by post- 
 ing in public places, and sometimes in both ways. Other 
 provisions of an immaterial character were to be found in the 
 laws under which the proceeding took place. The Courts 
 adopted the same principles in testing the validity of these 
 titles, which have been applied in the construction of similar 
 laws in other States. The strict rule was adopted, and the 
 onus prohandi cast upon the party claiming under the tax sale. 
 However, after a great lapse of time, it became difficult to 
 prove the legality of the meetings which levied the tax and 
 authorized the sale and conveyance, and the records of the sale 
 were imperfectly kept ; and in support of a long possession, 
 the Courts were liberal in construing the acts of the proprie- 
 
628 COEPOBATION SALES. 
 
 tors, and those who sold and conveyed, and many presump- 
 tions were indulged in for the purpose of sustaining these 
 ancient titles. Where, however, the proceedings affirma- 
 tively appeared upon the face of the conveyance to be 
 * 458 illegal, the sales were * held void. This general state- 
 ment, and a reference to the cases, is deemed sufScient 
 for the information of all concerned in this class of titles.^ 
 
 1 2 Dane Abr. Ch. 68, art. 4, sec. 5 ; Sullivan on Land Titles, 116, 121 ; Bott 
 V. Perley, 11 Mass. 169; Farrar v. Eastman, 5 Greenl. 345; s. c. 1 Fairf, 191 ; 
 Porter v. Whitney, 1 Greenl. 306 ; Inman v. Jackson, 4 Greenl. 287 ; Farrar v. 
 Perley, 7 Greenl. 404 ; Wentworth v. Allen, 1 Tyler, 226 ; Decker v. Freeman, 
 3 Greenl. 338. 
 
FORFEITURES. 529 
 
 CHAPTER XXXII. 
 
 OP THE FORPEITDRE OF LANDS TO THE STATE, WHERE THE 
 TAXES HAVE NOT BEEN PAID. 
 
 The omission or neglect of a duty which the party binds him- 
 self to perform, or to the performance of which he is enjoined 
 by the law, is, upon the breach or neglect thereof, called a 
 forfeiture ; that is, the advantages accruing fi-om the perform- 
 ance of the thing are defeated and determined.^ It is a pun- 
 ishment annexed by law to some illegal act or negligence in 
 the owner of lands, tenements, or hereditaments, whereby he 
 loses all his interest therein, and they go to the party injured, 
 as a recompense for the wrong which either he alone, or the 
 public together with himself hath sustained.^ These def- 
 initions include forfeitures of conditions, obligations, offices, 
 and estates, and other penalties accruing in civil cases, or in- 
 flicted for transgressions or omissions of duty imposed by the 
 criminal laws of the land.^ Forfeitures for crime have been 
 abolished in this country. But the common-law rule in rela- 
 tion to the. forfeiture of estates for breaches, or the non-per- 
 formance of conditions annexed to them, — those forfeitures 
 arising upon an alienation of a greater estate than a tenant 
 for life or for years, has in the land, (a) and those for the 
 commission of waste by the tenant of a less estate than a fee- 
 simple, — is of constant application in our system of juris- 
 prudence. To these may be added such forfeitures as are 
 declared by statute, for the non-performance of some 
 duty * imposed upon the owner of am estate.* It is a * 460 
 familiar principle, that a Court of equity will not lend 
 
 1 Bacon, Abr., Tit. Forfeiture ; Beard v. Smith, 6 Mon. 444. 
 
 2 2 Bl. Com. 267. " Beard v. Smith, 6 Mon. 444. 
 
 (a) This rule of law is changed by statute in Michigan. See 2 Comp. Laws 
 of 1871, §4206. 
 
 * Beard v. Smith, 6 Man. 430. 
 
 34 
 
530 FORFEITURES, 
 
 its aid to enforce a forfeiture, but, on the contrary, will re- 
 lieve against them in many cases. Even a Court of law does 
 not favor a forfeiture, and requires strict proof of the act or 
 omission upon which it is claimed. In many States, forfeitures 
 for the neglect of the owner of an estate to list his landj (a) 
 or pay the tax assessed upon it, have been directed by the 
 legislature. This class of forfeitures is based upon the prin- 
 ciple that every owner holds his estate upon the implied con- 
 dition that he will furnish a list of his taxable estate, and 
 promptly pay his share of the common burdens assessed against 
 
 (a) In Lohrs v. Miller's Lessee, 12 Grat. 452, where H. was the owner of the 
 land in 1797, and two papers purporting to be deeds, bearing date in that year, 
 one from H. to G. and the other from G. to M., conveying this land, were by 
 order of the proper Court directed to be admitted to record, and were recorded, 
 though not duly authenticated ; and M. entered the land as his own on the books 
 of the commissioner of the revenue ; and in 1815 it was sold as the land of M., 
 as having been forfeited for non-payment of taxes, and conveyed by the sheriff 
 to B., who entered it on the books of the commissioner, ever since which time 
 it has been held by B. and those claiming under him ; and all the taxes charged 
 on the land have been paid or released ; and in 1843 a patent was obtained for 
 the land by L., who entered the land with the commissioner and paid the taxes 
 thereon regularly, claiming the land on account of an alleged forfeiture to the 
 commonwealth of said land, for the omission of H. to enter the land on the com- 
 missioner's books, as required by the act of February 27, 1835, ch. 13, § 2, p. 12. 
 Held, that under the circumstances above stated the title of the parties claiming 
 under B. was valid ; and that the land was not forfeited under said act as the 
 land of H. ; that, as the deeds'referred to were in fact copied into the deed book 
 under the order of a Court having authority over the subject as and for a regis- 
 try thereof, it became the duty of the clerk and commissioner to cause the land 
 to be entered on the books and charged with taxes ; and it was wholly beyood 
 their duty to review the action of the Court and refuse to notice the registry; 
 that the commonwealth having received " her just demands " one of the griev- 
 ances recited in the act of 1835 as the reason for its enactment did not exist ; 
 that M. was such an owner and proprietor within the meaning of the law as 
 might make the entry with the commissioner ; and that the letter and spirit of 
 said act had been fully complied with. See also Twiggs v. Chevallie, 4 West 
 Va. 463. This case differs from the preceding in that the defendants in error 
 were derivative purchasers from the vendees of the heirs of the original patentee, 
 so tliat the registry of deeds showed no conveyance whatever from him, and the 
 land never having been on the commissioners' books in the name of the patentee 
 there was a seeming forfeiture. It was held, that, at most, the alleged forfeiture 
 for which tlie land was sold could only operate on the ownership of the patentee 
 in whose name it was forfeited, and as he had no interest in it whatever, and 
 tlie land being at the time on the books in the name of » person claiming under 
 him, and the taxes duly paid, there was no forfeiture that could affect the true 
 owners. 
 
FORFEITURES. 531 
 
 the entire community; and if he omits to comply with the con- 
 dition, and his estate is offered at public vendue, and no pur- 
 chaser can be found for it, the title is transferred from the 
 owner to the State, the latter being always ready to bid for 
 the land, when no other bidder appears. The mode of declar- 
 ing the forfeiture varies according to the caprice of each State. 
 In some instances, the words of the statute are, that the 
 owner shall " forfeit " his estate to the commonwealth for non- 
 compliance with the duty or duties imposed upon him. In 
 others, the law declares that the land of the negligent owner 
 shall be stricken off to the State, or to the governor, for the 
 use of the State. In all cases which have come under the 
 observation of the writer, ample provision is made for a re- 
 demption, by the owner of the estate. It may be laid down 
 as a principle of universal law, that in order to enforce these 
 forfeitures, the Courts require the same degree of strictness 
 which is applied to ordinary tax sales, in order to divest the 
 title of the owner, (a) Where the land, instead of being 
 struck off to the State as a bidder at the tax sale, is declared 
 to be " forfeited to the State," or equivalent language is used, 
 it is a serious question whether an inquisition is not necessary, 
 in order to divest the title of the rightful proprietor and vest 
 it in the State. It is a maxim of the common law, that the 
 words "shall forfeit," vest in the king a simple right to 
 enforce the forfeiture upon office found, and not the free- ' 
 
 (a) In Smith v. Chapman, 10 Grat. 445, it was held that a purchaser at a sale 
 of lands made by a commissioner of delinquent lands is not bound to prove that 
 all the previous proceedings of the commissioner and the Court were regular. 
 The proceeding is in the nature of a judicial proceeding, and the orders and 
 decree of the Court made in it are conclusive at least upon strangers. Parties 
 who would avail themselves of the provisions of the act of 1841 in relation to 
 forfeited and delinquent lands, which vests the title vested in the commonwealth 
 by the forfeiture in the actual occupants of land claiming under title derived 
 from grant, who have discharged all taxes duly assessed and charged against 
 them, and all taxes that ought to have been assessed and charged thereon from 
 tiie time they acquired title thereto,must show not only possession, but title, 
 from or under grant of the commonwealth, and possession witliin the grant. 
 Therefore parties in an action of ejectment, claiming title from a patent issued 
 on different entries and surveys of different dates, must show within which of 
 the entries and surveys the land lies, claimed by them as actual occupants and 
 of which title is claimed to have been vested in them by the act of 1841. Ken- 
 na's Heirs v. Quarrier's Heirs, 3 West Va. 210. 
 
532 FORFEITURES. 
 
 * 461 hold in * deed or in law.^ (a) " These inquests of 
 office," says the learned author of the commentaries 
 upon the laws of England, " were devised by law as an au- 
 thentic means to give the king his right by solemn matter of 
 record ; without which he, in general, can neither take nor 
 part from any thing. For it is a part of the liberties of Eng- 
 land, and greatly for the safety of the subject, that the king 
 may not enter upon and seize any man's possessions upon bare 
 surmises, without the intervention of a jury." ^ This reason 
 
 1 Dwarris' Stat. 743 ; Plowd. 486. 
 
 (a) In Tlievenin v. Slocum, 16 Ohio, 532, under the 10th sec. of the act of 
 January 30, 1822, providing, that where any tract exposed for sale is not sold 
 for want of bidders, it shall be the duty of the auditor offering the same for sale 
 to return the same to the auditor of state, &c., and the auditor of state "sMall 
 make a record thereof and the same shall be considered as forfeited to the State 
 of Ohio and be subject to be disposed of in such manner as any future legislat- 
 ure may direct," it was said that in an action of ejectment by the original pro- 
 prietor the defendant could not defeat the plaintiff's action by merely showing 
 that the land had been forfeited, without showing in addition that it has been 
 sold as such forfeited land. Proving an outstanding title in the State by forfeit- 
 ure would not be suflBcient. The Minnesota statute of 1862, sec. 2, provides 
 that lands -unredeemed, &c., on a certain date, shall become forfeited to the 
 State ; held, that if the legislature by this enactment attempted to do more than 
 confer on the State the power to take such further steps as were necessary in 
 the collection of delinquent taxes or in the perfection of tax titles, it exceeded 
 its constitutional limits. Baker v. Kelly, 11 Minn. 480; see also St. Anthony 
 Falls Water Power v. Greeley, 11 Minn. 826. In Schenk u. Peay, 1 Dill C. C. 
 R. 268, it is held, that Congress may denounce a forfeiture for the non-payment 
 of taxes, that will take effect ipso jure, but such forfeitures are not favored in 
 law, and the Courts, will not give a statute such a construction unless the in- 
 tention that it should have such an effect is clearly made to appear ; and lield, that 
 the forfeiture provided for in sec. 4 of the act of 1862 did not jiroprio vigore vest the 
 title of the United States until after the sale of the land. The clause reads as fol- 
 lows : " The title of, in, and to each and every piece and parcel of land upon which 
 said tax has not been paid as above provided, shall thereupon become forfeited 
 to the United States," and is followed immediately by another, which says, "and 
 upon the sale hereinafter provided for shall vest in the United States or in the pur- 
 cha.sers at such sale in fee-simple, free and discharged from all prior liens, incum- 
 brances, right, title, and claim whatsoever. Bennett v. Hunter, 9 Wallace, 326, 
 aflarraing s. c. 18 Grat. 100, also holds that the title does not vest propria vigore by 
 virtue of said sec. 4, and that said first clause merely declares the ground of the 
 forfeiture, viz. non-payment of taxes, while the second is intended to work the 
 actual investment of the title. That the sale is the public act which is equiv- 
 alent to office found. The Court, in delivering their opinion, intimate that ofBce 
 found or something equivalent is necessary before a forfeiture can be consum- 
 mated. 
 
 2 3 Bl. Com. 259. 
 
FORFEITURES. 533 
 
 is equally applicable to our government as to a monarchy ; or 
 rather, in a government founded upon the principles of liberty, 
 the reason is stronger than in any other. Lord Coke says that 
 in all statutes declaring forfeitures, "it is intended upon office 
 found ; incidents are ever supplied by intendment." ^ The 
 same doctrine is maintained in Dowtie's Case,^ and in Page's 
 Case.^ And it was recognized and applied by the Supreme 
 Court of the United States in Fairfax v. Hunter.* 
 
 The Virginia statute of 1790 provided, " that in case the 
 tax upon any tract of land shall not be paid for the space of 
 three years, the right to such land shall be lost, forfeited, 
 and vested in the commonwealth ; and it shall be lawful for 
 any person to acquire a title to such land so forfeited, in the 
 manner prescribed for acquiring titles to waste and unappro- 
 priated lands in the act of 1785, c. 42." The manner of 
 acquisition prescribed by the recited act, was by paying the 
 purchase-money into the land-office, upon which a warrant 
 was directed to issue in the name of the purchaser ; under 
 this warrant a location and survey was directed, and upon 
 the return of the warrant and survey, a patent was to be 
 issued to the locator. Infants, femes covert, and persons non 
 compos, were allowed three years to redeem, and thus 
 save the forfeiture. The law further * required a list- * 462 
 ing of the land, a return of the list, and a publication 
 of the delinquency of the owner. 
 
 In Kinney v. Beverley,^ the latter, who was the original 
 proprietor of the land, under a grant from the common- 
 wealth, brought an action of ejectment against Kinney, who 
 claimed under a warrant and survey, and patent of land 
 forfeited under the above-recited act of 1785. A special 
 verdict was found, that the land had never been valued by 
 the listers, that the list had never been returned, and that 
 the delinquency of the owner was not advertised. Nor did 
 it appear that the title had been vested in the commonwealth 
 by means of an inquisition, or in any other manner, except 
 by force of the statute. All of the judges agreed upon a 
 judgment in favor of Beverley, because, 1. The land was not 
 
 1 2 Inst. 221. 2 3 Coke, 10. 
 
 3 5 Coke, 52. * 7 Cranch, 603. 
 
 5 2 Hen. & Munf. 531. 
 
534 FORFEITURES. 
 
 valued ; 2. The list was never returned ; and, 3. The land 
 was not advertised. But Tucker went further, and held an 
 inquisition necessary, saying, " I have always considered 
 that, from the period of our revolution, the commonwealth 
 succeeded to the political character of the king, in all cases 
 whatsoever ; and that its rights, privileges, and remedies 
 were to be, in general, ascertained by the political character 
 of the king, where the same were not controlled or enlarged 
 by the express terms of the constitution, or the clear and 
 definite provisions of some statute of the commonwealth. 
 On this ground I have held, that the commonwealth could 
 neither take nor grant any thing, except by matter of rec- 
 ord." (He then cites Blackstone and Coke, and proceeds.) 
 " The conclusion which irresistibly presses itself upon my 
 judgment is, that previous to any grant or location thereof, 
 there must be some further inquiry made ; and as at present 
 advised, that this must be done, either by an inquest of 
 office, or some other mode to be provided for by the legislat- 
 ure, whereby the certainty of the lands may be shown, and 
 the seisin, as well as the right vested in the commonwealth. 
 A further reason in support of this opinion arises from that 
 
 principle of moral justice, recognized by Magna Charta 
 * 463 in England, and by our constitution, whereby* it is 
 
 declared that no man shall be disseised of his freehold 
 or be condemned, but by the lawful judgment of his peers, 
 or by the law of the land ; the meaning and intention of 
 which is, that no man shall be deprived of his property with- 
 out being first heard in his own defence. In the case before 
 us, the plaintiff has been disseised of his lands, and they 
 have been granted over to a third person, without notice or 
 warning whatsoever." ^ 
 
 • Upon this point, Judge Roane gave a contrary opinion, making use of the 
 common argument in favor of summary proceedings in collecting the revenue. 
 He says, " I cannot for a moment doubt the power of the legislature to pass the 
 law in question ; nor can I think that, under the influence of that power, and 
 the actual provisions contained in that law, there is any pretence to say, the loca- 
 tions under the act must be preceded by inquisitions of office. Such a construc- 
 tion would defeat the great end and object of our acts, in this particular; would 
 greatly affect our revenue ; and can only gain color by giving to the principles 
 of the common law, in respect of inquisitions, a supremacy over the positive acts 
 of the legislature." 
 
FORFEITURES. 535 
 
 The same doctrine was maintained in Robinson v. Huff.^ 
 The facts sufficiently appear in the following opinion of the 
 Court ; " This is an ejectment, in which the lessor of the plain- 
 tiff below gave in evidence a title derived from the common- 
 wealth. The defendant then gave in evidence a patent of 
 elder date, granted to Banks and Claiborne, who were strang- 
 ers to this controversy, covering the contested premises. To 
 avoid the effect of this, the plaintiff produced and read a 
 certified extract from the book of the auditor of public ac- 
 counts, showing that the claim of Banks and Claiborne was 
 sold to the State for taxes, in 1806, and never redeemed. 
 The Court below, then at the instance of the plaintiff, in- 
 structed the jury, that the legal title to the land claimed by 
 Banks and Claiborne was vested in the commonwealth by 
 the said sale, and that the elder legal title to the land in con- 
 troversy was of course in the lessors of the plaintiff. The 
 defendant below excepted to this instruction, and a verdict 
 and judgment having been rendered against him, he has ap- 
 pealed to this Court, and relies on this instruction as error. 
 It may be a question of some moment, how far the purchase 
 of Banks and Claiborne by the government could 
 * receive or infuse validity into the title of the lessor * 464 
 of the plaintiff, and whether the right of entry would 
 not pass exclusively to the State. But we do not suppose it 
 necessary to inquire into that question now ; for we are of 
 opinion, that the sale for taxes to the State did not pass the 
 legal title. It is a well-known rule of the common law, that 
 no freehold might be given to the king, nor derived from 
 him, but by matter of record.^ 
 
 In conformity with this principle, the Supreme Court of 
 the United States, in the case of Fairfax's Devisee v. Hun- 
 ter's Lessee,^ decided, that the statutes of Virginia, which 
 showed a strong intention in the legislature to take and pass 
 the title of real estate without" inquest of office, were insuf- 
 ficient for that purpose, without express provision to that 
 effect. No doubt this principle applies to our common- 
 wealth as it did to the crown, and it is doubtless a common 
 
 1 3 Lit. 38. 2 2 BI. Com. 844. 
 
 3 7 Cranch, 603. 
 
536 FORFEITURES. 
 
 law rule subject to the control of the legislature ; but it is 
 necessary that it should be clearly changed before we can 
 disregard it. The tract of land in question was sold in pur^ 
 suance of the provisions of an act of 1806.^ Before that 
 time, the sheriffs and register could only sell to individuals, 
 and the State was not allowed to bid. Deeds of conveyance 
 were to be executed by these officers before the title could 
 pass to the individuals. The act in question barely let in the 
 State as a purchaser or bidder at the register's sales, as to all 
 tracts which could not be sold to others, for the arrearages 
 of taxes due. These were to " be stricken off to the State." 
 Whether the register, in case such tracts were not redeemed, 
 was bound to convey them to the State, as to other pur- 
 chasers, to furnish such record as would pass the title, or, 
 whether further legislation was necessary, to place the title 
 in the State, we will not now inquire ; for there is no pre- 
 tension of any record here, by which the State could take 
 the title, except the entry on the books of the auditor, to 
 
 whom the register was bound to return an account of 
 * 465 the sales. We discover no provision * directing the 
 
 auditor to record these returns. We do not scruple 
 the power .of the legislature to have made the auditor's 
 books, or even these returns of the register, sufficient to pass 
 the title. But still it was necessary that they should make 
 such provision, before we can say that they intended to 
 affect the common-law principle. As such provision is want- 
 ing, we cannot say that the State took the legal estate. Of 
 course, the instruction of the Court below, which assumed 
 the position, that this sale, so evidenced, took the legal title 
 from Banks and Claiborne, and passed it to the State, so as 
 to render it inoperative against the junior grant of the lessor 
 of the plaintiff, was erroneous." 
 
 The Kentucky statute of 1801,2 provided that "any person 
 (infants and persons nvn compos mentis excepted) claiming 
 lands in this State, and failing to list the same for taxation, 
 in the case of a resident, when legally called upon by a com- 
 missioner of the tax, and in the case of a non-resident, with 
 the auditor, on or before the first day of October next, shall, 
 
 1 3 Litt. Stat. 335. 2 2 Litt. Stat. 463. 
 
FORFEITURES. 537 
 
 for, and in consequence of such failure, forfeit his or her 
 claim to the commonwealth." In Barbour v. Nelson,^ it ap- 
 peared that the plaintiff, who sued for a tract of land contain- 
 ing sixty thousand acres, had failed to list it for taxation, as 
 required by the law. Whereupon the Circuit Court instructed 
 the jury, that " the title was forfeited to the eomraonwealth, 
 and the title thereof and right of entry was thereby divested 
 out of Barbour ; and that, without an inquest of office, the 
 certificate of the auditor, showing that the land had not been 
 entered for taxation, was sufficient to show that the plaintiff 
 had no title." The Court of appeals reversed a judgment ren- 
 dered in pursuance of the foregoing instructions, saying, " If, 
 by the operation of this statute, the title to lands is divested 
 out of non-residents, immediately on a failure to comply with 
 its requisitions, in entering them for taxation, the instructions 
 of the Court below are correct ; but if before the title vests in 
 the commonwealth the failure to enter the lands for 
 taxation should be * ascertained by an office of inquisi- * 466 
 tion, then, as no such inquisition appears to have been 
 taken, as to the land patented to Barbour, the instructions of 
 the Court cannot be sustained. That there must be an office 
 of inquisition, before the. title vests in the commonwealth, 
 will be apparent, if those rules of construction be applied 
 which have invariably governed the English Courts, in ex- 
 pounding their acts of Parliament, declaring forfeitures to the 
 king. Thus, it has been held, where a man is attainted by 
 Parliament, and it is thereby ordained, that all his lands shall 
 be forfeited, and it is not said that they shall be in the king 
 without office, that they shall not be in the seisin of the king, 
 to grant over, without office, for it does not appear of record 
 what lands they are.^ And -while speaking on the subject of 
 inquests of office, Blackstone, in the third volume of his Com- 
 mentaries, observes : ' These inquests of office were devised 
 by law, as an authentic means to give the king his rights by 
 solemn matter of record ; without which, he, in general, can 
 neither take nor part from any thing.' And the reason as- 
 signed is, that ' it is a part of the liberties of England, and 
 
 1 1 Litt. 60. 
 
 2 Broke, title OflBce, cited and recognized in 2 Plowd. 486, and 3 Coke, 10. 
 
538 POEPEITDBES. 
 
 greatly for the safety of the subject, that the king may not 
 enter upon, or seize any man's possession, upon bare surmiges, 
 without the intervention of a jury.' Other authorities, to the 
 like import, might be cited ; but these are sufficient to show 
 that, in general, the king can take nothing but by matter of 
 record, and that there must be an inquest of office to entitle 
 him to forfeited lands, unless the statute declaring the for- 
 feiture, declares the title to be in him without office. If, 
 therefore, those rules to which we have adverted are to have 
 any influence on the construction of the statute of this coun- 
 try, it is obvious that, before office found, the commonwealth 
 cannot be vested with the title to lands not entered for taxa- 
 tion ; for the statute barely declares that the person failing 
 to enter his lands shall forfeit his claim to the common- 
 wealth, without containing any expressions from which it can 
 be inferred that the legislature intended to dispense with 
 
 the inquest of office. It is true, in the proviso to 
 * 467 * the statute there is not only a saving of the rights of 
 
 others, but it is declared, also, that such rights shall 
 be and remain as valid and secure as if the claim which has 
 been forfeited had never existed ; but that proviso, we ap- 
 prehend, ought not to induce a construction more unfavorable 
 to the forfeited claim than would have been proper without 
 it. Under that proviso, it would no doubt be impracticable 
 for a purchaser of a forfeited claim, after office found, to over- 
 reach an adverse title, derived from the commonwealth, junior 
 in date to that which had. been forfeited, and which existed at 
 the time of the forfeiture ; but as, without the proviso, the 
 commonwealth could not be vested with the forfeited title 
 without office, so, under the proviso, those having adverse 
 titles ought not to be allowed to* set up the forfeiture to pro- , 
 tect their title, until, by inquest of office, the title is divested 
 out of the person failing to enter it for taxation. And with 
 respect to the application of those rules of construction to 
 the statutes of this country, we are utterly unable to perceive 
 any solid objection. The king, in his political character, is 
 nothing more nor less than policy and government, constituted 
 for the direction of the people ; and by the change of govern- 
 ment, produced by the revolution, the commonwealth of 
 
FORFEITURES. 539 
 
 necessity has succeeded to that political character. There 
 is an obvious propriety, therefore, in ascertaining the rights 
 and remedies of the commonwealth, in the general, by the 
 standard of the common law, as respects the political character 
 of the king, where the same are not varied by the terms of the 
 constitution or some statutory provision." 
 
 It -will be perceived, upon a careful examination of the fore- 
 going opinions, that the common-lavf rule virhich requires an 
 inquest of office, is applicable to the case of lands forfeited to 
 the State for the continued delinquency of the owner, unless it 
 has been changed by the positive provision of the statute ; that 
 the rule will not be considered as changed unless the words of 
 the act are clear and explicit ; and that the opinion of Judge 
 Tucker is, that a law positively dispensing with the inquisition, 
 is a violation of that principle of constitutional law which de- 
 clares " that no man shall be disseised of his freehold, 
 ■ but by * the judgment of his peers, or the law of the * 468 
 land." It must be confessed that, if at common law an 
 inquisition was requisite to vest title in the government, in this 
 class of cases, — and this seems to be admitted by Coke and 
 Blackstone, — it is difficult to perceive why the term, " law of 
 the land," should not be construed in this country under our 
 constitutions, according to the interpretation given to Magna 
 Charta. The fact of a failure to list, and the location of the 
 land in the one case, and the non-payment of the tax and de- 
 scription of the land in the other, ought to be ascertained judi- 
 cially, and not left to the determination of the auditors* or listers. 
 There ought to be some higher evidence of title in the govern- 
 ment than a mere certificate or return of a ministerial officer. 
 It will also be seen, that this inquisition is essential even where 
 the State becomes the purchaser of the land by bidding at the 
 sale, upon the ground that the delinquency of the owner — the 
 fact that there were no other bidders — and the designation of 
 the land must be ascertained judicially. However, it does not 
 very clearly appear why the State may not stand upon the 
 same footing with other bidders at the sale, unless it is because 
 of the anomalous implication, that the officer of the State may 
 convey to the State the land of another, and act as the agent 
 of the State in the double capacity of auctioneer and bidder. 
 
540 FORFEITURES. 
 
 This difficulty is obviated in North Carolina, Ohio, Michigan, 
 and Illinois, by express statutes, (a) In the former State, if 
 no one bids at the sale upon a less quantity than the- whole 
 tract offered, the governor is regarded as a bidder for the 
 entire parcel, and the officer conducting the sale, is required 
 to execute and deliver to the governor, for the use of the State, 
 a deed for the same.^ 
 
 In Ohio, it has been the universal practice, under the statutes 
 .passed from time to time, for the officer to strike off the lands 
 unsold to the State, and they were regarded as redeemable until 
 the legislature took some steps to dispose of them. After a con- 
 siderable accumulation of such forfeited lands in the hands of 
 the State, the legislature have authorized them to be 
 * 469 disposed of * at public vendue, either by the State au- 
 ditor, who was required to advertise the time and place 
 of sale, or that officer was directed to send a transcript of the 
 list to the auditor of the county in which the lands lay, and 
 the latter was directed to advertise and sell them as in ordi- 
 nary cases.^ 
 
 The statute of Illinois ^ declared that " every tract of land 
 or town lot offered for sale by any collector, as hereinbefore 
 provided, and not sold for want of bidders, shall be, and the 
 same is hereby declared to be, forfeited to the State of Illinois, 
 and thenceforth, all right, title, and claim of the former owner 
 or owners shall be considered as transferred to and vested in 
 the State." The statute allowed owners laboring undernolegal 
 disabilities, two years to redeem, and infants, married women, 
 and lunatics, one year after their disabilities were respectively 
 removed, upon payment to the county clerk of double the 
 amount for which the land was sold, all taxes subsequently ac- 
 cruing, and six per cent interest. The clerk was required to 
 transmit a list to the auditor, of lands redeemed, semi-annually. 
 The auditor was directed to furnish, in turn to the clerk, a 
 list of all lands lying in his county, which had been forfeited to 
 the State ; and the clerk was authorized to advertise and sell 
 
 (a) See 1 Comp. Laws of 1871, § 1053. 
 
 1 Register v. Bryan, 2 Hawks, 17 ; Jones v. Gibson, 2 Taylor (N. C), 41. 
 
 2 Buckley v. Osborn, 8 Ohio, 180 ; Haniiel u. Sraitli, 15 Oliio, 13i. 
 
 3 Eev. Stats. 1845, pp. 448, 450, sees. 77-90. 
 
FORFEITURES. 541 
 
 the same biennially. The sheriff was required to assist in the 
 sales. The clerk was directed to execute and deliver certifi- 
 cates of sale to the purchasers, and on presentation of these cer- 
 tificates, the auditor was required to convey the lands to them. 
 Such are the substantial provisions of the statute of 1846. 
 The language of this law is broad enough to vest the title ipso 
 facto in the State. It is free from all ambiguity whatever — 
 declares the title of the owner forfeited and transfers it to the 
 State. If constitutional, which, as we have seen, is at least a 
 . debatable point, the purchaser, at a sale of these forfeited lands, 
 will acquire a valid title, where the law has been strictly com- 
 plied with b}'- the officers making the sale. The only require- 
 ments are, a list transmitted by the auditor to the clerk, 
 an advertisement *by the clerk, and a sale by the clerk * 470 
 and sheriff.^ It may be a question, however, whether the 
 owner may not redeem at any time before a legal sale of his land 
 takes place. The prior statutes of Illinois were similar to the 
 Ohio acts referred to ; if the land was not sold at the ordinary 
 tax sale, they were directed to be stricken off to the State, and 
 afterwards sold to the highest bidder. It is presumed, that in 
 all cases where lands have been forfeited or struck off to the 
 State, they cease to be taxable : and if again listed and sold 
 by the officers the purchaser will acquire no title.^ 
 
 And under the Ohio and Illinois statutes, the county auditor 
 in the former, and the county clerk in the latter State, cannot 
 advertise and sell, until they are furnished with a transcript 
 of the forfeited lands by the State auditor.^ 
 
 The Ohio statute of February 1, 1825, declared, that forfeited 
 lands should vest in the State, with a proviso that the farmer 
 owner might reinvest himself with the title by paying all taxes, 
 penalties, and interest due upon the land, at any time prior to 
 the disposition of the land by the State. The act of March 14, 
 1831, made provision for the sale of the land, and declared, 
 " that if any lands shall be sold by virtue of the provisions of 
 this act, the property of a feme covert, minor, or insane person, 
 
 1 Buckley v. Osborn, 8 Ohio, 180. 
 
 "^ Of course, the proceedings prior to the forfeiture must have been regular in 
 all respects. 
 
 8 Hannel v. Smith, 15 Ohio, 134. 
 
542 FORFEITURES. 
 
 or person in captivity, the owner or owners thereof shall have 
 the right to redeem the same," &c. In Reynolds v. Leiper's 
 Heirs,^ which was an application to redeem from a sale made of 
 forfeited lands under the foregoing statutes, it appeared that 
 the land in question belonged to Thomas Leiper, and was for- 
 feited in 1826. Leiper died in May, 1851, leaving the appli- 
 cants his heirs, all of whom were minors ; the land was sold 
 December 12, 1831, for the taxes due thereon for the years 
 1826, 1827, 1828, 1829, 1830, and 1831. The redemption 
 was resisted upon the ground that, as the forfeiture. 
 *471 happened during * the lifetime of the ancestor, no such 
 estate descended to the heirs, as would authorize them 
 to redeem. The Common Pleas ordered a redemption, and 
 the order was affirmed by the Supreme Cpurt. 
 
 In Hodgdon v. Wight,^ where land was forfeited to the State 
 for the non-payment of taxes due upon it, and afterwards sold 
 and conveyed to the purchaser, and between the day of for- 
 feiture and the day of the sale, the owner paid several assess- 
 ments of State taxes due upon the land, which were received 
 by the State without objection, and appropriated ; this was held 
 to be no waiver of the forfeiture. By the Court : " It is insisted 
 that the State could not assess the land as owned by others, 
 and receive payment from them for such taxes, and yet claim 
 to be itself the owner of those lands by forfeiture. There would 
 have been an inconsistency in such proceedings, if there had 
 been no intention to permit the owners to redeem. The State, 
 however, does not appear to have insisted upon forfeitures 
 when it could obtain payment without. Such a course of pro- 
 ceedings might, perhaps, be properly regarded as a pledge,' that 
 the owners would be permitted to redeem. Bj^the act approved 
 August 10, 1848, the owners of the lands forfeited, were not 
 only permitted to redeem them from the State, until they were 
 finally sold at auction by the land agent, but provision was 
 made that they might redeem from the purchaser at any time 
 within one year after the sale. Under such circumstances, by 
 continuing to assess them, and to receive payment of taxes, the 
 State cannot be considered to have waived any claim to a for- 
 
 1 6 & 7 Ohio, 250. 2 36 Me. 326. 
 
FORFEITURES. 543 
 
 feiture, further than it has manifested an intention to do so by 
 its enactments." ^ (a) 
 
 There was a statute in Ohio, which made it the duty of 
 tenants for life to list the estate and pay all taxes assessed 
 upon it, and declared that a neglect to do so " shall forfeit to 
 the person or persons in remainder or reversion, all the es- 
 tate which he or she, so neglecting or refusing, may 
 have in said lands," * &c. In the Lessee of McMillan * 472 
 V. Bobbins,^ which was an action of ejectment by the 
 reversioner to enforce a forfeiture under this statute, it ap- 
 peared, upon the trial, that William McMillan, the owner, 
 made a will devising the lands to his wife for life, with re- 
 mainder to the lessors of the plaintiff, and died. The wife, 
 on February 29, 1825, made a lease to the defendant of the 
 premises thus devised to her, and Avhich were the same in 
 controversy, for and during the term of her natural life, 
 upon certain trusts for herself and minor children, and there- 
 upon the defendant entered into possession. Neither the 
 tenant for life, nor her lessee, ever caused the land to be 
 listed for taxation in the name of the one or the other, 
 but it stood listed in the name of the " heirs of William 
 McMillan." The taxes for 1827 and 1828' were not paid, 
 and the land was sold for these taxes in December, 1828, to 
 William Corry, one of the lessors of the plaintiff. On April 
 
 1 Where land is claimed by forfeiture, under act of 1844, the legality of pro- 
 ceedings may be questioned without paying or tendering tax, as ch. 6, § 145, of 
 Eev. Stats, of 1857, requiring such payment or tender, relates to sales and not 
 forfeitures. Williamsburg v. Lord, 51 Me. 599. 
 
 (o) So in Crane v. Reeder, 25 Mich. 303, it was held, that the State did not 
 waive its right to insist upon an escheat, or estop itself from afterwards claiming 
 lands as escheated lands, by causing the same to be assessed for taxation to one 
 who occupied them, and taking proceedings to enforce payment of the taxes by 
 selling the lands for delinquent taxes. But in Clarke v. Strickland, 2 Curtis, C. C. 
 439, it was held, that if a tax was legal, and the land forfeited for the non-payment 
 of the same, the forfeiture was waived by the levy of anotlier tax after the title 
 of the State had become perfect under the forfeiture ; and that the act of August 
 10, 1848, ch. 65, giving further time for the payment of the tax, was also a com- 
 plete waiver of all the prior forfeitures ; but that if considered as a conditional 
 and not an absolute waiver and remission, and so that the title in the case be 
 considered ultimately to rest on the old forfeiture, yet, whatever title the tenant 
 derives from the sale' thereunder must have its foundation in this law, because it 
 was under the authority of this that the sale was made. 
 
 2 5 Ohio, 28. 
 
544 FORFEITURES. 
 
 28, 1829, the defendant deposited with the county auditor 
 money to redeem from the tax sale. Judgment was ren- 
 dered for the plaintiff, the Court holding, — 1. That the law- 
 was constitutional. 2. That it applied as well to tenants for 
 life who held the estate in trust, as to ordinary tenants. 3, 
 That a forfeiture had been incurred. 4. That the defendant 
 could not redeem, because his interest was divested by the 
 forfeiture, and a redemption could not restore him to his 
 former rights ; and, 5. That the remainder-man could en- 
 force the forfeiture by ejectment. 
 
 [A statute of Virginia, of March 11, 1834, the last of a 
 series postponing the time of forfeiture and extending the 
 time within which redemption could be made, provided, that 
 lands, delinquent as to taxes, should be forfeited October 1, 
 1834. Subsequent acts extended the time for the redemp- 
 tion of such forfeited lands till July 1, 1838, but treated the 
 lands not as delinquent merely, but as forfeited. Under 
 these acts it was held, in Usher v. Pride, ^ that the forfeiture 
 became complete and the title of the owners divested Octo- 
 ber 1, 1834, and that the subsequent statutes granted them 
 a mere right to redeem, and to revest the title by such re- 
 demption within the after-limited time, and did not remove 
 the forfeiture, or postpone the time when the title was to 
 divest.] 
 
 I 15 Gratt. 190. 
 
EFFECT OF A REPEALING STATUTE, 645 
 
 CHAPTER XXXIII. 
 
 OF THE EFFECT OF THE EEPEAL OP THE LAW UNDEE WHICH THE 
 PROCEEDINGS TOOK PLACE. 
 
 It is a well-established principle of law, that when a statute 
 is repealed, it must be considered, as to all transactions in 
 fieri, closed — as never having had an existence at all.^ This 
 rule is subject to two exceptions : 1. Where existing rights 
 and remedies are expressly saved by the repealing clause ; 
 and, 2. Where rights have become perfected and vested 
 under the old law, the repealed statute is regarded as in full 
 force, notwithstanding its repeal. In the former case the 
 old law is regarded as in full force, because the legislature 
 have so declared, and its authority is amply sufficient to ac- 
 complish that intention ; and in the latter instance, where a 
 right has become vested, it is not within the scope of legisla- 
 tive power to divest it by a repeal of the statute under which 
 it was acquired.^ 
 
 The general rule is illustrated by the case of McQuilken v. 
 Doe,^ where the land in question was sold November 4, 1824, 
 for the State, county, and road tax. The road tax was 
 assessed under the law of 1822, which was repealed Septem- 
 ber 1, 1824, after the assessment of the tax, but before the 
 sale took place. The repealing law contained this clause : 
 "saving, however, any act done, &c., previous to the passage 
 of this act, &c." The Court held the sale void, saying, 
 " The road law being thus repealed, the case is with- 
 out difficulty. The law is well * settled, that when a * 474 
 statute is repealed, it must be considered, except as to 
 transactions passed and closed, as if it had never existed. 
 The case before us is one where a statute, requiring a certain 
 tax to be collected, and prescribing the mode of its coUec- 
 
 1 Dwarris, 676 ; Smith's Comm. 890. 
 
 2 Smith's Comm. ch. 19. ' 8 Black. 581. 
 
 85 
 
546 EFFECT OF A REPEALING STATUTE. 
 
 tion, was absolutely repealed, at least two months before the 
 sale in question to enforce the payment of the tax was made ; 
 and we hold that such sale, and all the proceedings for the 
 collection of the tax, after such repeal, were void." 
 
 The lUinois statute of February 26, 1839, which prescribed 
 a new mode of proceeding to enforce the collection of taxes,^ 
 contained this clause : " All acts and parts of acts, coming 
 within the purview and meaning of this act, and all laws or 
 parts of laws heretofore passed, exempting town lots and 
 other property in incorporated towns from taxation, for State 
 and county purposes, together with all laws heretofore en- 
 acted, requiring merchants to obtain a license to sell goods, 
 are hereby repealed : provided, that the repeal of said acta 
 shall in no way affect or impair any right or interest acquired 
 under said acts." An ejectment cause came before said Cir- 
 cuit Court of the United States for the District of Illinois, 
 several years since, where the defendant relied upon the 
 statute of limitations, basing his adverse possession under 
 the act " to quiet possessions, and confirm titles to land," 
 approved March 2, 1839,^ which required " claim and color 
 of title made in good faith," upon a deed made in pursuance 
 of a sale for taxes, held after the repealing statute above 
 recited took effect, and which sale was conducted in pursu- 
 ance of the repealed law. The cause was fully argued, and 
 Judge Drummond held, upon general principles, and the 
 authority of the Indiana case, that the sale was void; that 
 the saving clause in the act had reference only to vested 
 rights acquired by purchasers, under sales made prior to the 
 passage of the repealing statute, and not to the right of the 
 State to collect the tax under proceedings in fieri; that it 
 
 was a saving of private rights, and not of those belong- 
 * 475 ing to * the public ; that the tax deed was void upon 
 
 its face, when tested by the law ; and that the defend- 
 ant had no color and claim of title within the meaning of the 
 statute of limitations.^ 
 
 1 Ante, pp. * 190, * 199. 
 
 2 Session Laws, 1839, p. 266. 
 
 » So in Iowa, where the revenue act of 1847 was repealed by the Code with- 
 out any saving of the existing remedies for the collection of taxes levied and 
 
EFFECT OF A REPEALING STATUTE. 547 
 
 The same principle was maintained by Judge Minshall 
 (now deceased), upon the circuit. The question never came 
 before the Supreme Court of the State, and it is presumed that 
 the decisions in both cases were satisfactory to the bar. 
 Certain it is, they were correct upon general principles. All 
 inchoate rights derived under a statute, are lost by its repeal, 
 unless expressly saved. [In Bryan v. Harvey ,i (a) an act of 
 1842 had enacted, that the tax collector, upon the sale of 
 land for taxes, should give the purchaser a certificate, and if 
 the land was not redeemed within one year, the tax collector 
 or his successors should give a deed, &c. The act of 1846 
 provided, that where sales were afterwards made, the deed 
 should be delivered immediately, but contained no provision 
 as to taxes previously levied, nor to cases where certificates 
 were outstanding, and it contained no words of repeal. It 
 was held that the successor of the tax collector who had sold 
 and given a certificate under the act of 1842, had no power 
 to give a deed, after that act was impliedly repealed by the 
 act of 1846, it being a power not coupled with an interest, 
 and necessarily revoked by the repeal of the statute con- 
 firming it.] It is otherwise, however, in regard to such civil 
 rights as have become so far perfected as to stand independ- 
 ent of the statute ; or, in other words, such as have ceased 
 to be executory, and have become executed and vested.^ 
 The rule, that vested rights acquired under a law are not 
 affected by a repeal, is founded in good sense and reason, 
 and is consonant to the fundamental principles of natural 
 justice. It was derived from the civil law. Puffendorf re- 
 marks, that " the law itself may be disannulled by the author,- 
 but the rights acquired under it must still remain." This 
 principle of natural justice has become one of the axioms of 
 
 delinquent, and there was no authority under the Code for selling, in 1852, lands 
 delinquent for the taxes of 1848, it was keld, that the county treasurer's deed of 
 real estate, made under a sale in 1852 for the delinquent taxes of 1848, conveyed 
 no title to the purchaser. Bleidorn v. Abel, 6 Clarke (Iowa), 5. 
 
 » 11 Texas, 311. 
 
 (a) The constitutional question as to whether such a repealing statute did 
 not impair the obligation of the contract of sale was not discussed iu this case, 
 either by counsel or the Court. See p. * 299. 
 
 2 Butler V. J^almer, 1 Hill, 324. 
 
548 EFFECT OP A EEPEALING STATUTE. 
 
 constitutional law in this country. No vested right 
 * 476 to property, acquired by * virtue of a statute, can be 
 
 divested by a repeal or modification of the law.^ 
 This principle was fully discussed by the counsel, and con- 
 sidered by the Court, in Bruce v. Schuyler,^ where the de- 
 fendant in error claimed title to the land in question, under a 
 tax sale, made January 12, 1833, in pursuance of the acts of 
 1827 and 1829. He paid the purchase-money, and received 
 a certificate of sale at the time of his purchase, but the deed 
 was not executed until November 8, 1833. Between the day 
 of the sale and the time when the deed was executed, the 
 laws of 1827 and 1829, as the counsel for the plaintiff in error 
 contended, were repealed (February 27, 1827), thereby de- 
 priving the auditor of the power to execute and deliver a 
 deed to the purchaser at a sale made prior to the date of the 
 repealing act. In delivering the opinion. Chief Justice Wilson 
 said, " But there is a constitutional ground upon which this 
 question may be placed, that, I think, is conclusive. I admit 
 that a Court ought not to declare a law unconstitutional, un- 
 less the opposition between it and the constitution is direct 
 and clear ; but when such is the case, the duty of the Court 
 is imperative, and if it should shrink from its performance, it 
 would betray the trust confided to it. Was it within the con- 
 stitutional competence of the legislature to abolish the power 
 of the auditor to make a deed after the passage of the act of 
 1833, to land sold prior to that time, under the act of 1827, 
 and thereby deprive a purchaser of a deed from that officer, 
 or any other authority competent to make a valid one ? The 
 Constitution of the United States provides that no State shall 
 pass any law impairing the obligation of a contract, &c. The 
 State constitution contains the same prohibition upon the 
 power of the legislature, with the difference of the word 
 ' validity ' in the place of that of ' Obligation,' used in the 
 
 Constitution of the United States. Is the sale made 
 *477 by the auditor *of the land in question a contract 
 
 > Fletcher v. Peck, 6 Cranch, 87 ; Benson v. Mayor of New York, 10 Barb. 
 223; Plymouth v. Jackson, 3 Harris (Penn.), 44; Butler v. Chariton County 
 Court, 13 Mo. 112; Wright v. Marsh, 2 G. Greene, 94. 
 
 a 4 Gilm. 221. 
 
EFFECT OP A REPEALING STATUTE. 549 
 
 within the meaning of the constitution? That, I think, 
 will be manifest by adverting to the law authorizing the 
 sale, and the action under it. In order to collect its rev- 
 enue, the State authorizes the auditor to sell the land of 
 delinquent tax-payers ; that officer accordingly gives notice 
 that he will sell all such lands at a time and place specified ; 
 and as an inducement to purchasers, the law provides that 
 the auditor shall give to the purchaser a certificate of pur- 
 chase, or a deed, at the option of the purchaser, to the whole 
 or such part of each tract of land as he may purchase and pay 
 the tax due thereon. Upon these terms the land is sold, the 
 stipulated price paid by the purchaser, and a deed therefor 
 executed by the auditor ; but before the deed is made, the 
 law authorizing this officer to sell and convey delinquent 
 lands is said to be repealed, and the duty of making these 
 sales is imposed upon other officers. The case thus stated 
 embraces all the constituent parts of a contract, so. fully and 
 clearly, as to leave no doubt as to the character of the trans- 
 action. All argument, therefore, to prove it a contract, would 
 be superfluous, and that it is such an one as is contemplated 
 by the constitution, can, I think, be made equally clear, knd 
 if so, it follows, that the legislature could not constitutionally 
 destroy the authority of that officer to convey the land ac- 
 cording to the terms of sale, by a repeal of the law requiring 
 the performance of that duty. Such an act wovild impair the 
 obligation of the contract, and would consequently be void. By 
 a series of adjudications, the constitutional provision referred 
 to has been so construed as to protect the validity of contracts 
 from all legislative encroachment, in any and every form in 
 which it may be assailed. Any act, therefore, which changes 
 the expressed intention of the parties to a contract, or that 
 which results from their stipulations, is held to impair its 
 validity, and it is immaterial, as to the extent or the manner 
 of the change, whether it be ever so minute, or relates to its 
 construction, its evidence, or the time or manner of its per- 
 formance, the conclusion is the same. Every conceivable 
 change of a contract impairs its validity, and renders it nuU 
 and void. This constitutional provision extends to 
 and embraces both contracts * executed and execu- * 478 
 
550 EFFECT OF A REPEALING STATUTE. 
 
 tory, and as well those entered into by a State, as those 
 made by individuals. And in a leading case upon this sub- 
 ject, it has been held by the Supreme Court of the United 
 States, that a legislative grant is a contract within the mean- 
 ing of the constitution, and that a subsequent act of the leg- 
 islature repealing it, was null and void for that reason. It is 
 insisted, however, by the counsel for the defendant, that the 
 subsequent act of the legislature, which repealed the fourth 
 section of the act, which requires a conveyance to be made to 
 the purchaser, is not in conflict with the constitution, because 
 it operates only upon the remedy of the purchaser, and not 
 upon the obligation of the contract, and numerous authorities 
 are referred to for the purpose of sustaining this position, but 
 they totally fail to do so. The execution of a deed to the 
 purchaser, by the auditor at the time and in the form pre- 
 scribed by the law, is as much a part of the contract as any 
 other portion of it. It is one of the stipulations contained in 
 the law, as an inducement to the purchase of the land, and 
 from its importance as confirming and evidencing title, it can- 
 not be doubted, was in the contemplation of the purchaser at 
 the time he made the contract. It therefore enters into and 
 forms a part of the binding obligation of the contract, as much 
 as the agreement of the purchaser to pay the price of the land 
 at which it was bid off by him. It is not controverted that 
 the legislature may change the nature and extent of the 
 remedy, by which a contract and the rights of the parties 
 may be enforced. But the cases referred to bj'^ the counsel 
 for the defendant, to justify the repeal insisted upon, are such 
 as affect vested rights which are not secured by any constitu- 
 tional provision, by reason of their not vesting under a con- 
 tract, or such as take away a peculiar privilege, conferred by 
 prior act, or the repeal of a penal or criminal law, by which 
 the jurisdiction of the Court is divested, before any right un- 
 der it has ripened into a contract or vested interest. The 
 authority to either repeal or modify, according to their nature, 
 these pre-existing laws is admitted. There is also another 
 class included in the reference, recording and limitation 
 laws, in relation to which a great stretch of legislative 
 *479 * power is allowed, yet, even with regard to them, it 
 
EFFECT OF A REPEALING STATUTE. 651 
 
 is not without its limit. The obUgation of a contract is 
 that which obliges a party to perform his contract, or re- 
 pair the injury done by a failure to perform ; and, as regards 
 the remedy, it may be modified by the legislature, but not 
 entirely abolished, for in substituting oue mode of proceeding 
 for another, they must afford a reasonable remedy. An act 
 that should wholly extinguish all existing remedy, so as to 
 leave no redress and no means of enforcing a contract, would, 
 by operating in presenti, impair its obligation. If, therefore, 
 the act of 1833 be regarded as abolishing the power of the 
 auditor to make the deed in question, it is equally obnoxious 
 to the constitutional prohibition, whether it is considered as 
 operating upon the obligation, or the remedy upon the con- 
 tract, because it extinguishes all redress, by taking from the 
 purchaser all remedy against the only one who had authority 
 to make the conveyance, without substituting any one in his 
 place for that purpose, which might have been done ; for it is 
 not contended that there is, or can be, a vested right in a 
 particular remedy, or in a special mode of administering it. 
 In these, then, there is no vested right, but there is such 
 a right in some substantial and efficient remedy, and that 
 right is as much within the protection of the constitution as 
 the obligation of the contract. The act, therefore, that takes 
 away the old remedy, as is contended has been done in this 
 case, without providing a new one, is repugnant to the con- 
 stitution and void. It has been suggested by counsel, that 
 the legislature would make a deed upon a proper application ; 
 but that is not an adequate remedy, the grant of which de- 
 pends upon the will of the legislature. ' When,' says Judge 
 Story, ' we speak of the obligation of a contract, we include, 
 in the idea, some known means, acknowledged by the munic- 
 ipal law, to enforce it.' It is also a well-settled principle, 
 that the repeal of a law in which a contract consists, is an in- 
 fringement of the constitution. A legislative grant is a con- 
 tract of this description, and so is the one under consideration, 
 so far as relates to the conveyance. A repeal, therefore, of 
 that part of the law which provides for a conveyance, 
 would impair to that extent, the obligation of * the * 480 
 contract. Whatever diversity of opinion, therefore, 
 
552 EFFECT OP A REPEALING STATUTE. 
 
 there may be, as to how far the existing law enters into, and 
 forms a part of, a contract between individuals, as a general 
 rule, I think there can be no question that it does so in this 
 case, and that the purchaser's title to a deed cannot be taken 
 from him by the repeal of a law that forms part of the con- 
 tract. If it was otherwise, then every executory contract 
 entered into by the State, or its officers on her behalf, in 
 virtue of an act of the legislature, may be avoided by them at 
 discretion, although the terms of the contract have been 
 complied with by the other contracting party." 
 
 It is well settled, that repeals by implication are never 
 favored, and that the repugnancy between a prior and subse- 
 quent statute must be of such a character that the two cannot 
 be reconciled with each other, and made to stand together. 
 In this connection it may be added, that no revenue law is to 
 have a retrospective operation, unless the language of the law 
 is so clear and explicit as to leave no room for doubt, and 
 even then, if such retroaction has the effect to divest rights 
 acquired under the prior law, such a construction cannot be 
 tolerated.! And it may be laid down as a general rule, that 
 in determining the validity of a tax title, the case must be 
 governed by the law as it stood at the time of the assessment 
 and sale.2 
 
 1 Garrett v. Wiggins, 1 Scamm. 335. 
 
 2 Crown V. Veazie, 25 Me. 359 ; Eldridge v. Tibbitts, 5 La. Ann. 380. Wiiere 
 a sale was made wiiile the law extending a married woman's right of redemption 
 beyond three years was in force, the subsequent repeal of that law did not affect 
 the right to redeem from such sale. Adams </. Beale, 19 Iowa, 61 ; Myers v. 
 Copeland, 20 Iowa, 22. And conversely there is a vested right on the part of a 
 purchaser to acquire an absolute title if the land is not redeemed within the time 
 fixed by the law existing at the time of sale. See authorities cited on page *299. 
 Subject also somewhat considered in McCulIoch v.. Dodge, 6 B. I. 346. 
 
JURISDICTION AND REMEDIES. 553 
 
 CHAPTER XXXIV. 
 
 OP THE JURISDICTION OF THE COURTS IN CAUSES INVOLVING THE 
 VALIDITY OP TAX SALES, AND OP THE REMEDIES OP PARTIES 
 INTERESTED THEREIN. 
 
 Ordinarily, the validity of a tax, and the regularity of the 
 proceedings to enforce its collection, are questions properly 
 cognizable in a Court of law.i (a) But a Court of equity un- 
 doubtedly possesses ample authority to restrain a tax sale, 
 where injustice might result, but for this restraining power. 
 It is well established, that equity will restrain the sale of an 
 estate, in all cases of trusts, and special authorities, where the 
 sale would be inequitable, or operate as a fraud upon the rights 
 or interests of third persons ; and especially where the trustee 
 is about to abuse his trust, or the donee his authority .^ This 
 principle is applicable to tax sales. Where the officer has no 
 power to sell, or proceeds to sell without observing the more 
 essential requirements of the statute, under which he derives 
 his authority, a Court of equity may enjoin the sale.^ (6) The 
 
 ' That a Court will not order the marshal to put the purchaser at a tax sale 
 in possession, but will leave him to his remedy at common law, see Jennings v. 
 Rudd, 40 Ga. 49. In 1858, the legislature of Michigan attempted to confer the 
 power of adjudicating upon tax titles upon Circuit Court Commissioners, but the 
 Supreme Court held, that this was a judicial power, and could not be constitu- 
 ' tionally vested in those officers. See Art. 6 of Michigan Constitution, § 6; 
 Waldby v. Callendar, 8 Mich. 430 ; see also Case v. Dean, 16 Mich. 12. 
 
 (a) By certiorari in New Jersey. See State v. Baxter, 36 N. J. Law, 188 ; State 
 V. Mayor, 36 N. J. Law, 288. Within the period of redemption the principal 
 may either sue in equity for relief from the fraud of his agent in taking a tax 
 deed in his own name, by compelling the conveyance of the title or otherwise, 
 or he may maintain ejectment, relying on the fraud as estopping the defendant 
 from setting up the tax title. McMahon v. McGraw, 26 Wise. 614. That fraud 
 avoids a tax deed at law as well as in equity, see also Matter v. Hutchinson, 
 25 Wise. 27. But in Mt. Carbon Coal & R.R. Co. v. Andrews, 53 111. 176, it 
 was hdd that the validity of a tax could not be tested by replevin. 
 
 2 Waterman's Eden on Injunctions, 339, note. 
 
 3 That equity will not enjoin a tax attempted to be levied by an qfScer ds 
 facto under authority incident to his office, but may do so if the levy is by one, 
 without color of ofSce, to which such power is incident, see Muiison v. Minor, 
 22 111. 594. 
 
 (4) In Hannewell v. Charleston, 106 Mass. 350, it is held that the sale of land 
 
664 JURISDICTION AND REMEDIES, 
 
 officer has no right to proceed in such a case or in such a 
 manner ; ^ and the execution of the power under such circum- 
 stances, is calculated to cast a cloud (a) upon the title of the 
 owner, (5) and to render it unmarketable, in the equi- 
 * 482 table sense of that term. And the effect * may be, that 
 
 for taxes will not be enjoined, though the tax is illegal and void, there heing an 
 adequate remedy at law by action to recover back the tax. See also Loud v. 
 Charleston, 99 Mass. 208. So, for a similar reason, it is held in the following 
 cases that the collection of a tax on personalty will not be enjoined, though 
 the tax is illegal and void. Sayre v. Tompkins, 23 Mo. 443 ; Barrow v. Davis, 
 46 Mo. 394 ; Hopkins v. Lovell, 47 Mo. 102 ; so in Eockingham Ten Cent 
 Savings-Bank v. Portsmouth, 52 N. H. 17, the same rule was applied to the 
 collection of a tax on real estate. See also Corwin v. Campbell, 45 How. Pr. 
 10, and the cases there cited ; also Ritter v. Patch, 12 Cal. 298 ; Berri v. Patch, 
 12 Cal. 299 ; Brewer v. Springfield, 97 Mass. 152 ; Worth v. Fayetteville, Winst. 
 Eq. (N. C.) 70. The sale of lands for taxes may be enjoined as to the excess 
 over the leg.al taxes where the supervisor fraudulently assessed the land above 
 its real value, and relatively above the other assessments on his roll, with a view 
 to impose upon the owner more than his just share of the burden. Merrill 
 V. Humphrey, 24 Mich. 170 ; see also Milwaukee Iron Co. v. Town of Hubbard, 
 29 Wise. 51 ; Lefferts v. Supervisors of Calumet Co. 21 Wise. 688. But the naked 
 charge that the lands of non-resident complainants are assessed higher relatively 
 than the lands of residents is not sufficient to warrant equitable relief. Pillsbury 
 u. Auditor-General, 26 Mich. 245. And complainant must distinguish in his bill 
 the illegal taxes of which he complains from the legal ; and where he states 
 the total sum levied against each parcel without distinguishing the different 
 taxes, if he fails to show that all were illegal, his bill will not be sustained. 
 Pillsbury v. Auditor-General, supra; see also Conway v. Waverly, 15 Mich. 257; 
 Palmer v. Township of Napoleon, 16 Mich. 176. And the bill must show to what 
 extent the tax is illegal, or that it is impossible to separate the legal from the 
 illegal. Briscoe v. Allison, 43 111. 291 ; Taylor v. Thompson, 42 111. 10. 
 
 1 See Wiliams v. Cammack, 27 Miss. (5 Cushman) 210. 
 
 (a) Where a tax is declared by statute to be a hen upon the premises assessed, 
 and where the deed to be executed upon the sale therefor is by law prima facie 
 evidence of regularity, such tax constitutes a cloud upon the title, and its collec- 
 tion, if illegal, may be restrained by injunction. Schofield v. City of Lansing, 
 17 Mich. 437 ; see also Palmer v. Rich, 12 Mich. 414. But a tax deed upon a 
 prior sale, though made and recorded after one upon a subsequent sale, does 
 not constitute any cloud upon the title of the grantee in the latter. Truesdell 
 I/. Rhodes, 26 Wise. 215. A certificate of sale made upon a sale, invalid by 
 reason of the assessment having been made against the plaintiff under one 
 aggregate value of lots owned by him and others neither owned nor occupied 
 by him, would constitute a cloud upon his title, the fact that he did not occupi/ 
 the lots which he did not own not being a matter of record. Hamilton v. City 
 of Fond du Lac, 25 Wise. 490; see also Siegel v. Outagamie County, 26 Wise. 70. 
 
 (6) A party cannot maintain an action to remove a cloud from the title to land 
 in which he has no interest, upon the sole ground that he has.warranted the title ; 
 he can only be called upon on his covenant where there has been an eviction 
 under valid and paramount title. Bissell v. Kellogg, 60 Barb. 617. 
 
JURISDICTION AND REMEDIES. 655 
 
 a legal contest about the right may be postponed, until 
 the evidence of the owner's right may become lost by time 
 or accident. Where the owner is in possession of the land, at 
 the time the illegal proceeding is about to take place, he has 
 no remedy in a Court of law, which woiild indemnify him for 
 the threatened wrong to his title. Should a sale and convey- 
 ance take place, under the proceedings alleged to be illegal, the 
 owner, because of his possession, could not test their legality 
 by an action of ejectment ; ^ and, unless the purchaser at the 
 tax sale, or those claiming under him, disturb the possession, 
 or commit some act of trespass, to the injury of the inheri- 
 tance, thereby inviting the rightful proprietor to a contest, the 
 latter would be entirely remediless at law, and compelled to 
 await the action of the adverse claimant. Surely under such 
 
 1 Polk V. Rose, 25 Md. 153 ; See also Reed v. Tyler, 56 111. 288. But when 
 the premises are not in the actual possession of any one, it seems a recorded tax 
 deed draws after it constructive possession, and the owner may maintain eject- 
 ment against the grantee of the deed. Parish i;. Eager, 16 Wise. 582. But a tax 
 deed void upon its face cannot draw after it nor to it the constructive posses- 
 sion of land, though the land is vacant and unoccupied. Sapp v. Morrill, 
 8 Kan. 677. See p. *586, note. A party, when asking for equitable relief 
 in removing clouds from his title, must be in the actual possession of the lands, 
 or they must be unoccupied, or not in the actual possession of another ; other- 
 wise his remedy is complete at law. Mill6r v. Neiman, 27 Ark. 233 ; see also 
 Chaplin v. Holmes, id. 416. Under the Michigan statute of 1865, p. 676, provid- 
 ing " that any person claiming title to lands through the Auditor-General's deed, 
 executed upon a sale thereof for non-payment of taxes, may file a bill in chancery 
 to quiet his title thereto, without talcing possession thereof," &c., held, that this act 
 does not authorize such proceeding against a defendant in possession, — its pur- 
 pose being to extend the remedy by bill in equity to cases where the land was 
 vacant, and wliere under the then existing law the complainant could not file a 
 bill without first taking possession. Tabor v. Cook, 15 Mich. 322. For the consti- 
 tutional question decided in this case in relation to said act, see p. * 17, note (a). 
 Under sec. 29, ch. 141, Revised Statutes of Wisconsin, it is held that the action 
 to remove a cloud thereby authorized cannot be maintained except by one who 
 Is in the actual and visible possession of the premises. Grimmer v. Sumner, 
 21 Wise. 179 ; Wals r. Grosvener, 81 Wise. 681, overruling on that point Taylor 
 V. Rountree, 28 Wise. 891. In a, suit to quiet title under the Michigan statute 
 (2 Comp. Laws of 1857, § 8490) complainant is only bound to make out a case 
 as against the defendant, and will not be required to make proof of title beyond 
 that which, when establishing a presumptive case against the defendant, has not 
 been met by any proofs adequate to shake or destroy it. Thus proof that a 
 deceased person occupied land several years and died in possession is presump- 
 tive evidence of seisin in favor of his heirs or of purchasers from the estate ; 
 a fortiori, in resisting a tax title set up under an assessment against the 
 estate of the deceased by name. Hall v. Kellogg, 16 Mich. 135. 
 
656 JURISDICTION AND REMEDIES, 
 
 circumstances, a Court of equity would grant relief upon the 
 familiar principles of action in that Court, (a) 
 
 The New York authorities seem to be somewhat vacillating 
 upon this point. In one case, it is said, that if the proceedings 
 are void, the law affords an adequate remedy, without a resort 
 to a bill in equity ; in such case, the sale would not divest the 
 title : on the other hand, where the proceedings are merely er- 
 roneous, and not void, there is no equitable power in the Court 
 to revise and correct them.^ But in Van Doren v. New York,^ 
 an illegal tax proceeding was enjoined, the Court taking the 
 distinction between a proceeding void upon its face [which 
 was held to constitute no cloud upon the title] (6) and one 
 rendered so by extrinsic evidence ; e. g. where the land was 
 
 fa) A bill to restrain the collection of taxes on the ground that they consti- 
 tute a. cloud upon the title must set forth the description of the lands, or it 
 cannot be sustained. Conway v. Township Board of Waverly, 16 Mich. 257. A 
 bill quia timet will lie to remove the cloud caused by a void sale on a special assess- 
 ment, or for taxes, when the complainant is in possession, even though, if sued, 
 he might successfully defend at law. Gage v. Eohrbach, 56 III. 262 ; Barnett v. 
 Cline, 60 111. 205; Reed v. Eeber, 62 id. 240; Lee v. Ruggles, 62 id. 427; Gage 
 V. Billings, 56 id. 268 ; Reed v. Tyler, 56 id. 288 ; Gage v. Chapman, 56 id. 311 ; 
 but see Springer v. Rosette, 47 111. 223, holding that where the act levying the 
 tax is unconstitutional, the remedy at law is adequate, and the Court would not 
 interfere. See also Blackwood v. Van Vleet, 11 Mich. 252. 
 
 1 Livingston v. HoUenbeck, 4 Barb. 16 ; Van Rensselaer v. Kidd, 4 Barb. 17. 
 And see Cox v. Clift, 2 Comst. 118. 
 
 - 9 Paige, 388; see also Hanlon y. Board of Supervisors of County of Westches- 
 ter, 57 Barb. 383 ; Hey wood v. City of Buffalo, 14 N. Y. 584 ; Chaplin v. Holmes, 
 27 Ark. 418 ; Mann v. City of Utica, 44 How. Pr. 338, and cases cited ; Reed v. 
 Tyler, 56 111. 288 ; Sapp v. Morrill, 8 Kan. 685 ; Cohen v. Sharp, 44 Cal. 30, and 
 the cases there cited ; Newell v. Wheeler, 48 N. Y. 486 ; 48 N. Y. 173 ; Crooke 
 V. Andrews, 40 N. Y. 547 ; Morris Canal Co. u. Jersey City, 1 Beasley (N.J. Ch.), 
 227 ; in which the same distinction is recognized. See also authorities collected 
 and discussed in Coulson v. City of Portland, Deady, 481. 
 
 (6) In Missouri, a distinction is made between the sales for taxes of person- 
 alty and of real estate, injunctive relief being denied in the former case on 
 account of there being an adequate remedy at law in case the tax is unauthor- 
 ized or illegal (see cases cited in note (6), p. *481), and allowed in the latter 
 case, on the ground that by the sale a cloud would be cast upon the title, and 
 this apparently without regard as to whether the defect is apparent on the face of 
 the proceedings or not, tlie cases not discussing that question. Leslie v. City 
 of St. Louis, 47 Mo. 474 ; Lockwood v. St. Louis, 24 Mo. 20 ; Fowler ,b. St. 
 Joseph, 37 Mo. 228; McPike v. Pen, 51 Mo. 63; but see 52 Mo. 272 (not a tax 
 case), where the distinction was recognized. See also Hamilton v. Fond du Lao, 
 25 Wise. 490, where the jurisdiction having attached, was extended to enjoin 
 the sale of personalty for taxes. 
 
JURISDICTION AND REMEDIES. 557 
 
 not subject to taxation, where the taxes had been paid, or the 
 sale redeemed from. [And in Scott v. OndeVdonk, in the 
 same State, it has since been held, that if the instrument al- 
 leged to create a cloud on the title of land taxed, be itself void 
 on its face, (a) or if defective for the want of any of those pre- 
 liminary proceedings which the party claiming under it would 
 be bound to show, it constitutes no cloud and the in- 
 strument will not be set aside in * equity, but the * 483 
 party will be left to his remedy at law. On the other 
 hand,- if the instrument is itself made presumptive evidence 
 that such preliminary proceedings were in fact had, then the 
 instrument may be set aside in equity, if in fact void for a 
 defect in such proceedings. 
 
 Accordingly it was determined, that where land was sold for 
 an alleged assessment, which had never in fact been laid, and 
 a deed was about to be executed which by statute was primd 
 fade evidence that a valid assessment had been made, the Court 
 might restrain the execution of the conveyance, might declare 
 the sale void, and cancel the certificate which had been already 
 issued to the purchaser.^ And the same doctrine has been 
 more recently adopted in Wisconsin,^ in a case where the taxes 
 
 (a) So a Court will not restrain a sale for taxes when it is apparent on the 
 face of the proceedings, upon which the purchaser must rely to make out a 
 primd fapie case to recover under such sale, that the sale would be void, the 
 principle being that a proceeding which appears on inspection to be void con- 
 stitutes no cloud. Bucknall o. Story, 36 Cal. 71 ; De Witt v. Hays, 2 Cal. 469 ; 
 Burr a. Hunt, 18 Cal. 307; Robinson v. Gaar, 6 Cal. 275; Hannewinkle v. 
 Georgetown, 15 Wal. 547. But where an illegal tax is assessed upon lands and 
 by statute, the deed given on the sale therefor would be prima facie evidence of 
 regularity in the proceedings, such sale would operate to create a cloud upon 
 complainant's title, notwithstanding the illegality must appear on the face of the 
 proceedings, and the owner may therefore maintain a bill in equity to restrain 
 the tax sale. Palmer v. Rich, 12 Mich. 414; see also Schofield v. City of Lan- 
 sing, 17 Mich. 437; Wilcox v. Humphrey, TJ S. C. C. 6th- Circuit, reported 
 in Auditor-General's Report for 1873 (Mich.)', p. xxxvi, 
 
 1 14 N. Y. 9 ; Hatch v. Bufialo, 38 N. Y.' 276 ; Allen v. Buffalo, 39 N. Y. 386 ; 
 Palmer v. Boling, 8 Cal. 388 ; Overing v. Foote, 43 N. Y. 290. And the same 
 rule was distinctly approved in Weller v. St. Paul, 5 Minn. 95 ; Morrison v. St. 
 Paul, id. 108. 
 
 2 Dean v. Madison, 9 Wise. 402. See also Knowlton v. Supervisors of Rock 
 County, 9 Wise. 410; Weeks v. Milwaukee, 10 Wise. 242; Jenkins v. Rock 
 County, 16 Wise. 11 ; Judd v. Town of Fox Lake, 28 Wise. 583 ; Shepardson v. 
 Milwaukee County, 28 Wise. 593 ; Head v. James, 13 Wise. 641 ; Milwaukee 
 
558 JURISDICTION AND KEMEDIES. 
 
 were illegally assessed.] In other cases, the Courts of that State 
 (N. Y.) have sustained bills of interpleader against collectors 
 of adjoining counties, at the suit of the tax-payer, where his 
 property has been assessed in each county.^ The reason of the 
 distinction in the New York cases, between proceedings void 
 upon their face, and those which are rendered void by evidence 
 aliunde, is, that iu the former case, the defect will remain ap- 
 parent as long as the document has an existence ; while in the 
 latter case, the evidence of illegality rests in the memory of 
 man. With due deference to the New York judges, who are 
 conceded to be highly respectable, in point of legal attainment, 
 it may be remarked, that their adjudications cannot be supported 
 upon principle, and are clearly against the current of authori- 
 ties, (a) Preventive justice, administered through the restrain- 
 ing power of a Court of equity, is one of the most' valuable 
 features in our system of jurisprudence. The application of 
 this principle to proceedings to enforce the collection of a tax, 
 and to tax sales, is not diiScult. Where there are no equitable 
 
 circumstances to distinguish the case from an ordinary 
 * 484 trespass, * except the single fact, that the act sought to 
 
 be enjoined, is about to be committed by a public officer, 
 under color of law, and where the remedy at law could afford 
 a complete and ample satisfaction for the threatened injury, 
 a Court of equity would not be authorized to exercise this 
 restraining power.^ There must be some circumstance at- 
 tending the trespass, which distinguishes it from a common 
 trespass, and which appeals to the conscience of the chancellor 
 for the relief prayed. (J) 
 
 Iron Co. V. Town of Hubbard, 29 Wise. 51 ; Hamilton v. Fond du Lac, 25 Wise. 
 490. See also Mobile and Girard R.R. Co. v. Peebles, 47 Ala. 328; 52 Mo. 
 272 ; Floyd v. Galbraith, 27 Ark. 675 ; p. * 481, note. 
 
 1 Van Rensselaer v. Kidd, 4 Barb. 17 ; Thomson v. Ebbets, Hopk. 272 ; 
 Mohawk & Hudson R.R. Co. v. Clute, 4 Paige, 384. 
 
 (a) See p. *485, note. 
 
 2 As where an officer holding a warrant for the collection of taxes assessed 
 against A. levies said warrant on the property of B., the latter having an ade- 
 quate remedy at law. Gulf R. R. Co. v. Wheaton, 7 Kan. 232. 
 
 (6) The following cases hold that the collection of a tax cannot be enjoined 
 unless the case is brought within some acknowledged head of equity jurisdic- 
 tion. Messick «. Supervisors, 50 Barb. 190 ; McDonald v. Murphree, 45 Miss. 
 705 ; First National Bank of Hannibal u. Meredith, 44 Mo. 500 ; Green v. Mumford, 
 
JURISDICTION AND REMEDIES. 559 
 
 Thus, in the case of Osborn v. Bank U. S., ^ the Supreme 
 Court of the United States held, that it was proper to enjoin 
 the collection of a tax, upon a branch of the United States 
 Bank, levied under the authority of the laws of the State of 
 Ohio, upon the ground that the taxing power of the State, if 
 once conceded, without limitation as to its extent, tended to 
 the destruction of the franchise of the bank, which was a fis- 
 cal agent of the government, and also would have the effect 
 of disordering the national finances. On the other hand, when 
 a tax — simply unconstitutional — unaccompanied by any cir- 
 cumstances of peculiar injury, is about to be enforced by a 
 distress and sale of personal property, in the ordinary way, 
 and for which wrong the complainant has an adequate remedy 
 at law, it cannot be enjoined by a Court of equity .^ (a) These 
 
 5 R. 1. 472 ; Pumpelly v. Village of Owego, 45 How. Pr. 259, and cases there cited ; 
 Hanlon v. County ofWestchester, 57 Barb. 383 ; Sav. and Loan Society v. Austin, 
 46 Cal. 488 ; Hannewinkle «. Georgetown, 15 Wal. 547 ; Dows v. City of Ciiicago, 
 11 Wal. 108; Hey wood v. City of Buffalo, 14 N. Y. 534; Susquehanna Bank v. 
 Broome County, 25 N. Y. 312; Union Pacific R.R. Co. v. Lincoln County, 2 Dill. 
 (C. C.) 279 ; Cook County v. Chicago, &c., R.R., 35 111. 460. Thus a sale may be 
 enjoined where it would produce a cloud upon the title. Wilcox v. Humphrey, 
 reported in Report for 1873 of the Auditor-General of Mich., p. xxxvi. See 
 also White Sulphur Springs Co. v. Holly, 4 West Va. 597. In Floyd u. Gal- 
 braith, 27 Ark. 675, the authorities are fully reviewed and the same rule adopted 
 as is laid down in the preceding cases. The proceedings cannot be enjoined on 
 behalf of an individual, in advance of the actual levy of the tax on either per- 
 sonalty or realty. Miller v. Grandy, 13 Mich. 540 ; Ballard v. City of Appleton, 
 26 Wise. 67 ; Bridge Company u. Wyandotte County, 10 Kan. 326. See also 
 Judd V. Town of Fox Lake, 28 Wise. 583. 
 
 ' 9 Wheat. 773 ; 5 Cond. 771. 
 
 2 McCoy V. Chilicothe, 3 Ohio, 380. 
 
 (o) In the following cases it was held, that the collection of an unauthorized 
 and illegal tax may be enjoined. Kuhn v. Board of Education of Welsburg, 4 
 West Va. 499 ; Dunnovan v. Green, 57 111. 63 ; Vieley v. Thompson, 44 111. 18 ; 
 Briscoe o. Allison, 43 111. 291 ; Olmstead v. Henry County, 24 Iowa, 33 ; Mt. 
 Carbon Coal and R.R. Co. v. Blanchard, 54 111. 240 ; Cumberland County v. 
 Webster, 53 111. 141 ; DarUng u. Gunn, 50 111. 424 ; Louisville and Nashville 
 R.R. Co. u. Warren County, 5 Bush (Ky.), 243 ; Clay v. Nicholas County, 4 Bush 
 (Ky.), 154 ; Kenyon v. Duchene, 21 Mich. 501 ; Hubbard v. Johnson County, 23 
 Iowa, 130; Cleghorn v. Postlewaite, 48 111. 428; State v. Atkins, 35 Geo. 317; 
 Kansas Pacific R.R. Co. v. Russell, 8 Kan. 558. But the collection of a tax will 
 not be enjoined on account of mere irregularities and errors, not rendering the tax 
 illegal and void, the remedy at law in such cases being deemed sufficient. Conway 
 a. Younkin, 28 Iowa, 295 ; Vieley v. Thompson, 44 111. 18, and cases there cited ; 
 Smith V. Leavenworth County, 9 Kan. 296; Hallenbeck v. Halin, 2 Neb. 427, and 
 
660 JURISDICTION AND REMEDIES. 
 
 cases fully illustrate the extent of the doctrine contended for. 
 Courts of equity are invariably in the habit of granting in- 
 junctions to stay waste, spoil, and destruction, and other in- 
 juries to the inheritance, attended by circumstances of peculiar 
 hardship ; or where, according to the analogies of equity juris- 
 prudence, relief to the injured party would be proper. They 
 have also interfered to prevent sales of land, under a claim 
 of authority or right — such as cases to stay sales, under a 
 power in a mortgage, deed of trust, marriage settlement — 
 under leasing powers, and powers of revocation and appoint- 
 ment, indeed, under all classes of powers arising ex contractu 
 — in such cases, it has never been inquired whether the 
 * 485 title to be made, under such a power, will, or will * not 
 
 cases cited; Gulf R R. Co. v. Morris, 7 Kan. 210; Gulf B.R. Co. v. Blake, 9 Kan. 
 489. So a person against whom no illegal tax has been assessed or levied cannot 
 by injunction restrain the collection of an illegal tax assessed against another per- 
 son. Gulf R.R. Co. D. Wheaton,7Kan.232. But if the tax is unauthorized by law ; 
 or, if authorized, if levied on property exempt from its burden ; or if fraudulently 
 levied, or if the tax payer is likely to suffer irreparable injury, or if the persons 
 levying it are not officers de jure or de facto, or if its collection would be inequi- 
 table or unjust, equity may afford relief. See Vieley v. Thompson, i\vpra, and 
 cases there cited ; Smith v. liCavenworth County, mpra ; Hallenbeck v. Hahn, 
 supra; Gulf R.R. Co. v. Morris, supra; Gulf- R.R. Co. v, Blake, supra. Equity 
 will restrain the collection of a gross tax assessed on two lots together, as the 
 property of a man who had never owned but one of the lots, though the other 
 proceedings were regular, the assessment being void in such a case. Crane v. 
 Janesville, 20 Wise. 805. Equity will restrain the sale for, and declare void a 
 tax levied to pay for a city improvement, where there has been a failure to 
 comply with a condition precedent to the power to award the contract to make 
 payment under wliich the tax is levied ; as, where the street commissioners are 
 required by law to let the contract to the lowest bidder, and no plans were filed, 
 and the specifications required by law to be made and filed upon which the bids 
 are invited are so imperfect that no one could bid intelligently without making 
 large allowances for work which might or might not be required, according to 
 the discretion of the commissioners. Thus the grade of the proposed sewer, 
 the nature and amount of the excavation of the trench, the number of man- 
 holes, &c., are material, and should be stated in the specification. Kneeland v. 
 Milwaukee, 18 Wise. 411 ; Wells v. Burnham, 20 Wise. 113 ; Houghton v. Butn- 
 ham, 22 Wise. 301. So where the charter provides that lot owners shall be 
 notified to do the work before the contract is let, and this is not done. John- 
 ston V. Oshkosh, 21 Wise. 184. And the provision of the statute that no error 
 or informality in the proceedings of the officers in assessing, levying, and col- 
 lecting taxes and assessments, not affecting the substantial justice of the tax 
 itself, shall affect the proceedings, applies only to proceedings after the debt 
 or liability for which the tax is levied has been lawfully created. Ibid. As to 
 the remedy to recover back an unlawful tax, paid under coercion, see p. *165. 
 
JURISDICTION AND REMEDIES. 561 
 
 be indisputable. The fact that the proceeding takes place 
 under a statute authority, cannot affect the application of 
 the general rule. It sounds ill, in the mouth of him who at- 
 tempts to sell another's land, under color of law, to say that 
 his sale will be a nullity, and therefore cannot injure the com- 
 plainant. The right to sell is the subject of inquiry. The 
 reason is much stronger for restraining an illegal tax sale, 
 than any other class of illegal sales. Prior to the sale, no one 
 has a vested interest in the proceeding, save the government, 
 to the extent of the tax ; and where power to levy the tax 
 exists, but the proceeding to collect it is illegal, the exercise 
 of a speedy restraining power, furnishes the State with notice 
 of the illegality, and enables the government to re-assess the 
 tax, and enforce its collection in a legal manner. If, on the 
 contrary, the tax itself is illegal, the State has no right to 
 harass her citizens, by proceedings to enforce its collection. 
 As before hinted, so long as the owner remains in possession 
 of his estate, the common law gives him no remedy against 
 the person who claims the title to, or attempts to exercise a 
 power over, his property. The claim of title or power may 
 hang over him all his lifetime, clouding his title, and prevent- 
 ing a sale, or other enjoyment of his estate, if the person 
 claiming adversely chooses to lie by, and, not bring his eject- 
 ment. This may be ruinous to the true owner, and therefore 
 a Court of equity will invariably interfere in his behalf. Be- 
 sides, no chancellor would hesitate to exercise this power, 
 where the law declares the tax deed to be conclusive, or even 
 primd facie evidence of title in the purchaser. 
 
 The best reasoned case in support of this doctrine is Burnet 
 V. Cincinnati,! (a) which was a bill in chancery for an injunc- 
 tion to enjoin a sale, by the marshal of the city, of real estate 
 owned and possessed by the complainant, for a city assess- 
 
 ' 3 Ohio, 73 ; s. c. 1-4 Ohio Cond. 476. 
 
 (a) But see Floyd v. Galbraith, 27 Ark. 675-687, where the authorities are 
 fiiUy collected and the rule laid down in the New York cases approved. The 
 rule is stated to be, " that if the proceedings are void upon their face they form 
 no cloud upon title and no ground of interference by a Court of equity ; and if 
 they are not void upon their face, but merely voidable or irregular, a Court of 
 equity will not take cognizance of them, unless facts are alleged sufficient to bring 
 the matter clearly within some acknowledged head of equity jurisdiction." 
 
662 JURISDICTION AND REMEDIES. 
 
 merit to improve the streets. The bill set otit the title and 
 possession of the complainant, and the nature and character 
 of the Assessment made by the city council, alleging that it 
 had not been made in accordance with the charter and 
 * 486 ordinances, but was * illegal and void ; stating par- 
 ticularly wherein the illegality of the proceeding con- 
 sisted. The prayer of the bUl was to stay the sale until the 
 matter should be heard and adjudged of in equity. The de- 
 fendants demurred, and the bill was dismissed pro forma. 
 The defendant appealed to the Supreme Court, ttrhere the 
 ■demurrer was overmled, and a perpetual injunction awarded. 
 By the Court': " The bill, in this case, represents, that under 
 a proceeding altogether illegal and void, but nevertheless, 
 under legal color, the defendants are about to sell a part of the 
 real estate of the complainant, and prays the interference of 
 the Court, in the exercise of its chancery powers, to restrain 
 them by injunction. The demurrer, and the argument in 
 support of it, admit the truth of the allegations, and deny 
 that this Court can aid the party. If this be a tenable posi- 
 tion, it results that public officers, having authority to operate 
 upon the property of their fellow-citizens, must be permitted 
 to proceed, however illegal, unjust, or oppressive their conduct 
 may be. It foUows, too, that the property of a citizen may 
 be exposed to sale, under circumstances that render it impos- 
 sible for the parties to know whether a title can pass or not. 
 Thus involving great hazard to all concerned, and perplexing 
 the titles to real estate, for no beneficial purpose to any person 
 whatever. If such be the rule of the law, we must so adminis- 
 ter it. But nothing short of a series of repeated adjudications 
 would be sufficient to demonstrate that the law is so settled. 
 The authorities which have been referred to, do not lead to 
 the conclusion insisted upon by the defendants. They all 
 proceed upon the principle, that in very many cases, this 
 Court may interpose to prevent mischief, and to protect indi- 
 viduals in the enjoyment of their rights. Where aid has been 
 decreed, it has always arisen from the circumstances of the 
 particular case. And the confusion and seeming contradic- 
 tions in the cases, are occasioned by the dicta of the judges, 
 and not by any confliction in the principle decided. In re- 
 
JURISDICTION AND REMEDIES. 563 
 
 gard to real estate, it is well established that chancery may 
 interpose, by injunction, to prevent what is considered as 
 destrnction. But destruction in the sense used, does 
 not mean annihilation. It means no * more than that * 487 
 injury which greatly impairs its intrinsic value. In a 
 city, the sale of part of a lot for assessments, may often be 
 very destructive to the interests of the proprietor, though no 
 title passes by such sale. A cloud would be cast upon the 
 title, which litigation only could remove, and, until removed, 
 the property might be valueless to the owner ; subject, too, 
 during the period of litigation, to additional assessments and 
 embarrassments. When an assessment of a tax is made, and 
 its legality disputed, the uncertainty attendant upon the final 
 result, puts the estate upon which it operates, in imminent 
 jeopardy. If no title passes by a sale, the party has remedy 
 at law. He can defend his possession ; but if title does pass, 
 he is remediless altogether. A mode, therefore, of deciding 
 the question, before any right is affected, is safest for all par- 
 ties. It was upon this ground the Court entertained jurisdic- 
 tion in the case of the Bank of the United States v. Shultz, 
 from which, in principle, this case is not distinguishable. The 
 defendants concede, that if a sale were made, this bill might 
 be sustained under our statute. To sustain it now, is clearly 
 within its letter. A claim is set up, not to enter in and enjoy 
 imder title, but to create a title under which another may so 
 enter. Setting up a claim to dispose of the title, is " setting 
 up a claim thereto," which are the terms employed in the 
 statute. The case is clearly within the mischief intended to 
 be remedied, as it is within the words of the law. The power 
 to interpose might be safely grounded upon the statute alone. 
 But we think it stands upon the general principles that govern 
 the Court, with respect to injuries to which no other adequate 
 remedy can be extended. Consequences that might ensue in 
 respect to the collection of revenue, furnish no reason why 
 the Court should not interpose. The application for an injunc- 
 tion is addressed to the sound discretion of the judge who 
 allows it, and there is no reason to apprehend that it will be 
 allowed upon trivial grounds. 
 The case of Osbom and others v. the Bank of United 
 
564 JURISDICTION AND REMEDIES. 
 
 * 488 States,^ is * a case directly in point, of enjoining the 
 collection of a tax. That case was most earnestly liti- 
 gated, and yet the counsel who resisted the injunction did not 
 attempt to maintain that the jurisdiction could not be sus- 
 tained, on the ground that it interfered with the collection of 
 the revenue. " We overrule .the demurrer, and send back 
 the cause, at the suggestion of the defendants, for further 
 proceedings." The statute of Ohio, alluded to in the forego- 
 ing opinion, provided, that " any person having both the legal 
 title to and possession of land, may institute a suit against 
 any other person setting up a claim thereto." As intimated 
 in Burnett v. Cincinnati, it is the established doctrine of the 
 Ohio Courts, that this statute is merely declaratory of that 
 jurisdiction of Courts of Chancery which existed prior to its 
 enactment. It is now well settled that a Court of Chancery 
 possesses jurisdiction to enjoin sales of land by sheriffs and 
 tax collectors, when necessary to protect the parties in inter- 
 est.^ The collector is a proper and necessary party to such a 
 bm.3 
 
 1 9 Wheat. 738. 
 
 '^ Anderson v. State of Mississippi, 23 Miss. 459; Lyon c^. Hunt, 11 Ma.. 295; 
 Dyer v. Branch Bank of Mobile, 14 Ala. 622. An injunction will not be granted 
 because of irregularities in the assessment or other proceedings. Chicago, &c., K.K. 
 V. Frary, 22 111. 34 ; McBride v. Chicago, id. 574 ; Hughes v. Khne, 30 Penn. St. 
 227 ; Jones v. Sumner, 27 Ind. 510. See Kansas Pacific Railway Co. v. Rus- 
 sell, 8 Kan. 558 ; Parker v. Challiss, 9 Kan. 155 ; Macklot v. Davenport, 17 Iowa, 
 879; Burl. & Mo. Eiv. R.R. u. Spearman, 12 Iowa, 113. If an assessment be 
 vitiated by fraud, or the party assessed is likely to sustain an irreparable injury, 
 equity may relieve. McBride v. Chicago, itbi sup. ; Foote v. Milwaukee, 18 Wise. 
 270; Schofield v. Watkins, 22 111. 66. But equity will not enjoin a general 
 assessment for county purposes on the ground that the county commissioners 
 contemplate an illegal use of the funds when collected. Board of Commissioners 
 V. Brown, 28 Ind. 128. In the following cases it is held that equity will relieve 
 where a tax is levied without authority of law. Ottawa v. Walker, 21 HI. 605; 
 Vanover v. Davis, 27 Geo. 854 ; Drake v. Phillips, 40 111. 388 ; Toledo R.R. v. 
 Lafayette, 22 Ind. 262. So where an officer is about to sell illegally, after expi- 
 ration of his term of office. Fremont v. Boling, 11 Cal. 380. So where tax has 
 been paid, yet officers are proceeding to sell. Commonwealth v. Supervisors, 29 
 Penn. St. 121. So to prevent a cloud on title by a sale on void tax or assessment. 
 
 8 Anderson v. State of Mississippi, 23 Miss. 459. And where the validity of a 
 title adverse to that of the complainant is involved, tlie adverse claimant is a 
 necessary party. Litchfield v. County of Polk, 18 Iowa, 70. 
 
JURISDICTION AND REMEDIES. 565 
 
 It is also held, that the former owner may be relieved in a 
 Court of equity, against an illegal tax sale, and conveyance 
 based thereon, by a decree setting aside the sale, cancelling 
 the tax deed, and perpetually enjoining the purchaser and 
 those claiming under him, from asserting title, making an 
 entry upon the land, or otherwise disturbing the title or 
 possession of the complainant.^ The case of Yancy v. 
 Hopkins,^ was a bill in chancery, filed by Yancy, to set 
 aside the sale and conveyance of a parcel of land sold on 
 the 19th day of September, 1786, for the taxes of 1784, 
 1785, and purchased by Yancey, the deputy-sheriff who 
 made the sale, and was one of the defendants, and by him 
 
 the defect being substantial. Jenkins v. Rock Co., 15 Wise. 11 ; Mitchell o. 
 Milwaukee, 18 Wise. 92 ; Fowler v. St. Joseph, 37 Mo. 228 ; and especially 
 where it will save multiplicity of suits. Ireland v. Rochester, 51 Barb. 414. It 
 is not ground for an injunction that complainant has a claim for an illegal tax 
 previously paid. Fremont v. Mariposa, 11 Cal. 361. Equity will enjoin assess- 
 ment of property adjudged exempt by Supreme Court in order to avoid multi- 
 plicity of suits. Morris Canal and Banking Co. v. Jersey City, 1 Beasley, Ch. 
 (N. J.) 227. So where the tax has been lawfully commuted. Supervisors of 
 McDonough County v. Campbell, 42111. 490. Where a person has stood by and 
 allowed a ditch to be constructed on his land by county commissioners, acting 
 ostensibly under authority of a statute, equity will not enjoin the collection of 
 an assessment therefor, even though the commissioners have so far failed to con- 
 form to the provisions of the statute as to render the assessment void. Kellogg 
 V. Ely, 15 Ohio St. 64. See also Motz v. Detroit, 18 Mich. 495. Equity will not 
 relieve against taxes as not equal and uniform when they are less than they 
 would have been if levied constitutionally. ' Miltimore <;. Rock, 15 Wise. 9 ; 
 Dean v. Gleason, 16 Wise. 1. See Warden v. Supervisors, 14 Wise. 618 ; Kel- 
 logg V. Oshkosh, id. 623. Where an action is brought to set aside sale and pre- 
 vent execution of tax deeds, the sale having been for several distinct taxes 
 assessed on same lot, some legal and some illegal, and the amount of legal taxes 
 is made to appear, that sum must be paid as a condition precedent to relief. 
 Hersey v. Milwaukee County, 16 Wise. 185 ; Bond v. Kenosha, 17 Wise. 284 ; 
 Mills V. Johnson, 17 Wise. 598 ; Bosebury v. Huff, 27 Ind. 12. See also Adams v. 
 Castle, 30 Conn. 404. Where a tax was legally assessed, and it was the duty 
 of owner to have paid it, but the warrant on which the land was sold was void, 
 held, that equity would not compel reconveyance, the plaintiff not having 
 offered to indemnify the purchaser for the money paid for his, the plaintiff's, 
 benefit. 
 
 1 See Shell v. Martin, 19 Ark. 139 ; Polk v. Rose, 25 Md, 153. So the issue 
 of the deed on an illegal and unauthorized sale may be enjoined. Gage v. Gra- 
 ham, 57 111. 144, where a deed was about to be executed under an unconstitu- 
 tional law. See also Dean v. Borchsenius, 30 Wise. 236. 
 
 2 1 Munf. 419, 437. 
 
666 JURISDICTION AND EEMEDIES. 
 
 conveyed to Harris, the other defendant. The chancellor in 
 the Court below set aside the sale, and decreed the cancella- 
 tion of the tax deed, whereupon the defendants ap- 
 * 489 pealed. The * complainant, an infant, was the owner 
 of the estate at the time of the sale, and resided in a 
 foreign country. Harris was in possession of the land at the 
 time of the sale, under the dower claim of Elizabeth Hop- 
 kins, the mother of the complainant, and had upon the 
 premises personal property of value sufficient to satisfy the 
 tax. The land was listed in the name of Elizabeth Hopkins, 
 and sold and conveyed as her property. The sale was held 
 void upon two grounds. 1. Because it ought to have been 
 listed and assessed in the name of the complainant, under a 
 statute requiring the commissioners " to take an account in 
 writing, of the quantity of land belonging to all persons 
 within their counties, and also the name of the proprietor or 
 proprietors thereof, and ascertain the value thereof;" and, 
 2. Because the officer sold the land when there was a suf- 
 ficient distress upon the premises to satisfy the tax, the law 
 having made personalty upon the premises the primary fund 
 for the payment of the tax. Upon the question as to the 
 jurisdiction of a Court of equity to grant relief in such a 
 case, Judge Tucker, in delivering the opinion, said, " It was 
 objected to by the appellant's counsel, that the complainant 
 had a plain remedy at law,, by ejectment to recover the prem- 
 ises. But I am of opinion that he had a right to come into 
 a Court of equity, for the purpose of setting aside a deed 
 which might have obstructed his recovery in ejectment. 
 And it was more beneficial to the defendants that he should 
 do so, as they might by their answers, purge themselves of 
 any imputations of fraud or collusion in making the sale. 
 Besides, the object of the bill was to compel a reconveyance 
 of the land from the defendant Harris, which a Court of law 
 could not enforce. And, as a simple verdict in ejectment 
 might not have been conclusive, I think the parties pursued 
 the most proper course." 
 
 In Dudley v. Little,^ a tax sale and deed were set aside, 
 
 1 2 Hamm. 504 ; 1-4 Ohio Cond. 445. 
 
JUEISDIGTION AND REMEDIES, 5,67 
 
 because of a ftaud among the bidders at the sale.^ (<i) In 
 Rowland v. Doty,^ the sale and deed were set aside, 
 because the taxes had * been paid preYious to the sale, * 490 
 And in Bacon v- Conn,^ a tax deed was, ordered to be 
 cancelled, where the owner had tendered the money to re- 
 deem, and the purchaser had refused to receive it. It will 
 thus be seen, that where the proceedings, have been irregular, 
 , the taxes paid, or a redemption eifected or tendered, equity 
 will grant relief. When a tax sale comes before a Court of 
 equity, it is regarded with but little favor, the inadequacy 
 of consideration being so gross, that a title thus derived is 
 sustained in such a forum, only when the law has been rigidly 
 complied with in its every requisition, In the language of 
 Judge Pope, a tax title is one of strict right, where a Court 
 would not grant a new trial, or a chancellor enforce such an 
 unequal bargain.* 
 
 And in Douglass v. Dangei-field,^ vhere the tax purchaser 
 was complainant. Judge Hitchcock, in delivering the opinion, 
 said, " This is a case of considerable importance, whether we 
 consider the amount of property in contest, or the principles 
 involved. The amount of property exceeds 1,300 acres, 
 which the complainant claims he is entitled to, for which he 
 has paid, or, rather, originally paid fl7.53i. Having paid 
 this much for the land, he now attempts, in a Court of chan- 
 cery, to force the legal title from the defendaiits. If there 
 
 1 Where a sale is intpeached for fraud or unfair practices of officers or pur- 
 chaser, equity is the proper tribunal to afford relief. Slater v. Maxv?eU, 6 Wal. 
 (U, S.) 268. The fraud relieved against in this case was the fraudulent declara- 
 tion of defendant that the complainant would redeem the land, by which compe- 
 tition was prevented. Inadequacy of price is not ground for relief. Ibid. 
 
 (o) Where F. sold a piece of land withwarranty to C, and took ba,ck a mort- 
 gage, and after his death the land was advertised to be sold foT taxes levied before 
 the sale to C, and the executors and trustees of F. attended the sale for the pur- 
 pose of purchasing the land, and thereby saving, as they supposed, a foreclosure 
 of the mortgage, hut were prevented from so doing by the fraudulent conduct of 
 S., against whom they filed their bill, held, tha,t C. need not be made a party ; 
 and that it was not necessary to ofEer in the bill to refund the money paid by S. 
 for the tax title fraudulently obtained by him. Taylor v. Sayder, Walk. Ch. 
 (Mich.) 490. 
 
 ^ 1 Harring. Ch. 3. 
 
 3 1 Smedes & M. Ch. 348. 
 
 • Mayhew v. Davis, 4 McL. 213. * 10 Ohio, 152 
 
568 JURISDICTIOK AND REMEDIES. 
 
 had been between these parties a contract of purchase and 
 sale of this land for the same amount of purchase-money, 
 had this purchase-money been paid, and had an application 
 been made in chancery, on the part of the vendee, to enforce 
 such contract, no Court, acting upon the well-known princi- 
 ples of equity, would hesitate a moment in dismissing the 
 bUl on the ground of inadequacy of consideration. And, 
 upon similar principles, a Court of equity would not inter- 
 fere to reheve a purchaser at a tax sale, as between him and 
 the owner of the land, except when required to do it in con- 
 sequence of positive law." 
 
 It may therefore be laid down, as a general rule, 
 * 491 that a Court * of equity will make a thorough and 
 close scrutiny into a title derived under a tax sale, 
 whenever it comes before that Court.^ The facts of the lat- 
 ter case are given in a subsequent chapter.^ It is proper to 
 add, however, that upon the principle, that whoever seeks 
 equity must do equity, a Court of chancery will impose 
 terms upon the complainant in granting him relief, (a) Thus, 
 in Dudley et al. v. Little et al.,^ where a sale was set iaside 
 
 1 Douglass V, Dangerfield, 10 Ohio, 152; Yancy v. Hopkins, 1 Munf. 419; 
 Blakeny v. Ferguson, 3 Eng. (Ark.) 277. 
 
 2 Ch. 35. 
 
 (a) The rule is the same whether the application is before or after sale for 
 the taxes assessed. And wliere a part of the tax is legal, injunctive relief will 
 be granted only on condition of paying the amount of the tax legally assessed. 
 The time and manner of such payment varies with the practice in the various 
 States. See Howes v. Eacine, 21 Wise. 514 ; Dean v. Borchsenius, 30 Wise. 
 286 ; Smith v. Auditor-General, 20 Mich. 409 ; Palmer v. Township of Napoleon, 
 16 Mich. 176 ; Mills v. Charleton, 29 Wise. 400 ; Merrill v. Humphrey, 24 Mich. 
 170; Siegel v. Outagamie County, 26 Wise. 70; City of Ottawa u. Barney, 10 
 Kan. 270 ; Reed v. Tyler, 56 111. 288. See also Corbin v. Woodbine, 38 Iowa, 
 297 ; Shelton v. Dunn, 6 Kan. 128, in which last State a tender before suit brought 
 is required by statute ; Twombly v. Kimbrough, 24 Ark. 459 ; Call v. Chase, 21 
 Wise. 511, where the rule was applied in ejectment ; Harrison v. Haas, 25 Ind. 
 281 ; notes 2, p. *488, and (i) p. » 401. In Hunt v. Rowland, 28 Iowa, 349, it 
 was held (under the facts in that case) to be no violation of equitable principles 
 to order the reimbursement of money paid in the acquisition of a tax title which 
 was held invalid because acquired under such circumstances of fraud or unfair 
 dealing that a Court of equity would not sustain it. But see contra, Hibernia 
 S. & L. Society v. Ordway, 38 Cal. 679 ; Taylor v. Snyder, Walk. Ch. (Mich.) 
 490. 
 
 3 2 Ohio, 504. 
 
JUEISDICTION AND REMEDIES. 569 
 
 for fraud, the Court granted the decree, upon the condition 
 that the complainants would refund to the defendants the 
 purchase-money, paid at the tax sale, with the fifty per cent 
 penalty allowed by law, and on the payment of all of the 
 costs in the cause, (a) It is also held, that creditors who 
 have a hen upon land which has been sold for taxes, or who 
 have a right in equity to resort to the land, for the payment 
 of their debts, may file a bill to set aside an illegal tax sale, 
 and thus dispel any cloud upon the title of their debtor, and 
 remove any obstacle thus created to the enforcement of their 
 lien or right.^ But in the Ohio case, where the law declared, 
 that whenever a tax sale should be held invalid, the owner, 
 or other party in interest, should refund the taxes to the 
 purchaser at the sale, and make the tax a lien upon the land 
 in favor of the purchaser, the bill of the creditor was dis- 
 missed because he failed to prove a tender of the money, 
 due under this statute, to the purchaser. (6) It may be 
 added, that a redemption may be enforced by mandamus, 
 where the relator has a legal right to redeem, and has com- 
 plied with the requisitions of the statute. Thus much for 
 the remedies of the owner and his creditors. 
 
 Where the pui'chaser has acquired a right at a tax sale, he 
 may enforce it by such remedies as are usually adopted in 
 analogous cases, (c) Thus, if the officer refuses to execute 
 
 (a) See also Bamett v. Cline, 60 111. 205 ; Eeed v. Eeber, 62 111. 240 ; Pierce 
 V. Schutt, 20 Wise. 423. Where there is no contract, trust relation, or equitable 
 grounds requiring a release of defendant's title to complainant, the decree should 
 simply find the tax titles void, decree their cancellation, and enjoin defendant 
 and all persons claiming under him from asserting title thereunder. Bamett v. 
 Cline, and Beed v. Eeber, supra. 
 
 J Gillett V. Webster, 15 Ohio, 623 ; O'Brien u. Coulter, 2 Blackf. 421 ; Bran- 
 eon V. Yaney, 1 Dev. Eq. 77. 
 
 (6) But in Lee v. Buggies, 62 111. 427, on a bill to set aside a tax deed on an 
 illegal assessment for drainage purposes, as a cloud on title, where the taxes 
 were illegal, and no charge on the land, and it did not appear that any benefit 
 had been bestowed on the land by drainage or otherwise, it was held, that the 
 defendant had no equitable claim to have the taxes paid by him refunded. 
 
 (c) If a holder of a tax deed, issued under a law making the deed conclusive 
 of the regularity of the proceedings, takes advantage of a special process for qui- 
 eting his title provided by a subsequent statute (ch. 22, Laws of 1859, as amended 
 by ch. 138 and 277, Laws of 1861), he must submit to the disadvantages of that 
 statute in making his deed merely prima facie evidence. Burrows v. Bashford, 
 •22 Wise. 103. 
 
570 JUBISDICTION AND REMEDIES. 
 
 and deliver to him a certificate of purchase, or deed 
 * 492 of conveyance, when * he has beconie entitled to 
 
 either by a fair and regular purchase, he may by man- 
 damus compel the execution of them,i and in some instances, 
 a bill in chancery may be regarded as appropriate.^ The 
 question has been discussed, and variously decided in Ohio, 
 as to the right of the purchaser of an equity at a tax sale, to 
 come into a Court of chancery, and, treating the holder qf 
 the legal title as a trustee, compel a conveyance of the latter 
 title. The question wUl be examined in a subsequent part 
 of this work.^ One thing is evident, that the purchase? who 
 seeks relief under such circumstances, must aver in his bill, 
 and prove upon the hearing, a strict compliance by the offi- 
 cers with all of the requirements of the law under which 
 the proceeding took place,* Under the land system of 
 several of the States of the Union, the holder of a land 
 warrant, after a location and survey, but before the record 
 of the proceedings, has a right to withdraw his entry, and 
 make a new location upon any vacant and unappropriated 
 land.^ But it is held in Ohio, that after the entry has been 
 recorded, and the right of the locator has thus become fixed, 
 it is not in hig power to withdraw the entry, so as to destroy 
 the tax lien of the State, or avoid the title of the purchaser 
 at the tax sale.® The purchaser at a, tax sale cannot recover 
 the possession from the former owner or any person claiming 
 under him, in an action of forcible detainer. Ejectment is 
 his only remedy.'^ But there is a statute in Ohio which gives 
 this remedy to the purchaser.^ It is a general rule, sub- 
 
 1 Maxcy v. Clabaugh, 1 Gilm. 26 ; People v. Mayor, &o., 10 Wend. 395 ; a-iA^, 
 pp. * 291, * 372. 
 
 2 Ante, pp. * 272, * 373 ; Bank of Utica v. Mersereau, 3 Barb. Ch. 528. 
 
 * Rennick v. Wallace, 8 Ohio, 540 ; Stuart v. Parish, 6 ^nd 7 Ohio, 204 ; Wal- 
 lace V. Seymour, 7 Ohio, 313 ; Douglass v. Dangerfleld, 10 Ohio, 152 ; Gwynne 
 w. Neiswanger, 15 Ohio, 367 ; s. o. 18 Ohio, 400 ; 8. q. 20 Ohio, 556. 
 
 * Douglass V. Dangerfleld, 10 Ohio, 162. 
 
 6 Gait V. Galloway, 4 Pet. 339 ; HoUujgsworth v. Barbour, 4 Pet. 466 ; McAr^ 
 thur V. Nevill, 3 Ohio, 178 ; Taylor v. Myer, 7 Wheat. 28 ; Wallace v. Porter, 
 14 Ohio, 277 ; Jackson v. Clark, 1 Pet. 629. 
 
 « Holt V. Hemphill, 3 Ohio, 232 ; Douglass w. Dangerfleld, 10 Ohio., 152; Wal- 
 lace V. Seymour, 8 and 7 Ohio, 318. 
 
 ' KeUy V. Hunter, 12 Ohio, 216. 
 
 « Hannel i>. Smith, 15 Ohio, 134. 
 
JURISDICTION AND REMEDIES. 671 
 
 ject to occasional exceptions, that the remedial * power * 493 
 of a Court of equity does not extend to the supply- 
 ing of any circumstance, for the want of which the legislat- 
 ure has expressly, or by implication, declared the instrument 
 or act void ; for otherwise, equity would, in effect, defeat the 
 very policy of the legislative enactments. In this respect 
 there is a clear and manifest distinction between public and 
 private powers when defectively executed. A power created 
 by private parties, when defectively executed by reason of 
 fraud, accident, or mistake, may be aided by a Court of 
 equity. But where the power is created by statute, it is 
 construed with more strictness, and whatever the formalities 
 required by the statute to attend the execution of the power, 
 they must be punctiliously complied with, and no defect can 
 be aided in equity. Courts of equity cannot dispense with 
 the regulations prescribed by a statute, at least where they 
 constitute the apparent object and poMcy of the law. 
 
 It may be laid down as a general rule, subject to no excep- 
 tions, that in regard to powers, which are in their own nature 
 statutable, equity must follow the law, however meritorious 
 the consideration. Thus, the power of a tenant in tail to make 
 leases under the English statute, if not executed in conformity 
 with the requisitions of the statute, wiU not be made availa- 
 ble in equity under any circumstances. Fines and common 
 recoveries are judicial powers, based upon statutes, and the 
 rule is, that equity will not aid a defective fine against the 
 issue, nor a defective recovery against the remainder-man. 
 The power to make a will is also a statutory authority, and if 
 the solemnities required by the statute to attend the execu- 
 tion of the wiU have been omitted, through ignorance or 
 mistake, the devisee cannot enforce his imperfect title under 
 the power against the heir. Whenever, in any case, a statute 
 prescribes the mode and manner of acquiring title under a 
 power created by the legislature, the power must be executed 
 in that way, and whenever there is a failure to conform to the 
 statute requisitions, the title is void at law.^ And' 
 when void at law, * equity cannot aid any defect in * 494 
 
 I Young V. Keogh, 11 lU. 642. 
 
572 JURISDICTION AND REMEDIES. 
 
 the execution of it.^ These two cases are the strongest 
 illustrations of the rule which can be found in the books. 
 The statute of Illinois, in relation to guardian sales made un- 
 der orders of the Circuit Court, for the maintenance and ed- 
 ucation of the ward, provided that " it shall be the duty of 
 the guardian making such sale, as soon as may be, to make 
 return of such proceedings to the Court granting such order, 
 which, if approved by the Court, shall be recorded, and shall 
 vest in the purchaser or purchasers all the interest the ward 
 had in the estate so sold." This requirement was omitted in 
 Young V. Keogh, which was an action of ejectment, and the 
 sale was held void. Afterwards, Dowling, who was a pur- 
 chaser, claiming under the guardian's sale, aforesaid, filed a 
 bill in chancery to aid the defect, but the Court held, that the 
 title could no more be sustained in equitj'- than at law. Such 
 was the conclusion in Young v. Dowling, on a demurrer to 
 the bill, and the opinion of Judge Caton in that case is a very 
 able one, and deserves the attentive consideration of those who 
 may be engaged in the examination of this question.^ 
 
 i Young V. Dowling, 15 111. 481. 
 
 2 Caton, J. : " In this case a very important principle is involved, which 
 demanded and has received the most careful consideration of this Court. The 
 complainant in this case claims title to the premises in question under a guar- 
 dian's sale made in 1846, under an order of the Circuit Court. The title in the 
 case of Young v. Keogh (11 Bl. 642) was precisely like this in every respect, 
 being derived under a sale made by the same guardian, and under the same 
 decree, and made at the same time with the sale under which the complainant 
 claims title, so that the decision applies to this case precisely the same as if it 
 had been made upon this Identical title. The Court there decided, that all the 
 proceedings were regular, except that the guardian never made a report of his 
 proceedings under the order of sale, as that order had directed and the statute 
 required. For that defect this Court decided that the sale was void, and that no 
 legal title passed to the purchaser by the deed which the guardian had executed. 
 This Court then said, ' There is no avoiding the conclusion, that the title does 
 not vest in the purchaser till the report is made and approved. The language 
 of the statute is so explicit and unequivocal, that it neither admits of doubt or 
 argument.' Since the decision of that case, a trial in ejectment has been had 
 between the complainant and defendants in this bill in which these defendants 
 recovered a judgment in ejectment against the complainant, thus determining, 
 in conformity to the decision of this Court in the other case, that the complain- 
 ant acquired no legal title by his purchase. This bill is filed against the heirs, 
 who were plaintiffs in the ejectment suit, praying an injunction to restrain the 
 execution of the judgment rendered in that cause, and for general relief. 
 
JURISDICTION AND REMEDIES; 573 
 
 *The same principle was applied by Judge Story, *495 
 in Bright v. Boyd,^ to an administrator's sale, which 
 was void at law for non-conformity with the statute. 
 
 The bill set out the decree of the Circuit Court, ordering the guardian to sell, 
 the fact of the sale to the complainant for the full value of the property, that 
 he paid the purchase-money to the guardian, and took a deed from the guar- 
 dian for the premises ; and that, beliering he had a perfect title to the 
 premises, he took possession under his deed, and made valuable and lasting 
 improvements on the premises of the value of $2,500 ; and that he was not 
 aware of any defect in his title till the commencement of the ejectment suit, 
 which was after the death of the guardian, when it was impossible to compel a 
 return of the sale to be made by the guardian, and to procure an approval thereof 
 by the Circuit Court. It is insisted, in support of this bill, that here was the 
 creation of a power which, in itself, was perfect and complete, but which, through 
 the mistake, accident, or inadvertence of the guardian, was defectively exercised 
 or executed ; and that it is competent for a Court of equity to relieve against, and 
 to give him a title which, by reason of such defect, the law will not give him. 
 Where a power is created by an individual, or the party interested in the exer- 
 cise of the power, and that power is defectively executed by the agent appointed 
 by the power to execute it. Courts of equity may interfere and relieve against 
 such defect, for the purpose of carrying out the purposes intended by the creator 
 of the power, and the agent who imperfectly executed it. But the general rule 
 is otherwise where the power is created by law, and without the concurrence of 
 the party whose interests are to be affected by its exercise. Mr. Justice Story 
 says, ' But in cases of defective execution of powers, we are carefully to distin- 
 guish between powers which are created by private parties and those which are 
 specially created by statute ; as, for instance, the powers of tenants in tail to 
 make leases. The latter are construed with more strictness ; and whatever 
 formalities are required by the statute must be punctually complied with, other- 
 wise the defect cannot be helped, or at least may not, perhaps, be helped in equity, 
 for Courts of equity cannot dispense with the regulations prescribed by a statute ; 
 at least where they constitute the apparent policy and object of the statute.' 1 
 Story, Eq. sec. 96. Such, in our judgment, is emphatically the case before us. 
 Here the statute has created a power to divest infants of their estate for certain 
 objects, specifying those objects, and prescribing the precise mode of doing it, 
 and stating clearly what acts shaE be done in order to pass the title. When the 
 legislature created this power, it foresaw the abuse and injustice to which it was 
 liable, and prescribed these forms for the very purpose of guarding against such 
 abuse, and this constitutes the manifest policy of the law. Here the legislature 
 prescribed a certain act to be done, which is the final consummation of the exer- 
 cise of the power, and this last act, it has said, should pass the title ; and in 
 construing that statute, we have determined, that without that act the title did 
 not pass. This act, from its very nature, was one of the most important acts 
 dictated by the law, to guard against abuse, and to protect the interests of the 
 infants, whose estate was to be taken from them without their consent. This is 
 the statute : ' It shall be the duty of the guardian making such sale, so soon as 
 may be, to make return of such proceedings to the Court granting the order. 
 
 1 1 Story, 478. 
 
574 juKisDicnoN and remedies. 
 
 *496 *The cases where a power of appointment, or of 
 revocation, which arise by construction under the stat- 
 
 which, if approved by the Court, shall be recorded, and shall vest in the purchaser 
 or purchasers all the interest the ward had in the estate so sold.' If there be 
 any act prescribed by the statute which should be deemed essential to a valid 
 execution of the power conferred by the law, it is this, which the statute says 
 shall be the one which shall vest the title in the purchaser ; and it is this act, of 
 all others, which is best calculated to secure the interest of the infant against 
 the misconduct or indiscretion of the g^uardian, for by it the Court is required to 
 revise and examine the acts of the guardian in making the sale ; and if not fair 
 and just in all respects, or if not in pursuance of the previous order of the Court, 
 the sale will not be approved, in which event all the acts of the guardian stand 
 for nought. This was a wise provision of the legislature, which says, in sub- 
 stance, that the sale shall confer no right, and the guardian's deed shall convey 
 no title, and that all acts done in pais shall remain in abeyance, till the Court has 
 examined and reviewed them and entered its approval on its records. And yet 
 this act, so manifestly forming a most essential element in the policy of the 
 statute, we are asked to dispense with, because, at this distance of time and after 
 the decease of the guardian who made the sale, these heirs may not be able to 
 show any sufBcient reason, which, in the opinion of a Court of equity, would 
 have required the Circuit Court to set aside the sale made by the guardian. 
 The law has not vested the Court of chancery with the jurisdiction to approve 
 or disapprove of the acts of the guardian, but that jurisdiction was vested in the 
 Circuit Court, which ordered the sale. If chancery may interfere and dispense 
 with one of tlie requirements of the statute, it may with another, and thus in its 
 unlimited discretion, it rnay fritter away the whole statute. It is seriously 
 claimed, that because the purchaser purchased in good faith, and paid the full 
 value of the property to the guardian of the owners, that thereby an equity is 
 raised in his favor and against them, which the Court will enforce. Equities do 
 not arise upon statutory acts without the volition of those against whom the 
 equity is charged. Suppose this guardian, seeing that a case existed which 
 would require the Circuit Court to order a sale of the infant's estate, and in 
 ignorance of the law, but in all honesty, had sold the estate for its fiill value, 
 without an order of the Court, to a purchaser, who, in good faith, supposed he 
 was getting a good title ; in that case, the purchaser's equity would be just as 
 strong as is the equity in this case, and, should we now hold that the purchaser 
 here acquired an equitable title which should be enforced against the heir, it 
 would be equally our duty, when the case supposed arises, to compel a convey- 
 ance to the purchaser, and then the entire statute would be gone. But the 
 truth is, the purchaser at these statutory sales gets no imperfect equitable title 
 which may be perfected in chancery ; he gets the whole title which the infant 
 had, or he gets no title whatever. Undoubtedly, if, at the time of the sale, the 
 infant had but an equitable title, and subsequently acquires the legal title, that 
 equity will compel him to convey to the purchaser such subsequently acquired 
 legal title, but that would be upon the ground that he acquired the legal title by 
 reason of the equitable title which had been regularly sold, and that he took the 
 legal title simply as trustee. In such a case equity could undoubtedly enforce 
 the trust. 
 Nor has the complainant here the appearance of equity against the heirs which 
 
JURISDICTION AND REMEDIES. 575 
 
 ute of uses, where *the power is required by the donor * 497 
 to be executed through the instrumentality of a will, 
 
 he supposes. The case does not show that the gliardian appropriated the moliey 
 which he received of the complainant to the support and education of the infants, 
 or invested it in other estate for their henefit, or applied it any way to their use. 
 It simply shows that he received it as guardian. Had the money been invested 
 in other lands for the infants, it may he that it could be followed there by the 
 complainant ; and even if it were shown that the money had been applied to 
 their support and education, there would be some reason for saying that this 
 should affect their consciences, and require them to refund it after they became 
 of age ; but that question is not here, for it is not shown what the guardian did 
 with the money. The complainant knew, or should h^ve known, when lie bought 
 the land, that he got no title till the sale was reported to Court and approved, 
 and that it was his place to see that the guardian performed his duty in this 
 regard, as in any other which was essential to the validity of his title. Suppose 
 the guardian had omitted to make the deed, could he now be allowed to say that 
 he supposed the guardian had performed his duty and done it, and ask this Court 
 to dispense with that essential act? The complainant was in a position to com- 
 pel the guardian to make a report to the Court, and thus enable that tribunal to 
 inspect his proceedings, and see that the interests of the infants had not been 
 sacrificed while they were perfectly powerless in his hards, and incapable of 
 thinking or knowing or doing -any thing affecting their interests. All the rights 
 of parties thus situated are reserved, and they are to be considered as opposing 
 and protesting against every thing which is done affecting their interests. This 
 is a special proceeding provided by the statute, by which the title to land of third 
 persons is divested without their consent, and not only against their will, but 
 that, too, when they are incapable of making an effort to protect themselves ; 
 and such being the case, it was the duty of the legislature to throw every check 
 and safeguard around the proceeding to protect the rights of the infants from 
 becoming a prey to avarice and dishonesty. This was done by requiring the 
 Court to supervise the whole proceedings, and if all was found right and fair, to 
 approve them, until which time all the acts which had been done were merely 
 preliminary, having in themselves no binding effect. It was the manifest policy 
 of the law to make the Court the special guardian of the infant, to see that he 
 was not defrauded by his general guardian or others. This policy of the law 
 must be upheld. The statute alone created the power to sell the land, and 
 required that it should be exercised in a particular way to make it valid, and in 
 no other way can it acquire validity. This sale and proceeding was either con- 
 formable to the law, or it was not. If the former, it conveyed a good title ; if 
 the latter, it was illegal, and nothing. The statute says the title might be trans- 
 ferred in a particular way, and if done in any other way, the statute gives it no 
 sanction, and it is as void as if there were no statute on the subject. This is not 
 a power created by a power of attorney or by will, where the Court may aid a 
 defective execution of the power, where it is necessary to carry into effect the 
 intention of the donor of the power, whose Interests were to be affected by its 
 exeoiition. 
 
 We are not without authority directly on this point. The case of Bright v. 
 Boyd (1 Story, 478) is almost precisely like this in all its essential particulars. 
 There an admmistrator had, in pursuance of a statute, been authorized by the 
 
676 JURISDICTION AND REMEDIES. 
 
 * 498 and is executed by deed, in * whiTih case equity will 
 
 aid the defective execution of it, are not an exception 
 to the general rule ; though the will is not executed as re- 
 quired by the statute of wills, equity relieves, because the 
 deed takes effect under the instrument which creates the 
 power, and not under the will ; the maxim being, that every 
 instrument made in execution of the power, refers to the in- 
 strument creating the power. The principle that equity 
 
 * 499 must * fallow the law, and cannot supply any defect 
 
 which would render a sale and conveyance void at 
 law, for non-conformity with the statute, is peculiarly appli- 
 cable to tax sales and conveyances, because of the fact, that 
 they are regarded as titles stricti juris, derived under a naked 
 statute authority. No instance is known of an attempt to 
 
 Probate Court to sell land left by the deceased, for the payment of debts. The 
 statute required, that, previous to the sale, the administrator should file a bond 
 with the Probate Court, approved by that Court. Previous to the sale, a bond was 
 executed, by sureties, and who were approved by the Court, but the bond was- 
 not actually approved by the Court and filed. The administrator advertised 
 and sold the premises, in pursuance of the order of the Court, for their full value, 
 and executed a deed, &c., and the purchaser had made valuable improvements 
 thereon. The heir recovered the premises in ejectment, for the reason that no 
 bond had been filed by the administrator, and approved by the Court ; and the 
 bill was filed, praying that the heirs might be decreed to pay the value of 
 the improvements, or release to the purchaser. Story, J., after adverting to the 
 decision at law, said : ' It is now argued, that however correct this doctrine may 
 be at law, yet in a Court of equity, the omission to give the bond within the 
 stipulated time, ought not to be held a fatal defect, but it should be treated as an 
 inadvertence, or accident, properly remediable in a Court of equity. We do not 
 think so. The mistake was a voluntary omission or neglect of duty, and in no 
 just sense an accident. But if it were otherwise, it would be difficult, in the 
 present case, to sustain the argument. This is not the case of the defective 
 execution of a power created by the testator himself, but of a power created 
 and regulated by statute. Now it is a well-settled doctrine, that although Courts 
 of equity may relieve against the defective execution of a power created by a 
 party, yet they cannot relieve against the defective execution of a power created 
 by law, or dispense with any of the formalities required thereby for its due 
 execution, for otherwise the whole policy of the legislative enactments might be 
 overturned. There may, perhaps, be exceptions to this rule ; but, if there be, 
 the present case does not present any circumstances which ought to take it out 
 of the general rule. Therefore, it seems to us, that the non-compliance with tlie 
 statute prerequisites in the present case, is equally fatal in equity as it is in law.' 
 It would be difficult to find upon any question a case more directly in point, and 
 if it be the law, of which we have no doubt, it settles the case conclusively. 
 The decree of the Circuit Court must be reversed, and the bill dismissed." 
 
JURISDICTION AND REMEDIES. 577 
 
 make a tax title good by an appeal to a Court of equity. If 
 the reader desires to pursue this question further, he is refer- 
 red to the authorities cited in the margin.^ (a) 
 
 1 1 Story's Eq. §§ 96, 177, 178; Fonb. Eq. B. 1, C. 1, § 7 ; Earl of Darlington 
 V. Pulteney, Cowper, 267. When a sheriff, in selling land for taxes, has neglected 
 to affix a seal to his deed, a Court of chancery will not correct the error. Altes 
 t'. Hinckler, 36 111. 265. Where land was in fact sold at a tax sale in parcels, 
 and not in bulk as stated in the deed, in a suit in equity by the owner to set 
 aside the tax deed, in which the defendant filed a cross-petition making the 
 county treasurer a party, and seeking to compel the execution by the treasurer 
 of a new and valid deed according to the facts, relief was denied as against the 
 owner on the ground of inadequacy of consideration and want of equity. Harper 
 V. Sexton, 22 Iowa, 442. 
 
 (a) The decree of a Court having jurisdiction is not void or open to attack 
 collaterally, because based upon an erroneous application of legal principles or 
 insufficient evidence ; it is, therefore, a sufficient answer to a bill to set aside a 
 tax sale and deed as constituting a cloud upon title, where it is alleged that the 
 grantee in the tax deed on a bill against the complainant to quiet his (grantee's) 
 title thereunder procured a decree in accordance therewith, even though such 
 decree was erroneous for the reasons above stated. Stevenson u. Bonesteel, 
 30 Iowa, 286. 
 
 37 
 
678 HOW TO PLEAD A TAX TITLE. 
 
 CHAPTER XXXV. 
 
 OP THE MODE OF PLEADING A TAX TITLE. 
 
 The rules which govern the mode of pleading a title derived 
 under a tax sale, will, of course, depend upon the form of 
 action, the character of the defence, or nature of the contro- 
 versy in which the question arises, (a) In real actions, and 
 actions of ejectment, brought by the party who claims the 
 land under such a title, and in trespass quare clausum fregit, 
 and actions upon the case in tort, instituted by him for an in- 
 jury to the possession or inheritance, the general allegation of 
 title will be sufBeient, as in ordinary cases. (6) In trespass, and 
 eases prosecuted against him by the former owner, his title 
 may be given in evidence under the general issue, (c) But 
 where he seeks, by mandamus, or bill in chancery, to coerce 
 the execution of a tax deed, by the officer to whom the law 
 has intrusted the power of making it ; where he relies upon 
 his title as a defence to an action at law, or suit in chancery ; 
 and in all cases, where a party to a suit founds his cause of 
 action or ground of defence upon the existence of an out- 
 standing tax title in a third person, the title must be specially 
 alleged in the pleading of the party, (d) This proposition 
 
 (a) In a bill to remove a cloud upon title the facts which show the apparent 
 validity of the instrument which is said to constitute the cloud, and also the facts 
 showing its invalidity, should be stated in the bill of complaint. Hibernia S. & L. 
 S. u. Ordway, infra ; see also Wals v. Grosvener, 31 Wise. 681. But when the in- 
 strument which constitutes the cloud is a tax deed, whicb under the statutes of the 
 State is declared to be prima facie evidence of titfe, the name of the instrument 
 is sufficiefit for the purpose of showing an apparent validity. Hibernia S. & L. 
 S. V. Ordway, 38 Cal. 679. 
 
 (6) See Jen^ns v. Sharpf, 27 Wise. 472. 
 
 (c) See 1 Chitty's Plead., p. *502. 
 
 {d) So where a special tax for school purposes could only be levied after the 
 question had been submitted to the qualified electors of the district in the man- 
 ner pointed out in the statute, the holding of such an election is a jurisdictional 
 fact, and it must, therefore, in an action to collect such tax be averred with pre- 
 
HOW TO PLEAD A TAX TITLE. 579 
 
 will not be denied. But how shall this special allegation be 
 framed ? What particularity and certainty is required by the 
 rules of pleading in such cases? Is the general allegation 
 that the proceedings were "in due form of law," "in con- 
 formity with all the provisions of the statute in such case made 
 and provided," " regular," or " legal," sufficient, or must the 
 pleader set forth the proceedings under which the sale of the 
 land took place, so that the Court can see that the pro- 
 ceedings were in conformity with the requirements * of * 501 
 law ? Pleading is defined to be, " the statement of the 
 facts which constitute a cause of action or ground of defence." 
 Now, what facts constitute the cause of action or ground of 
 defence, where a tax title is relied upon? Clearly, all of 
 those which the law has declared shall exist, in order to con- 
 summate a complete and perfect title. Each independent act 
 of the officers who have any thing to do with the proceedings, 
 from the listing of the land for taxation, until the title is con- 
 summated by the execution and delivery of a deed, constitutes 
 an essential link in the chain of title, and must be specially 
 averred in the pleading. The rule requires that all of the 
 facts upon which the legal sufficiency of the cause of action 
 or ground of defence depends, shall be stated, (a) The ex- 
 cision and in such a manner as to admit of a direct issue upon the facts averred. 
 It is not therefore sufficient to allege in general terms that tlie tax was duly levied, 
 and that the levy and all proceedings prior and subsequent thereto were made and 
 had under and in pursuance of a vote and election theretofore had and held by the 
 qualified electors of the district In pursuance of law. People v. Castro, 39 Cal. 65. 
 (o) Under the act of 1860, making sales of land for taxes " valid to all intents 
 and purposes," &c., and providing " tliat no such sale shall be impeached or ques- 
 tioned in any manner or for any cause, saving fraud or mistake. In the assessment 
 or sale of the same, or upon proof that the taxes have been paid," held, that though 
 as a general rule it is incumbent on a complainant in chancery who relies upon a 
 tax title to allege that the assessor and collector have each done all the acts and 
 things prescribed by law to make the owner of the property debtor for the taxes, 
 and to create a charge upon the property, and also that all those conditions have 
 been complied with, the compliance with which authorizes a sale for the non- 
 payment, yet In this case the title being of prima facie validity, and the onus 
 being on the defendant to show the " mistake or fraud," &c., the general allega- 
 tion in the bill " that the land was sold to the State on," &c., "for the non- 
 payment of taxes assessed and due thereon for the year," &c., is sufficient, and 
 the defendants in their answer must show mistake, fraud, or payment. Griffin 
 V. Dogan, 48 Miss. 11 ; Meeks v. "Whately, 48 Miss. 337 ; see also Belcher v. 
 Mhoon, 47 Miss. 613. 
 
580 HOW TO PLEAD A TAX TITLE. 
 
 ceptions to this rule are, that facts of which the Court will 
 ex officio take notice, facts which the law presumes, and facts 
 which come more properly from the opposite party, as being 
 peculiarly within his knowledge, need not be stated in his 
 pleading. Tested hj the rule and exceptions, how stands 
 the case with regard to the facts necessary to be stated in 
 pleading a tax title? Courts will take judicial notice of the 
 existence of other superior Courts, the extent of. their juris- 
 diction, and the course of proceedings therein ; but they will 
 not take notice of the jurisdiction of inferior Courts, or the 
 course of their proceedings. The pleader must aver and set 
 forth such facts as will show that they had jurisdiction, and 
 that their proceedings were regular ; nor will the Court take 
 judicial notice of the aiithority of an officer to act in a given 
 case, but the facts which establish the authority must be 
 averred in pleading. The Courts, as has already been shown, 
 raise no presumption in behalf of an officer intrusted with the 
 power to sell land for the non-payment of taxes, to cover any 
 radical defect in his proceedings ; it is not a case for presum- 
 ing that, as a public officer, he has performed his duty by 
 pursuing his authority ; therefore, the facts upon which his 
 authority depends must be set forth in pleading. Nor do the 
 facts upon which the validity of the officer's proceedings de- 
 pends, lie more properly within the knowledge of the former 
 
 owner, for we have seen that these facts should be 
 * 502 * examined by the purchaser, before he buys at a tax 
 
 sale, and the evidence of them should be preserved by 
 him as a necessary muniment of his title ; therefore, aU of 
 these facts should be averred. 
 
 There is another rule of proceeding which requires, " that 
 facts only are to be stated, and not arguments or inferences, 
 or matter of law." An averment that the proceedings of the 
 officer were "regular," "legal," &c., is a mere legal concla- 
 sion without giving the facts from which that conclusion is 
 drawn, (a) Therefore, in all such cases, the pleader must 
 
 (a) Proceedings which are vqid by reason of the infirmity of the statute under 
 which they are had, are not cured by an averment in a complaint that they were 
 " duly and legally had ; " and a failure to deny the averment in the answer is 
 not an admission that the proceedings were valid or legal. People v. Hastings, 
 29 Cal. 449. 
 
HO-W TO PLEAD A TAX TITLE. 581 
 
 show, with reasonable certainty, the particular facts upon 
 which the regularity or legality of the proceedings depends, 
 that the Court may see whether the requirements of the law 
 have been complied with or not. For instance, where a 
 submission requires an award to be made in writing, under 
 the hands and seals of the arbitrators, by a particular day, it 
 is not sufficient in pleading the award, to allege, simply, that 
 the arbitrators " duly made their award." So, where a sheriff 
 is sued in trespass, for taking, carrying away, and disposing 
 of personal property, and he justifies under an execution, a 
 general averment, that hj virtue of a " lawful execution" he 
 seized the goods, &c., is insufficient, he must set it out, or so 
 describe it in his plea, that the Court can determine whether 
 or not the writ is a lawful one. (a) So, where an officer is 
 
 (a) A tax duplicate which is legal upon its face is sufficient to justify the 
 treasurer in seizing property in the collection of the taxes charged thereon ; and, 
 in justifying the seizure of personal property for the payment of taxes in an 
 action to recover the possession thereof, it is not necessary that the answer of the 
 treasurer should allege that each requirement of the statute had been complied 
 with in the preparation of the duplicate. A general allegation that the duplicate 
 was delivered to the treasurer in conformity to law, &c., is suflScient. Noland v. 
 Busby, 28 Ind. 154. In an action under sec. 8 of an act approved March 11, 
 1862, providing that in case the title of the purchaser at a tax sale shall be 
 adjudged invalid, such purchaser shall have and retain the lien of the State 
 upon the premises to the amount of his purchase-money, with interest, &c., which 
 lien may be enforced by action, &c., the complaint should set forth definitely 
 each lien of the State which the plaintiff claims to have acquired under the 
 provisions of the act, by stating the. nature and amount of each year's taxes, 
 embraced in the sale, and the particular lot or parcel on which they were assessed ; 
 if the plaintiff seeks in one action to enforce liens for several years' taxes upon 
 the same land, a complaint which states the aggregate amount of the taxes, but 
 not the amount of each year's taxes, is not sufficiently definite, and may be made 
 more definite and certain upon motion ; but the defect cannot be reached by 
 motion for judgment on the pleading. But in such action, when the authority 
 to tax appears on the complaint, and the taxes and property upon which they 
 are a lien are stated in the complaint with sufficient certainty, an allegation that 
 such taxes were " duly levied and assessed," is a sufficient averment of the assess- 
 ment of such taxes ; and if issue is taken thereon, proof of all the facts consti- 
 tuting the assessment of the tax is admissible. Webb v. Bidwell, 15 Minn. 479. 
 In an action to enforce the lien, the plaintiff must either plead the judgment of 
 a Court of competent jurisdiction, determining the invalidity of the title, or set 
 forth fully the facts showing its invalidity, and claim the judgment of the Court 
 declaring such title invalid, and decreeing the plaintiff's lien. An allegation 
 " that the title of the plaintiff to said lots by virtue of said tax sale is invalid 
 from an irregularity in the notice of such tax sale," is a conclusion of law, and is 
 insufficient. Webb v. Bidwell, su/wo. 
 
582 HOW XO PLEAD A TAX TITLE. 
 
 sued for false imprisonment, it is not sufficient, in Ms justifi- 
 cation, to state that he arrested and imprisoned the plaintiff 
 under a " legal warrant," &c. So, where the proceedings of 
 an inferior Court of limited jurisdiction, are relied upon as a 
 cause of action or ground of defence, it is not sufficient for 
 the pleader to allege that the proceedings were had before 
 " a Court of competent jurisdiction and authority," but lie 
 must aver and set forth in his pleading such facts as will show 
 upon the record, that the Court had jurisdiction over the 
 person, subject-matter, &c. So, where a special demand is 
 necessary, an averment that a demand was " duly made," is 
 insufficient, but the pleader must show by and to whom the 
 same was made, and the time and place of making it, in order 
 
 that the Court may judge. This doctrine is not opposed 
 * 503 to * Lord Coke's rule, that " circumstances implied by 
 
 law, need not be stated." That rule simply amounts to 
 this : In pleading a deed, it is unnecessary to allege that it 
 was in writing, sealed and delivered ; the term, deed, ex vi 
 termini, means a writing, sealed and delivered, therefore, if 
 the pleader alleges that " the defendant, on, &c., at, &c., 
 made his certain deed of that date, &c.," the law implies that 
 it was in writing, sealed and delivered. If a feoffment be 
 pleaded, livery of seisin need not be alleged, for it is implied 
 in the word " enfeoffed." In pleading the assignment of 
 dower in land, it is not necessary to say that it was by metes 
 and bounds, for it shall be intended a lawful assignment. 
 There is no analogy between tliis class of cases and tax titles. 
 If a tax deed was, by law, conclusive, or even primd facie 
 evidence that the law had been complied with, then it would 
 be sufficient to aver generally the existence of a " tax deed 
 in due form of law," for the law would imply that every 
 preliminary fact existed which was necessary to its validity. 
 The words, " tax title," would then become the technical 
 name of the party's right to an estate in fee, used only for the 
 purpose of designating the source of the title, (a) But it has 
 
 (a) It was accordingly, in Byington v. Robertson, 17 Iowa, 562, MdsufiScient, 
 in an action to foreclose a tax title (tlie deed being by statute presumptive evi- 
 dence of the regularity of all prior proceedings), to allege the execution of a valid 
 deed by the proper officer, and to annex a copy of the same to the petition, with- 
 
HOW TO PLEAD A TAX TITLE. 583 
 
 been shown that a tax deed is not, according to the principles 
 of common law, evidence that the preliminaries have been 
 complied with that no intendments are indulged in for the 
 purpose of upholding the tax sale, that the law must be 
 strictly complied with in all of its requirements, and that the 
 onus lies upon the party claiming under such sale to show a com- 
 pliance. The plea of performance of a condition precedent is 
 somewhat analogous to a pleading which sets forth a tax sale 
 as a cause of action or ground of defence ; and the rule in 
 such case is, that the performance must be shown to have 
 been according to the intent of the contract ; an exact per- 
 formance must also be stated ; and performance ought to be 
 shown with such certainty, that the Court may judge whether 
 the intent of the covenant has been duly fulfilled. There is 
 another rule of pleading which requires this degree of certainty 
 in pleading a tax sale. Where a party claims a right unknown 
 to the common law, but which depends entirely upon 
 a statute for its * support, he must, in pleading his title, * 504 
 set forth all of the facts which the statute has made 
 essential to its validity. The statute of 27 Hen. VIII. c; 16, 
 declares, that bargains and saleg of land shall not enure to 
 pass a freehold estate, unless the same be made by indenture, 
 sealed, and enrolled within six months after the date thereof, 
 in one of the Courts of Westminster, &c. It has been held, 
 that in pleading a bargain and sale under this statute, the 
 time when, and Court where, the enrolment was made, must 
 be specially alleged. In pleading a deed under the statute 
 of uses, a, pecuniary consideration must be averred, for this is 
 essential to raise a use. So, in pleading a devise of land, it 
 is necessary to allege the seisin of the devisor, and that he, 
 being seised on, &c., at, &c., made and published his last will 
 and testament, in writing, bearing date, &c., by him signed 
 
 out alleging the due and regular performance of all the acts necessary to make 
 the deed valid. See note (a), p. * 601. But in Russell v. Mann, 22 Cal. 131, it 
 is held, that whenever a tax title is specially set forth in a pleading (an answer 
 in this case), it is necessary to aver every fact which is requisite to show that 
 each of the statutory provisions has been complied with ; and that this necessity 
 is not obviated by the statutory provision requiring the tax deed to state certain 
 of these essential facts, and making such deed proof of such facts ; in pleading a 
 tax title, it is, nevertheless, necessary to aver these facts. 
 
584 HOW TO PLEAD A TAX TITLE. 
 
 and attested and subscribed, in his presence, by three credible 
 witnesses, &c., and that after the publication of the will, 
 the devisor died. In none of these does the law intend the 
 validity of the bargain and sale, the conveyance under the 
 statute of uses, or the will. So, also, the declaration upon a 
 penal statute, whether at the suit of the party aggrieved, or 
 a common informer, must especially allege all of the facts 
 necessary to show the title of the plaintiff to recover the 
 penalty. 
 
 Another rule of pleading, equally well settled, is, that in 
 all cases where a party claims title, or defends an act done 
 under an authority, he must not only allege the authority, but 
 set forth the facts which show that the terms of the power 
 have been pursued. Thus where one claims title to land 
 under a warrant of attorney, and it becomes necessary to 
 plead his title, he must set forth the warrant and deed ex- 
 ecuted in pursuance of it, that the Court may see upon the 
 face of the plea that the terms of the power have been pur- 
 sued. And where an officer justifies the seizure of goods and 
 chattels, under an execution, he must not only set forth the 
 execution, but aver that the seizure was made in the lifetime 
 of the writ, or his plea will be ill. Where the authority 
 is special, as in the case of the sale of land for taxes, the 
 reason is stronger for setting out the authority and acts done 
 in pursuance of it. Another rule of pleading is that 
 * 505 * where the validity of a title depends upon the exist- 
 ence of any fact in pais, the fact must be specially 
 alleged. Thus, an heir claiming title by descent, must not 
 only show the seisin, but the death of the ancestor and his 
 own pedigree. One claiming title by succession must specially 
 allege the existence of all the facts necessary to establish the 
 validity of his title as successor, &c. So one claiming^free- 
 hold by a marriage with the person seised, must allege the 
 marriage. In pleading a dower encumbrance, the seisin of 
 the husband, his intermarriage with the dowress, and his 
 death, must all be averred. It would therefore seem, that all 
 of the acts in pais essential to the validity of a tax title should 
 be specially alleged when such a title is relied on in pleading. 
 In pleading a fine levied with proclamations, it is necessary 
 
HOW TO PLEAD A TAX TITLE. 685 
 
 to allege the Court in which, and the names of all the judges 
 before whom, the fine was levied, the term of the Court, the 
 king's license, the original writ, the concord of the parties, 
 the number of proclamations, and the times, place, and manner 
 of making them, the judgment of the Court, and all of the pro- 
 ceedings essential to its validity. This is a strong case. A 
 fine is called a feoffment of record, and is said by Sergeant 
 Wilson to be " the strength of almost every man's inher- 
 itance ; " and when we remember that where a tenant in tail 
 levies a fine with proclamations, it bars the entail, and the 
 interest of reversioners and remainder-men, unless they make 
 claim or pursue their action within five years, the analogy 
 between the effect of the fine and tax title becomes complete. 
 Both, if valid, cut off all adverse interests in the land, and 
 vest a perfect and complete title in fee-simple — the one, by 
 a fiction of law, and the other, for a merely nominal consider- 
 ation. There is this difference between them, that the fine 
 is a title of record, whereas the tax title depends upon matters 
 in pais. If, then, great particularity is required in pleading 
 the fine, there is greater reason for strictness in the mode of 
 pleading a tax title. In strictness, therefore, in pleading a 
 tax title, it should be alleged, with reasonable certainty, 
 that the land was subject to taxation ; that it had been 
 listed, valued, and charged with the tax, in the time and 
 manner required by law ; that the tax had been duly 
 * levied by competent authority ; that the tax list or * 506 
 wari3.nt to collect had been duly delivered to the col- 
 lector ; that the collector had resorted to all of the collateral 
 remedies which the law had conferred upon him, in order to 
 enforce the payment of the tax without resorting to a sale of 
 the land, such as a demand of the tax, and a seizure of the 
 body or goods of the delinquent ; that the delinquent list had 
 been duly returned to the proper officer or Court by the col- 
 lector ; that the tax remained due and unpaid ; that personal 
 notice had been given to the delinquent, where the law 
 requires it ; that a judgment had been rendered by a Court of 
 competent jurisdiction, against the land, where the law 
 requires a judgment; that a valid precept had issued upon 
 such judgment, and was duly delivered to the officer appointed 
 
686 HOW TO PLEAD A TAX TITLE. 
 
 by law to make sale of the land ; that the time and place of 
 sale was advertised in the time and manner required by law ; 
 that the sale took place at the time and place, and was made 
 by the person and in the manner required by law ; that the 
 pleader was the purchaser, or some person under whom he 
 claims by assignment ; that a certificate of purchase was duly 
 executed and delivered by the officer to the purchaser, and 
 was duly recorded, &c., where such recording is requisite ; 
 that due notice to redeem had been given the owner ; that 
 the officers charged with the duty have duly returned the 
 proceedings to the proper office, ai;d that they were filed or 
 recorded as required by law ; that the time limited for re- 
 demption had expired ; and that the officer had executed and 
 delivered to the purchaser a deed in due form, &c., which 
 deed had been duly recorded, &c. Such strictness is not 
 only in conformity with the principles of pleadings and the 
 precedents in analogous cases, but is supported by express 
 authority. 
 
 In the case of Blakeney v. Ferguson,^ the bill alleged that on 
 November 5, 1827, the sheriff of Pulaski County "advertised 
 and sold for taxes, in due form of law, according to the form 
 of the statute in such case made and provided," the S. W. i of 
 Sec. 17, T. 4, N. R. 9 W., &c., that one Sampson Gray 
 * 507 then * and there became the purchaser thereof, and 
 received from such sheriff a certificate of purchase 
 for said land, at said sale ; that said Gray bargained and sold 
 said land to Joseph Ferguson, with the express agreement 
 that he would "convey when he received a tax deed; that 
 Gray died before the execution and delivery of a sheriff's 
 deed, and without conveying to Ferguson ; that Ferguson 
 put his son Moses in possession of the premises under the 
 agreement with Gray, and he was so possessed up to the time 
 of his decease ; that Joseph Ferguson died after the making 
 of said agreement and taking of such possession ; that Moses 
 Ferguson was one of the heirs of the said Joseph ; and that 
 liis interest was sold to Benjamin Blakeney, by the sheriff of 
 Pulaski, under an execution against said Moses, and that 
 Blakeney was now seised of said interest by virtue of said 
 
 1 3 Eng. 277. 
 
HOW TO PLEAD A TAX TITLE. 587 
 
 sale, and a sheriff's deed executed thereon. The bill was 
 filed by the widow and heirs of Joseph Ferguson, against 
 the sheriff, Blakeney and the heirs of Gray, and prayed the 
 execution of a tax deed, by the sheriff of Pulaski, to Gray's 
 heirs, in pursuance of the sale Nov. 5, 1827, a specific per- 
 formance, by Gray's heirs, of the agreement between Gray 
 and Ferguson; that complainants might be quieted in the 
 title and possession of said land ; that partition might be 
 made between Blakeney and complainants ; that the widow's 
 dower might be assigned ; and for general relief. To this - 
 bill there was a general demurrer for want 'of equity, which 
 was sustained by the Court, upon the ground that the gen- 
 eral averment that the tax sale was in due form, &c., was 
 insufficient. The Court say, ".The rule of law that pre- 
 vailed at the time of the alleged sale (alluding to the com- 
 mon law as contradistinguished from the statute then in force, 
 which made the deed conclusive evidence) required great 
 strictness in the proof, and required the party claiming under 
 the collector's sale to show, and that fully, that every step 
 prescribed as a prerequisite to such sale had been complied 
 with. It is perfectly obvious that each and every step, from 
 the assessment of the tax to the sale itself, is a separate and 
 independent fact, and that the one has not the most remote 
 connection with the other. It is therefore clear that, 
 in this case, it was necessary to allege * especially * 608 
 every fact essential to the consummation of the title, 
 and that, having failed to do so, they could not be permitted 
 to support them by proof." The same doctrine was tacitly 
 maintained in Stead's Executors v. Course.^ These author- 
 ities are directly in point. 
 
 In Furness v. "Williams,^ which was assumpsit by the 
 assignee of a note against the maker, the defence was a 
 partial failure of consideration. The plea alleged that the 
 consideration of the note was the sale and conveyance, by 
 the payee to the maker, of a town lot, with covenants of 
 good right to convey, and against encumbrances. The plea 
 alleged, that at the time of the sale and conveyance, a part of 
 the lot, equal in value to three hundred and fifty dollars, "had 
 
 1 4 Cranch, 403. '■* H HI- 229. 
 
688 HOW TO PLEAD A TAX TITLE. 
 
 been sold under and by virtue of the revenue laws of Illinois, 
 to one Riddle, in the year 1844, for the taxes due thereon to 
 the county and State, for the year 1843, and that two years 
 have elapsed since said sale, and that the same has not been 
 redeemed from," &c. There was a special replication to this 
 plea, to which the defendant demurred, which on writ of 
 error brought, was sustained to the plea. Chief Justice 
 Treat, in delivering the opinion of the Supreme Court, says, 
 " The plea is clearly bad on general demurrer. The defence 
 relied upon is a breach of the covenants contained in the 
 deed, and in pleading it, the defendant is held to the same 
 strictness as in declaring in an action brought directly on the 
 covenants. On every principle of correct pleading, he is 
 bound to set forth the proceedings under which the lot was 
 sold, so that the Court can see that the covenant has 
 been broken ; or, he must make the general averment that 
 the sale was legally made, and the title thereby divested ; in 
 this plea he does not pretend to set out the proceedings, nor 
 does he make any allegations respecting their regularity and 
 validity. He simply alleges that the lot has been sold under 
 the revenue laws, without averring that the sale was duly 
 
 made, or stating any facts showing that the title passed 
 * 509 thereby to the purchaser." *It will be perceived, 
 
 that the Chief Justice does not express an opinion as 
 to which form of averment is the better mode of pleading ; 
 nor was it necessary, for the pleader had adopted neither in 
 that case, but the leaning of the judge M'^as evidently in favor 
 of the special mode of allegation, " that the Court can see 
 that the covenant has been broken." The Arkansas case 
 was not cited in Furness v. Williams, by the Court or coun- 
 sel. It may be also worthy of remark, that the revenue law 
 in force at the time of the sale, set up in that case, declared 
 the tax deed to be primd facie evidence of some facts, and 
 conclusive evidence of the others ; but a judgment against 
 the land, and precept to the sheriff, were requisite, before the 
 deed could be read in evidence. The special averments have 
 this advantage over general ones. If the pleadings truly 
 state the facts, the question, as to the validity of the tax 
 sale, may be settled by the Court upon demurrer, without 
 
HOW TO PLEAD A TAX TITLE. 589 
 
 ,he expense and delay of a trial by jury; and if the facts 
 lie not truly stated in the pleading, the existence of any 
 particular fact may be denied by the opposite pleader, and 
 ;hus the issue in fact to be tried will be narrowed down to a 
 single point. Suppose, for example, in the Illinois case, the 
 [and had not been advertised for sale, in the time and man- 
 Qer required by law, and the pleader, in setting forth the 
 proceedings, omits the averment that it was so advertised ; 
 an demurrer to the plea, the question of law is presented, 
 whether an advertisement is a prerequisite which must be. 
 Gomplied with, and the whole case must turn upon this point. 
 On the other hand, suppose no advertisement was in fact 
 made, but the pleader alleges one in his plea, the plaintiff 
 may, by a general replication, traverse the truth of that 
 allegation, and thus present an isolated question of fact for 
 the consideration of the jury. Again, suppose an advertise- 
 ment, but not in the time or manner required by law, a 
 special replication and demurrer thereto may present the 
 question of law to the Court or a general traverse, the ques- 
 tion of fact to a jury. In every view, therefore, the special 
 mode of allegation is preferable.^ 
 
 1 See Louisville v. Bank of Kentucky, 8 Meto. (Ky.) 148. It being alleged 
 that notice of sale was posted at F. W. B.'s barn, the Court presumed in favor 
 of the sale, on general demurrer to a plea of justification that this was a public 
 place. Alger </. Curry, 40 Vt. 437. In this case tlie plea alleged " that the 
 Sefendant at said Hinesburg, at a public place in said town of Hinesburg, posted 
 said goods and chattels for sale at public auction on the 3d day of March, 1865, 
 at one o'clock in the afternoon, at F. W. Baldwin's barn in said town." The 
 plea in substance alleged the posting in a public place. 
 
690 BULBS OP EVIDENCE. 
 
 CHAPTER XXXVI. 
 
 OF THE RULES OF EVIDENCE RELATIVE TO MAINTENANCE AND 
 OVERTHROW OP A TAX TITLE. 
 
 Where the statute, under whicli the title originated, or 
 which is in force at the time of the trial, is silent as to the 
 mode of proving or disproving any fact involved in the con- 
 test, the common-law rules of evidence must control the 
 admissibility and effect of the testimony.^ It is a familiar 
 rule, that the best attainable evidence shall be adduced by 
 the party upon whom the onus prohandi rests, to prove every 
 disputed fact. («) The ground of this rule is a suspicion of 
 fraud. If it appears, from the very nature of the transac- 
 tion, that there is better evidence of the fact, which is within 
 the power of the party, and is yet withheld from the Court 
 and jury, a reasonable presumption arises, that the failure to 
 produce it is founded upon the knowledge of the party, that 
 its introduction would defeat or weaken his claim of right. 
 
 1 [In Lamb v. Gillet, 6 McL. 365, it is said, that parol evidence is admissible 
 to prove the prior proceedings, except as to such facts as the statute requires to 
 be of record] In an action of ejectment an objection to the introduction in evi- 
 dence of a State tax deed to the defendants, that assumes facts to be established 
 which constitute matter of defence to the deed, but which might be disputed, is 
 untenable. Crane v. Eeeder, 25 Mich. 315 ; see also Gilman v. Eiopelle, 18 
 Mich. 145. 
 
 (a) See Norris v. Russell, 5 Cal. 249. The recital in a tax warrant that an 
 assessment was made is not competent evidence of the fact of an assessment ; 
 the assessnjent itself must be produced. Hopper v. Malleson's Executors, 16 
 N. J. Eq. 382. And a triennial assessment attached to the original assessment 
 and brought from the commissioner's office is evidence of an assessment without 
 more. Heft v. Gephart, 65 Penn. St. 610. The original assessment of unseated 
 lands contained the name of warrantee, number of acres, valuation and rate, but 
 the amount of tax was not carried out: Held, to be evidence of an assessment of 
 the land, which became debtor by being returned assessed and valued and the 
 rate fixed ; carrying out the amount was merely clerical. McDermott v. Hoffman, 
 70 Penn. St. 54. See p. * 154, note (a). The assessment roll, when completed and 
 certified by the assessor to the board of supervisors, is the only evidence admissi- 
 ble of the assessor's acts and intentions. People v. S. F. Union, 31 Cal. 132. 
 
RULES OP EVIDENCE. 591 
 
 The rule is, therefore, essential to the pure administration of 
 justice, (a) 
 
 In requiring the production of the best evidence applicable 
 to each particular fact, it is meant, that no evidence shall be 
 received which is merely substitutionary in its nature, so 
 long as the primary evidence can be had. The rule excludes 
 only that evidence which upon its face, or from the very 
 nature of the fact sought to be proven, indicates the exist- 
 ence of more original and reliable sources of infor- 
 mation. Because the * better evidence affords the * 511 
 greatest certainty of the fact in question, and removes 
 aU. suspicion of sinister motives in the mind of the party, it 
 must be resorted to in all cases.^ And so tenacious are the 
 Courts in the strict application of this rule, that even where 
 it clearly appears that the better evidence is unattainable, 
 because of its loss or destruction, the next best evidence 
 must be resorted to, thus recognizing the principle, that 
 there are degrees in the various kinds of secondary evi- 
 dence.2 The application of this rule to the proof of a tax 
 title is unquestionable. In some instances the statute law 
 expressly requires that aU of the proceedings shall be re- 
 duced to writing, and each document connected with them 
 filed or recorded in some public office, for the benefit of all 
 parties concerned; and makes the original, or certified or 
 
 (a) The law presumes that " officers intrusted with the custody of public files 
 and records will perform their official duty by keeping them safely in their offices. 
 Where a paper is not found where, if in existence, it ought to be deposited or 
 recorded, the presumption arises that no such paper has ever been in existence. 
 Hallu. Kellogg, 16 Mich. 139 ; Scott v. Stearns, 2 Mich. JST. P. 111. See also Piatt v. 
 Stewart, 10 Mich. 260. This rule has since been changed by statute in Michigan, 
 so far as regards tax sales. See 1 Comp. Laws of Mich, of 1871. p. 403, § 1129. 
 The Michigan statutes require assessment rolls to be kept by the supervisors 
 of the several townships in their offices, and when the roll for a particular year 
 Is not found there the presumption arises that such roll never existed. So, as to 
 returns of overseers of highways to supervisor of the list of all the lands of non- 
 residents," &c., on which the labor assessed has not been paid, &c., if not found in 
 supervisor's office. Hall v. Kellogg, 16 Mich. 139 ; Scott v. Stearns, 2 Mich. N. P. 
 111. 
 
 1 Starkie, Ev. part 3, sec. 10; 1 Greenl. Ev. ch. 4, sec. 82. 
 
 2 Greenl. Ev. sec. 84, note ; Mariner v. Saunders, .5 Gilm. 121, 124. The 
 testimony of the tax collector if competent for such a purpose, is not sufficient 
 to defeat a tax title by impeaching the truth of his own official return as to the 
 conduct of the sale. Biscoe v. Coulter, 18 Ark. 423. 
 
692 RULES OP EVIDENCE. 
 
 sworn copies thereof, admissible in cTidence. But indepen- 
 dent of this, the very nature of the proceeding implies the 
 necessity of perpetuating the evidence of every part of it in 
 writing, and forbids a resort to the memory of man for proof 
 of any material fact connected with it. The list, valuation, 
 levy of the tax, the authority to collect, the return of delin- 
 quents, the advertisement, registry, and certificate of sale, 
 deed, &c., all necessarily imply that they are to be in writ- 
 ing, and authenticated by the proper officer. It would be 
 utterly impossible to conduct the proceedings in any other 
 manner. The universal usage has been to reduce the pro- 
 ceedings to writing, and the authorities, either expressly or 
 by implication, acknowledge the necessity of it.^ If this 
 position be true, it follows inevitably that the best evidence 
 to prove any disputed fact involved in the investigation of a 
 tax title, is the original document, or a certified or examined 
 copy thereof, (a) 
 
 It has been said, that the original is in no case admissible, 
 and that the party claiming under it must produce a certified 
 
 or sworn copy, but it. was held in Spear v. Ditty ,'' that 
 * 512 the rate * bill might be proved by the production of 
 
 itself. The most usual mode of proof is by means of an 
 office copy — i.e. by a copy made out by the officer having the 
 legal custody of the original, and certified under his hand and 
 seal of office.^ But an examined or sworn copy, made by a 
 person who saw and copied from the original, is also admissible 
 upon general principles.* In no case can a private or unofficial 
 
 ' Laird v. Heister, ante, p. * 414, note ; Job v. Tebbetts, 5 Gilm. 380 ; Bruen 
 V. Graves, 11 111. 442. 
 
 (a) In Pittsfield ». Barnstead, 40 N. H. 477 (which was an action to recover 
 for relief furnished to paupers), where, by the act of 1791, selectmen were re- 
 quired to make assessments of taxes and to record them in their book, which 
 was the property of the town, and open to any of the inhabitants of the town, it 
 was held, that the selectmen's book, containing the assessment of taxes in proper 
 form, furnished competent prima facie evidence of the fact of such assess- 
 ment. 
 
 ■■i 8 Vt. 419. 
 
 3 Parker o. Smith, 4 Blackf 70 ; Coman v. State, 4 Blaokf. 241. See also 
 Bolan V. Bolan, 4 Nev. 150. 
 
 « Graves v. Bruen, 1 Gilm. 167; s. c. 11 III. 431; Job v. Tebbetts, 5 Gilm. 
 876 ; 11 lU. 453 ; Schuyler v. Hull, 11 111. 462 ; Sheldon v. Coates, 10 Ohio, 
 278. 
 
BULE8 OP EVIDENCE. 593 
 
 copy, in the hands of the officer who made it, or to whom it 
 was delivered, be received in evidence in lieu of the original, 
 if the latter is in existence.^ 
 
 Where the original is lost or destroyed, and no certified or 
 examined copy is in existence, parol evidence of its contents 
 may be resorted to ; ^ but the proof of loss or destruction must 
 be extremely clear, and the contents proved to the satisfaction 
 of the Court, (a) But such evidence ought not to be permitted 
 when there is any suspicion of a fraudulent destruction or sup- 
 pression of the original. It is extremely dangerous in any 
 case, and the necessity of resorting to it but seldom occurs.* 
 Where the original or a copy is offered, and it appears upon the 
 face of either that the proceeding was irregular in any respect, 
 parol evidence is inadmissible for the purpose of supplying the 
 defect, or in any manner to aid by explanation.* And where 
 the law requires the proceeding to be recorded, the title of the 
 purchaser must stand or fall by the record itself ; oral evi- 
 dence being inadmissible where the officer omitted to record 
 the originals, or recorded them defectively.^ In all cases 
 where office books and files ^ (J) are relied upon to prove 
 
 1 McCall V. Lorimer, 4 Watts, 351. 
 
 ' Wells V. Company, 47 N, H. 23fi. See Irwin v. Miller, 23 111. 401, where 
 it is said tliat an affidavit of loss of a tax receipt could only let in evidence of its 
 contents, and not the collector's books as establishing by the word "paid," 
 marked on them, the contents of the receipts. 
 
 (a) Where a clerk of a Court called to prove the contents of a lost record 
 of condemnation of land for taxes stated that his recollection was that the land 
 was condemned ; from the evidence found in his office, he thought the order of 
 sale issued, and that the land was advertised : this was held to be insufficient 
 proof of the contents of the record to establish a sale. Quinby and Co. v. North 
 American Coal, &e., Co., 2 Heiskell, 596. 
 
 3 Doe ex dem. Kelley v. Craig, 5 Ired. 129 ; ante, p. * 109 ; The proprietors of 
 Cardigan v. Paige, 6 N. H. 182. See p. * 109. 
 
 * Lessee of Massie's Heirs v. Long, 2 Hamm. 287 ; s. c. 1-4 Ohio, Cond. 364 ; 
 People V. San Francisco Savings Union, 31 Cal. 132. 
 
 s Minor c. McL., 4 McL. 138; Colt v. Wells, 2 Vt. 318; Kellogg v. Mc- 
 Laughlin, 8 Ohio, 114. 
 
 •■ The treasurer's sale-book is evidence to prove the redemption of unseated 
 land sold for taxes. Huzzard v. Trego, 35 Penn. St. 9. See Byington v. Book- 
 waiter, 7 Clarke (Iowa), 512, holding that the treasurer's certificate is not con- 
 clusive as to the amount to be paid to redeem under the Iowa statute. 
 
 (6) On the subject of assessments, books, documents, &c., from the commis- 
 sioners' office, showing their proceedings in relation to the land, should be re- 
 ceived in evidence. Lyman v. Philadelphia, 56 Penn. St. 488. So also, as to 
 
 38 
 
594 RULES OF EVIDENCE. 
 
 * 513 a particular fact their * admissibility depends on the 
 following facts : 1. That the person who made it had 
 ofScial authority to do so.i 2. That the book or document 
 comes from the proper depository ; and, 3. Proof of the identity 
 of the book or document.^ It has been repeatedly held by the 
 Courts, that a mere certificate of the officer who conducted 
 the proceedings, or in whose custody the documents connected 
 with them are lodged for safe-keeping, stating in general terms 
 that the proceedings were regular, or that they were conducted 
 in conformity with the requisitions of the law, is not compe- 
 tent evidence to prove the performance of any prerequisite, (a) 
 It is the duty of the officer to make a transcript of the entire 
 proceedings, so that the Court can determine, upon inspection, 
 whether the law has been complied with or not. The officer 
 has no power to decide upon the legality of the proceeding, nor 
 certify to his legal conclusions. Thus, the recital of " due 
 notice " in the record of a special and summary proceeding, 
 was held insufficient to prove notice to the party in interest ; 
 
 the facts therein stated, the county treasurer's book of tax sales is admissible in 
 evidence. Grosbeck v. Seeley, 13 Mich. 329. See also Hobson u. Dutton, 9 
 Kan. 488, in which last case it was held, that where a tax deed recites a sale of 
 a certain tract of land, and it does not appear that the taxes thereon were 
 paid, if the District Court finds that a sale was made, such recital being prima 
 facie evidence thereof, such finding will not be disturbed, even though the tract 
 be not found in the sale book for that year. 
 
 1 A treasurer is not an assessing officer, and his book is not evidence of an 
 assessment ; and where the book itself leaves it doubtful whether it is an assess- 
 ment book, resort may be had to extrinsic evidence. McReynolds v. Longer- 
 berger, 57 Penn. 13. 
 
 2 Dikeman v. Parrish, 6 Barr, 210; Doe ez dem. Kelley v. Craig, 5Ired. 129. 
 
 (a) The certificate of sale for taxes is competent evidence to show the man- 
 ner of sale, &c., but must yield to the record of sales when in conflict therewith ; 
 thus where the certificate showed a sale in gross, while the register of sale 
 showed a sale in parcels, held, that the latter would prevail. McCready v. 
 Sexton, 29 Iowa, 356 ; Henderson v. Oliver, 32 Iowa, 512. And where an 
 erasure appears in the record of sales, it will be presumed to have been made 
 to correct a mistake, when nothing appears to the contrary. Henderson v. 
 Oliver, 32 Iowa, 512. The certificate of the deputy secretary of state of the 
 time when a list of non-resident taxes is filed in his office is competent evidence 
 of the time when filed ; and it may be presumed that the list remained there 
 during the time required by law, if there is nothing to rebut such presumption. 
 Wells V. Burbank, 17 N. H. 392. " The filing of a paper does not consist of the 
 marking put on it by the clerk, but in placing it as a permanent record in the 
 office or case where it belongs." Bettison v. Budd, 21 Ark. 580. 
 
RULES OP EVIDENCE. 595 
 
 the record ought to have set out the notice at length, that the 
 Court might judge of its legality.^ (a) So where a stranger cer- 
 tified and swore that he posted the notice of a tax sale " eight 
 weeks," without stating when he first posted it, the Court held 
 it insufficient, saying, " We cannot know how he computes time 
 in such a case. The affidavit should state the day when the 
 advertisement was put up, and then we can see whether it was 
 put up in due season." ^ And in Dunn v. Games,^ where the 
 question as to the validity of the listing arose, the only evi- 
 dence of it was the certificate of the auditor, that the land 
 in question was " regularly entered on the duplicate for tax- 
 ation," and the Court held the evidence of a legal listing in- 
 sufficient. McLean, J. : " It is not enough that the auditor 
 states that the listing was legally done ; he must show how it 
 was done, that the Court may judge of its legality. The 
 * auditor was required to record the proceedings — it * 514 
 is a copy of this repord that is evidence, and not a his- 
 torical account of what was done." The same point was 
 decided by the Supreme Court of the United States.* 
 
 In Henry v. Tilson,^ which was an action of trespass against 
 the collector, for arresting and imprisoning a delinquent tax- 
 able inhabitant, the defendant, in his justification, set forth 
 his return to the tax list in these words : " that he had legally 
 notified the plaintiff of the time and place, when and where, 
 he would receive the tax, and no goods being shown him, he 
 arrested the body, &c." On demurrer, the plea was held in- 
 sufficient. By the Court : " This general statement, that the 
 collector had given the plairitiff legal notice, we think insuffi- 
 cient to show that he had given him the six days' notice required 
 bylaw. It is recognized by this Court, in Briggs v. Whipple.** 
 as a well-established principle, that a general allegation by a 
 collector, that he had proceeded according to law, would be 
 insufficient where any statement of his proceedings was neces- 
 sary. It seems, indeed, to be well settled, that public minis- 
 
 1 Rex u. Croke, 1 Cowp. 26 ; Gilbert v. Columbia Turnpilie Co., 3 Johns. 
 Ca. 107. 
 
 (a) So the certificate of a sheriflf that he had posted an advertisement " ac- 
 cording to law " is inadmissible. Wells v. Burbank, 17 N. H. 392. 
 
 2 Nelson v. Pierce, 6 N. H. 194. » 1 McL. 319. 
 
 * Games v. Stiles, 14 Pet. 322. » 19 Vt. 447. ^ 7 Vt. 18. 
 
696 EULES OF EVIDENCE. 
 
 terial officers must set forth the acts done by them, that the 
 Court and not themselves, may judge of their sufficiency." 
 
 The same doctrine is held in Massachusetts, relative to the 
 return of sheriffs upon executions.^ And it was held in Ver- 
 mont, that a certificate of the record of the advertisement of 
 the tax sale, instead of a transcript of the notice, was insuffi- 
 cient.2 Whenever parol evidence of any fact connected with 
 the proceedings is admissible, the officer who conducted them 
 is a competent witness to prove the fact.^ Where the statute re- 
 quires proof of the advertisement, by the affidavit of the printer, 
 
 no other evidence is admissible.* In the absence of any 
 * 515 statutory * provision, the notice may be proved by the 
 
 introduction of the newspaper in which it was inserted, 
 accompanied by proof that it was published the requisite num- 
 ber of times. ^ It has already been shown, that upon common- 
 law principles, the tax deed is not evidence of a compliance 
 with the law, and that the onus is upon the party claiming 
 under the tax sale ; that it is competent for the legislature to 
 change the rule, as to the onus, and generally to prescribe the 
 manner of proof ; and also, that plenary evidence is not re- 
 quired in proving a negative averment. Other important 
 questions relative to the evidence requu-ed in this class of 
 cases, have been discussed, incidentally, in preceding chap- 
 ters. 
 
 This subject may be dismissed by a more particular review 
 of the doctrine of presumptive evidence, in relation to the 
 proof of tax sales. It has already been sh own, that, as a general 
 rule, no presumption can be raised in behalf of the officers, to 
 cover any radical defect in their proceedings.® But it is said, 
 by Chief Justice Marshall, in delivering his opinion in Stead's 
 Executors v. Course : ^ "It is true, that full evidence of every 
 minute circumstance ought not, especially at a distant day, to 
 be required. From the establishment of some facts, it is possi- 
 
 1 Lancaster v. Pope, 1 Mass. 86 ; baris v. Maynard, 9 Mass. 242 ; Welling- 
 ton V. Gale, 13 Mass. 483; Perry v. Dover, 12 Pick, 206. 
 
 2 Coit V. Wells, 2 Vt. 318. 
 
 ' Carpenter v. Sawyer, 17 Vt. 121. 
 
 < Luffborough v. Parker, 16 S. & R. 851. 
 
 5 Thevenin v. Slocum, 16 Ohio, 519. 
 
 6 Ante, pp. * 71, * 72. 74 Cranch, 403. 
 
RULES OP EVIDENCE. 597 
 
 ble others may be presumed, and less than positive testimony- 
 may establish those facts. In this case, as in all others depend- 
 ing upon testimony, a sound discretion, regulated by the law 
 of evidence, will be exercised." (a) If the learned judge, in 
 these remarks, simply meant, that the best evidence in the 
 power of the party claiming under the tax deed, should be 
 produced by him in support of his title, and, though it might 
 not be positive in its character, yet, because it tended to prove 
 the issue, should not be altogether excluded, but submitted to 
 the jury, to be weighed by them as in other cases, there can be 
 no objection to the doctrine. But if, on the other hand, the 
 Chief Justice intended to advance the opinion, that after 
 a great lapse of * time, any facts essential to the valid- * 516 
 ity of the title, might be presumed from the establish- 
 ment of other essential facts, the soundness of the rule is denied 
 in its application to a case where the tax purchaser is out of 
 possession, and is seeking to recover the land in ejectment. 
 In such case, no presumption ought to be indulged in, to sup- 
 port a stale claim, which the party did not dare to assert in a 
 reasonable time after he acquired his right — when the facts 
 were fresh in the memory of the witnesses to the transaction ; 
 it would be unjust to the owner of the land, because the neg- 
 ative evidence which might be required of him, in order to 
 repel the presumption thus raised, would be placed, by lapse 
 of time, beyond his reach. The neglect of the party to use 
 diligence in the prosfecution of his claim, presupposes an 
 inherent defect in it, and the claim should be looked upon 
 with no more favor than is usually extended by Courts of 
 justice, to other dormant titles. This view of the case is fully 
 sustained by the Chief Justice himself, in a subsequent opinion, 
 where he says that the facts upon which the validity of the 
 purchaser's title depends, " should be examined by him before 
 he became a purchaser, and the evidence of them should be 
 preserved as a necessary muniment of title." The same prin- 
 ciple is laid down in AUen v. Smith.^ 
 
 (a) After a lapse of thirty years, a jury may presume that a warrant for a 
 town meeting, shown to have been properly posted, remained posted during the 
 time required by law. Schoff v. Gould, 52 N. H. 512, 
 
 I 1 Leigh, 248. 
 
598 RULES OF EVIDENCE. 
 
 The general rule may be thus laid down : Courts will not 
 presume any essential fact, but some degree of judgment and 
 discretion must be exercised by the judiciary, in order to infuse 
 a little common sense into the principles by which tax-title 
 causes are investigated and decided. To use the languageof 
 Judge Phelps upon this point, in answer to the opposing doc- 
 trine : " It is said that no presumption is made in favor of a tax 
 title. It is true that no essential requisite will be presumed ; 
 but, to a certain extent, presumptions may and must be made, 
 otherwise, we are driven to forced and violent presumptions 
 the other way, which are not to be made." ^ In the preceding 
 chapters, many instances will be noticed by the critical 
 * 517 reader, * where the Courts have indulged in those usual 
 and familiar presumptions which are applied in ordinary 
 cases, in support of a" right asserted in the halls of justice, (a) 
 But a party who lies by for a number of years, without assert- 
 ing his claim of right under a tax-deed, cannot ask the Court 
 to sustain his title by presiimptions.^ 
 
 And in Hole v. Rittenhouse,^ the rule is laid down, that 
 no lapse of time will afford presumptive evidence of the 
 regularity of a tax sale, where the purchaser, or those claim- 
 ing under him, have never been in possession of the property 
 purchased. There the deed was twenty-one years old. The 
 older the deed , when unaccompanied by possession, the staler 
 the claim, and the less favor shown to it by the Courts. 
 Where the possession is a recent one, ^s contradistinguished 
 from that which is denominated, technically, an ancient one. 
 Courts will not presume the performance by the officers of 
 any substantial prerequisite. The facts in the case of Porter 
 V. Whitney,* have been given already,^ and the tenant, who 
 had been in possession twelve years, relied upon the doctrine 
 
 1 Spear v. Ditty, 8 Vt. 419. 
 
 (a) And in an action of trespass, where the collector justifies under his war- 
 rant, if the listers state in their certificate that they took the oath required of 
 them, it seems the presumption is that they did so. Blodgett v. Holbrook, 39 
 Vt. 336. It seems that in the absence of evidence it will be presumed that the 
 assessors took the oath required by statute in New Jersey. State v. Metz, 31 
 N. J. Law, 378. 
 
 2 Eichardson v. Dorr, 5 Vt. 9. And see Townsend v. Downer, 32 Vt. 183. 
 
 3 6 Harris (Penn.), 306. * 1 Greenl. 306. 
 * Ante, p. » 244. 
 
RULES OP EVIDENCE. 599 
 
 of presumption to cure the defect in the advertisement, but 
 the Court declined to apply the doctrine to that case, saying, 
 " The proceeding complained of was only about twelve years 
 since, and in all recent cases of this nature, the Courts of 
 law have required a strict compliance with legal provisions, 
 on the part of the collector, in the execution of his duty. 
 In ancient transactions, many presumptions will be allowed ; 
 but in the case at bar, nothing is to be presumed. We have 
 before us the fact, which shows the notice to have been 
 irregular and insufficient ; no presumption can be made 
 against the evidence in the case." This case also lays down 
 the rule, that no presumption can be indulged in to sustain a 
 tax title, where the evidence clearly shows upon its face that 
 the proceedings were irregular. This is a self-evident 
 * proposition. It may be a question, whether a de- * 518 
 fendant, who has for a great number of years been in 
 quiet possession of land, under a tax sale, may not call in 
 the aid of presumptions, which would not be allowed to a 
 person out of possession. Such is the doubtful intimation 
 thrown out by Judge Washington.^ The principle which 
 governs the Courts in the application of the doctrine of pre- 
 sumptions, for the purpose of sustaining a title to real prop- 
 erty, is better illustrated and explained in Tolman v. Emerson,^ 
 than in any other reported case. The rule there laid down 
 is, that no power will be presumed, where the evidence of 
 its existence is of record ; and it is immaterial whether the 
 presumption is sought to aid one in, or out of possession. 
 That case was a writ of entry. The demandant offered in 
 evidence a " deed executed by a committee of the General 
 Court, executed December 17, 1744, to E. Robbins and 
 others, under whom the demandant claimed title. The ten- 
 ant objected to this evidence, because the record of the 
 authority of the committee to make the deed was not pro- 
 duced. It may be proper to state, that the General Court 
 constituted the legislative power of the colony of Massachu- 
 setts, and that the trial in question took place in 1826, eighty- 
 two years after the execution of the deed. The objection of 
 the tenant was overruled, and a verdict was rendered for the 
 1 1 Wash. C. C. 335, 336. ^ 4 pick. 160. 
 
600 EULES OP EVIDENCE. 
 
 demandant. The tenant moved for a new trial, and it was 
 granted by the Supreme Court. Parker, C. J. : " The gen- 
 eral principle is, that where one claims under a deed or other 
 instrument used in the conveyance of real estate which ap- 
 pears on the face of it to have been executed by virtue of a 
 power from the grantor, the power, or an authenticated copy 
 of it, should be produced in evidence, to support the deed, 
 in order that it may be seen whether there was authority for 
 the act, to the extent to which it is performed. But the 
 same principles by which deeds may be admitted in evidence, 
 without proof of their execution, may be applied to the 
 
 powers under which they purport to be executed. In 
 * 519 either case, the *deed is primd facie evidence of title, 
 
 if possession of the premises, purported to be granted, 
 has been taken and continued under the deed. It has been 
 held, however, and I think justly, that this indulgence of the 
 law, if it may be so called, is founded on the supposed loss, 
 by death, of the regular evidence to prove the execution of 
 the will or deed. So, that if a subscribing witness be alive, 
 he should be called to prove the deed, although it be more 
 than thirty years old. By analogy to this doctrine, if a 
 power be recorded, so that the evidence is perpetuated, there 
 can be no reason for admitting the deed without the power, 
 however ancient it may be, for there is certain proof to be 
 obtained, for which a mere presumption ought not to be sub- 
 stituted. For the presumption is of an authority co-exten- 
 sive with the act ; whereas the power may show a limited or 
 more particular authority which has been transgressed; and 
 then the case would stand upon a presumption contrary to 
 the fact, which fact it is entirely within the power of the 
 party to prove. The case before us is of a grant fiom the 
 legislature by a committee. The authority must necessarily 
 have been expressed and defined by a legislative act, which 
 must of course be a matter of record, and the presumption 
 is, that the record exists, there being no evidence of any 
 search for it in the proper place." (a) 
 
 In the case of the Pejepscut Proprietors v. Ransom,^ which 
 
 (a) See p. * 531, note 1. 
 1 U Mass. 145. 
 
BULKS OP EVIDENCE.. 601 
 
 was a real action, the plaintiffs demanded one hundred acres 
 of land, counting upon their own seisin within thirty years, 
 and upon a disseisin by the tenant. A trial was had before 
 Judge Thatcher, at the October term, 1815. The tenant 
 admitted the original right of the demandants to the land in 
 question, but claimed to hold the same under a deed dated 
 May 8, 1780, from one Ephraim Hunt, as collector or con- 
 stable of Brunswick, to one Samuel Thompson, for taxes 
 assessed on the same, as land of non-resident proprietors. 
 The tenant produced the deed, and proved an entry by 
 Thompson soon after its date, and also gave in evi- 
 dence * the copy of a record of the town of -Bruns- * 520 
 wick showing that Hunt was, at a town meeting 
 held May 4, 1779, chosen and sworn as constable for the 
 year 1779. The tax bills of the town, signed by certain 
 persons as assessors, were also produced ; and there was 
 some evidence which went to show a want of conformity to 
 the requirements of the law, as to the advertisements prior 
 to the sale. The demandants, upon this state, of facts, in- 
 sisted that the tenant, in order to establish the validity of 
 the collector's deed, should be required to prove that the 
 collector had been duly chosen into office at a legal town 
 meeting, duly called for that purpose, and that he acted by 
 virtue of assessments committed to him by assessors, also 
 duly chosen at a legal town meeting for the purpose. But 
 Judge Thatcher ruled that, as the copy of the record of the 
 choice of Hunt had been produced, together with the bills 
 committed to him to collect, it might be presumed that all 
 the other prerequisites for giving him authority were com- 
 plied with. A verdict was returned for the tenant; the 
 demandants fil,ed exceptions to the opinion of the judge, 
 which were argued by the counsel of the demandants and 
 tenant at the May term, 1816. The case was taken under 
 advisement, and at the May term, 1817, Chief Justice Parker 
 stated: "That since the last term, the five justices of the 
 Court had conferred on this action, and were all of opinion, 
 that, as to the regularity of the choice of the assessors and 
 constable, and of the proceedings of the assessors and of the 
 
602 BULBS OP EVIDENCE. 
 
 constable before the sale, as to the notification, &c., it was 
 proper to leave the evidence to the jury, with instructions 
 that they might lawfully presume that all things were done 
 according to law, especially as more than thirty years had 
 elapsed between those transactions and the commencement 
 of this suit." 
 
 In Colman et al. v. Anderson,^ which was a writ of right, 
 the tenant rested her defence on deeds from Jonathan Loveitt, 
 constable and collector of Windham, to Caleb Graffam, dated 
 February 10, 1780, and from Ichabod Hanson, constable and 
 
 collector of the same place, to said Graffam, dated 
 * 521 February 14, * 1780, each for sundry continental. State, 
 
 county, and town taxes, assessed for the years 1778 
 and 1779 ; a deed from Graffam to Jonathan Roberts, dated 
 November 1, 1783, and a deed from Roberts to Edward 
 Anderson, husband of the tenant, dated October 14, 1793. 
 At what time possession was taken under these tax deeds, 
 and by whom, does not appear from the report of the case ; 
 but it is stated, that on the 1st day of February, 1810, and 
 for many years before, the demandants had been and con- 
 tinued disseised of the demanded premises. In support of 
 these collector's deeds, the tenant produced the warrants for 
 calling the town meeting, at which the town taxes were 
 voted to be raised, the votes of the town for raising them, the 
 several lists of assessments, and all necessary proofs and doc- 
 uments to justify the said sales, excepting only the deficien- 
 cies and irregularities hereinafter stated. It is unnecessary 
 to notice the numerous objections taken to the proceedings 
 of the officers ; many of them were substantial, while others 
 were immaterial. Judge Thatcher, who presided at the trial, 
 observed to the jury, that " It appearing that the transactions, 
 constituting the tenant's title, were of almost thirty years' 
 standing., and composed of a great variety of particulars, 
 and such as required very different kinds of evidence to 
 prove them, it was not to be supposed that she could at this 
 time produce direct testimony, or evidence of any kind, to 
 each of them ; and he believed all the law required was the 
 
 1 10 Mass. 105. 
 
RULES OP EVIDENCE. 603 
 
 proof of such facts, papers, and documents, as might be con- 
 sidered the ground of strong presumptions of the existence 
 of other facts. With regard to the notifications and adver- 
 tisements required by law to be made in two pubHc news- 
 papers, it being proved that a notification Avas published in 
 one of them, that being the only one which could be found, 
 notwithstanding all due diligence was used in search of the 
 other, it is competent for the jury to presume that a like 
 notification was regularly published in the other, although 
 not now to be found. And this principle, he observed, ought 
 to govern them in forming their verdict, with regard to all 
 the facts in the case." Under these instructions the jury 
 found a verdict for the tenant. The demandants 
 * excepted and moved for a new trial. The Supreme * 522 
 Court confirmed the verdict, and entered judgment 
 accordingly. Sewall, J., in delivering the opinion of the 
 Court, remarks, that " The title under which the tenant has 
 been permitted to succeed, so far as to obtain a verdict in 
 support of it, is of that kind almost proverbially denominated 
 a collector's title, as expressing a case of doubt and difficulty. 
 And collector's titles must continue dubious and difficult, in 
 the proof and evidence required to support them, so long as 
 they .remain unassisted by any other limitation than that 
 which applies in a writ of right in common cases of disseisin. 
 . Again, the deeds are to avail, if at all, upon the legal authority 
 ■of the constables ; and it was thought at the time incumbent 
 upon the tenant to prove all the circumstances requisite in 
 the due execution of that authority ; and this notwithstand- 
 ing the length of possession under these deeds, and the long 
 acquiescence of the parties otherwise entitled to the premises 
 thereby conveyed. ' Again, the judge who tried the cause 
 'as to the requisites of tax bills, valuations, warrants,' &c., 
 was right in submitting such evidence as there was, although 
 incomplete ; and if the jury were satisfied that the deficien- 
 cies in the evidence were not chargeable to the fault or 
 negligence of the party, that nothing in the power of the 
 party to procure, was wilfully withheld, the jury were very 
 properly instructed to consider every thing as proved, which 
 might be rationally and fairly presumed from the facts and 
 
604 RULES OP EVIDENCE. 
 
 circumstances proved. In short, at the distance of time 
 which had intervened between the constable's sale and the 
 trial, it was unreasonable to require evidence of the particulars 
 which the tenant in the case was put to prove, especially 
 evidence from documents not intrusted with the party, or 
 transferred with his title." 
 
 In both of these cases there was a long and uninterrupted 
 possession, under the tax title ; and the party in whose favor 
 the presumption was extended, was not the original purchaser 
 at the tax sale, but an innocent person, who, for aught that ap- 
 pears, had no notice in fact of the irregularities in the proceed- 
 ing. And the Court place the presumption upon the 
 * 523 ground, * that the jury must be " satisfied that the de- 
 ficiencies in the evidence are not chargeable to the fault 
 or negligence of the party," and that no better evidence within 
 the power of the party " is wilfully withheld." This doctrine 
 cannot, therefore, be extended to the original purchaser, " for 
 he is bound to collect and preserve the evidence " upon which 
 the validity of his title depends ; and if he has failed to do so, 
 it is his own folly. Again, it will be observed, that the rule, as 
 laid down in the case cited, requires good faith, and a diligent 
 and thorough effort on the part of the person claiming the 
 benefit of the presumption, in collecting all the evidence which 
 can be produced, tending to throw light upon the regularity of 
 the original proceedings of the officers. Strict search must be 
 made in all the offices and places, and inquiry made of all per- 
 sons, for the documents and facts necessary to establish the 
 validity of the title. The presumption is not raised for the pur- 
 pose of supplying any defect in the doings of the officers, but 
 to fill up the gap occasioned by a supposed loss of testimony, 
 which, if it had been preserved, would have established, to the 
 satisfaction of the Court, the existence of the very prerequi- 
 site in question. The rule also requires that all of the rec- 
 ords, documents, and facts which can be collected by the party, 
 after diligent and faithful search, tending to establish the reg- 
 ularity of the proceedings, shall be submitted to a jury, and they 
 directed to presume only such facts as may be fairly and ration- 
 ally presumed from the facts and circumstances proved. This 
 excludes every presumption which is contradicted by the facts 
 
RULES OP EVIDENCE. 605 
 
 given in evidence before the jury. Thus, suppose the list and 
 valuation produced, and the land in controversy nowhere ap- 
 pears upon the list ; the jury shall not be permitted to presume 
 a listing of the land for taxation. Again, suppose it appears 
 that the list, upon its face, is illegal and void, that it was made 
 by a person not authorized by law to make it, or the valuation 
 of the land is omitted ; in all of these instances, the presump- 
 tion is forbidden by the facts proved. Suppose, again, that the 
 newspaper in which the notice was published, is found upon 
 the files of the proper office, and produced in evidence 
 before the jury, and upon its face * the notice appears to * 624 
 have been inserted in a newspaper not authorized by law 
 to publish the delinquent list, or, though having due authority, 
 the land in controversy is not embraced in the list ; in these 
 and other like cases, the presumption will be unavailing. 
 With these limitations, no objection is perceived to the rule laid 
 down by the Supreme Court of Massachusetts ; on the con- 
 trary, it is in unison with the established principles of law, as 
 applied in analogous cases.^ 
 
 It was held in Read v. Goodyear,^ that where the defend- 
 ant's tax deed was twenty-one years old, and he had been in 
 possession and paid the taxes due upon the land ever since his 
 purchase, the Court would presume that the proceedings were 
 regular in all respects. By the Court: "That there must be 
 some limit where the Courts should apply the maxim, omnia 
 presumuntur rite esse acta, will appear from the consideration, 
 that otherwise the longer the possession, the weaker the title. 
 After the lapse of twenty-one years, it is almost impossible to 
 prove a literal compliance with the act, and to exact a punctual 
 adherence to the letter would be equivalent to saying, that 
 a sale for taxes should not be supported. It would be only 
 necessary to lie by until the evidence of the regularity of the 
 sale was lost, when a recovery would be the consequence. 
 Time would strengthen the title of the warrant holder in the 
 same proportion that it would weaken the title of the vendee of 
 the land. A title acquired by time alone, independently of the 
 Act of Limitations, is regarded in law and equity." It is pre- 
 
 1 Greeni, Ev. sec. 20, and cases there cited. 
 ■ n 17 S. & R. 350. 
 
606 EULES OP EVIDENCE. 
 
 sumed that a tax title, whether good or bad, is a substantial 
 foundation for an adverse possession, under every statute of 
 limitation which simply bars the action and entry of the 
 owner. There a claim of title makes the possession adverse, 
 and no presumptions need be called in to the aid of the pos- 
 sessor. 
 
 In Freeman v. Thayer,^ the sale was made March 19, 1816, 
 
 the deed bore date April 1, 1816, was acknowledged 
 * 525 March 21, * 1845, and recorded December 13, 1844. 
 
 The trial took place in 1851. The statute of 1844 
 declared, that " in any trial at law or in equity, involving the 
 validity of any sale of real estate for the non-payment of taxes, 
 it shall be sufficient for the party claiming under it, to produce 
 in evidence the collector's deed, duly executed and recorded, 
 the assessments, signed by the assessors, and their warrants 
 to the collector ; and to prove that such collector complied with 
 the requisitions of law as to advertising and selling such real 
 estate." The defendant exhibited his tax deed, under which 
 he had taken possession, soon after its date, proved the loss of 
 the assessment, and gave evidence by copy of its contents, and 
 also proved that some of the notifications required bylaw had 
 been given. The judge who presided at the trial, ruled, 
 1. That the rule of evidence prescribed by the statute of 1844, 
 was applicable to this case ; and, 2. " That the proceedings 
 having taken place more than thirty years ago, if the jury were 
 satisfied, from the testimony, that there was a strong prob- 
 ability that all the other acts required by law had been per- 
 formed, they would be authorized to presume, after such a 
 lapse of time, that all of the proceedings had been regularly 
 and legally conducted, but that they were not required to make 
 any such inference or presumption ; it was a matter submitted 
 to their consideration and judgment, whether, under all the 
 circumstances, they ought to come to such conclusion." These 
 rulings were sustained by the Supreme Court. On the first 
 point, the Court say, " The provisions of the section qiioted 
 are general, and intended, by express terms, to apply to any 
 trial of the description named, in law or equity, that might 
 transpire. They may furnish a rule of evidence for subsequent 
 
 » 83 Me. 76. 
 
EULES OF EVIDENCE. 607 
 
 proceedings in Court to establish titles to real estate dependent 
 upon sales for the non-payment of taxes ; but they do not 
 impair the obligation of contracts, or distinct vested rights, 
 when applied to cases involving the validity of prior sales. 
 There iiever was imposed upon the defendant an obligation 
 to prove the title under which he claims, in a particular mode ; 
 nor had those, contesting that title, a vested right to require 
 that it should be supported by a particular kind or 
 amount * of evidence. The legislature had the power * 526 
 and the right to prescribe the evidence to be received, 
 and the effect of that evidence in proceedings in our Courts. 
 They may prescribe and change remedies, and such regulations 
 would not necessarily affect the obligation of contracts. It has 
 been well said, that there is no such thing as a vested right to 
 a particular remedy. There can be no such thing as a vested 
 right in one to compel another to pursue a particular remedy, 
 or to take a given line of defence in any case." On the other 
 point,. the Court remarked: "It has been determined, that-, 
 after a lapse of thirty years from a collector's sale of land for 
 taxes, it may be presumed, from facts and circumstances 
 proved, that the tax bills, valuation, warrants, notices, &c., 
 were regular ; that the assessors and collectors were duly 
 chosen at legal meetings ; that the collector was sworn ; that 
 a valuation and copy of the instruments were returned by the 
 assessors to the town clerk, and that every thing which can be 
 reasonably and fairly presumed, may have the force and effect 
 of proof." 
 
 In Farrar v. Eastman,^ a proprietary tax sale was sustained, 
 where it took place forty years prior to the trial, and there had 
 been a possession for tliat length of time under the tax deed. 
 By the Court: " It is an ancient transaction (almost forty 
 years), and neither the vote of the proprietors, nor the deed 
 under it, is drawn with any attention to legal precision. It 
 is well known, that much of the business of these proprietors 
 was loosely conducted, and after such a lapse of time, and for 
 the purpose of upholding their proceedings, and of titles de- 
 rived from them, and after such long acquiescence, they are 
 to be viewed with great indulgence ; whether, in a recent case, 
 
 1 g Greenl. 345. 
 
608 EULES OF EVIDENCE. 
 
 greater precision, and a more clear and perfect deduction and 
 pursuance of authority, would not be required, it is not neces- 
 sary now to decide. It is not essential, that all the facts neces- 
 sary to sustain and justify the sale, should be recited in the 
 
 deed. They may be presumed or proved aKwrnrfe. Such 
 * 527 as do not appear * in the records, and among the papers 
 
 of the proprietors, may, and after such a length of time, 
 will be presumed." 
 
 The case of the Lessee of Ward v. Barrows,^ was an action 
 of ejectment, in which the plaintiff showed a regular chain of 
 title. The defendant relied upon a tax sale and deed, the latter 
 dated April 14, 1838. It is to be gathered from the case that 
 the defendant, or those under whom he claimed title, had been 
 in possession since the execution of the deed. It was admitted 
 that all of the proceedings connected with the tax sale were 
 regular, except that the return of the delinquent list did not 
 appear to have been sworn to by the collector, and certified in 
 the manner required by law. On inspection, it appeared that 
 the list was sworn to by the collector, but there was no certifi- 
 cate of the auditor, in the nature of a jurat, that the oath was 
 administered by him to the collector. Two questions were dis- 
 cussed in the Supreme Court. 1. Was the sale illegal because 
 of this omission ? and, 2. Might not the Court presume that 
 the oath had been administered by the auditor ? The judgment 
 was for the defendant upon both grounds. On the question as 
 to indulgingin presumptions, the Court remarked, after dispos- 
 ing of the case upon the axithority of a prior decision in that 
 Court,2 that " upon principle it is equally clear. When the du- 
 plicate was placed in the hands of the collector, he was required 
 to be charged with the full amount appearing upon it. Upon 
 his subsequent settlement with the auditor, he was to be 
 credited with such taxes as he had been unable to collect, and 
 the auditor was then required to certify upon the list the amount 
 of money in the hands of the collector belonging to the State, 
 county, &c., which the latter was required to pay over against 
 a specified day. Before this credit could be allowed or certifi- 
 cate made, the auditor must be satisfied, by the oath of the col- 
 
 1 2 Ohio St. 241. 
 
 2 Winder's Lessee v. Sterling, 7 Ohio, 190, Part 2. 
 
RULES OP EVIDENCK. 609 
 
 lector, of its correctness. To have allowed the credit, or made 
 the certificate Avithout this, would have involved Lim, not 
 only in criminal neglect of duty, but actual misfeasance. 
 Under * such circumstances, unless the statute makes * 528 
 written evidence indispensable, the officer will be pre- 
 sumed to have done his duty until the contrary appears.^ The 
 law will presume all to have been rightly done, unless the cir- 
 cumstances of the case overturn this presumption ; and, con- 
 sequently, as stated by the Supreme Court of the United 
 States, in Bank of the U. S. v. Dandridge,^ ' acts done which 
 presuppose the existence of other acts to make them legally 
 operative, are presumptive proofs of the latter.' Instances 
 of the application of this doctrine under a variety of circum- 
 stances, may be found in Williams v. East India Co.,^ Kelly v. 
 Connell,* Wheelock v. Hall,^ Brown v. Connelly,® Hartwell v. 
 Root,^ and Jackson v. Shaffer.^ Facts presumed are as effect- 
 ually established as facts proved, where no presumption is 
 allowed ; and hence, in accordance with this long-established 
 rule of evidence, the Court, in Lessee of Winder v. Sterling,® 
 were entirely justified in saying, that the act of the auditor 
 in allowing the credit, and making the certificate, which could 
 only4awfully be done after the delinquent list has been veri- 
 fied by the collector, was presumptive proof that the oath had 
 been administered." 
 
 The Court of appeals in Virginia refused to make these 
 presumptions in favor of a possession of twenty-two years' 
 duration. Thus, in Allen et al. v. Smithj^" which was a bill 
 in chancery, filed by Smith, it was alleged that a grant of 
 the land was made to Daniel Morgan, assignee of Joseph 
 Tidball, bearing date March 9, 1796 ; that Morgan bargained 
 and sold the land to Jesse Sims ; that this contract was evi- 
 denced by a bond, which had been lost or mislaid ; that 
 on August 27, 1800, Sims being * embarrassed in his * 629 
 pecuniary circumstances conveyed the land to John 
 
 ^ 1 Greenl. Ev. 51 ; Matthews on Presumption, 36. 
 
 2 12 Wheat. 70. ' 3 East, 192. 
 
 * 3 Dana, 532. * 3 N. H. 310. 
 
 6 5 Blackf. 390. ' 19 Johns. 345. 
 
 8 11 Johns. 513 ; 9 Cow. 110. ' 7 Ohio, 190, Part 2. 
 
 i» 1 Leigli, 231. 
 
 39 
 
610 EULES OP EVIDENCE. 
 
 and Peter Wise, in trust for creditors, with a proviso that the 
 creditors might take the land in satisfaction of their debts, at 
 a certain valuation contained in a schedule attached to the 
 deed of trust ; that Sims afterwards died insolvent ; that 
 the complainant was a creditor of Sims, and had elected to 
 take a part of the land in satisfaction of his debt, at the value 
 named in the schedule ; that Peter Wise was dead, and that 
 John, the surviving trustee, conveyed according to such elec- 
 tion, by deed dated September 25, 1821 ; that Morgan died 
 testate in 1802, devising the residuum of his estate, of which 
 the land in question was parcel, to Mrs. Neville, wife of Pres- 
 ley Neville, of Ohio, and daughter of the testator ; that in 1818, 
 Neville and wife conveyed to an agent of the defendants, upon 
 a condition which never was complied with ; that Neville-died, 
 and that in 1823, Mrs. Neville conveyed to the complainant, 
 revoking the conveyance of 1818, as far as she could, by a 
 written declaration to that effect ; that on the 27th day of 
 December, 1802, the defendants purchased the land in ques- 
 tion at a tax sale, and received the marshal's deed therefor; 
 that the defendants had been in possession of the premises 
 twenty-two years, under the deeds from the marshal, and 
 Neville and wife ; and that the tax sale was illegal and void. 
 The bill prayed a specific performance of the contract between 
 Morgan and Sims, for the delivery of possession, and an ac- 
 count of the rents, profits, &c. The defendants answered, 
 setting up their tax title, under the laws of the United States, 
 alleging the legality of the proceedings, and setting up lapse 
 of time as a bar to any inquiry into their regularity, &c. The 
 land was listed for taxation in tlie name of Tidball, the lo- 
 cator, instead of Morgan, his grantee. The act of Congress 
 authorizing the sale, required publication of the time and 
 place of the vendue in four gazettes. No proof of the pre- 
 requisites was offered by the defendants. Chancellor Tucker 
 rendered a decree for complainant, saying, " The title claimed 
 under that sale could not prevail unless the requisitions of the 
 law were proved to have been complied with, or unless such 
 
 compliance were to be presumed in favor of possession 
 * 530 after * such a length of time. No such-proof was offered. 
 
 And such a presumption ought not to be raised, to de- 
 
RULES OP EVIDENCE. 611 
 
 feat a legal title, upon a mere possession of twenty-two years, 
 counting from the date of the sale to the date of the suit ; it 
 should be more cautiously admitted, in a case where a party's 
 rights have been sold in the name of another ; and where, from 
 the nature of the requisitions of the law, the presumption of 
 compliance with them might easily be fortified by the evi- 
 dence of one at least of the many numbers of the four 
 gazettes, in which the notification required by law, must have 
 appeared. The requisitions of all such statutes must be 
 strictly pursued ; and no purchaser is blameless who buys 
 without seeing that they have been so, or who has failed to 
 preserve so essential a muniment of his title. The defendants 
 themselves tacitly admitted the insufficiency of the title under 
 the collector's sale, when they forfeited it by a release or con- 
 veyance from Moi^an's devisee ; and thus afforded decisive 
 evidence against the presumption on which they would rely 
 as late as 1818, about sixteen years after the sale. Therefore 
 the collector's deed did not convey the legal title to them." 
 Upon writ of error, this decree was affirmed. In delivering 
 his opinion. Judge Carr, of the Court of appeals, after citing 
 and approving the rule of strictness, and that relative to the 
 onus laid down in Thatcher v. Powell, proceeds : " Now, if 
 the validity of the marshal's deed depends upon the perform- 
 ance of these acts in pais (advertisement, &c.) ; if the party 
 claiming under such deed is as much bound to prove their 
 performance, as he would be to prove any matter of record, 
 on which the validity of the deed might depend ; how can it 
 be supposed, that he would be permitted to supply evidence 
 of these acts by presumption from time, sooner than he might 
 supply the want of the deed itself by such evidence ? The 
 very nature of such titles, it seems to me, ought to warn the 
 purchaser to see that all the prerequisites of the law are com- 
 plied with adunguem (to a nicety). They buy often large and 
 valuable tracts of land for a mere trifle ; and they ought always 
 to expect that the owner will attempt to recover them. This 
 is notice intrinsic in the transaction, that they must be 
 ready for defence ; and they ought * at once to collect * 531 
 the proper evidence of compliance with the law ; and 
 these documents being written, can be just as easily preserved 
 
612 RULES OP EVIDENCE. 
 
 as their deed." In this opinion Judge Cabell concurred — so 
 also did President Brooke, who delivered a separate opinion, 
 in which he expresses a doubt whether a Court of equity 
 ought even to presume any fact in support of a tax sale. A 
 re-argument of this cause was awarded, and the question dis- 
 cussed, whether twenty years' adverse possession, under the 
 tax title, was not a bar to the complainant's equity, but the 
 Court reaffirmed their former decree.^ 
 
 The same principle was asserted by the Supreme Court of 
 New Hampshire, in the case of Waldron v. Tuttle,^ and in 
 that case the rule is laid down, which is probably applicable 
 to all cases where the doctrine of presumption is relied upon, 
 that in order to justify its application, the possession of the 
 party claiming under the tax deed must be a long, open, 
 notorious, and exclusive possession — such an one as will 
 constitute, technically, an adverse possession. This "case was 
 an action of trespass, de bonis asportatis, and it became 
 necessary for the plaintiff to prove title to the land upon 
 which the trespass originated. He accordingly relied upon 
 two tax deeds, made in pursuance of sales made for the years 
 1780 and 1783, and proved, that immediately after his 
 purchase, he entered upon the land and ran out his lines, and 
 continued to enter and take firewood therefrom ever since. 
 
 Holmes was fhe officer who made the sale of 1780, and 
 * 532 Felker that of 1783. The * action was brought in 
 
 1826. The evidence was admitted, and the Court 
 instructed the jury, that on account of the lapse of time, and 
 the occupancy of the plaintiff, they might presume a perform- 
 
 1 The Virginia Court, in Robinett v. Preston (4 Gratt. 141), applied the doc- 
 trine of presumption to a sheritf's sale, purporting to have been made under the 
 authority of a judgment and execution. The only evidence offered by the tenant 
 was the sheriff's deed, which recited a judgment, execution, advertisement, sale, 
 &c., in the usual form, and a possession under the deed from 1816 to 1845, twenty- 
 nine years. The Court held, 1. " That on this state of facts, a legal presumption 
 of the regular exercise of the authority of the sheriff to sell, would arise and be 
 accepted instead of proof, even against those connected with the estate con- 
 veyed. 2. That as against strangers setting up a title adverse to that conveyed 
 by the officer authorized to sell, the recital of such authority as set forth in the 
 deed should be taken as true ; and that it was not incumbent on the tenant, in 
 the state of facts above set forth, to produce any additional evidence of the au- 
 thority of the said sheriff to sell and convey said land." See also Walton v. Hale, 
 9 Gratt. 198, and ante, p. « 519. '^ 3 N. H. 340. 
 
RULES OP EVIDENCE. 613 
 
 auce of all legal prerequisites to a valid sale. The jury- 
 found for the plaintiff. But the Supreme Court granted a 
 new trial, saying, " The jury were told that it was competent 
 for them to presume, from the possession of the plaintiff, and 
 the length of time which has elapsed since the deeds of the 
 collectors were made, that all acts and proceedings had been 
 duly done and had, which were necessary to the validity of 
 those conveyances. But we are of opinion, that under the 
 circumstances, the possession of the plaintiff and the antiquity 
 of the deeds, afforded no legal ground on which an}' such 
 presumption, with respect to the deed of Holmes, could rest. 
 That deed was made more tlian forty years ago ; but it has 
 not been accompanied by any exclusive possession. The 
 plaintiff had occasionally entered, but the defendant and those 
 under whom he claims, have been constantly in possession. 
 A possession, to be the ground of any presumption in favor 
 of such a title, must be long, open, undisturbed possession, 
 adverse to the title of the former owner. And we are of 
 opinion, that in no case can a jury be permitted to presume, 
 from the mere production of a collector's deed, and from proof 
 of possession under it, that the sale was legal. Very few of 
 those sales have been found to be legal. The presumption is, 
 in fact, against their validity. He who rests his claim to 
 land, upon the legality of such a title, must show, affirma- 
 tively, that the law of the land has been substantially pursued 
 in the sale. And in no case can he be permitted to rely upon 
 possession as evidence, even of particular facts, until he has 
 shown that the common and ordinary evidence of such facts 
 has been probably lost by time and accident, and is not to be 
 found. In all cases, enough of the proceedings should be 
 shown to render it not improbable that the proceedings may 
 have been regular ; and then long and quiet possession may 
 he left to a jui-y, as evidence of particular facts, the ordinary 
 proof of which cannot be found. The deed of Felker stands 
 on ground somewhat different. That instrument pur- 
 ports to convey a portion of the estate in * the land in * 633 
 common, and it was not to be expected that the 
 plaintiff would show any exclusive possession under that 
 deed. But in such a case, the possession in common must 
 
614 RULES OF EVIDENCE. 
 
 be shown to have been open and known to the former owner, 
 and to have remained long undisturbed by him, before it can 
 be. submitted to a jury, as a legal ground of presumption in 
 favor of a collector's sale. It does not appear from the case, 
 that the possession of the plaintiff was of this character, and 
 we think it was improperly submitted to the jury as evidence 
 of the regularity of the collector's proceedings." The case 
 came before the Court a second time,^ upon the same state of 
 facts, and the Court reaffiimed the doctrine, that no presump- 
 tion can be indulged in to support a tax sale. 
 
 Upon a critical review of all the decisions relative to pre- 
 sumptions, in this class of titles, the principles fairly deducible 
 from them are, 1. That, ordinarily, no presumptions are 
 indulged in for the purpose of sustaining the tax title, where 
 the missing fact is essential in its character. 2. That pre- 
 sumption, as to non-essentials, must be allowed to a certain 
 extent, or the Courts are driven to forced and violent pre- 
 sumptions the other way. 3. That where there has been a 
 possession of twenty years, or for a less time, under a statute 
 which merely bars the entry and action of the owner, the pos- 
 session based upon a tax deed is sufficient to establish a claim 
 of title, without resorting to the doctrine of presumptive 
 evidence. 4. That a long possession under a tax deed, short 
 of the period fixed by the statute of limitations, is a sufficient 
 basis for a presumption of regularity, (a) 5. That one out of 
 possession, but claiming under a tax title, has no right to the 
 
 , 1 4 N. H. 371. 
 (a) In Keene v. Cannovan, 21 Cal. 291, it is said that " if, in accordance with 
 the reasons thus stated by Greenleaf [Greenl. Ev., Vol. I. § 20], presumptions 
 could be indulged in support of any of the preliminary acts essentiiil to the exer- 
 cise of tlie power of sale by the county treasurer in the present case" [in which 
 the presumption from lapse of time was sought to be applied], " they could only 
 be indulged in favor of tlie acts between the assessment and the execution of the 
 tax deed ; none could be indulged in favor of the assessment itself, which was 
 the foundation of all subsequent proceedings." See also Pittsfield v. Barnstead, 
 40 N. H. 477. The rule laid down by Greenleaf ( Greenl. Ev., Vol. I. § 20) is 
 criticised in Westbrook v. Willey, 47 N. Y. 461. In that case the deed was more 
 than thirty years old, and the defendant had been in possession thereunder for 
 thirteen years before suit, but not long enough to bar the action under the stat- 
 ute of limitations ; but the deed was not considered conclusive evidence of a full 
 compliance with the statute. 
 
HULES OF EVIDENCE. 615 
 
 benefit of any presumption in his behalf.^ 6. That no pre- 
 sumption can be sustained, which is contradicted by the record 
 and documents connected with the proceedings, and, 7. A pre- 
 sumption, in such cases, is never admissible, where the record 
 or files, which evidence the existence of the proceedings, can 
 be produced, (a) 
 
 1 See Worthing v. Webster, 45 Me. 270. 
 (a) See note 1, p. * 631. 
 
616 OF THE TITLE OP THE PURCHASEB. 
 
 CHAPTER XXXVIII. 
 
 OP THE TITLE WHICH PASSES TO THE PURCHASER AT A TAX 
 
 SALE. 
 
 Suppose the land subject to taxation — that it was duly listed 
 and charged with the tax — that the tax was unpaid — that all 
 conditions precedent and subsequent to the sale have been 
 strictly complied with — that the owner has neglected to re- 
 deem — and that a deed in due form has been executed and 
 delivered to the purchaser — what kind of title does the 
 grantee of the State acquire ? ^ Is it an original, or derivative 
 one ? Does it pass merely the title of the person in whose 
 name it was listed, and on account of whose delinquency it 
 was sold and conveyed, or is it to have the sweeping effect of 
 divesting all prior interests in the land, and vestiiig in the 
 grantee an independent and paramount legal and equitable 
 title in fee ? (a) Does it annihilate a contingent estate ? Are 
 
 1 [In Hubtell v. Weldon, Hill & Denio, 139, it was held, that, after such a sale, 
 the person in possession was to be considered as holding in subordination to the 
 purchaser, and not adversely, so that a deed from the purchaser who had no 
 possession in fact would not be void, as for a disseisin.] 
 
 (a) In Brown v. Austin, 41 Vt. 262, under a statute providing for Ihe execu- 
 tion of a deed to the purchaser, " containing a covenant of warranty ; wliich deed 
 or deeds shall be good and valid in law," and providing for a redemption by the 
 owner "or any other person," it was held, that such deed transfers a perfect title 
 as against all persons ; tliat the purchaser does not take such title from or through 
 the owner or claimant or any other person; that it is a new and independent title, 
 and its effect is to extinguisli all prior claims, whether based upon title or pos- 
 session, and lience a possession adverse to the owner, prior to the collector's deed, 
 is not available to aid in establishing a title against such tax deed. See also 
 Lacey v. Davis, 4 Mich. 153. Under sec. 4, act of June 7, 1862 (12 Stat, at 
 Large, 423), providing that the title, &c., shall become forfeited, &c., "and upon 
 the sale hereinafter provided for, shall vest in the United States or in the pur- 
 chasers at such sale, in fee-simple, free and discharged from all prior liens, en- 
 cumbrances, right, title, and claim whatsoever," Jield, that' tlie tax is a direct 
 tax on the land, and on all the estates, interests, and claims connected with or 
 growing out of it, and that a rent charge is accordingly cut off and destroyed by 
 a sale of the land. Turner v. Smith, 14 Wal. 553. 
 
OP THE TITLE OP THE PURCHASER. 617 
 
 the dower of the wife and curtesy of the husband gone for 
 ever ? Are all covenants running with the land merged in 
 the new title ? and are estates in remainder and reversion 
 extinguished ? These are questions of great practical impor- 
 tance to land-owners, and of much interest to the profession. 
 [In Parker v. Baxter,^ it was held, under the statutes of 
 Massachusetts, that if land was rightly taxed to a mortgagor 
 who was in possession, a lien was thereby created on 
 the entire estate, and a sale thereof in due *form, *535 
 would also pass the rights of the prior mortgagee therein. 
 And in New York it has been determined, that a sale, by 
 order of Court, in an action to which all persons having vested 
 estates at law or in equity are made parties, or are proceeded 
 against by the publication of notice, as owners unknown, cuts 
 off all estates, contingent and imvested, as well as others, 
 including all possible interests which might, under contingent 
 limitations, vest in persons not yet in being, and transfers to 
 the purchaser a fee-simple absolute.^ But when a statute 
 declares that a tax execution shall bind the property only 
 from the date thereof, it has been held, that a tax execution 
 against a mortgagor does not bind the right and title of a prior 
 mortgagee, but in order to have that effect it must be issued 
 against him under the statute.^] In Atkins v. Hinman,* 
 Chief Justice Treat said, " The land itself is sold, and not a 
 particular interest in it.^ If the land was subject to taxation, 
 and the proceedings under the revenue law have been regular, 
 and the owner has failed to redeem within the time limited 
 by the law, then the whole legal and equitable estate is 
 vested in the purchaser.® A new and perfect title is estab- 
 
 • 2 Gray (Mass.), 185. But subsequently the statutes were somewhat modi- 
 fied. Sec statute, 1848, ch. 166 ; 1849, oh. 213 ; 1856, ch. 239 ; Gen. Stats, ch. 12. 
 
 2 Jackson v. Babcock, 16 N.'Y. (2 Sraitli) 246. 
 
 3 Doane v. Chittenden, 25 Geo. 103. In Pennsylvania, a sale for taxes assessed 
 after a mortgage has been recorded will not divest its lien. Cadmus v. Jackson, 
 62 Penn. St. 295. < 2 Gilm. 449. 
 
 5 See Clarke v. Strickland, 2 Curtis C. C. 439. A tax deed cannot, in the 
 absence of special statutory provisions, convey any other estate than a fee-sim- 
 ple. Smith V. Messer, 17 N. H. 420. 
 
 6 [And see Dunlap v. Gallatin Co., 15 III. 7, that all prior liens and encum- 
 brances are divested.] See also Jarvis </. Peck, 19 Wise. 74 ; Cram v. Cotting, 
 22 Iowa, 411. See p. * 544, note. 
 
gl8 OP THE TITLE OP THE PURCHASER. 
 
 lished. This results from the paramount authority of the 
 State to levy taxes on property within its limits, and coerce 
 the payment by subjecting the property to sale. It is one of 
 the necessary and inherent rights of the sovereign power." 
 It may be proper to remark, that the question did not arise 
 in that case, as to the effect of the sale, but only as to its 
 regularity. 
 
 [In Arkansas, the statutes authorize the sale of the land 
 itself, and not merely the particular interest or title of the 
 person to whom the tax is assessed.^ While in Mississippi, 
 it has been held under the statute of 1846, that a sale 
 *536 conveys only *the title of the party assessed.^ In 
 Ohio, a valid sale and conveyance of a husband's land 
 for taxes, bars the wife's right of dower.^] 
 
 This question was discussed in Neiswanger v. Gwynne, 
 which was argued on four several occasions before the Supreme 
 Court of Ohio, on the aw and equity side. The facts were, 
 that the premises in controversy were situate in Madison 
 County, and constituted a part of the Virginia Military Dis- 
 trict. They were entered by David Ross in 1810, surveyed 
 in 1816, and patented in November, 1888, to Neiswanger, the 
 assignee of Eoss. The land was listed for taxation in the 
 name of Ross, while he was the owner of the equity, and 
 forfeited to the State for the non-payment of the tax. In 
 1829, the land was sold for the arrears of tax due upon it, to 
 Lyne Sterling, who subsequently conveyed it, by quitclaim, 
 to Gwynne, and the latter took possession under the tax 
 title. Neiswanger instituted an action of ejectment to re- 
 cover the possession of the premises. The statute under 
 which the sale took place, declared that the " deed shall con- 
 vey to the purchaser, &c., a good and valid title to the land, 
 
 1 Biscoe V. Coulter, 18 Ark. 423. 
 
 '^ Dunn V. Winston-, 31 Miss. (2 George) 135. In New Jersey, under a statute 
 (Nix. Dig. 853, § 77, and Pamph. L. 1852, p. 249, § 7) providing tliat the pur- 
 chaser of land at a tax sale sliall hold " against the owner or owners thereof and 
 all and every person or persons claiming under her, liira, or them," &c., It was 
 held, that the title of a mortgagee from one who was not the owner at the time 
 of the tax sale, but prior thereto, was not affected. Hopper v. Malleson's Ex'rs, 
 16 N. J. Eq. 882. 
 
 3 Jones V. Devore, 8 Ohio St. 430. 
 
OP THE TITLE OP THE PTJBCHASER. 619 
 
 and such deed shall be received in all Courts of this State as 
 good evidence of title," &c. The Court, upon this statement 
 of facts, gave judgment in favor of Neiswanger. The counsel 
 for the defendant insisted " certainly, the deed of the State, 
 declared to be ' a good and valid title to the land,' ought to 
 have as much effect as that of an individual with covenants 
 of warranty ; and when land has been sold for taxes, and a 
 patent afterwards issues to the delinquent, or his assignee, it 
 ought, on principles of public policy, to enure to the benefit 
 of the purchaser, and estop the defaulter from setting up his 
 naked legal title against a fair and hond fide purchaser under 
 the law." To which Birchard, J., replied : " The first ques- 
 tion is, whether a purchaser at a tax sale, made under the act 
 of January 9, 1827, admitting the same to be valid, acquires 
 a better or diffei-ent title tJian was possessed by the 
 former owner ? * This question appears to have been " 537 
 settled in this Court by the decision in Stuart v. Parish, 
 6 Ohio, 477, where it was held that the legal title of the pat- 
 entee was not affected by a sale for taxes before the patent 
 issued. Other authorities may be found to sustain this point, 
 but as we are satisfied with this, it is not deemed necessary 
 to cite them. The plaintiff, then, has the legal title, and must 
 prevail in this action. The defendant has, at best, but an 
 equitable title. If the proceedings in the tax sale were reg- 
 ular, his remedy is a bill in equity. Until the tax sale is 
 brought before us in such manner as makes it material to the 
 determination of the cause, we cannot, with propriety, be 
 called upon to determine its validity." ^ In accordance with 
 this intimation, Gwynne filed a bill in chancery, to compel a 
 conveyance of the legal title, and enjoin the judgment in 
 ejectment. To this bill a demurrer was interposed, which 
 was argued and overruled. Two questions were discussed. 
 1. Whether a Court of equity, acting within its ordinary 
 powers, can compel the legal owner of land to convey the 
 same to a purchaser at a tax sale, the owner, at the time of 
 the sale, having no other than an equitable interest, but hav- 
 ing, subsequent to the sale, acquired the legal title ? 2, If 
 the Court has such power, is the case made in the complain- 
 
 i 13 Ohio, 74. 
 
620 OF THE TITLE OP THE PURCHASER. 
 
 ant's bill such as to justify the execution of it? Both of 
 these questions were answered in the affirmative. The train 
 of reasoning adopted by the Court was, that the legal title was 
 in the United States ; that Eoss had an equity by virtue of 
 his entry and survey ; that his- equity was subject to taxation ; 
 that the tax purchaser acquired the whole interest of Ross ; 
 that when the patent issued, the holder of it became the 
 trustee of the person claiming under the tax title ; and that 
 a Court of equity had the power, and it was its duty, to com- 
 pel a conveyance to the tax purchaser or his assigns.^ Upon 
 the overruling of the demurrer, leave was given the defend- 
 ant to answer the bill. An answer was accordingly filed, to 
 
 which the complainant replied, and evidence was taken 
 * 538 to * show an irregularity in the listing of the land. The 
 
 statute which declared that no irregularity in the listing 
 should affect the title of the purchaser, has been cited already .^ 
 A decree was rendered for the complainant, the Court decid- 
 ing, 1. That when the land was sold for taxes, the convey- 
 ance, in pursuance of the sale, vested in the purchaser and 
 his grantee, the entire title of the original proprietor; 2. 
 That the title of Ross, when the land was sold, was purely 
 equitable ; 3. That when his assignee subsequently acquired 
 the legal title from the United States, he became the trustee 
 of the complainant, and was bound to convey to him; and, 4. 
 That evidence of irregularity in the listing was not admissible 
 under the statute. A rehearing was granted, and the cause 
 continued. It was reargued, at the next term, when the 
 Court dismissed the bill, upon the ground that the complain- 
 ant acquired a legal title by his purchase, though the patent 
 had not been issued at the time. Caldwell, J. : " We are of 
 the opinion that much of the difficulty in this case arises from 
 attempting to make a tax title analogous to an ordinary chain 
 of title. A tax title, from its verj' nature, has nothing to do 
 with the previous chain of title ; does not in any way connect 
 itself with it. It is a breaking up of all previous titles. The 
 party holding such title, in proving it, goes no further than 
 his tax deed ; the former title can be of no service to him, 
 nor can it prejudice him. It was well said by counsel, in ar- 
 
 1 15 Ohio, R67. 2 Ante, p. * 88. 
 
OP THE TITLE OP THE PURCHASER. 621 
 
 gument on this point, that a tax sale operated on the property, 
 not the title. In an ordinary case, it matters not how many 
 different interests may be connected with the title, what may 
 be the particular interest of the party in whose name the 
 property may be listed for taxation, it may be a mere equita- 
 ble right ; if the land be regularly sold for taxes, the prop- 
 erty, accompanied with a legal title, goes to the purchaser, 
 no matter how many estates, legal or equitable, may be con- 
 nected with it. And in case the person in whose name it was 
 listed, who had but an equitable title to the land at the time 
 of the tax sale, gets a conveyance from the person hold- 
 ing * the legal title, he cannot avail himself of it. The * 639 
 land is gone, and another title has intervened. Just 
 so with a person holding under a purchase from the govern- 
 ment; until the patent issues, he can hold nothing but an 
 equitable right, because he cannot trace his title to any 
 original source ; but if the land be sold for taxes while his 
 right is a mere equitable one, he cannot reclaim it, although 
 he afterwards obtain a patent from the United States. A 
 majority of the Court think the title created by a tax sale a 
 legal title, and when not good at law, that a Court of chancery 
 has no power to aid the purchaser in completing his title." 
 From tliis opinion, Judge Hitchcock dissented, remarking, 
 that the counsel for the defendant " insists that the purchaser 
 at the tax sale takes a legal estate ; that in such case there 
 can be no such thing as a derivative title ; that there is no 
 connection between the former owner and purchaser. He 
 says the title of the tax purchaser, if any title passes to him, 
 is, under this law, a legal title, and the error has been fallen 
 into by connecting the land with the title. The tax sale 
 severs them for ever. No covenant running with the land, 
 nor warranty, no incident to the title, as a title, passes to the 
 tax purchaser. He takes it by another right — by a new and 
 independent and paramount grant, and, in his argument at 
 the bar, he says that it is the creation of a new estate — a new 
 fee. But if by the tax sale, a new estate — a new fee, is 
 created, what becomes of the old estate — the old fee? Does 
 that still continue to exist ? Are there two estates in fee in 
 the same land ? Now it may not be technically correct to say, 
 
622 OP THE TITLE OP THE PURCHASER. 
 
 that the title of the former owner passes to the tax pur- 
 chaser. But I suppose, by the sale and conveyance, if both 
 are regular, the title of the former owner ceases to be opera- 
 tive, or becomes extinct, and the tax purchaser acquires a 
 title to the property, exactly equal to the former owner, be- 
 fore the sale. If he does not occupy the same ground, or 
 stand in his shoes, he has as good a title — a title which must 
 defeat that of the former owner, not so much so because it is 
 a paramount title, as because the title of the former owner 
 has ceased to be operative. If not the same, it is a similar 
 
 title." 
 * 540 * The Ohio decisions, in the case of Neiswanger v. 
 
 Gwynne,^ present the most extraordinary commentary 
 upon the character of tax titles, and the difficulties which a 
 purchaser at a tax sale encounters, in Courts of law and 
 equity, in asserting a title under his purchase, to be found 
 in the history of tax-title jurisprudence. The Courts of 
 that State had invariably held, that land was taxable after 
 it had been separated from the mass of the public land by 
 an entry and survey, although the legal title remained in 
 the United States, and Judge McLean had followed their 
 decisions upon this point — indeed, the argument in favor 
 of the power of the State to tax lands bargained and 
 sold by the government, is based upon impregnable legal 
 grounds. 1. The taxing power of the State operates upon 
 all property within its territorial limits, and 2. No species 
 of property is ever to be regarded as exempt from the 
 operation of the taxing power, unless by virtue of some pos- 
 itive law — such exemption can never arise by implication. 
 Gwynne, having purchased at a sale made in the exercise of 
 this undeniable power, in the State of Ohio — and under a 
 statute Avhich declared, 1. That the title to the land, both at 
 law and in equity, should vest in him by virtue of his pur- 
 chase ; 2. That the deed should be conclusive evidence of 
 his title, and 3. That no error in the proceedings should 
 vitiate his right — sought to defend his possession, held under 
 such a title, against one who held the legal title — acquired 
 
 1 Neiswanger v. Gwynne, 13 Ohio,' 74 ; Gwynne v. Nei&wanger, 15 id. 367 ; 
 Gwynne v. Neiswanger, 18 id. 400 ; Gwynne v. Neiswanger, 20 id. 666. 
 
OP THE TITLE OP THE PURCHASER. 623 
 
 from the United States, after the purchase at the tax sale — 
 and a Court of law tells him, we recognize only legal titles 
 —your remedy is in chancery. He goes to the latter /oj-mwj, 
 and is there told, if you have any title at all, it is a legal 
 title, and your remedy is in a Court of law. The effect of 
 the decision is to deny the power of the State to tax lands 
 thus situated. And what renders the decision still more 
 strange is, that the judges all agreed that in ordinary cases, 
 the purchaser of an equity at a tax sale acquired a legal title 
 to the land, but the contest in this case grew out of a dif- 
 ference of opinion among the judges, as to the applica- 
 tion of * this rule of State sovereignty, where the * .541 
 legal title was, at the time of the tax sale, in the 
 Federal government. 
 
 The majority held, that the case of Ross v. Barland,^ was 
 an authority in point, where the Supreme Court of the 
 United States held, that it was within the power of a State 
 legislature to declare, that a junior patentee, whose claim 
 was based on a prior equity, should prevail over the senior 
 title, in an action of ejectment; and, by parity of reasoning, 
 the State of Ohio had the right to declare the title of one 
 who purchased a simple equity, superior to that of one who 
 afterwards acquired the legal title from the United States. 
 On the other hand. Judge Hitchcock, in his dissenting 
 opinion, cites Wilcox v. Jackson,^ and draws from that case 
 the conclusion, that where the legal title remains in the 
 Federal government, the question whether the sale divested 
 that legal title, depended upon the laws of the Federal, and 
 not the State, legislature. One, of course, is bound to re- 
 spect the decisions of Courts, but when those Courts vacil- 
 late in this manner, upon a simple question, but little weight 
 can be attached to their opinions and judgments. Upon 
 principle, all of their decisions are wrong. The statute 
 peremptorily declared the effect of the tax sale to be, that 
 it should transfer to the purchaser a valid title in all Courts 
 — at law and in equity. In the action of ejectment, effect 
 ought to have been given to the words of the law. But 
 when the Court of equity acquired jurisdiction, and it ap- 
 
 1 1 Pet. 664. ^ 13 Pet. 498. 
 
624 OP TrfE TITLE OP THE PUBCHASER. 
 
 peared that the highest Court of law had refused to recognize 
 the title of Gwynne, relief should have been given him by 
 the chancellor, because there would otherwise be a failure of 
 justice. Under very similar circumstances, and under laws 
 which made a distinction in phraseology, without a real dif- 
 ference in substance, the Supreme Court held the holder of 
 
 the legal title a trustee for the tax purchaser, and de- 
 * 642 creed a conveyance.^ It may be added, * however, 
 
 that the Supreme Court of Mississippi have decided, 
 that as long as the legal title remains in the government of 
 the United States, the land is not liable to taxation, and that 
 no title passes to the tax purchaser.^ No reasons are as- 
 signed for this ruling, and unless there is some compact 
 between the Federal and State governments, the decision 
 cannot be sustained upon principle or authority. It is even 
 contended, by highly respectable jurists, that the States may 
 exercise their taxing power over the public domain of the 
 United States within their borders. In fact, it has been 
 repeatedly urged, that upon the admission of a State into the 
 Union, she became ipso facto invested with the title to all of 
 the public land within her limits. ' The Supreme Court of 
 the United States have often held, that lands covered by 
 navigable waters belong to the States, and cannot be granted 
 by the Federal authorities. When it is remembered that 
 the power to hold land, even, is an implied power under 
 the Federal constitution, and that that government held the 
 public lands in the North- West territory upon a trust long 
 since discharged, and that there are compacts and ordinances 
 which specially exempt the public domain from taxation — 
 which seems to be a recognition of the right of the States to 
 tax them, but for these compacts — and when it is further 
 remembered, that no exemption from the taxing power exists, 
 except where expressly reserved or granted, and that the 
 sovereignty of the State in this respect extends to all prop- 
 erty within its territorial jurisdiction — it may well be doubted 
 whether all of the public domain lying within the States 
 
 1 Lessee of Wallace v. Seymour, 6 and 7 Ohio, 313 ; Stuart v. Parish, 6 and 
 7 Ohio, 204 ; Uenick ;;. Wallace, 8 Ohio, 540. 
 
 2 Dixou V. Doe, 23 Miss. 84. 
 
OF THE TITLE OP THE PURCHASBK. 625 
 
 may not be taxed, and thus the Federal government be com- 
 pelled to contribute, with other landed proprietors, her share 
 of the public taxes. By holding the lands at high prices, or 
 reserving them from sale, the Federal government might not 
 only retard the settlement of the new States, but deprive 
 them of one of the greatest sources of revenue. This is a 
 subject worthy of a more extended examination, but it is 
 merely hinted at here, because a loose opinion, ex- 
 pressed in a former part of this work — * without *543 
 much reflection, and believing that such was the com- 
 mon opinion of the bench and bar, and the understanding of 
 the people — has been called in question by one of the 
 Supreme Judges of Illinois.^ 
 
 But to return from this digression to the question as to 
 the nature of the purchaser's title. The point was incident- 
 ally discussed in Dyer v. Branch Bank of Mobile.^ The 
 plaintiff claimed, under a tax sale, the lot in question, which 
 belonged to the State Bank of Alabama, and which was, by 
 charter, exempt from taxation. It further appeared, that in 
 1845, when the tax was assessed and became due, the prem- 
 ises were in the possession of third persons. Two points 
 were considered, — the illegality of the sale, on account of 
 the exemption clause in the bank charter, and the interest 
 which passed by the sale. The first was the main question, 
 and upon that ground the sale was held void ; but upon the 
 second proposition Chief Justice Collier remarks : " If the 
 persons in possession in 1845, were liable to pay the tax for 
 that year, their interest only could be sold to enforce its pay- 
 ment ; and if the defendant had a paramount title, dating 
 back to a time previous, its right could not be impaired by 
 the sale. It is clear, that a purchaser at a sale under judicial 
 process, for the payment of taxes, purchases the interest of 
 the party whose property is sold, and not the independent 
 and superior, or ultimate, title of a third person. This seems 
 
 ' The author was promised the opinion of the jurist alluded to upon this inter- 
 esting question, and he would have been happy to liave inserted it in a note, but 
 it is now evident that the opinion will not be ready in time for publication in this 
 edition. 
 
 2 U Ala. 622. 
 
 40 
 
626 OF THE TITLE OP THE PUBCHASER. 
 
 to US to be a proposition so clear, that it need but be men- 
 tioned, to receive universal concurrence." 
 
 The Pennsylvania statute of April 3, 1804, provides, "that 
 sales of unseated lands for taxes, &c., shall be in law and 
 equity valid and effectual, to all intents and purposes, to vest 
 in the purchaser or purchasers of lands so sold, all the estate 
 and interest therein, that the real owner or owners had at 
 the time of such sale, although the land may not have 
 * 544 been taxed * or sold in the name of the real owner." 
 The construction put upon this statute is, that all 
 prior ownerships are merged in, and divested by the tax sale 
 — a new and independent title created — the land, and not 
 the owner, is regarded as the debtor for the public charge 
 imposed by the revenue laws, thus making a clear distinction 
 between execution and tax sales.^ In the one, the estate 
 itself is sold ; in the other, the interest of the debtor only.^ 
 
 But in the case of Irwin v. Bank of the United States,^ 
 which was an action of covenant to recover a ground-rent, it 
 
 1 [The due and regular sale and deed of land for taxes for any one year, 
 divests the land from the lien for taxes of any previous year. At least, this is 
 the rule as to unseated land in Pennsylvania. Irwin v. Irego, 10 Harris (Penn.), 
 368 ; Huzzard u. Trego, 35 Penn. St. 9 ; Anderson v. Rider, 46 Cal. 134 ; Eaton 
 17. North, 29 Wise. 75 ; Knox v. Leidgen, 23 Wise. 292 ; Truesdell v. Rhodes, 
 26 Wise. 218 ; Jarvis v. Peck, 19 Wise. 74 ; Sayles v. Davis, 22 Wise. 225 ; Pres- 
 ton V. Van Gorder, 31 Iowa, 250. The words " subject, however, to all unpaid 
 taxes and charges," in sec. 25, ch. 22, Laws of 1859, refer only to the taxes and 
 charges which may liave accrued subsequently to the sale on which the deed 
 is issued. Sayles v. Davis, supra. But in the same State (Pern.) it has 
 been held, that a sale on the 18th of June, 1834, for the taxes of 1832 and 1833, 
 does not extinguish the lien of the taxes assessed previous to the sale, for 1834, 
 and the land may be again sold for the taxes of that year, after the expiration 
 of two years. Liggett u. Long, 7 Harris (Penn.), 499.] Under the Rev. Law of 
 1854, of California, providing that " such lien, to the absolute exclusion of all 
 other hens, shall continue till all the taxes thereon shall be paid," neither the 
 failure of the oflacer to include a delinquent tax of one year with the tax of the 
 subsequent year, nor a sale of the property for the taxes of the succeeding year, 
 divested the lien for the prior tax ; and a purchaser, at a tax sale for the taxes 
 of 1868, was held not entitled to enjoin a sale of the same property for the unpaid 
 taxes of 1857. Cowell v. Washburn, 22 Cal. 619. See also 48 Cal. 653. 
 
 2 Sergeant's Land Laws of Pennsylvania, 217 ; Luffborough v. Parker, 16 
 S. & R. 361, 358 ; Blair v. Waggoner, 2 S. & R. 472 ; Strauch v. Shoemaker, 1 
 W. & S. 166 ; McCord v. Bergautz, 7 Watts, 490 ; Morton v. Harris, 9 Watts, 
 323 ; Caul v. Spring, 2 Watts, 396 ; Fager v. Campbell, 5 Watts, 288 ; CoUins v. 
 Barclay, 7 Barr, 67. 
 
 3 1 Barr, 349. 
 
OP TfiE TITLE OP THE PURCHASER. 627 
 
 appeared that James Robinson, being the owner in fee, made 
 a perpetual lease of the land — reserving an annual rent of 
 sixty dollars, payable quarterly — to William Nixon, his 
 heirs and assigns. The right of receiving the rent became 
 vested in the United States Bank, and the right of Nixon 
 under the lease became vested in Irwin, the defendant. In 
 1824, the land out of which this rent issued, was sold for 
 taxes, upon an assessment in the name of Nixon's heirs. 
 This last fact was relied upon as an extinguishment of the 
 rent, and consequently constituting a bar to the action of 
 covenant. This position was denied by the Court. Ken- 
 nedy, J. : " The treasurer sold the ground merely for and on 
 account of the taxes assessed on it, as the land of William 
 Nixon's heirs, and not for and on account of the taxes as- 
 sessed on the ground-rent issuing out of it. For the purpose 
 of raising money to pay the latter, he had not authority to 
 sell the ground. He could only sell it to raise money 
 to pay the * taxes assessed on the ground itself, when * 545 
 unseated ; and generally, for this purpose, it is amply 
 suf&cient. The rent, in this case, though it issued out of the 
 ground or land, is considered as an estate altogether distinct, 
 and of a very different nature from that which the owner of 
 the land has in the land itself. Each is considered as the 
 owner of a fee-simple estate. The one has an estate of 
 inheritance in the rent, and the other in the land out of 
 which the rent issues. The one is an incorporeal inheritance 
 in fee, the other a corporeal inheritance in fee ; and each is 
 made, by one act of assembly, a separate and distinct subjecli 
 of taxation. There is, therefore, no reason why the collec- 
 tion or mode of collecting a tax assessed upon the one, shall 
 have any effect upon the other. It would be monstrous, and 
 the most gross injustice imaginable, to hold, where the owner 
 of the rent has paid the tax assessed thereon, that his estate 
 shall be extinguished, or sold afterwards by a sale made of 
 the land, for and on account of the non-payment of taxes 
 assessed upon it. Such a thing is wholly unnecessary, and 
 was never intended or designed by the legislature." 
 The case of Willard v. Blount i will furnish some light upon 
 
 1 11 Ired. 624. 
 
628 OP THE TITLE OF THE PURCHASER. 
 
 this question. The facts were, that in September, 1846, the 
 defendant leased to one Watson a lot, at the corner of Water 
 and Market Streets, in the town of Washington, 22 feet on 
 Water and 50 feet on Market Street, for the term of ten years, 
 to begin on the first of January, 1847, free of rent, in consid- 
 eration that the said Watson would erect on said lot a build- 
 ing, according to specifications, and deliver the said building to 
 the defendant, her heirs or assigns, at the end of the term, in 
 good repair, natural decay alone excepted ; and the said Wat- 
 son covenanted for himself and his assigns, that, after the erec- 
 tion of the said building, it should be at all times insured at a 
 valuation of not less than $2,000, against loss or damage by 
 fire, for the benefit of all pei'sons having estates therein with 
 a condition of re-entry, in case the covenants were not complied 
 with. In April, 1847, Watson assigned this lease to the 
 * 546 * plaintiff, in consideration of $2,050, Watson binding 
 himself to erect the building according to his covenant 
 with the defendant. Afterwards, taxes became payable by 
 virtue of an assessment, authorized by an act of the legislature, 
 passed at its session in 1846-47. These taxes, amounting to 
 $13.20, were paid on a threat of distress, and under protest 
 by the plaintiff, who demanded of the defendant the amount 
 so paid I and, upon refusal, commenced this suit by warrant. 
 The cause was tried on the circuit by Judge Battle, who was 
 of the opinion that the plaintiff was not entitled to recover, 
 and this opinion was concurred in by the Supreme Court. 
 Pearson, J. : " By the second section, all real estate held by 
 deed, grant, or lease, or by title of dower, curtesy, or other- 
 wise, shall be subject to the payment of public taxes, except land 
 of the University, houses set apart for divineworship, &c. Land, 
 then, is taxed according to its fee-simple value, and whoever is 
 owner of the land for the time being, is bound to pay the tax. 
 If the estate is divided, by giving a particular estate to one — 
 the remainder to another — as if an estate is limited to A. 
 for life, or for ten years, remainder to B. and his heirs, the val- 
 uation is assessed without reference to this division, and each 
 must pay the tax during the time he is the owner, and enjoys 
 the possession and pernancy of the profits. According to this 
 general proposition, the plaintiff being the owner for the time 
 
OF THE TITLE OP THE PURCHASEH. 629 
 
 being, and enjoying the possession and pernancy of the profits, 
 is bound to pay the tax. The case of landlord and tenant 
 forms an exception, where rent is reserved ; for the rent is in 
 lieu of the land, and the landlord is in the pernancy of the 
 profits of the land, the profits of the tenant being the fruit of 
 his own labor. , Hence, in such cases, the landlord is bound 
 to pay the tax ; and if the tenant be compelled to pay, he may 
 recover from the landlord, or may deduct the amount out of 
 the rent. But in the case under consideration, no rent is 
 reserved. The defendant receives nothing in lieu of the land, 
 and the entire profits are enjoyed by the plaintiff. He, then, 
 does not come within the reason for making the case of ordi- 
 nary tenants paying rent, an exception to the general rule. 
 Let us see how it operates. A vacant lot worth, 
 * say, $200, is leased for ten years without rent — a * 547 
 building worth, say $2,000, is erected upon it. The 
 lessee enjoys the entire use and profits of the lot in its im- 
 proved condition. The amount of the assessment, and, of 
 course, the tax, is increased ten times. It is right that the 
 lessee, who has the whole profit, should pay the tax ; for, in 
 fact, the lessor has parted with his entire estate for the ten 
 years, and stands as a remainder-man, and not as a landlord 
 receiving rent. It is said the lessor will be benefited by re- 
 ceiving the property, in its improved condition, at the end of 
 the terra. That is true, and then he will be bound to pay the 
 tax ; but in the mean time, it is manifestly unjust to require the 
 lessor to pay tax for what he has never enjoyed ; and there is 
 no mode of apportioning the tax, so as to show what ought to 
 be paid for and on account of the original value, and what for 
 the additional value ; and, upon the general rule, the plaintiff 
 is bound to pay the tax. The English cases give no aid in 
 deciding this question, because the land in that country is 
 assessed upon the annual rent, and if it be not rented, upon 
 such sum as it could reasonably be rented for ; and the statute 
 provides, that in case tenants are compelled to pay the tax, 
 they shall have the right to deduct it out of the rent." (a) 
 
 (a) " There is a plain difference between the sales authorized by the act of 
 Feb. 9, 1814, 2 Rev. Code, 1819, p. 642, and those to be made under the act 
 of Feb. 27, 1837. By the express provisions of the former act, the sales were of 
 
630 OF THE TITLE OP THE PURCHASER. 
 
 It will be seen, on an examination of the foregoing cases, 
 that no general principle can be deduced from them in regard 
 to the nature of the interest acquired by the purchaser at a 
 tax sale. None of them are entitled to the force of authorita- 
 tive decisions. Some arose under statutes defining the effect 
 of the sale, others contain a simple expression of the opinion 
 of the judge who delivered the judgment of the Court, and 
 others are based upon implications arising out of the general 
 phraseology of the statute. In those States where the tax is 
 a charge upon the land alone, where no resort, in any event, 
 is contemplated against the owner or his personal estate, and 
 where the proceeding is strictly in rem, the tax deed will 
 undoubtedly have the effect to destro_y all prior interests in the 
 estate, whether vested or contingent, executed or executory, 
 and those in possession, reversion, and remainder. In such case, 
 the tax law itself is notice to the whole world of the liabil- 
 
 the title and interest of tlie parties in default only. The commonwealth claimed 
 not to be invested with the title to the lands, but only to assert a lien upon them 
 for the taxes due her, the title remaining in the owner till the sale was made. 
 The latter act presupposes that the title to the land sold is rested in the com- 
 monwealth at the time of the sale. It (the latter act) assumed that the acts 
 declaring the forfeiture of lands, for the failure of the owners to comply with the 
 revenue laws, were sufficient propria vigore to work out their own purpose, and 
 to transfer the title perfectly and effectually to the commonwealth. Hence it 
 directs the lands to be sold as the property of the commonwealth in all respects 
 as in the case of other lands directed to be sold under decrees of the Court ; and 
 directs the commissioners to convey to the purchaser all the Interest of the com- 
 monwealth in the lands so sold." It was accordingly hdd, that where land is 
 forfeited to the commonwealth under distinct titles, upon a proceeding to have 
 the land sold under either title, the sale and conveyance pass all the title 
 vested in the commonwealth under both titles. And that where land is forfeited 
 under one title in one county and under another title in another county, the land 
 in one patent extending into both counties, the Court in which the proceeding 
 is first commenced for the sale of the land has jurisdiction of the subject ; and 
 the sale and conveyance under its decree passes all the title of the common- 
 wealth, though the conveyance under the decree of the Court of the other county 
 is first executed. Smith v. Chapman, 10 Grat. 445. The purchaser of land sold 
 for taxes, under ch. 37 of the Code of Virginia, of 1860, acquires such title and 
 estate as was vested in the party assessed with the taxes (on account of whose 
 delinquency the sale was made) at the commencement of the year for which the 
 taxes were assessed ; therefore, where the owner had previously executed a trust 
 deed to secure the payment of money thereon, the purchaser of the same at a 
 tax sale for delinquency only acquires the equity of redemption existing in the 
 grantor in the trust ; and the land is first liable to the payment of the trust lien. 
 Smith V. Lewis, 2 West. Va. 39. 
 
OF THE TITLE OP THE PURCHASER. 631 
 
 ity of the land for * all public assessments — and every * 548 
 one claiming an interest in the land, is bound at his peril, 
 to pay the tax, and thus protect that interest from forfeiture or 
 sale. If he neglects his duty in this respect, his title becomes 
 extinct, and a new and independent title becomes vested in 
 the purchaser, freed from all prior liens, encumbrances upon 
 the former estate, and indeed of every interest carved out of the 
 old fee. The fee of the land passes, and not the interest sim- 
 ply of the former owners. All that can be required of the 
 purchaser in such cases, is to show title out of the State, prove 
 the regularity of the proceedings, and introduce his deed, and 
 he makes out a complete and perfect title to the fee.^ On the 
 other hand, where the law requires the land to be listed in 
 the name of the owner of the fee, or of any other interest in the 
 estate — provides for a personal demand of the tax — and in 
 case of default authorizes the seizure of the body or goods of 
 the delinquent, in satisfaction of the tax — and in terms, or 
 upon a fair construction of the law, permits a sale of the land 
 only, when all other remedies have been exhausted — then, the 
 sale and conveyance by the officer, passes only the interest of 
 him in whose name it was listed — upon whom the demand 
 was made — who had notice of the proceedings, and who alone 
 can be regarded as legally delinquent. In such cases the title 
 is a derivative one, and the tax purchaser can recover, in eject- 
 ment, only such interest as he may prove to have been vested 
 in the defaulter at the time of the assessment. Any other con- 
 struction of laws containing such provisions, would be in viola- 
 tion of the spirit which moved the legislature to enact them, 
 and be the means of depriving innocent persons of their estates 
 — persons who had no notice of the proceedings — and who, 
 in consequence of this omission, can in no sense be regarded 
 asdelinquent.2 There are no express adjudications upon 
 this point, but such seems to be fairly * implied from the * 549 
 course of decisions relative to the manner of listing 
 
 1 Bigler v. Kams, 4 W. & S. 137. 
 
 2 [It has since been held, that a deerl purporting to convey all the right, title, 
 and interest of a particular person named, or of any other person claiming the 
 same under the first-named person, conveys only the title of the person first 
 named, and no other. Yenda v. Wheeler, 9 Texas, 408 ; Wheeler v. Yenda, 11 
 Texas, 562.] 
 
632 OP THK TITLE OP THE PURCHASER. 
 
 lands, and the effect of the sale where the listing has been in the 
 wrong name. That the law in all such cases deems a notice — 
 actual or constructive — to the owner of an interest in the land 
 offered for sale, a prerequisite — is manifest from the circum- 
 stance, that a publication, or personal demand of a tax, is 
 invariably required. Take this case : A. devises an estate to 
 B. for life, and the remainder to C. in fee ; B. takes possession, 
 and receives the rents, issues, and profits of the premises, dur- 
 ing his life. At law and in equity, he is bound to pay all legal 
 assessments upon the land. He fails to do so after notice and 
 demand — a sale is made^ and the officer conveys to the pur- 
 chaser. No demand was ever made upon the remainder-man 
 for the tax, and he had no notice of its assessment. Every 
 one would say, at first blush, that it would be a monstrous 
 species of injustice to hold, that his interest in the estate was 
 divested by such a proceeding. Whereas, if the State never 
 contemplated any notice at all, but exercised her sovereign 
 power by proceeding in rem alone, then he and all other per- 
 sons would be bound to take notice at their peril, because the 
 State did not promise that she would give any — it being a 
 maxim of law, " that every person is bound to take notice, 
 whei-e no one is bound to give notice." ^ 
 
 In Finch v. Brown,^ which was an application by a widow to 
 redeem a tract of land, in which she claimed a dower interest, 
 and which was sold in her husband's lifetime, the Court, in 
 speaking of her right of dowei*, say, " Whether this right was 
 defeated by the sale for taxes, is an important question, which 
 we do not feel at liberty now to discuss or decide. It will 
 more appropriately arise when she applies to have her dower 
 assigned under the statute." This may be an important ques- 
 tion, but it is easily answered, under the statute of Illinois.^ 
 
 " No act, deed, or conveyance, performed or executed 
 * 650 by the husband, * without the assent of his wife, evinced 
 
 by the acknowledgment thereof in the manner re- 
 quired by law, shall pass the estate of a married woman ; and 
 no judgment or decree confessed or recovered against him, and 
 no laches, default, covin, forfeiture, or crime of the husband, 
 
 1 16 Viner's Abr. ch. 2 ; 5 Binn. 157, 311, 313. 
 
 2 3 Gilm. 488. 8 Rev. Stats. 1845, p. 200, sec. 14. 
 
OP THE TITLE OP THE PURCHASER. 633 
 
 shall prejudice tlje right of his wife to her dower or jointure, 
 or preclude her from the recovery thereof, if otherwise entitled 
 thereto." This statute is based upon the principle, that inas- 
 much as the coverture of the wife makes her dependent upon 
 her husband, for the means necessary to protect her own 
 interests, that no neglect of the husband to furnish those means 
 shall, in any manner, affect her rights of property. Under 
 these circumstances, it would be very extraordinary to hold, 
 that the widow could not redeem, because she had no vested 
 interest at the time of the sale, and then decide that her right 
 of dower was divested by the tax sale, on account of the laches 
 of her husband, in not paying the tax and thus protecting her 
 rights in the premises. Independent of this statute, upon 
 common-law principles, she is not barred of her dower in such 
 a case. By the common law, and English statutes in aid of it, 
 dower could only be barred by a divorce a vinculo, by eloping 
 with an adulterer, by the attainder of her husband for treason, 
 by detaining the title deeds from the heir, by jointure in sat- 
 isfaction, by levying a fine or suffering a common recovery. 
 This doctrine has been recognized in this country, the Court 
 holding that her own voluntary assent or misconduct was 
 necessary to bar her right of dower, and that no laches of the 
 husband could have any such effect.^ A contrary rule would 
 be manifestly unjust. 
 
 It was held, by the Supreme Court of Georgia, in Doe ex 
 dem. Gledney et al. v. Deavors,^ under a statute which declared 
 that taxes should " be preferred to all securities and encum- 
 brances whatever ; " that the State had a lien upon all 
 lands * for the taxes due upon them ; that this lien took * 551 
 effect on the first day of January, in each year ; and 
 that in a contest between a purchaser at a sheriff's sale, in 
 April, 1841, and the purchaser at a tax sale, held in Decem- 
 ber of that year, the latter had the paramount title.^ It 
 
 1 Sisk V. Smith, 1 Gilra. 503 ; Hale v. James, 6 Johns. Ch. 258 ; Dunham v. 
 Osborn, 1 Paige, 635 ; Tabele v. Tabele, 1 Johns. Ch. 45 ; Smiley v. Wright, 2 
 Ohio, 506 ; 4 Kent, Com. 50 ; 2 Bl. Com. 138 ; 1 Thomas' Coke, 475. 
 
 2 8 Geo. 479. 
 
 s This being an important and well-considered case, the opinion of Judge 
 Nisbet is given at length. He said, " This was an action of ejectment. Tlie 
 plaintiff claimed under a tax-collector's deed, and the defendant under a sheriff's 
 
634 OP THE TITLE OP THE PURCHASER. 
 
 * 552 would seem, upon * principle, that the sovereign power 
 of the State to levy and collect taxes — the nature of 
 
 deed. The sheriff's deed bears date in April, 1841, and the tax-collector's deed 
 in December of the same year. The sheriff sold the land under an execution in 
 favor of a citizen, as the property of the defendant in execution. The collector 
 caused the same land to be sold for the taxes due by the same defendant, assessed 
 for that year. The question of title being before the Circuit Court, the presiding 
 judge instructed the jury, 'that the lien or security of the State for the tax due 
 from the defendant in execution, for the year 1841, was destroyed by the sheriff's 
 sale, and the subsequent sale conveyed no title, unless the jury believed that the 
 sheriff's sale was made for the purpose of avoiding the payment of taxes due, 
 and that the only preference that existed for said tax, was the right of the tax- 
 collector to claim out of the fund raised by the sheriff's sale.' To this charge 
 the plaintiff in error excepted, and the question is, whether the tax due by a citi- 
 zen is a lien upon his property, which can be enforced by a resale, in a case like 
 this, where the property has been sold under a general judgment before it is 
 returned, yet after the tax upon it has been imposed by law. The presiding 
 judge does not seem to hold, that generally taxes are not a lien, but believes 
 that the lien was destroyed by the sheriff's sale, and that after such sale, the 
 only way in which the State can collect her taxes is by putting in a claim upon 
 the fund. Inasmuch as the land had been sold, the view of the judge seems to 
 be, that the State occupied the position of a favored or preferred claimant on it, 
 and failing to assert her claim, lost it, unless the sale by the sheriff was intended 
 to defeat the payment of the taxes. The question is an important one, and it 
 will be necessary to consider, generally, the question, to what extent assessed 
 taxes are a lien upon the property of a citizen, and if they are a lien particularly, 
 whether in this case it was, as held by the presiding judge, destroyed by the sale 
 by the sheriff. The right to tax the whole property of the citizen for the defence 
 of the State, and the support of the government, is not a questionable proposition. 
 It is an incident of sovereignty. All property which vests in the citizen by grant 
 from the State, is liable to taxation, without a reservation of the right to tax. 
 That right grows out of the right of the citizen to governmental protection, and 
 the corresponding obligation of government to protect him. Revenue is indis- 
 pensable to the maintenance of all the privileges and immunities of the people ; 
 it is also indispensable to national independence, without which individual im- 
 munities and privileges are valueless. Hence it is, that in the very nature of the 
 social compact, as a basis upon which the foundations of government are laid, 
 the property of the citizen is pledged for these purposes ; pledged without any 
 express declaration of a pledge. In the act of organizing a government, the pledge 
 is implied. It is one of the elements of national being. The people who make 
 a government, ipso facto, assent to it. This inherent right to lay and collect taxes, 
 may he limited and regulated by the fundamental law, as it is by the constitution 
 of our Union. The amount and the mode of assessment, and the manner of col- 
 lecting it, lies within the legislative competency, to be arranged from time to 
 time by law, according to the public exigencies. In this country the people 
 impose the taxes which they pay, through their representatives, and the taxing 
 power is not, therefore, likely to be abused. Upon these principles it has been 
 held, in a sister State, that the taxes due, in the absence of any legislative decla- 
 ration upon that subject, are a mortgage, to the exclusion of any other lien or 
 
OF THE TITLE OP THE PURCHASER. 635 
 
 tax laws, which are regarded as notice to * all the world * 553 
 of the liability of property to taxation — the fact that all 
 
 encumbrance. The decision goes upon the idea, that the obligation to support 
 tlie government precedes and is paramount to every contract between citizens ; 
 and witliout amplifying this general doctrine, I leave it with my concurrence. 
 However sufficient these principles may be to sustain the tax lien, we are not left to 
 them alone. In our judgment, the laws of the State give to assessed taxes alien 
 which overrides every other security or encumbrance. By the fourteenth sec- 
 tion of the act of 1804, which is still of force, it is declared, that ' the taxes 
 imposed by this act shall be preferred to all securities and encumbrances what- 
 ever.' This section creates a lien. It is argued, that it only gives a preference 
 or creates a grade of debt, in contemplation of a contest with other securities and 
 encumbrances. Our opinion is, that it creates a general lien, which attaches, at 
 the time when the property is liable by law to taxation, upon all the property of 
 the citizen. It is true, that the phraseology of the act might have been more 
 plainly declaratory of a lien. But what is its effect ? A legal preference, that is, 
 priority, is given to the taxes, not only over all encumbrances whatever — such 
 as mortgages and judgments — but also over all securities — securities by title, 
 as well as other securities. A deed, therefore, upon private sale, will not defeat 
 the preference. It inhibits a sale to the exclusion of the taxes. And it can only 
 defeat the security of a deed, upon the idea of a lien on the property. If a title 
 by deed upon private sale will not defeat the tax lien, a title by deed iipon a 
 judicial sale will not, u. fortiori ; for the lien of the judgment, under which the 
 purchaser at the judicial sale gets his title, is unquestionably postponed by the 
 act. There is no particular form of words necessary to create a lien. The plain 
 import of this act is, a legal preference for satisfaction out of the property of the 
 person taxed, over every security and every encumbrance, and that is a lien. 
 The legislature, no doubt, intended simply to declare the great fundamental prin- 
 ciple, that the property of the citizen is pledged, to the exclusion of all private 
 contracts, to the support of the government. That principle elucidates the enact- 
 ment. If the lien exists without a legislative declaration — if it be an elementary 
 principle of government, recognized by the ablest statesmen — it can hardly be 
 presumed that the legislature intended to innovate upon and weaken it. If the 
 act only creates a preference over other claims, it is available for the protection 
 of the State only when a citizen is dead, and his estate is for distribution, or 
 when lie is insolvent, or when there is a fund in hand for distribution. Upon this 
 idea, it looks to marshalling assets. And in case of the alienation, bona fide, of 
 property by private sale, this construction would w holly defeat the security of the 
 State. In this very case, as I shall show, it would defeat the collection of taxes 
 altogether. I do not mean to say, that when the money of the citizen is in the 
 hands of the Court, and the tax is in a situation to be presented as a claim upon 
 it, that that claim would not be good. If the act creates a lien on property, the 
 lien equally attaches upon its proceeds. But in such a case, I do not believe that 
 the lien of the State would be lost by its agent failing to put in a claim upon the 
 fund, upon the principle that no laches can be imputed to the State. It is not 
 enough to say, that the collector and his security would be, in that case, liable, 
 for that liability is only a cumulative security for the State. The lien is a general 
 one. The whole property is bound for the taxes. That it is not confined to the 
 specific property upon which each item of the tax arises, is manifest in this. 
 
636 OF THE TITLE OP THE PURCHASER. 
 
 property is impliedly pledged for the prompt payment 
 * 554 * of all assessments, made under the authority of the 
 
 The law requires the personal estate first to be sold to pay the tax, and if none, 
 or not enough, then the real estate. Accordingly, taxes originating on lands 
 may be paid out of the personal estate, and vice versa. It takes effect when, by 
 law in each a,nd every year, the property is made taxable — that is to say on the 
 first of January. It is the imposition of the tax by law, which appropriates, if 
 needs be, the property of the citizen to the public use. The lien, therefore, does 
 not commence only with the return of the property or with the return of the 
 digest by the receiver to the collector, or with the issuing of execution to enforce 
 payment. It is argued, that the taxes are not a lien, from certain provisions of 
 the tax law — such as that wliicli declares all sales, made to prevent their pay- 
 ment, void — that which makes them first to be paid, in case of the death of the 
 debtor, and charges the administrator, personally — and that which charges the 
 mortgagee with the tax due upon the mortgaged property. These provisions of 
 law do not set aside the lien created by the fourteenth section, nor are they 
 incompatible with it. Some of them, it may be, are unnecessary — as, for ex- 
 ample, that which declares void all gifts and conveyances, &c.y made to avoid the 
 payment of taxes. If there is a lien, this provision is useless. All these things, 
 and others — for example, the summary process with which the collector is armed 
 to collect, and tlie prohibition of all judicial interference between the State and the 
 debtor — look to the same end, and that is the prompt and necessary payment of 
 the taxes. The State must have her revenue, at all hazards. Hence these various 
 stringent provisions of law to constrain payment. Prompt collection is as neces- 
 sary as the lien. But if, in all cases of sale of the property, as here, the State is to 
 rely upon the fund, she may be delayed by litigation, and is really made dependent 
 upon judicial interference. She must put in her notice, or file her injunction — 
 await the regular time for a hearing — abide delays, continuances, and collateral 
 issues. In short, she is no better off than any other judgment creditor. No. 
 To collect taxes, the State moves with uncontrollable power, directly and instan- 
 taneously upon the property ; and if, in the exercise of this stern, but necessary 
 attribute of sovereignty, the citizen is injured, his only redress is by petition to 
 the legislature. In the case made in ithis record, if the doctrine of the Court pre- 
 vails, and in all like cases, the tax will be lost to the State. Here the sheriff sold 
 in April. The land sold was taxable on the first of January, preceding. At the 
 time of sale, the land had not been returned to the receiver — the collector knew 
 not that it was taxable as the property of the defendant — he had no power 
 over it, he could put in no notice to retaifi, he could institute no process to hold 
 up the fund. The sheriff, officially, could know nothing of the claim of the State 
 for taxes. He was not restrained from paying over at once the proceeds of the 
 sale to the judgment in his hands ; and if paid, then all means of security to the 
 State is lost for ever. The collector and his sureties would not be liable, for he 
 could not he in default. So it would be in any case where there is a, bona fide 
 sale of property intervening between the first of January and the return of the 
 digest of taxes to the collector, whether that sale be private or judicial. The con- 
 sequence of this doctrine would clearly be a loss to the State of no inconsiderable 
 amount of her revenue, and a serious injustice to the tax-paying portion of the 
 people. In the case before me, the collector has pursued the course which the 
 law points out. Wlien the tax was collectible, and default in payment made, he 
 
OF THE TITLE OF THE PURCHASER, 637 
 
 constitution and laws — all necessarily concur in creating, 
 by implication, a lieu, without any express declaration to that 
 effect.i 
 
 issued his execution — the land is levied on and sold. The question put by one 
 of the counsel for plaintlflf in error (Col. Brown), is conclusive of the ease. If 
 these proceedings are authorized by law (and that they are, no one questions), 
 does not the purchaser get a title I If he does not, then the State has devised an 
 ingenious piece of statutory mechanism, for the purpose of entrapping her citi- 
 zens. The previous purchaser has no right to complain, for the tax lien is by 
 public law, and he is presumed to buy with notice. In the argument of this cause, 
 the defendant in error relied upon the decision of the Supreme Court of the 
 United States in Conard v. The Atlantic Insurance Company of New York, 1 Pet. 
 386. That decision places a construction on the 65th section of the act of Con- 
 gress, passed in 1799, which is as follows : ' In all cases of insolvency, or where 
 any estate in the hands of executors, administrators, and assignees, shall be in- 
 sufficient to pay all the debts due from the deceased, the debt or debts due to the 
 United States shall be first satisfied ; and any executor, administrator, or assignee, 
 or other person, who shall pay any debt due by the person or estate, for whom or 
 for which they are acting, previous to the debt or debts due to the United States 
 from such person or estate, being first duly satisfied and paid, shall be answerable 
 in their own person and estate,' &c. The Supreme Court held, that the priority, 
 thus limited in behalf of the United States, was not aright that superseded and 
 overruled an assignment made by the debtor, and subjected the property so 
 assigned to execution ; but was a right of prior payment out of the general funds 
 of the debtor in the hands of the assignee. This decision is inapplicable to the 
 present case. A similar provision of law is made in this State, when a debtor for 
 taxes dies between the time of giving in his taxes and the payment. A priority 
 is created in behalf of the State for the tax, and the administrator is bound to 
 respect that priority at the peril of personal liberty. If this were the only pro- 
 vision of our law on the subject, the question would be very different. We 
 should construe it as the Supreme Court did a like law of Congress, as giving a 
 right only of prior payment. But it is not. In the same section, the legislature 
 declares, that the taxes shall be preferred to all securities and encumbrances 
 whatever. As before stated, the priority given in case of death is cumulative, 
 and intended to secure prompt payment of taxes. The law of Congress does not 
 pretend to give to the United States a lien — it only pretends to create a pref- 
 erence in the cases stated, of insolvency, &c. It cannot be enlarged beyond its 
 ■terras. Our law, in general terms, confers a preference over all encumbrances 
 and securities, and, as we think, creates a lien." 
 
 ' Where the owners of adjoining lots had each given ten feet of his lot "to 
 be kept open for a street or alley for ever, not to be obstructed in any way,'' it 
 was held that though it was a private way, a tax sale of a lot would not convey 
 the ten feet thrown into the alley, which was still subject to the easement. 
 Hall V. McCaughey, 51 Penn. St. 43. 
 
 Timber cut and removed from the land by one in possession under a tax deed, 
 regular on its face, and prima facie evidence of title, belongs to the original 
 owners, if the tax title is shown to be invalid. Paine v. Libby, 21 Wise. 425. 
 
638 BTABE DECISIS. 
 
 CHAPTER XXXVIII. 
 
 OP THE PRINCIPLE OP STARE DECISIS CONCERNING TAX TITLES. 
 
 Our common-law system, as remarked by a learned judge, 
 consists in applying to new combinations of circumstances, 
 those rules of law which we derive from legal principles and 
 judicial precedents ; and, for the sake of attaining uniformity, 
 consistency, and certainty, we must apply those rules, where 
 they are not plainly unreasonable and inconvenient, to all 
 cases which arise, and we are not at liberty to reject them, 
 and to abandon all analogy to them, in those to which they 
 have not been judicially applied, because we think that the 
 rules are not as convenient and reasonable as we ourselves 
 could have devised; It is of great importance to keep this 
 principle of decision steadily in view, not merely for the 
 determination of the particular case, but for the interest of law 
 as a science.^ It is said bj'^ Blackstone to be " an established 
 rule to abide by former precedents, where the same points 
 come again in litigation : as well to keep the scale of justice 
 even and steady, and not liable to waver with every new 
 judge's opinion, as also, because the law in that case being 
 solemnly declared and determined, what before was uncertain, 
 and perhaps indifferent, is now become a permanent rule, 
 which it is not in the breast of any subsequent judge to alter 
 or vary from, according to his private sentiments ; he being 
 sworn to determine, not according to his own private judgment, 
 but according to the known laws and customs of the land ; 
 not delegated to pronounce a new law, but to maintain 
 * 557 and expound the old one." But *this judicial rule — 
 stare decisis — like all others, has its exceptions, which 
 will be manifest to any one who will take the trouble to 
 examine Greenleaf 's overruled cases, and count the number 
 
 1 Parke, J., in Mirehouse v. Rennell, 1 Clarke & Finnelly, 546. 
 
STARE DECISIS. 639 
 
 of decisions which have been overturned by ancient and mod- 
 ern Courts. The law and opinion of a judge are not synony- 
 mous terms — the latter may mistake or pervert the law of 
 the land. Precedents ought not to be followed blindly, nor, 
 on the contrary, treated irreverently. We owe some respect 
 to our own opinions when deliberately formed — for conscience" 
 sake. On the other hand, there is due to the opinions of 
 others such a deference, as not to suppose that they acted in 
 the formation of them, without any consideration. There is 
 a medium ground between these two extremes which should 
 be sought for in the application of the maxim in question. It 
 is founded on policy — to insure certainty, to as high a degree 
 as possible, in the administration of justice. It is important 
 that the decisions of our Courts should be as stable and uni- 
 form as the statute law itself — indeed, more so; — a decision 
 which overturns a prior one has a retroactive effect — its ten- 
 dency is to disturb vested rights — whereas the promulgation 
 of a new rule by the legislature operates prospectively only. 
 To enable the citizen to be governed in his social relations, 
 and square his conduct by the laws of the land, he must know 
 beforehand what the law requires of him. There is no differ- 
 ence in principle between a rule of law which is overturned 
 by the whim of a judge — and the withholding of a knowledge 
 of the law from the people at large. In the one case, the 
 citizen is ignorant of the existing rule ; in the other, he is 
 ignorant of what will be the rule when his rights are in jeop- 
 ardy ; and in neither case can he possess the requisite hifor- 
 mation to enable him to protect his own interests. For these 
 reasons, the rule is that precedents must be followed, unless 
 flatly absurd or unjust. It is to be lamented that the limits 
 allowed to judicial discretion in this respect, are so uncertainly 
 defined. If a case varies from the facts and circumstances of 
 preceding authorities, the Courts are at liberty to found anew 
 decision on those circumstances — in other words, to 
 make a precedent. " But it never * fell from a judge * 558 
 in this country, that he would obey a solemn judgment 
 in one case and not in others. This is a doctrine to which 
 our Courts are not accustomed." ^ The discretion of judges 
 
 1 Lord Eldon, 6 Dow, 112. 
 
640 STARE DECISIS. 
 
 in the application of the maxim stare decisis, is not an arbitrary- 
 one. " Discretion," said Lord Mansfield,^ " when applied to 
 a Court of law, means sound discretion, guided by law. It 
 must be governed by rule, not by humor. It must not be 
 arbitrary, vague and fanciful, but legal and regular." This is 
 the principle by which the Courts are controlled in reference 
 to precedents. A single decision upon a question is never 
 regarded as settling a rule, unless rights have become vested 
 under it, and it has been acquiesced in for a length of time.^ 
 And in mere matters of practice, where propriety and utility 
 are regarded more than the certainty of the rule, and where 
 no one is injured by a re-examination of the question. Courts 
 do not hesitate to overrule a former decision, or even a series 
 of decisions, wJien it clearly appears that they were erroneous 
 or unjust.^ But in questions affecting property, unfulfilled 
 contracts, and existing instruments, the authority of erroneous 
 precedents seems at its maximum. The notorious Bewdley 
 case,* which was directly contrary to the act of Parliament, 
 was sustained on this principle. When titles to real property 
 are to be affected by erroneous precedents, they are usually 
 sustained, however absurd. The rule is founded in policy. 
 It is considered better to adhere to a bad rule, than overthrow 
 the estates of many proprietors which have been acquired 
 upon the faith of the erroneous precedent.* 
 
 Such is the general doctrine of the Courts in relation to for- 
 mer decisions in regard to tax titles. The Supreme Court of 
 
 Vermont had decided, that the neglect of the collector 
 * 559 to * lodge a copy of his proceedings in the town clerk's 
 
 office, within the time required by the statute, ren- 
 dered the sale void.^ The question was again before the Court, 
 many years afterwards, in Taylor v. French,' and the Court 
 was asked to overrule Mead v. Mallet, to which the following 
 
 1 4 Bur. 2539. 
 
 2 Frink v. Darst, U HI. 310-312, and cases there cited. 
 
 3 Bowers v. Green, 1 Scamm. 42 ; Kenney v. Greer, 13 III. 432 ; Little ». 
 Smith, 4 Scamm. 400. 
 
 * 1 P. Wms. 207. 
 
 5 4 Bur. 2580 ; Broom's Legal Maxims, 112. 
 
 6 Mead v. Mallet, 1 D. Chip. 239. 
 
 1 19 Vt. 49. See also Lindsay v. Fay, 25 "Wise. 462. 
 
STARE DECISIS. 641 
 
 reply was made : " On the faith of this construction numerous 
 estates in land have been bought and sold, and it would be 
 productive of great injustice to disturb it. This construction 
 having become a rule of property, it should not be changed 
 without an imperious necessity, whatever we might think of 
 it, were it res integra.'' 
 
 In Bellows v. Elliot,^ the same maxim was applied in another 
 tax-title cause. The Supreme Court of New Hampshire had 
 decided that a sale of land, in unorganized townships, should 
 be in conformity with a statute passed in 1791, instead of one 
 enacted in 1794. It was a doubtful question which statute 
 was applicable, and the question again came before the Court 
 in Bellows v. Parsons,^ and the former decision was adhered 
 to, the Court sapng " where a question has been settled by 
 the decisions of this Court, as to the construction of a statute 
 relating to conveyances of real estate, and conveyances have 
 been made for a series of years in conformity to such decisions, 
 the Court will not go into a revision of such decisions, though 
 the grounds assigned for them may not be fully satisfactory ; 
 or, if it were a new question, they might incline to a different 
 conclusion." 
 
 The Supreme Court of Ohio thus commented on the rule in 
 Hannel v. Smith : ^ " whether as a matter of policy, the strict- 
 ness with which tax sales have been scrutinized, has been most 
 conducive to the public good, is questionable. But if this 
 Court have been too rigid in this respect, the legislature can 
 easily apply a proper remedy ; and many of the argu- 
 ments of * plaintiff 's counsel would be much more appli- * 560 
 cable unto a legislative body, than to a judicial tribunal. 
 Where a principle of law has been established by a long course 
 of judicial decisions, it should not be changed for light and 
 trivial reasons. It does not so much matter what the law is, 
 as that it should be well understood. A change of the law by 
 the legislature can do but little harm, as their acts are only 
 prospective in their operations ; but a change of decisions by 
 this Court, interferes with previously acquired rights. Our 
 decisions in this respect, have a retrospective operation." And 
 
 1 12 Vt. 569. 2 18 N. H. 256. 
 
 ' 15 Ohio, 134. 
 
 41 
 
642 STARE DECISIS. 
 
 in Games v. Stiles,^ Judge McLean thus spoke of rights derived 
 under these tax laws : " There can he no class of laws more 
 strictly local in their character, and which more directly con- 
 cern real property, than these. They not only constitute a 
 rule of property, but their construction by the Courts of the 
 States should be followed by the Courts of the United States, 
 with equal, if not with greater, strictness than any other Class 
 of laws." 
 
 » 14 Pet. 322. 
 
STATUTES OP LIMITATION. 643 
 
 CHAPTER XXXIX. 
 
 OP TAX TITLES AS THE FOUNDATION OP AN ADVERSE POSSESSION 
 UNDER THE STATUTES OP LIMITATION. 
 
 At common law, there was no limitation as to the time of 
 commencing a suit,^ and now a party is not bound to sue im- 
 mediately for any injury he may sustain. He may consult his 
 own convenience as to when he will assert his rights, provided 
 he is not barred of his remedy by the statutes of limitation, or 
 neglects to assert his rights for such a length of time as to 
 raise the presumption of an abandonment of his claim, and 
 an extinguishment of his cause of action.^ But there must 
 be a period of time fixed by positive law, within which a right 
 shall be prosecuted in Courts of justice. Public policy de- 
 mands the enactment of such laws, and they are universally 
 sanctioned by the practice of nations, and the consent of 
 mankind ; especially those which give peace and confidence 
 to the actual possessor and tiller of the soil. Such laws have 
 been emphatically and justly denominated statutes of repose. 
 The best interests of society require that causes of action 
 should not be deferred an unreasonable length of time. This 
 remark is peculiarly applicable to land titles. Nothing so 
 much retards the growth and prosperity of a country as 
 insecurity of titles to real estate. Labor is paralyzed, when 
 the enjoyments of its fruits are uncertain ; and litigation 
 without limit produces ruinous consequences to indi- 
 viduals.8 The principle upon * which these statutes * 562 
 are based, is derived from the natural law. This posi- 
 tion is sustained by the unanswerable argument of Vattel.* 
 
 • Coke's Littleton, 115, b. 
 
 ' Watkins v. White, 3 Scamm. 549. 
 
 3 Bradstreet v. Huntington,* 5 Pet. 407 ; Hawkins v. Barney's Lessee, 5 Pet. 
 457. 
 
 * Law of Nations, B. '2, cli. 11. "Nature has not herself established a private 
 property over any of her gifts, and particularly over land ; she only approves its 
 
644 STATUTES OP LIMITATION. 
 
 * 563 The usucapio and prescriptio of the civil law, * was the 
 simple application of the law of nature to the affairs of 
 
 establiahment for the advantage of the human race. On this ground, then, It 
 would be absurd to suppose, that after the introduction of domain and property, 
 the law of nature can secure to a proprietor any right capable of introducing dis- 
 order into human society. Such would be the right of entirely neglecting a thing 
 that belongs to him, of leaving it during a long space of time, under all the ap- 
 pearances of a thing utterly abandoned, or not belonging to him — and of coming 
 at length to wrest it from a bona fide possessor, who has, perhaps, dearly purchased 
 his title to it — who has received it as an inheritance from his progenitors, or as 
 a portion with his wife — and who might have made other acquisitions, had he 
 been able to discover that the one in question was neither solid nor lawful. Far 
 from giving such a right, the law of nature lays an injunction on the proprietor 
 to take care of his property, and imposes on him an obligation to make known 
 his rights, that others may not be led into error ; it is on these conditions alone 
 that she approves of the property vested in him, and secures him in the posses- 
 sion. If he has neglected it for such a length of time that he cannot now be 
 admitted to reclaim it, without endangering the rights of others, the law of nature 
 will no longer allow him to revive and assert his claims. We must not, therefore, 
 conceive the right of private property to be a right of so extensive and impre- 
 scriptible a nature, that the proprietor may at the risk of every inconvenience 
 thence resulting to human society, absolutely neglect it for a length of time, and 
 afterwards reclaim it, according to his caprice. With what other view than that 
 of the peace, the safety, and the advantage of human society, does the law of 
 nature ordain that all men should respect the right of private property in him 
 who makes use of it ? For the same reason, therefore, the same law requires 
 that every proprietor who, for a long time, and without any just reason, neglects 
 his right, should be presumed to have entirely renounced and abandoned it. 
 This is wliat forms the absolute presumption (juris et dejure) of its abandonment 
 — a presumption upon which another person islegally entitled to appropriate to 
 himself the thing so abandoned. The absolute presumption does not here signify 
 a conjecture of the secret intentions of the proprietor, but a maxim which the 
 law of nature ordains should be considered as true and invariable — and this with 
 a view of maintaining peace and order among men. Such presumption, therefore, 
 confirms a title as firm and just as that of property itself, and established and 
 supported by the same reasons. The bond fide possessor, resting his title on a 
 presumption of this kind, has, then, a, right which is approved by the law of 
 nature ; and that law, which requires that the rights of each individual should 
 be stable and certain, does not allow any man to disturb him in his possession. 
 The right of usucaption properly signifies that the bona fide possessor is not obliged 
 to suffer his right of property to be disputed, after a long-continued and peaceable 
 possession on his part ; he proves that right by the very circumstance of posses- 
 sion, and sets up the plea of prescription in bar to the claims of the pretended 
 proprietor. Nothing can be more equitable than this rule. If the claimant were 
 permitted to prove his property, he might happen to bring proofs, very convinc- 
 ing, indeed, in appearance, but, in fact, deriving all' their force only from the loss 
 or destruction of some document or deed which would have proved how he had 
 either lost or transferred his right. Would it be reasonable tliat he should be 
 allowed to call in question, the rights of the possessor, when, by his own fault, he 
 
STATUTES OF LIMITATION. 645 
 
 civil society. The English law of prescription relative to 
 incorporeal rights, was borrowed from the" civil code. Courts 
 of equity refuse to enforce a stale claim by analogy to the 
 natural and civil code, and usually adopt the period of time 
 fixed by statute, for the limitation of actions in Courts of law. 
 The statutes of hmitation recognize the principles of natural 
 justice, but fix an arbitrary period of limitation according to 
 the local wants of the State or nation by the authority of 
 which they were enacted. It is said that " prescription is a 
 thing of policy, growing out of the experience of its necessity ; 
 and the time after which suits or actions shall be barred, has 
 been, from a remote antiquity, fixed by every nation, in virtue 
 of that sovereignty by which it exercises its legislation over 
 all persons and property within its jurisdiction." i 
 These statutes, * though in terms acting upon the *564 
 remedy alone, indirectly bar the right. A right with- 
 out a remedy is unknown to the common law. Yet these 
 statutes are held to be constitutional. [And the legislature 
 has no power to impair vested rights of property acquired by 
 virtue of a tax deed, by renewing the remedy once barred 
 under a statute of limitation.] (a) When prospective in their 
 
 has suffered matters to proceed to such a state, that there would be danger of 
 mistaking the truth ? If it be necessary that one of the two should be exposed 
 to lose his property, it is just it should be the party who is in fault. It is true, 
 that if the bond fide possessor should discover, with perfect certainty, that the 
 claimant is the real proprietor, and has never abandoned his right, he is bound 
 in conscience and by the internal principles of justice, to make restitution of 
 whatever accession of wealth he has derived from the property of the claimant. 
 But this estimation is not easily made, and it depends on circumstances. As 
 prescription cannot be grounded on any but an absolute or lawful presumption, 
 it has no foundation, if the proprietor has not really neglected his right. This 
 condition implies three particulars. 1. That the proprietor cannot allege an 
 invincible ignorance, either on his own part, or on that of the persons from whom 
 he derives his right. 2. That he cannot justify his silence by lawful and sub- 
 stantial reasons. 3. That he has neglected his right, or kept silence during a 
 considerable number of years, for the negligence of a few years being incapable 
 of producing confusion, and rendering doubtful the respective rights of the parties, 
 is not sufficient to found or authorize a presumption of relinquishment. It is 
 impossible to determine, by the law of nature, the number of years required to 
 found a prescription ; this depends on the nature of the property disputed, and 
 the circumstances of the case." 
 
 1 M'Elmoyle v. Cohen, 13 Pet. 312. 
 
 (a) Sprecker v. Wakeley, 11 Wise. 432 ; Hill v. Kricke, 11 Wise. 442 ; Knox v. 
 
STATUTES OP LIMITATION. 
 
 operation, they are not considered as impairing vested rights, 
 or the obligation of contracts. They rather establish, that a 
 certain lapse of time shall amount to evidence of a transfer of 
 property, or the performance of a contract, than take away 
 the one, or dispense with the other. In prescribing the 
 evidence which shaU be received in its Courts, and in giving 
 effect to that evidence, a State is clearly within the limits 
 designated by the constitution of the United States. The 
 time and manner of their operation, the exceptions to them, 
 and the acts from which the time limited shall begin to run, 
 will generally depend upon the sound discretion of the legis- 
 lature, according to the nature of the titles, the situation of 
 the country, and the emergency which leads to their enact- 
 ment.^ (a) 
 
 Those statutes which act directly upon the right, are more 
 questionable, but still their validity may be sustained upon 
 principle and authority. (6) There is a statute of Illinois of 
 this character which has given rise to much discussion and 
 litigation. The act is entitled " An act to quiet possessions 
 and confirm titles to land," approved March 2, 1839,^ and was 
 incorporated in the revised code of 1845, under the title 
 
 Cleveland, 13 Wise. 245 ; Lindsay v. Fay, 28 Wise. 177 ; Smith v. Cleveland, 17 
 Wise. 668 ; e. g., as by making a deed, previously thereto conclusive, prima facie 
 evidence only. Smith v. Cleveland, supra. When the holder of the tax title, 
 under a statute declaring that the tax deed should vest in him an absolute estate 
 in fee simple, and that it should be prima facie evidence of the regularity of all 
 proceedings from the valuation of the land by the assessor, inclusive, up to the 
 execution of the deed, has become entitled to the protection of the statute of 
 limitations, all questions of the regularity of the tax proceedings are set at rest 
 except those concerning the power and jurisdiction of the taxing officers, or the 
 liability of the land to taxation ; the tax deed then becomes conclusive evidence 
 that the taxes were properly levied, and that all the taxable property in the dis- 
 trict was duly assessed. Knox v. Cleveland, supra. 
 
 2 Angell on Limitations, ch. 2, sec. 11, and authorities there cited. 
 
 (a) Where a statute is passed shortening the period of limitation, that statute 
 is applicable to a case where a reasonable portion of the time limited remains 
 after its passage in which the right may be asserted, otherwise the old period of 
 limitation remains in force. Mecklera v. Blake, 22 Wise. 495, and cases cited. 
 
 (6) Where, by law, the tax deed was not to be given till three years after the tax 
 sale, a provision declaring that it should not be invalidated by any irregularities 
 in the proceedings (every question being in the mean time open to investigation) 
 may be sustained as a statute of limitation. Smith v. Cleveland, 17 Wise. 556. 
 
 3 Laws 1838 and 1839, p. 266. 
 
STATUTES OF LIMITATION. 647 
 
 " Conveyances." ^ It does not purport to bar the entry and 
 action of the owner, but declares that a person in possession 
 of the land under claim and color of title made in good faith, 
 and who shall continue in possession for seven years, and 
 during that period shall pay all taxes assessed upon the land, 
 " shall be held and adjudged to be the legal owner of said 
 land, to the extent and according to the purport of his or her 
 paper title." (a) Another section provides, that " whenever a 
 person, having color of title, made in good faith, to 
 vacant and unoccupied "land, shall pay all taxes *565 
 legally assessed thereon for seven successive years, he 
 or she shall be adjudged to be the legal owner of said vacant 
 and unoccupied land, to the extent and according to the 
 purport of his or her paper title." (J) The act contains the 
 
 1 1 Eev. Stats, p. 104. 
 
 (a) Tlie estate of the husband, jure uxoris, and by the curtesy initiate, being 
 both freehold estates, may be barred by this statute during the life of tlie hus- 
 band. Kibble v. Williams, 58 111. 30 ; Shortall v. Hinokley, 31 111. 225. See 
 also Talcott v. Draper, 61 111. 66, commenting on Shortall v. Hinckley. But this 
 statute does not apply in favor of a grantee of a mortgagor against the mortgagee. 
 Brown v. Devine, 61 III. 260; Medley v. Elliott, 62 III. 632. 
 
 (6) Color of title is a question of law ; but the good faith of the claimant is 
 a question of fact. ' Woodward v. Blanchard, 16 111. 424. When the owner of 
 color of title, who has paid taxes on unoccupied land for seven years, enters upon' 
 the actual possession of the rightful owner, he is a mere trespasser from the 
 moment of his entry, and acquires no possession which the statute will protect. 
 Had he entered the land while unoccupied, he might have been permitted to 
 defend his possession under the statute, because it would then have been pre- 
 sumed to have been taken in good faith. But in this case the lawful possession 
 remained with the rightful owner, and was not ousted by the trespass. Riggs v. 
 Henneberry, 58 111. 134. Where there is no fraud, and no proof that the color of 
 title was acquired in bad faith, the ,Court will presume good faith. Chickering 
 V. Failes, 26 111. 520 ; Morrison v. Norman, 47 111. 477. See also Finlay v. Cook, 
 54 Barb. 9 ; 65 111. 325. Bad faith is not shown by a knowledge of claims of 
 others, or of legal defects which prevent the color of title from being an absolute 
 one. Chickering v. JFailes, supra. The fact that the sale is void, on account of 
 the unconstitutionality of the law under which it was made, is not evidence of 
 bad faith. Woodward w Blanchard, su;)ro. See also Laflin w. Herrington, 16 III. 
 301 ; Hardin v. Crate, 60 111. 215, and cases there cited. The deed itself imports 
 good faith, unless circumstances show that the party accepting it had no faith 
 in it. Dickenson v. Breeden, 30 111. 279 ; McConnell v. Street, 17 111. 253. But 
 seven years' possession and payment of taxes by the mortgagee, it is said, will 
 not create the bar of the statute. Moore v. Titman, 44 111. 370. But a party 
 ■ holding a certificate of purchase at a tax sale, who accepts a deed therefor before 
 the two years allowed for redemption expire, knows that he is not entitled to it, 
 
648 STATUTES OP LIMITATION. 
 
 usual saving of the rights of infants, &c. Judge Pope of the 
 District Court of Illinois, held the law to be unconstitutional, 
 in Arrowsmith v. Bulingim,i which led to a discussion of the 
 question by contributors to the periodical just cited.^ 
 
 Afterwards Judge Drummond, the successor of Judge Pope, 
 decided in favor of the constitutionality of the statute ; and 
 such is the implied opinion of the Supreme Court of Illinois, 
 as they have enforced the law on one occasion, and on others, 
 discussed questions relative to its construction, without 
 denying its validity.* It is the practice of all Courts to give 
 to this class of statutes a liberal construction. 
 
 Having premised thus much, let us proceed to the applica- 
 tion of these general principles, and of particular statutes, to 
 rights and possessions originating under tax titles. This sub- 
 ject must be considered in reference, l.To general statutes 
 of limitation, and, 2. To statutes which, in terms, embrace 
 no other cases, but which were designed to give security to 
 the possession of those who claim under this class of titles. 
 It is enacted by the statute, 21 Jac. 1, ch. 16, " that no person 
 or persons shall, at any time thereafter, make any entry into 
 any lands, tenements, or hereditaments, but within twenty 
 years next after his or their right or title, which should there- 
 after first descend or accrue to the same ; and in default 
 thereof, such persons so not entering, and their heirs, shall 
 be utterly excluded and disabled from such entry after to be 
 made."* The principle of this clause has been adopted by 
 nearly all of the American States. The Illinois statute of 
 
 and cannot be considered as acquiring the color of title which such deed, if he 
 was entitled to it, would give him, in good faith within the meaning of either of 
 said sections 8 or 9. When a deed discloses on its face that it is executed in defi- 
 ance of law, the law will presume bad faith ; while the presumption will be in 
 favor of good faith until rebutted, when the deed is not prohibited by law, and 
 purports to convey title. But a purchaser from the grantee in such deed would 
 not be held to notice of the illegality appearing on its face ; nor if executed after 
 the expiration of the time of redemption, would it be vitiated as color of title by 
 defects in the proceedings which would vitiate it as paramount title. Bowman 
 V. Vy^ettig, 39 111. 416. 
 
 1 Western Legal Observer, 1849, p. 46. 
 
 2 Western Legal Observer, 1849, pp. 97, 129, 289. 
 
 ' Irving V. Brownell, 11 III. 402; Spellman v. Curtenius, 12 111. 409; Cole v. 
 Fenoyer, 14 111. 159 ; Rawlings v. Bailey, 15 111. 178. 
 * Cruise, Digest, Title, 31 ; Prescription, C. 2, sec. 14. 
 
STATUTES OP LIMITATION. 649 
 
 February 10, 1827 (and which took effect June 1, 1827), 
 declares, " that no * person who now hath, or hereafter * 566 
 may have, any right of entry into any lands, tenements, 
 or hereditaments, shall make any entry therein, but within 
 twenty years next after such right shall have accrued, and 
 such person shall be barred from any entry afterwards." 
 Another section bars all real, possessory, ancestral, or mixed 
 actions, or writs of I'ight, for the recovery of such lands, &c., 
 after the expiration of twenty years from the time the title, 
 right, or cause of action accrued. This statute contains a 
 saving clause in favor of infants, femes covert, lunatics, and 
 non-residents of the State, giving them twenty years, respec- 
 tively, to make their entry, or bring their action, after the 
 removal of their disabilities.^ It will be perceived, on . an 
 examination of the English statute, and the first section, above 
 quoted, of the Illinois statute, that they simply bar the right 
 of the owner to enter upon his land. An action of ejectment 
 is a possessory remedy, and onl}'^ competent when the plaintiff 
 may enter ; therefore it is necessary for the plaintiff to show 
 his right to enter, by proving a possession within twenty 
 years, or account for the want of it, under some of the ex- 
 ceptions contained in the statute. He must show a right of 
 possession, as well as a right of property. Such is the theory 
 of this class of statutes.^ This doctrine is to be taken with 
 this qualification, the land in question must be in the adverse 
 possession of another. A legal title draws to it a legal seisin, 
 or possession. A naked possession is no evidence of title, 
 except as against strangers. Every possessor is, therefore, 
 presumed to be in possession in subordination to the title of 
 the rightful proprietor. These legal principles and presump- 
 tions give rise to the doctrine of adverse possession. To repel 
 the presumption of a holding under, or in privity with, the 
 title of the true owner, it is essentially necessary that the 
 tenant of the freehold should show a possession under claim 
 and color of title — under an apparent right. Indeed, an 
 
 • Laws 1827, p. 285, sects. 6 and 7. By the act of February 11, 1837, the 
 saving clause is repealed, as to non-residents who do not labor under any other 
 disability named in the act of 1827. Laws, 1836-7, p. 160. 
 
 * Taylor v. Horde, 1 Burrow, 60. 
 
650 STATUTES OF LIMITATION. 
 
 adverse possession is nothing more or less than a 
 * 667 * possession under claim and color of title, (a) It 
 need not be a rightful title — else the statutes of 
 limitation are unavailing and useless. The occupant can 
 defend upon his title — without resorting to the bar of the 
 statute. It is therefore held, that any evidence, written or 
 oral, which gives color to the claim of the tenant, will repel 
 the presumption that he holds the possession under the true 
 owner. Any thing which clearly defines the extent of the 
 claim, which professes to pass the land, and is not obviously 
 defective, will constitute the basis of an adverse possession. 
 That it need not be written, is manifest from the fact, that 
 parol gifts, disclaimers by tenants, and expulsion of a tenant 
 in common, and an exclusive possession for twenty years 
 afterwards, may be the foundation of an adverse possession. 
 And when written evidence of claim is relied on, it need not 
 purport to carry the legal title. Thus a contract for a con- 
 veyance or a deed without a seal, has been held to be sufficient. 
 It has been said that the title must be primd facie good. 
 This cannot be true, for a deed from one who has no title will 
 answer the purpose. So of a deed which purports upon its 
 face to have been executed under an authority, although the 
 power is not produced or proved. All that can be demanded, 
 is a title, which does not upon its face show that it is illegal 
 and void, so as to charge the person in possession with notice 
 of its defects, and thus render his claim maid fide.^ The 
 conclusion from this course of reasoning is, that a possession 
 taken in good faith, under a claim of title, which, upon its 
 face gives color or apparent right to the claim under which 
 the entry was made and continued, renders it adverse to the 
 owner. The only exceptions to this rule are those cases 
 where a tenant enters into privity with the title of the pro- 
 la) For a definition of adverse possession, see Rivers v. Tliompson, 43 Ala. 
 633 ; 8. c. 46 Ala. 886 ; 29 Wise. 226 ; 32 Wise. 490. As to the nature and extent 
 of such possession see 18 111. 238, 53 Mo. 465, 64 Barb. 9, 17 Minn. 361. Assess- 
 ment to a party is not of itself evidence of adverse possession, but may be cor- 
 roborative, if there be other evidence of possession. McDermott v. Hoffman, 
 70 Penn. St. 64. So the continuous payment of taxes on land is not sufficient 
 of itself to show adverse possession. Chapman v. Templeton, 63 Mo. 468, 
 1 See Everett v. Smith, Busbee, Law, 228. 
 
STATUTES OF LIMITATION. 651 
 
 prietor, but afterwards places himself in a hostile attitude, and 
 claims to hold the possession in his own right, and in exclusion 
 and defiance of the person under whose title he entered. 
 Such cases arise occasionally between landlord and tenant, 
 mortgagor and mortgagee, vendor and vendee, trustee 
 and cestui que trust, and tenants in * common, (a) * 568 
 Where this relation exists, any hostile holding is in 
 
 (a) The ten-year limitation in the tax law of 1842 — Laws of 1842, p. 133 — 
 does not apply in favor of a party who was in possession under some other claim 
 at the time of obtaining the tax title. It intends that the party who seeks the 
 benefit of the limitation shall enter or shall have entered into actual possession 
 under his tax deed ; and if it were otherwise a wide door would be opened to 
 frauds on the part of persons who, being in possession and bound to pay the taxes, 
 shall attempt to cut oflf the rights of other persons by buying in the land for taxes 
 which their duty to the public and to such third persons required them to pay. 
 Oilman v. Kiopelle, 18 Mich. 163. Where an agent having charge of lands 
 acquires a tax title to such lands, he holds such title as trustee for his principal ; 
 and the two years' limitation applicable to recorded tax titles will not be a bar to 
 an action by the principal to compel a performance of such implied trust. Krutz 
 V. Fisher, 8 Kan. 90. See also Baker v. Whiting, 8 Sumner, C. C. 475. So in 
 Wisconsin, held, that the three years' limitation upon actions to recover lands 
 deeded for taxes, does not apply to an action of ejectment founded on defendant's 
 fraud in taking the tax deed. And the six years allowed for bringing actions for 
 relief against fraud do not begin to run until the fraud is discovered ; and there 
 can be no constructive discovery in such a case. Thus, if an agent fraudulently 
 allows land of his principal to be sold for taxes, and takes the deed himself, and 
 puts it on record, this is not such notice to the principal as to set the statute run- 
 ning. McMahon v. McGraw, 26 Wise. 614. So a tax deed issued to a tenant 
 who had contracted to pay the taxes for which such deed was issurti is void ; 
 and a void deed does not in Kansas set the statute of limitations running. Cari- 
 thers V. Weaver, 7 Kan. 110 ; Taylor v. Miles, 5 Kan. 498. See also Swope v. 
 Purdy, 1 Dill. C. C. 349. In Taylor v. Miles, the deed was held_ absolutely void 
 on the ground that the land was not subject to taxation, and a distinction was 
 taken between a deed void or voidable for some irregularity merely, which it 
 was admitted was sufficient to set the statute of limitations running, and one 
 absolutely void as in that case. " This whole doctrine " (it was said in this case) 
 "rests upon a constructive change of possession," "a void tax deed can neither 
 create title nor draw to its holder the constructive possession of the property. It is 
 void for all purposes. The original owner still continues to hold the absolute 
 and paramount title both in law and equity, and to hold the constructive 
 possession of the property." See p. * 586, note. See also Hubbard v. Johnson, 9 
 Kan. 632, Swope v. Saine, 1 Dill. C. C. 416, and Shoat v. Walker, 6 Kan. 65, 
 where the lands were vacant and unoccupied, and the tax deeds were void on 
 their face. In this last case it is said that such deed must to set the statute run- 
 ning, appear to be good on its face, and must of itself be prima facie evidence of 
 title and be good if not attacked by evidence aliunde. See also Sapp v. Morrill, 
 8 Kan. 677. 
 
652 STATUTES OF LIMITATION. 
 
 bad faith, yet a positive disclaimer of the title of the person 
 under whom the entry was made, or actual ouster by one 
 tenant in common, which is brought home to the knowledge 
 of the party in interest, accompanied by an actual, open, 
 notorious, and exclusive possession for the period of twenty 
 years, will render the possession adverse, and bar the entry of 
 the rightful owner. The adverse possession, in this class of 
 cases, is based upon a claim of title by estoppel, and a counter 
 presumption which repels the idea of a subordinate possession. 
 In all cases, a possession, to be adverse, must be hostile in its 
 inception, open, exclusive, and uninterrupted,^ for the space 
 of twenty years. 
 
 Having premised thus much, let us proceed to examine 
 into the doctrine of adverse possession, when founded upon 
 a tax title. («) It may be laid down, as a general rule, that 
 a possession for twenty years, under a tax deed, not void 
 upon its face, is adverse, (6) and bars the entry of the former 
 
 . 1 See 53 Mo. 465. 
 
 (a) Where the lands of A., in thej adverse possession of B., were forfeited to 
 the State of Virginia under its act of February 27, 1835 (Sess. Acts, p. 11), declar- 
 ing forfeitures for non-payment of taxes, but were allowed by a subsequent and 
 private act to be redeemed by the original owner, held, that the forfeiture to 
 the State broke in point of law the continuity of the adverse possession, and that 
 such adverse possession (though it might have been in fact continuous), having 
 been in law thus broken, was neither restored upon the redemption so as to be 
 continuoBs in law, nor was it so affected as that the persons holding adversely 
 could tack the adverse possession prior to the forfeiture to the adverse possession 
 subsequent to the redemption, and so make out a term of adverse possession, 
 which the statute required in order to give title. Armstrong v. Morrill, 14 Wal- 
 lace, 120. Strong, Bradley, and Davis, JJ., dissenting. Land having been for- 
 feited under said act, andthatof March 28, 1836 (1 Sess. Acts, p. 7), from the time 
 of such forfeiture, time will not run in favor of a party in possession against 
 the commonwealth. Hale v. Branscum, 10 Grat. 418 ; Armstrong v. MorriU, supra. 
 (6) A tax deed is color of title, and the possession taken and held under it is 
 adverse possession. Dillingham v. Brown, 38 Ala. 313; Rivers v. Thompson, 
 43 Ala. 641 ; Finlay v. Cook, 54 Barb. 23. See also Pleasants v. Scott, 21 Ark. 
 874 ; Chapman v. Templeton, 53 Mo. 463 ; the conveyance, however, must be bond 
 fide taken. Chapman !>. Templeton, supra. Though void, a tax deed, followed 
 by proof of adverse possession, isadmissible to show claim of title. Washburn v. 
 Cutler, 17 Minn. 861. What constitutes adverse possession was considered in this 
 case. The mere cutting of timber, without actual occupancy, cultivation or in- 
 closure of the land or some part of it, where it is adapted to and capable of such 
 improvement, will not constitute adverse possession, but will be a mere trespass. 
 Rivers o. Thompson, 46 Ala. 335 ; 32 Wise. 490 ; Washburn v. Cutler, supra. 
 
STATUTES OP LIMITATIOK. 653 
 
 owner and those claiming under him, for the simple reason, 
 that it repels the presumption that the possessor entered 
 under the owner, and bears, upon the face of the transac- 
 tion, evidence that he claims under a hostile source of title — 
 the State, which has competent power and authority to sell 
 and convey the title of delinquent tax-payers. If the tax 
 deed relied upon in a given case is declared by law to be con- 
 elusive, or even primd facie evidence of title in the purchaser 
 at the tax sale, then all of the authorities concede the correct- 
 ness of the position assumed ; and the only question which 
 can possibly arise is, in relation to possession under tax 
 deeds, which depend upon the rules of the common law for 
 their legality — where the onus probandi rests upon the pur- 
 chaser to prove, step by step, the authority of the officer to 
 sell and convey — in other words, to establish by extrinsic 
 evidence, a compliance with all of the requisitions of law. 
 On this point, it may be remarked, 1. That such proof would 
 establish a paramount title, and the statutes of limitation 
 would be an unnecessary prop to sustain the possession ; 2. 
 The statute bars the entry of the former owner in 
 twenty years, * and the only question is, whether the * 569 
 tax deed confers a claim upon and gives color of title 
 to the possessor. Let this question be answered by the 
 authorities. 
 
 In Dresback v. McArthur, (a) a tax deed, which was not 
 evidence of title, was held to be admissible in evidence for the 
 purpose of defining the boundaries of the purchaser's claim, 
 and thus establishing the extent of his possession. And in 
 Waldron v. Tuttle,i in speaking of the effect of a tax deed, 
 the Com-t remarked : " There are cases in which a deed, thus 
 inoperative as an instrument of conveyance, may be evidence 
 
 (a) 6 & 7 Ohio, 307. And see Flanagan v. Griramet, 10 Gratt. 421, Mding, 
 that though the deed may be invalid as a convey ance • of title, yet it is compe- 
 tent evidence to sliow with other evidence an actual entry under a claim of title, 
 and continued holding thereunder, so as to make out a title or right of entry by 
 actual possession. A tax deed, void by reason of fatal defects in the proceedings 
 of the collector, being upon record, has no further operation than to give char- 
 acter to such acts as the grantee and those claiming under him may do upon the. 
 land. Wing v. Hall, U Vt. 118. 
 
 1 4 N. H. 371. ; 
 
654 STATUTES OP LIMITATION. 
 
 as to the extent and character of the possession. Thus, it 
 being a presumption of law, that he who enters under a 
 deed, enters claiming according to his deed, and that his 
 possession is adverse to all other titles, when a party relies 
 upon an adverse possession against the legal title, a deed by 
 which nothing passed, may be evidence of the extent and 
 character of his possession." ^ 
 
 But the case of Hearick v. Doe,^ is in point upon this 
 question. It was an action of ejectment by the defendants 
 in error against the plaintiffs in error. The plaintiffs, in the 
 Court below, deduced a title from the United States, and 
 rested their case. The defendants below relied upon the 
 following facts : that the land in question was taxed for 
 State and county purposes in the year 1824, as non-resident 
 land ; that on June 8, 1824, a precept was issued to the col- 
 lector, and was placed in his hands July 17, 1824 ; that the 
 land was sold by the collector to Abner Clarkson, September 
 9, 1824, who received a certificate of the sale ; that Clarkson 
 assigned the certificate to one Humphrey, July 9, 1828, who 
 assigned it to one Mclntire, July 15, 1828, who assigned it 
 to Stephen and Frisby Hicks, September 9, 1828, who on 
 that day received a tax deed from the collector, and on 
 
 September 3, 1835, they conveyed by deed to James 
 * 570 * Hearick. There was evidence tending to show, that 
 
 Mclntire took possession in the summer of 1828 ; that 
 the Hicks were in possession in the fall of that year, and 
 commenced building a mill on the land, which they com- 
 pleted in the fall of that year, or the spring of 1829 ; that 
 the}' continued in possession until they sold to James Hearick, 
 when he took and continued in possession of the land until 
 his death ; and that the defendants below had been in the 
 peaceable possession of the land from the death of James 
 until the time of the trial. The statute of 1824, made the 
 tax deed evidence of the regularity of the collector's doings 
 alone, and not the anterior proceedings. It further appeared, 
 
 ' It was, however, eaid in Wallingford v. Fiske (24 Me. 386), " That a tax - 
 Bale and deed heing void, could give no rights whatever ; they were as ineffectual 
 to give seisin as they were to convey title." 
 
 2 4 Porter (Ind.), 164. See also, to the same effect, Doe ». Hearick, 14 Ind. 
 242. 
 
STATUTES OP LIMITATION. 655 
 
 that Isaac Dunn was one of the mesne grantees from the 
 United States, under whom the plaintiffs claimed title, and 
 that, at the time of the conveyance to Dunn, the premises 
 were in the possession of the defendants below, who claimed 
 under the tax deed. Upon this state of facts, the defendants 
 below (plaintiffs in error), requested the Court to instruct 
 the jury as follows ; to wit : " 1. That if the jury believed, 
 from the evidence, that the defendants had possession of the 
 land in question, by virtue of a sale of it for taxes, and had 
 a deed, although the previous and intermediate steps from 
 the assessment of the land for taxation to the making of the 
 deed by the collector, were not proved, it was sufficient to 
 constitute an adverse possession. And if the jury further 
 believe, from the evidence, that said defendants and those 
 under whom they hold, had been in such adverse possession 
 of said land, more than twenty years before the commence- 
 ment of this suit, they should find for the defendants. 2. 
 That if the jury believe, from the evidence, that the defend- 
 ants were in the possession of said land, holding the same 
 by virtue of a sale for taxes, and claiming it as their own at 
 the time of the conveyance of Piatt, and the Dunns and 
 others, to Isaac Dunn, in that case, the deeds from Piatt, and 
 the Dunns and others, to Isaac Dunn, are void, and said 
 Isaac Dunn, as one of the lessors of the plaintiff, cannot re- 
 cover in this suit." These instructions were refused, and 
 the Court instructed the jury as follows : " That the col- 
 lector's certificate of sale is not evidence to * prove * 571 
 that the land was advertised for sale as required by 
 law ; and that, if there is no other evidence of such adver- 
 tisement, the tax title is void." The opinion of the Court 
 was delivered by Davison, J. : " The question presented by - 
 the record is, did the Court err by refusing the instructions 
 moved by the defendants below ? These insti-uctions should 
 have been given. They assume positions which are obviously 
 correct, and are pertinent to the defence set up. It was 
 shown by the evidence, that Stephen and Frisby Hicks en- 
 tered upon the land in dispute, in the year 1828 ; and that 
 they, and those claiming under them, have been in the con- 
 tinuous possession of it ever since. Their entry appears to 
 
656 STATUTES OF LIMITATION. 
 
 have been made in good faith, under an assertion of right, 
 and a title which they believed to be good. To constitute an 
 adverse possession a rightful title is not required. It has 
 been said, that ' whenever this defence is set up, the idea of 
 right is excluded ; the fact of possession, and the quo animo 
 it was commenced and continued, are the only tests.' The 
 title under which the defendants held was not a nullity. It 
 was derived from a collector's sale, and a deed made in pur- 
 suance of that sale. The land in question was assessed for 
 taxation for the year 1824, as non-resident land, and a pre- 
 cept commanding the collection of taxes for that year, was 
 regularly issued and placed in the hands of the collector. 
 The deed was made pursuant to an act of 1824,^ and under 
 that act it was, at least, primd facie evidence that the collec- 
 tor had done his duty relative to the sale.^ In this view it 
 is evident that the defendant's title, although it may have 
 been defective and not rightful, was still sufficient to support 
 a possession adverse to the title of the plaintiff's lessors. It 
 seems to us that an adverse possession in the defendants is 
 fully established by the evidence ; but whether it commenced 
 Avithin twenty years next before the commencement of this 
 suit, was a question which should have been left to the jury, 
 
 in accordance with the first instructions moved by the 
 * 572 * defendants. The possession of the defendants being 
 
 adverse at the time the several deeds were executed 
 and delivered to Isaac Dunn,, it follows that these deeds are 
 void. The law is settled, that where land is held adversely, 
 the party out of possession, although his right may be valid, 
 is incapable of conveying to another." The judgment was 
 accordingly reversed. On reading the opinion, it will be 
 seen that the plaintiff's title was defeated: 1st. Because 
 the premises were in the adverse possession of the defendants 
 at the time of the conveyance to Isaac Dunn ; and 2d. Be- 
 cause their right of entry was barred by the statutes of 
 limitation. 
 
 The Illinois statute of .January 17, 1835, declares, " that 
 hereafter no person who now has, or hereafter may have, any 
 
 » See Eev. Stata. 1824, sec. 12, p. 344. 
 " Doe V. Himeliok, 4 Blackf. 494. 
 
STATUTES OF LIMITATION. 657 
 
 right of entry into any lands, &c., of which any person may 
 be possessed by actual residence thereon, having a connected 
 title in law or equity deducible of record, (a) from this State 
 or the United States, or from any public officer, or other per- 
 son, authorized by the laws of this State to sell such land for 
 the non-payment of taxes, or from any sheriff, marshal, or 
 other person, authorized to sell such land on execution, or 
 under any order, judgment, or decree of any Court of record, 
 shall make any entry therein, except within seven years from 
 the time of such possession taken," &c. The same statute 
 barred all actions, real, possessory, ancestral, and mixed, and 
 writs of right under similar circumstances. The statute also 
 provided, that where the possessor acquired his title after 
 taking possession, the limitation should begin to run from the 
 time of acquisition ; and also that the possession should be a 
 continuous one in order to bar the entry or action of the 
 rightful owner ; and also that the heirs, devisees, and assigns 
 of the original possessor, might connect these fragmentary 
 possessions so as to make one continuous possession. And 
 the law also gave to infants, married women, insane persons, 
 those imprisoned, and those out of the limits of the United 
 States, and in the employment of the State or United States, 
 seven years to make their entry or institute their suits, a/fter 
 the time when their respective disabilities ceased. The 
 
 (a) A title derived through a patent from the general government is a title 
 " deduced of record," without regard as to whether the intermediate deeds are 
 recorded or not ; if the source of title is of record it is sufficient. Jaudon v. Mc- 
 Dowell, 56 111. 53 ; Collins v. Smith, 18 III. 160. Nor is it any objection that the 
 deed first made by the patentee, under which, through sundry mesne convey- 
 ances, the plaintiff claims, was on record when the patentee conveyed to the 
 remote grantor of the defendant, and charged him with notice. The recording 
 laws have no effect on questions arising under the statute of limitations. Jaudon 
 V. McDowell, supra, and cases cited ; 53 111. 85 ; 43 111. 391. The act of 1835 
 requires a, prima facie title. So where the defendant in ejectment deduces title 
 from a tax deed, but fails to produce the judgment and precept upon which it is 
 based, while the tax deed is color of title, and sufficient under the act of 1839, 
 it is not without the judgment and precept a prima facie title such as is required 
 by the act of 1835. The case of Irving v. Brownell, 11 111- 402, giving a different 
 construction to both these acts, was overruled by Woodward v. Blanchard, 16 
 id. 425, not only upon the construction given to the act of 1839, but also that of 
 the act of 1835. Elston „. Kennicott, 46 111. 187. In the absence of evidence, 
 actual residence cannot be presumed. Jayne v. Gregg, 42 111. 413 ; Cook v. Nor- 
 ton, 43 111. 391. 
 
 42 
 
658 STATUTES OP LIMITATION. 
 
 * 573 act took effect by its terms, June 1, * 1835.^ It was 
 decided by the Supreme Court of Illinois, that this 
 statute was prospective in its operation, and that the bar did 
 not attach unless the possession continued seven years after 
 it took effect, June 1, 1835.^ 
 
 And it was held in Moore v. Brown,^ that seven years' 
 possession, under a tax deed void upon its face, was no bar 
 to a recovery by the rightful proprietor. The case came up 
 from the Circuit Court of the United States for the district 
 of Illinois, on a certificate of division. The facts were, that 
 the defendant had been in possession of the land in con- 
 troversy seven years prior to the commencement of the suit, 
 under a tax deed purporting to have been made in pursuance 
 of the earlier laws of Illinois. The deed recited a sale on 
 December 9, 1823, and by law the sale could not take place 
 until December 15, because the law gave the owner until 
 October 1 to pay his taxes, and required the auditor to adver- 
 tise the sale in a newspaper three successive weeks, the last 
 insertion to be sixty days prior to the sale. The tax deed 
 was not, by law, made primd facie evidence of a compliance 
 with the prerequisites. A majority of the Court held, that 
 the defendant was not entitled to the benefit of the limita- 
 tion law, upon two grounds : 1. The deed was void upon its 
 face when taken in connection with the law ; and, 2. That 
 the deed must, in order to be available, be made by some 
 officer authorized to sell the land in controversy, and that 
 the auditor was not so authorized in this instance. The 
 opinion was given by Judge Wayne, who said that, " Upon 
 comparing this section with the former laws of Illinois, we 
 have concluded, that the act of 1835, was not meant to give 
 protection to a person in possession under a deed void upon 
 the face of it. The mode of determining that, is, to test the 
 deed by making a reference to the authority recited in it, for 
 making the sale, in connection with the act giving the auditor 
 power to sell. When the sale is found not to be ac- 
 * 574 cording to that power, * the deed is void upon its 
 
 » Laws, 1835, pp. 42, 43. 
 
 2 Rhinehart v. Schuyler, 2 Gilm. 528 ; Bruce v. Schuyler, 4 Gilm. 278. 
 
 » 11 How. (U. S.) 414. 
 
STATUTES OP LIMITATION. 659 
 
 face, because the action of the auditor is illegal, and the 
 law presumes it to be known to a purchaser. The lat- 
 ter can acquire no title under it. Being a void deed, pos- 
 session taken under it cannot be said to be adverse, and 
 under color of title. What was the fact in this case ? It is 
 disclosed upon the face of the deed, that the auditor sold 
 the land short of the time prescribed by the act. It was not 
 then a sale according to law. That must have been as well 
 known by the purchaser as it was by the auditor. The law 
 presumes it to have been. The act under which the sale 
 was made, was not meant to prescribe the authority of the 
 auditor only to make sale, but also to give to purchasers full 
 information of the terms upon which a title could be acquired 
 to land sold for the non-payment of taxes. It was meant to 
 put bidders at a tax sale upon inquiry, whether or not the 
 land was offered for sale according to law. If they do not 
 examine, and shall buy land exposed to sale for taxes, against 
 the law, they do so at their own risk, and it will be presumed 
 against them, that they' know that the deeds given under 
 such circumstances are made in violation of official duty and 
 of the law. It cannot be made the foundation of an adverse 
 possession under color of title against the true owner of the 
 land, whose title to it, the law says, can only be divested in 
 a certain way, for a failure to pay taxes due upon the land. 
 Before the limitation law can operate, the defendant must 
 show a deed from some public officer, authorized by law to 
 sell such lands for the non-payment of taxes. Such language 
 does not apply to the general authority given by law to an 
 officer to sell land for taxes, but to his authority to sell the 
 particular land. The words of the act are, 'authorized to 
 sell such land for the non-payment of taxes.' Can it be said, 
 then, that when the auditor, as he did in this case, sells the 
 land for the non-payment of taxes short of the time, that the 
 law authorized him to sell — that he was an officer author- 
 ized by law to sell such land for the non-payment of taxes ? 
 The legislature must have meant by title something more 
 than a void deed upon its face — a title, at least, which would 
 be sufficient to induce the possessor of the land to 
 think, and the law * to conclude, that there was a * 575 
 
660 STATUTES OP LIMITATION. 
 
 foundation for a possession under a right which had been 
 acquired by a purchase — not a mere nalied possession, 
 but one taken in good faith by the purchaser. The legislat- 
 ure intended to extend its protection to persons who had 
 occupied land under a connected title primd facie good 
 against proof aliunde, which would rebut or destro}' such 
 primd facie title." Judges Taney, Catron, and Grier dis- 
 sented.^ 
 
 1 In relation to the legal presumption that every man is bound to know the 
 law, which was relied upon to sustain the majority opinion, Chief-Justice Taney 
 says, " It has no real foundation in fact, and has been adopted, because it is 
 necessary, as a general rule, for the purposes of justice. And laws are, there- 
 fore, often framed to protect persons, who have acted in good faith in matters of 
 property, from the consequence of their ignorance of law. Thus, laws confirm- 
 ing defective and void deeds for real property, have frequently been passed in 
 some of the States ; and their validity has been recognized by this Court. Limi- 
 tation laws, in regard to suits for real estate, are founded on the same principle. 
 For if the title papers of the party in possession are legally executed, and made 
 by persons who liad the right to convey, he does not need the protection of an 
 act of limitation. The act before us was evidently and especially intended to 
 protect purchasers from the consequences of their ignorance of the law. And 
 with this object in view, it could make no difference whether the legal defect was 
 sliown by the recital in the deed, or appeared in any other way. The buyer 
 would be as easily and naturally misled, by his want of legal information, in 
 either case. And the law itself certainly draws no distinction between ignorance 
 of the law in one respect, and ignorance in another. And if every legal defect 
 ill the title papers of a purchaser in possession, as they appear on the record, 
 may be used against him after the lapse of seven years, the law itself is a nullity, 
 and protects nobody. To a person not well skilled in all the details of the tax 
 laws of the State, the deed, upon the face of it, appears to be good. It was 
 made by a public oiEcer, authorized to sell for taxes. From his ofScial station 
 and duties he would be presumed to be familiar with the tax laws, in all their 
 minute details. And he recites what he had done, states the notice given, as if 
 it was the notice required by law ; and professes to convey to the purchaser a 
 valid title in due form. Almost every one, not perfectly acquainted with thfe 
 diflerent tax laws which have been passed, would rely upon it. And I think it 
 is one of those defective conveyances, by a public officer, which the law intended 
 to protect after a possession of seven years." Judge Catron said, " the land was 
 assumed to be sold, by force of a lien for taxes due ; such sale carried the true 
 owner's title throughout, including the patent, regardless of the fact in whose 
 name the land was advertised and sold. So the laws of Illinois expressly pro- 
 vide. The statute has no reference to titles good in themselves, but was intended 
 to protect apparent titles, void in law, and to supply a defence where none existed 
 without its aid. Its object is repose. It operates inflexibly, and on principle, 
 regardless of particular cases of hardship. The conditio)- of society, and the 
 protection of ignorance as to what the law was, required the adoption of this 
 rule. The law should be liberally construed. If the majority opinion is cor- 
 
STATUTES OP LIMITATION. 661 
 
 * The construction of this statute came before the * 576 
 Supreme Court of Illinois, in Irving v. Brownell.^ 
 The question arose in an action of ejectment. The declara- 
 tion was served January 18, 1848. The plaintiff deduced a 
 regular title from the United States. The defendant claimed 
 title under a tax deed dated January 20, 1829, reciting a sale 
 January 8, 1827. This deed vs^as inadmissible as evidence of 
 title, without proof that the prerequisites of the law under 
 which the sale was made had been complied with. But in 
 connection with it, the defendant proved that he cut timber, 
 dug a well, and took shingles and boards upon the land, to 
 build a house, in the fall of 1840 ; that he erected his house, 
 and removed upon the land in the spring of 1841, and resided 
 there from thence until the commencement of the suit. The 
 verdict and judgment upon the circuit was for the defendant. 
 That judgment was reversed by the Supreme Court. Trum- 
 bull, J. [after discussing another limitation law, which will 
 be noticed presently] : " There is, however, another act, 
 passed January 17, 1835, under the second section of which 
 (which is to be found in Revised Statutes, chapter 66, sections 
 8, 9, and 10) the auditor's deed was admissible in evidence. 
 The act of 1835 does not, like that of 1839, require that the 
 person who would avail himself of its provisions, should have 
 a claim and color of title to the land, made in good faith, but 
 it simply requires that he should have a connected title in 
 law or equity, deducible of record, from this State or the 
 United States, or from any public officer, or other person 
 authorized by the laws of the State to sell such land for 
 the non-payment of taxes, &c. The auditor's deed, in this 
 case, is just such a title. On its face it is perfect 
 and * complete. No objection can be taken to its * 677 
 form, and if the prerequisites to the sale of the land by 
 the auditor were shown, it would, of itself, constitute a perfect 
 and complete title to the land ; and, without proof of these 
 prerequisites, it is a sufficient title to protect any one who 
 
 rect, no possible conveyance, made by a public officer, which is void because the 
 requisite forms of law have not been complied with, can be maintained. All 
 must equally fall, if not good in themselves, when compared with the law, and 
 the acts required by law to be done before the sale is made." 
 1 11 III. 402. See p. * 572 (a). 
 
662 STATUTES OF LIMITATION. 
 
 can connect himself with it, and show that he has been pos- 
 sessed of the premises by actual residence thereon, under 
 such title, for seven years. If this were not so, the statute 
 would have no meaning ; for to require a party, in such a 
 case as this, to show that the prerequisites to the sale for 
 taxes, by the auditor, had been complied with previous to 
 such sale, would be to require him to make out a perfect title, 
 under the tax deed ; and in that event, he would have no 
 need to resort to proof of possession to protect him in the 
 enjoyment of the land. His title would be paramount to any 
 other without possession, and the act passed to protect him 
 in his possession, would _be perfectly nugatory. The word 
 ' title,' as used in the act of 1835, should not, therefore, be 
 construed to mean a perfect title ; nor is the word, in its 
 ordinary acceptation, understood in such a restricted sense. 
 There are perfect titles, and apparent or imperfect titles. 
 Even a naked possession constitutes a species of title, though 
 it may be the lowest degree. The meaning of the word is, 
 therefore, to be ascertained from the connection in which it 
 is used ; and there can be no question, when the whole act 
 of 1835 is examined, that the legislature never intended, by 
 the term ' connected title,' a perfect and complete title, (a) 
 The title contemplated can mean nothing more than such a 
 title as is evidenced by a deed in proper form, and duly exe- 
 cuted by one of the officers or persons named in the act, as 
 the source with which the person relying upon it is required 
 to connect himself, by a regular chain of conveyances. It 
 appears from the evidence, however, that the defendant had 
 not been possessed of the premises in question, by actual 
 residence thereon, for seven years, when this action was com- 
 menced ; he was not, therefore, in a situation to claim the 
 protection of the act of 1835." On the other hand. Judge 
 Drummond, of the United States Court for the District 
 
 of Illinois, holds, that the authority of the officer, to 
 * 578 sell * the land for the non-paj'ment of the tax, must 
 
 appear, or the Court will not give effect to the tax 
 deed under this statute — that a deed which is made by law 
 primd facie evidence of title, will not answer, if the testimony 
 
 (a) See 56 111. 55. 
 
STATUTES OP LIMITATION. 663 
 
 establishes the fact that the law under which the sale was 
 made had not been complied with. 
 
 There is still another limitation law of Illinois which must 
 be noticed, — the act of March 2, 1839, — the provisions of 
 which have already been stated.^ A construction was given 
 to it in Irving v. Brownell.^ In addition to the facts hereto- 
 fore stated,^ it appeared that the defendant had paid the taxes 
 for the years 1839, '41, '42, '43, and '45, and the purchase of 
 the land for the taxes of 1844, at a tax sale, from which sale 
 the plaintiff redeemed. The Court held, 1. That the tax 
 deed offered by the defendant, was not evidence of a claim 
 and color of title made in good faith ; 2. That his possession 
 was not sufScient ; and, 3. That suffering the land to be sold 
 for the taxes of 1844, and purchasing it himself, was not 
 equivalent to a payment of the tax for that year. Trumbull, 
 J., said, " This brings us to a consideration of the first section 
 of the act of March 2, 1839, entitled ' An act to quiet posses- 
 sions and confirm titles to land ; ' which is to be found incor- 
 porated into the revised statutes, ch. 24, sec. 8. So much of 
 that section as is under consideration, reads as follows : ' That 
 hereafter every person in the actual possession of land or 
 tenements, under claim and color of title made in good faith, 
 and who shall, for seven successive years after the passage of 
 this act, continue in such possession, and shall, also, during 
 said time, pay all taxes legally assessed on such land or tene- 
 ments, shall be held and adjudged to be the legal owner of 
 said land or tenements, to the extent and according to the pur- 
 port of his or her paper title.' The object of this statute clearly 
 was to protect those who, supposing that they had 
 *a good title to land, should take and continue the *579 
 actual possession thereof, and pay taxes upon the same, 
 for the space of seven years, (a) Three things are necessary, 
 and must concur, to enable a party to avail himself of this 
 
 1 Ante, p. * 564. 2 n m. 402. s Ante, p. * 576. 
 
 (a) And a right acquired to land under said section 8, is affirmative and may 
 be enforced. And if the prior owner afterwards acquires possession he cannot 
 use his title either for defence or recovery until he shall have destroyed the bar 
 by purchase or in some other mode. Chiles v. Davis, 58 111. 411 ; Hinohman v. 
 Whetstone, 23 111. 185. So also as to section 9. Hale v. Gladfelder, 52 111. 91. 
 See also Lawrence v. Kenny, 32 Wise. 281. 
 
664 STATUTES OP LIMITATION. 
 
 statute: 1. He must have a claim and color of title to the 
 laud, made in good faith. 2. He must have and continue in 
 the actual possession thereof, for seven successive years.^ 
 3. He must pay all taxes, legally assessed upon said land, 
 during the said seven years, (a) What the claim and color 
 
 1 See Goewey v. Urig, 18 111. 243. 
 
 (a) The settled construction of the limitation law of 1839 is, not that seven 
 years must elapse between the date of the first payment of taxes and the date of 
 the last payment, but that all taxes must be paid for seven successive years, and 
 that seven years must elapse from the date of the first payment when the stat- 
 ute begins to run, before the commencement of suit, or possession taken of the 
 land, when the bar is claimed under the 9th section. McConnell v. Konepel, 46 
 111. 519 ; Koss v. Coats, 58 111. 53, and the cases cited below ; 45 111. 888. And 
 if the owner of the paramount title pays any one of the seven years, the chain 
 is broken and the party claiming color of title cannot rely on such payment. 
 Ross V. Coats, 58 111. 53. The proper construction of the statute is that there 
 must be in all cases an actual payment of taxes for seven successive years, and 
 when this is shown the purpose of the statute is answered, even though it may 
 appear that for some of those years or for all of them the assessment was illegal ; 
 and the defendant cannot claim the benefit of the statute without such actual 
 payment, even though the taxes are illegally assessed, Elston v. Kenuicott, 46 
 111. 187 ; Allen v. Munn, 55 111. 491. See also Wettig o. Bowman, 47 III. 17. In 
 Texas it is held that the fact that land was not assessed does not obviate the 
 necessity of proving the payment of taxes in support of the plea of the limitation 
 of five years ; it is the duty of a party claiming land to render it to the ofScer 
 whose duty it is to assess it. Ledyard (.-. Brown, 27 Texas, 393. Under section 
 8, the claim and color of title, possession, and payment of taxes for seven suoce's- 
 sive years must concur. Wettig v. Bowman, 47 111. 17 ; 53 III. 358. So under 
 section 9, the payment of taxes and the color of title must concur for seven full 
 consecutive years. Bride v. Watt, 23 III. 507. It is not essential, however, that 
 the three elements of the bar under said section 9, as the color of title, payment 
 of taxes, and taking possession, should all concur through the same person ; but 
 one may acquire the color of title and pay the taxes for the required period, and 
 then make conveyance to another, to whom all the rights of the grantor will 
 pass ; and a third person may, under a contract of purchase from such grantee, 
 enter into possession, and thus the bar of the statute will become complete. 
 Hale V. Gladfelder, 52 III. 91. The owner of the color of title (after the expira- 
 tion of the seven years' payment of taxes) may unite actual possession to the 
 color and payment of taxes at any time before the holder of the adverse title shall 
 take some step to remove the bar ; nor does sufiering a sale for taxes to be made 
 after the expiration of the seven years and before taking possession destroy the 
 bar of said section 9. Hardin v. Crate, 60 III. 221, and cases cited. But a sub- 
 sequently acquired deed will not relate back and make available taxes previously 
 paid by the holder of an agreement for title, or of a certificate of purchase at a 
 tax sale. Bride v. Watt, supra. The seven years' bar under the statute com- 
 mences to run from the first payment of taxes after the execution of the deed, 
 though the taxes, in fact, were due before that time. Morrison v. Norman, 47 
 III. 477. But color of title, possession, and payment of taxes, under sec. 8, must 
 
STATUTES OP LIMITATION. 665 
 
 of title must be, that will enable a party to take advantage 
 of this statute, is a question of some difficulty, (a) Under 
 our twenty year limitation act, and under similar statutes in 
 other States and in England, it has been uniformly held, that 
 a person relying upon his possession to defeat a recovery by 
 the party having the legal title, must show that his possession 
 
 concur before the limitation begins to run. Clark v. Lyon, 45 111. 388. Allow- 
 ing the land to be sold one year in the seven, and having it bid in for the benefit 
 of the defendant in ejectment, the bid being paid vfith his money, or redeeming 
 from the sale, or buying the certificate of sale, is not payment of the taxes within 
 the meaning of the statute. Holbrook v. Dickinson, 56 111. 497 ; Woodrufi" v. 
 McHarry, 56 111. 218; Wettig «. Bowman, supra. And where the owner of the 
 paramount title first paid all the taxes due on the land for two of the seven 
 years, but the holder subsequently paid an amount equal to the taxes which had 
 been assessed for those years, held, that this was not a payment for seven suc- 
 cessive years within the statute ; that, when the claimant paid to the collector 
 for those years, there were no taxes due on the land. Eoss r. Coats, supra. The 
 taxes must all be paid for the proper period, either when the land is vacant (un- 
 der sec. 9), or all when it is occupied (under sec. 8), as the two sections cannot 
 be united to create a bar. Boss v. Coats, supra; Dickenson v. Breeden, 30 111. 
 279. Tlie payment of taxes must be made by the person having the claim of 
 title. A payment by executors is not enough, unless they have title to the land 
 under the will, or are directed by it to pay the taxes. Chickering v. Failes, 26 
 111. 507; s c. 38 id. 342; Fell w. Cessford, 26 111. 522; Jayne w. Gregg, 42 111. 
 413. See also McConnell v. Konepel, supra, and 52 111. 98. A trustee, tenant, or 
 mortgagee, paying taxes, cannot avail himself of this statute unless he has 
 assumed an adverse attitude in regard to the property. Chickering v. Failes, 
 supra. See also Higgins v. Crosby, 40 111. 261 ; Moore v. Titman, 44 111. 870. 
 Where land is conveyed by deed to a party in trust for the real owner, with 
 whose money it was purchased, so that color of title is vested in the trustee, the 
 land being vacant and unoccupied, a payment of the taxes after such color of 
 title is acquired, either by the trustee or cestui que trust, will be regarded as a 
 payment under such title, as required by section 2 of the act of 1839 ; and in such 
 case it is immaterial whether the receipts for the taxes are given in the name of 
 the trustee or of the cestui que trust. Lyon v. Kain, 47 111. 200. See also 53 111. 
 35. Where a party claiming land under color of title conveyed the same, and 
 on the next day paid the taxes for the current year, which had been previously 
 assessed against him and which he was legally liable to pay, it was held, that the 
 payment would be regarded as having been made under and subordinate to the 
 title he had conveyed, and would enure to the benefit of his grantee. Elston v. 
 Kennicott, 52 III. 272. 
 
 (a) Under the Iowa statute to constitute an adverse possession, It is not neces- 
 sary that the party should have taken and held possession under color of title ; it 
 is sufficient if such possession was taken and held under a claim of title ; the 
 terms " color of title " and " claim of title " are not synonymous. To constitute 
 the former a paper title is requisite in the party claiming, but the latter may ex- 
 ist wholly in parol. Hamilton v. Wright, 30 Iowa, 480. As to what constitutes 
 " color of title," see 6 Wise. 527. 
 
666 STATUTES OP LIMITATION. 
 
 has been adverse : that is, under claim of title, although the 
 statutes are silent as to the character of possession necessary 
 to bar a recovery in such a case. It would seem, therefore, 
 that the legislature intended to require a different sort of title 
 to protect a party claiming under the seven year law, from 
 what had been required under the limitation act of twenty 
 years, else why require that claim and color of title, made in 
 good faith, should be essential to protect a party claiming 
 under the former act ? We are bound to give these words 
 some meaning, and they will have none, if the same construc- 
 tion is to be put upon the act as if they were not in it. It is 
 manifest that the legislature only intended to protect those 
 who had been in possession of land, and paying taxes upon it, 
 under the belief that they had a good title. When would a 
 reasonable man suppose that he had a claim and color of title 
 to land, or what sort of a title would such a man, in good 
 faith, pay out his money for ? For none other, we imagine, 
 than what he supposed to be a good title. If he knew that 
 he was not acquiring such a title, or if the circumstances 
 should be such that a reasonable man might know that the 
 title he was obtaining was wholly defective, then it would not 
 be a title acquired in good faith, and, consequently, not en- 
 titled to the protection of the act of 1839. By the 
 * 580 words, ' claim and color * of title, made in good faith,' 
 must, therefore, be understood such a title as, tested 
 by itself, would appear to be good — not a paramount title, 
 capable of resisting all others, but such an one as would au-* 
 thorize the recovery of the land, when unattacked, as if no 
 better title was shown — that is, a primd facie title. Such a 
 title, connected with seven j'ears' actual possession and pay- 
 ment of taxes, becomes invincible. The auditor's deed, offered 
 in evidence in this case, as has already been shown, was not 
 such a title, as, unaccompanied with other proof, it did not 
 afford primd facie evidence of title, and it was not, therefore, 
 admissible in evidence, for the purpose of showing claim and 
 color of title, under the act of 1839. But even if the auditor's 
 deed were held to be such a claim and color of title as the 
 statute intended, still it would not avail the defendant, for 
 the reason that the evidence has not shown that he had 
 
STATUTES OP LIMITATION. 667 
 
 actual possession of the premises in dispute, for seven succes- 
 sive years previous to the commencement of the action ; nor 
 does it show that he paid all taxes assessed upon the land, 
 during said seven years. The action was commenced Jan- 
 uary 18, 1848, and it appears, from the evidence, that the 
 defendant first took actual possession of the premises in the 
 spring of 1841. It is true, that he cut timber, dug a well, 
 and exercised some acts of ownership upon the land, the fall 
 previous, but those acts did not constitute that actual posses- 
 sion contemplated by the statute. As the legislature, in re- 
 ducing the time of possession, thought it expedient, as has 
 already been shown, to require stricter proof of apparent title 
 to the land than was requisite under the old limitation of 
 twenty years, so also, and for the same reason, they have 
 thought proper to require that the possession under the act of 
 1839 should be more open, marked, and manifest, than under 
 the former law. It would be unreasonable, when the legislat- 
 ure have used language clearly manifesting a different inten- 
 tion, as to the character of the possession requisite under the 
 two acts, to give the same liberal construction to both. The 
 legislature, undoubtedly, meant what they have said, that the 
 possession must be actual ; that is, visible, open, and 
 exclusive, either by an * enclosure, the erection of * 681 
 buildings, or in some other way, actually appropriating 
 and using the land, in such an open, visible manner, as to give 
 the real owner notice that the person in possession was occu- 
 pying and claiming the land as his own. The defendant is 
 equally at fault, in his attempt to show payment of taxes upon 
 the land, as required by the law. The statute requires that 
 the person in possession should pay all taxes legally assessed 
 upon the land, during the seven successive years that he has 
 possession. A payment of taxes for seven years, part before 
 and part after possession taken, does not answer the require- 
 ment of the law. In this case, it is not pretended that pos- 
 session was taken before the fall of 1840, and there was no 
 evidence of the payment of taxes, by the defendant, after the 
 year 1845. The taxes of 1844, he did not pay, but suffered 
 the land to go to sale, and then purchased it in ; which he in- 
 sists was a payment of the tax of that year. This is not so. 
 
668 STATUTES OP LIMITATION. 
 
 The land was made to pay the taxes, by the sale, not the 
 defendant. He cannot claim that he paid the taxes, while he, 
 also, at the same time, took the chance of getting a tax title 
 upon the land. It is only lands npon which taxes are not 
 paid, that can be sold. In no view of the case did the de- 
 fendant put himself in a situation to have the benefit of the 
 act of March 2, 1839." [So where H. obtained claim and 
 color of title in 1842, and in 1845 conveyed to B., who 
 allowed the land to be sold for the taxes of 1847, and bought 
 it himself, and paid the taxes from 1849 to 1856, inclusive, 
 but in 1853, P., the minor heir of a person who had died 
 seised of the patent title, redeemed from the sale of 1847, 
 by paying to the clerk double the amount of the purchase- 
 money, and all the taxes, with interest for five years, being up 
 to the time of the redemption, it was held, that this redemp- 
 tion by P. entirely obliterated the tax sale of 1847, and the 
 payment of the taxes for the five years by B., and that the 
 grantees of B. could not defend under the act of 1839, with- 
 out showing payment of taxes for seven years, exclusive of 
 the five years from 1848 to 1853.1] « 
 582 * The decision in Irving v. Brownell, has been sub- 
 stantially folUowed by Judge Drummond. It has been 
 held in his Court, 1. That the tax deed must be primd facie 
 evidence of title, in order to avail the possessor under this 
 statute. 2. That a tax sale and certificate, under which the 
 defendant entered, and continued in possession seven years, 
 did not constitute claim and color ; and that if the tax deed 
 was executed and delivered within the seven years, in pur- 
 suance of the sale, it could not have relation back to the sale 
 or entry, so as to protect the possession. 3. That a tax deed, 
 void upon its face, did not give color ; and this doctrine he 
 applied, on repeated occasions, to deeds which, upon their 
 face, showed a sale on the wrong day, and to a deed made in 
 pursuance of a sale on the first Monday in March, 1839, for 
 taxes assessed in 1838, the sale being made, as recited in the 
 deed, after the repeal of the law of 1833. 4. That in no case 
 will a tax deed be sustained, as color of title, where the land 
 
 1 Holloway v. Clark, 27 111. 484. 
 
 * 
 
STATUTES OF . LIMITATION. 669 
 
 was listed in the name of the purchaser, or where he was in 
 possession at the time of the assessment and sale. 
 
 The decisions in Illinois, upon the construction of the limita- 
 tion acts of 1835 and 1839, have not given general satisfaction, 
 and it is very evident that the construction is a strained one. 
 Under the statute of January 6, 1827, the possession of the 
 defendant must be under claim and color of title, made in 
 good faith ; but it is not necessary for the possessor to have 
 any written evidence of it.^ The statute of January 17, 1835, 
 required possession by actual residence under a connected 
 title, deducible of record, &c., while the act of March 2, 1839, 
 required in terms, 1. Actual possession for seven years ; 
 
 2. Under claim and color of title made in good faith ; and, 
 
 3. Payment of taxes for seven years. The apparent intention 
 of the legislature seems to have been to make the law of 1839 
 more effectual in protecting the bond fide settler, than the pre- 
 vious laws. The Court, in Irving v. Brownell, have frustrated 
 this intention. Indeed, the law of 1839, according to 
 
 that * decision, is a dead letter upon the statute book'. * 583 
 " A title which, tested by itself, would appear to be 
 good," would, when accompanied by seven years' actual resi- 
 dence upon the land, be a protection to the settler under the 
 law of 1835. This is conceded in Irving v. Brownell, in refer- 
 ence to a tax title which was notoriously bad. For what object, 
 then, was the law of 1839 enacted ? It is senseless and unmean- 
 ing, if the Court have given it the true construction. As we 
 have seen, the law of 1827 required a possession under a claim 
 and color of title — written evidence of the claim, and actual 
 residence are unnecessary. The law of 1835 requires actual 
 residence under a connected title, deducible of record, &c. ; 
 and by the true rule of construction, there must be a chain of 
 paper title — primd facie good, that is, when tested by itself, 
 and not with the paramount title. If the latter test is requisite, 
 the law would be useless. Now, the law of 1839 was really 
 designed to protect a still weaker class of titles than those 
 contemplated by the act of 1835. Instead of " title," it merely 
 required " claim and color of title ; " in the place of " actual 
 residence," it requires " actual possession," which may be by 
 1 Taylor v. Buckuer, 2 A. K. Marsh. 18 ; McCall v. Neely, 3 Watts, 72. 
 
670 STATUTES OP LIMITATION. 
 
 enclosure, cultivation, residence, or any of the various acts 
 which, according to the principles of the common law, are 
 evidence of a possession. And besides " claim and color of 
 title," and " actual possession," the law of 1839 requires this 
 additional fact to concur : the payment of " all taxes legally 
 assessed " upon the land, for seven successive years. The 
 legislature seems to have acted on the presumption, that if one 
 entered upon land under claim and color of title, and disseised 
 the true owner, continued his possession for seven years, made 
 improvements upon the land — without which he could not 
 have actual possession — and paid all taxes assessed against 
 the land during that period, this would afford conclusive 
 evidence of an abandonment by the owner of his paramount 
 title. In the construction of this statute, the Courts seem to 
 have been misled by the words " good faith." This means 
 simply that the occupant, in acquiring his title and taking 
 possession, shall not act maid fide, by purchasing of one who 
 
 he knew had no title, or with actual notice of a para- 
 * 684 mount title in another, or with notice that his own * title 
 
 was defective. He must believe his deed to be valid, and 
 that it conveys to him a good title to the land, although it may 
 turn out that another has a better title. He must enter under 
 a claim of right. His claim must be colorable, that is, give 
 him an apparent right. He must not be guilty of fraud. This 
 is all the law requires.^ The statute ought to be construed lib- 
 erally — for it is intended for repose.^ [And in a recent case 
 in Illinois,^ it was held.that a tax deed, regular on its face, was 
 sufficient to give color of title, under the act of 1839, and that 
 the purchaser was not bound to show that the prerequisites 
 of the statute had been complied with. So a quitclaim deed 
 gives a claim and color of title under the same act.] (a) 
 
 1 McCall V. Neely, 3 Watts, 72 ; Moody «. Fleming, 4 Geo. 119 ; Den v. Hunt, 
 1 Spenc. 493 ; Jackson v. Thomas, 16 Johns. 301 ; State Bank u. Smyers, 2 
 Strobh. 28 ; Angell on Limitations, 435 ; Adams on Ejectment, 471. 
 
 '^ Conyers v. Kenan, 4 Geo. 317 ; Fain v. Garthright, 5 Geo. 6. 
 
 3 Holloway v. Clark, 27 HI. 484 ; Elston v. Kennicott, 46 111. 196 ; Winstan- 
 ley V. Meacham, 58 111. 97. It would be error, however, to admit in evidence as 
 color of title a tax deed not properly acknowledged without proof of the signature 
 of the sheriff. Ibid. 
 
 (a) Any deed purporting on its face to convey title (if received in good faith), 
 no matter on what it may be founded, is color of title. Dickenson v. Breeden, 30 
 
STATUTES OF LIMITATION. 671 
 
 The conclusion to be drawn in yiew of this process of reason- 
 ing is, that while the act of 1835 was intended to embrace only- 
 connected titles, deducible of record, which are primd facie 
 good, accompanied by seven years' actual residence, the act of 
 1839 was designed to protect a paper title, which on its face, 
 purports to carry the fee, whether it is good ovh&d, primd facie 
 or not, so that it was acquired in good faith. The only dis- 
 tinctive difference between the law of 1827 and 1839 being, 
 that the latter reduces the time of limitation from twenty to 
 seven years, and as a compensation, requires paper title, and 
 payment of taxes. Indeed, as has been remarked, " possession 
 under claim and color of title, made in good faith," as used in 
 the act of 1839, is the identical definition of an adverse posses- 
 sion under the law of 1827. Thus much for general limitation 
 laws. 
 
 There are, however, special laws enacted with sole reference 
 to the protection of purchasers at tax sales. There is a statute 
 in Arkansas which provides, that " All actions against the pur- 
 chaser, his heirs or assigns, for the recovery of lands sold by any 
 collector of the revenue for the non-payment of taxes, 
 and *for lands sold at judicial sales, shall be brought *585 
 within five years after the date of such sale, and not 
 after." Another statute of that State, in declaring the legal 
 
 111. 279 ; Winstanley v. Meacham, 58 111. 97 ; Morrison v. Norman, 47 111. 477 ; 
 Hardin v. Crate, 60 111. 215. See also 48 111. 125 ; 54 111. 101 ; 53 111. 289 ; 52 111. 
 223 ; 43 111. 391 ; 60 111. 93 ; and Elston v. Kennicott, 46 111. 208, where it is said 
 that the act of 1839 was designed to protect a diflFerent grade of titles from that 
 embraced in the act of 1835 ; and while mere color of title would be sufficient 
 under the former, something more would be required under the latter, which 
 requires a priTna facie title. See also the cases there cited. The instrument 
 relied on as color of title must (under sec. 9) purport on its face to convey title 
 to the grantee ; an agreement for a deed or a certificate of purchase at a tax sale 
 is not enough. Bride u. Watt, 23 111. 507. See also Dunlap v. Dougherty, 20 
 111. 397 ; Spellman v. Curtenius, 12 id. 409 ; Rigor v. Frye, 62 id. 507. And 
 where a party holding color of title to land sells the same, and receives the pur- 
 chase-money, and executes the deed to the purchaser by a wrong name, the deed 
 being intended for the purchaser, and he receiving it as his deed, and entering 
 into possession under it, such deed will be color of title to the purchaser, though 
 in a wrong name. Elston v. Kennicott, supra. But if there is no such person as 
 the one named as grantee in the deed, then the legal title will not pass out of the 
 vendor, but will be held by him as trustee for his vendee, and a payment of 
 taxes by the latter as cestui que trust will be regarded as payment under that title, 
 and in protection thereof. Elston v. Kennicott, supra. See p. *417 (a). 
 
672 STATUTES OP LIMITATION. 
 
 effect of a tax sale and conveyance, provided, that " The deed 
 so made by the collector shall be acknowledged and recorded 
 as other conveyances of lands, and shall vest in the grantee, 
 his heirs and assigns, a good and valid title, both in law and 
 equity, and shall be received in evidence in all Courts in this 
 State, as a good and valid title in such grantee, his heirs and 
 assigns, and shall be evidence of the regularity and legality of 
 the sale of such lands." In Pillowy. Roberts,^ which was an 
 action of ejectment, the defendant set up a tax title under the 
 law last cited, and relied upon it as a paramount title, and as 
 a sufficient title under the statute of limitations above recited, 
 but judgment was rendered against him, and he prosecuted his 
 writ of error, and succeeded in reversing the judgment. On 
 the point as to the statute of limitations. Judge Grier, who de- 
 livered the opinion, remarks : " In order to entitle the defend- 
 ant to set up the bar of this statute, after five years' adverse 
 possession, he had only to show, that he and those under whom 
 he claimed, held under a deed from a collector of the revenue 
 of land sold for the non-paj'ment of taxes. He was not bound 
 to know that all of the requisitions of the law had been com- 
 plied with, in order to make the deed a valid and indefeasible 
 conveyance of the title. If the Court should require such 
 proof, before a defendant could have the benefit of this law, it 
 would require him to show that he had no need of the protec- 
 tion of the statute, before he could be entitled to it. Such a 
 construction would annul the act altogether, which was evi- 
 dently intended to save the defendant from the difficulty, after 
 such a length of time, of showing the validity of his tax title." 
 [In Wisconsin a party in possession of land claiming title in 
 good faith, will after three years from the time of his entry 
 be protected under the statute prescribing that limitation next 
 after the recording of his tax deed for the commencement of 
 any suit to recover such land, even though his tax deed be 
 void on its face.^] 
 
 1 13 How. (U. S.) 472. 
 
 ^ See Edgerton v. Bird, 6 Wise. 527 ; Sprecker v. Wakeley, 11 Wise. 432 ; 
 Hill a. Kricke, 11 Wise. 442 ; Knox u. Cleveland, 13 Wise. 245 ; Vancleave b. 
 Milliken, 13 Ind. 105 ; Doe v. Heariek, 14 Ind. 245 ; Lindsay u. Fay, 25 Wise. 
 462. 
 
STATUTES OF LIMITATION. 673 
 
 The Pennsylvania statute provides, (a) that " no action for the 
 recovery of land sold for taxes shall lie, unless the same 
 be * brought vv-ithin five years after the sale thereof *586 
 for taxes as aforesaid, provided, always, that where the 
 owner or owners of such lands sold as aforesaid, shall, at the 
 time of such sale, be minor or minors, or insane, and residing 
 within the United States, five years after such disability is re- 
 moved, shall be allowed such person, or persons, their heirs, or 
 legal representatives, to bring their suit or action for recovery 
 of the lands so sold." From what period of time does the 
 hmitation begin to run ? from the day of sale, or from the 
 time when the purchaser takes possession ? In the first case 
 in which this question occurred, it was held that the period of 
 limitation began to run from the time of sale, by the express 
 words of the act ; and that, for the purpose of enabling, the owner 
 to sue and recover in ejectment, when no one was in actual pos- 
 session, the law would presume the purchaser in possession. 
 That, however, was a suit on a note for the purchase-money of 
 a tract of unseated land sold for taxes, and the defendant con- 
 tended that the plaintiff 's title under a commissioner's sale in 
 1806, was not good, because the five years' limitation had not 
 expired ; but the defendant was in possession of the land, and 
 had never offered to give it up to the plaintiff.^ In a later case, 
 the question was reconsidered, and the decision was, that the 
 . five years began to run from the time the purchaser took pos- 
 session, and not from the sale ; because, according to the prin- 
 ciples which govern actions of ejectment, the owner could not 
 sue until the tax purchaser took possession.^ (6) And such 
 
 (o) Under the Pennsylvania statute of 1804, providing that " no action for the 
 recgvery of said land (land sold for taxes) shall lie, unless the same be brought 
 Vfithin five years after the sale thereof for taxes as aforesaid, the original owner, 
 whether in or out of possession, cannot bring an action against the holder of the 
 tax title after five years ; but the reverse is not true, the holder of the tax title 
 can sue at any time, first showing requisites, but the statute does not operate 
 to relieve him from the necessity of showing requisites (that is, that there was 
 an assessment by competent authority, due over a year and unpaid when the 
 sale took place), if he be plaintiff, though after five years' possession. McEey- 
 nolds V. Longerberger, 57 Penn. St. 13. 
 
 1 Parish v. Stevens, 3 S. & K. 298. 
 
 2 Wain V. Shearman, 8 S. & R. 367 ; see also McEntire v. Brown, 28 Ind. 847. 
 (b) Under the Arkansas statute, similar in its terms to the Pennsylvania 
 
 43 
 
674 STATUTES OP LIMITATION. 
 
 Continued to be the ruling of the Supreme Court of Pennsyl- 
 Tania,^ until the passage of the statute of March 29, 1824, 
 
 statute, the time begins to run in favor of the purchaser and against the former 
 owner (unless he comes within the saving clause) from the date of the sale, 
 whether the purchaser is in possession or not, the owner being able, by recourse 
 to a Court of equity, to test the title of the purchaser, even though he have 
 not taken possession, so that the objections made in the Pennsylvania case 
 do not apply. Mitchell v. Etter, 22 Ark. 178. It is held in Missouri that the 
 time of limitation runs from the date of the deed, not from the date of the sale, 
 the possession of the purchaser prior to the date of the deed, and while the right 
 of redemption exists, being consistent witli the continued ownership of the 
 original owner, and not adverse. De Graw v. Taylor, 37 Mo. 310; Pease v. 
 Lawson, 33 Mo. 35. According to the Wisconsin statute, " any suit or proceeding 
 for the recovery of land sold for taxes," except in cases where the taxes have 
 been paid or the lands redeemed as provided by law, must be commenced within 
 three years from the recording of tlie tax deed. Under this statute, if either the 
 owner or the holder of the tax title holds actual adverse possession for three 
 years after the recording of the tax deed, the one out of possession is barred. 
 If neither has taken possession, the owner is barred, the recording of the tax 
 deed being for this purpose equivalent to possession. Knox v.- Cleaveland, 
 13 Wise. 245; Dean v. Early, 15 Wise. 100; Whitney v. Marshall, 17 Wise. 174; 
 see also Hill u. Kricke, 11 Wise. 442; Sprecher v. Wakely, 11 Wise. 432- 
 Edgerton v. Bird, 6 Wise. 527. And in ejectment by the grantee in a tax deed, 
 brought more than three years after recording of the tax deed against a person 
 in adverse possession at time of suit, it was presumed that the plaintiff had had 
 actual or constructive possession for the three years next succeeding the record 
 of the tax deed, and the action was not barred by the statutory limitation. 
 Gunnison v. Hoehne, 18 Wise. 268 ; see also Lawrence v. Kenny, 32 Wise. 281 ; 
 Austin V. Holt, 32 Wise. 478. But, in order to acquire title by virtue of the lands 
 having been unoccupied for three years after recording the tax deed, the claim- 
 ant must show that the land remained unoccupied continuously during the whole 
 period ; and, if occupied within the three years by persons not authorized by the 
 grantee in the tax deed, it must be presumed, in the absence of evidence to the 
 contrary, that they were tenants of the former owner and not trespassers. Lewis 
 V. Dislier, 32 Wise. 504. A tax deed void upon its face does not give its holder 
 the constructive possession of the land described therein ; and in such case if the 
 land has remained vacant and unoccupied for more than three years after 
 tlie recording of the deed the three years' limitation does not run in favor of the 
 tax-title claimant, and the original owner is not barred. Lain ». Shepardson, 
 18 Wise. 59 ; Cutler v. Hurlbu\ 29 id. 152, and cases there cited. See p. * 568, 
 note (a), p. *482, note (1). Quosre, whether the owner would be barred if the 
 holder of the tax title had occupied for the three years. Lain o. Shepardson, 
 supra. In case the land is vacant as above described, the three years' limita- 
 tion runs in favor of the original owner who has the title and constructive pos- 
 session. See Cutler v. Hurlbut, supra. But if the tax deed is valid, the statute 
 
 1 Cranmer v. Hall, 4 W. & S. 36 ; Bigler t-. Karns, 4 W. & S. 137 ; McCaU v. 
 Himebaugh, 4 W. & S. 164 ; Bayard v. Inglis, 5 W. & S. 466. 
 
STATUTES OF LIMITATION. 675 
 
 which authorized the former owner, though in possession of 
 the land, to bring ejectment against the tax purchaser or his 
 grantee, and thus test the legality of the tax sale. Under this 
 statute it is held, that the time commences running from the 
 
 runs in favor of the tax-title claimant. Cutler v. Hurlbut, supra. See pp. *300, 
 * 301, and notes. After tiie expiration of three years from the date of a tax 
 deed, the grantee therein cannot bring the action provided by cli. 22, Laws of 
 1859, to quiet his title under such deed. Lybrand v. Haney, 81 Wise. 230. 
 As to whether the equitable interest in land created bjJa tax certificate does not 
 expire after ten years after the holder is entitled to his deed by the ten years' 
 limitation of equitable causes of action, gucere. Lain v. Shepardson, 23 Wise. 
 230. In Kansas, a tax deed executed by the county clerk, witnessed, acknowl- 
 edged, and recorded, is a bar to an action for the recovery of the land after two 
 years trom the time of recording the same. Sprague v. Pitt, McCahen, 212; 
 Bowman v. Cockrill, 6 Kan. 311. The provision in the tax law of 1858 of 
 Michigan, authorizing proceedings before a Circuit Court commissioner, to test 
 the validity of tax titles, having been declared unconstitutional (Waldby v. 
 Callendar, 8 Mich. 430), the further provision that a tax deed recorded two years 
 shall be conclusive, falls with it. Quinlan v. Rogers, 12 Mich. 168. So sec. 135, 
 Laws of 1858, p. 192, so far as it declares that lands bid off to the State and not 
 disposed of for five years shall vest in the State an absolute title in fee, is not a 
 statute of limitations, and is void, as taking private property without due process 
 of law. Groesbeck v. Seeley, 13 Mich. 329. Sec. 6 of the Minnesota statute of 
 1862 provides that any person owning or claiming any right, title, or interest in 
 the land to be sold must commence an action to. test the validity of the proceed- 
 ings before the sale for taxes, or be barred, unless the taxes have been actually 
 paid. Sec. 7 provides that persons having or claiming title after the sale, adverse 
 to the tax title, must commence an action within one year from the recording 
 of the tax deed or be for ever barred. It was held, that those sections did not 
 apply to actions of ejectment, as the holder of the tax title might not enter within 
 the year, and the owner might be barred without having had any opportunity to 
 bring ejectment. And it was further held, that, if it was intended to make the 
 bringing an action to remove the cloud on his title under the statute obligatory 
 on the owner in possession, upon pain of losing his estate within a year, it was 
 unconstitutional. Baker v. Kelly, 11 Minn. 480. But sec. 7 constitutes a valid 
 limitation of an action under the statute to remove the cloud of a tax title. Hill v. 
 Lund, 13 Minn. 451. Tax deeds void on their face for want of certainty and for 
 falsity of description, being such as to mislead rather than put the owner upon in- 
 quiry, are not to be deemed " deeds " duly registered within the sixteenth section 
 of the flve-year limitation law (Dig., Art. 2392), on a plea of five years' possession 
 claiming under " deeds duly registered." Kilpatrick v. Sisneros, 23 Texas, 114 ; 
 Wofford V. McKinna, id. 36. Nor are they evidence of title or color of title to 
 sustain the plea of possession for three years under sec. 15 (Dig., Art. 2391). 
 Kilpatrick v. Sisneros, supra. The decree of confirmation of a tax title — the 
 proceeding for a confirmation being in no wise a possessory proceeding —can 
 have no effect to preclude a party in possession of the land from the benefit 
 arising from lapse of time prior to the rendition of the decree. Buckingham v. 
 Hallett, 24 Ark. 519. 
 
676 STATUTES OP LIMITATION. 
 
 date of the sale ^ [which is construed to mean from the time 
 of the delivery of the tax deed to the purchaser, (a)] 
 
 1 Kobb V. Bowen, 9 Barr, 71 ; Rogers v. Johnson, 67 Penn. St. 48, and cases 
 there cited ; Johnston v. Jackson, 70 id. 168. 
 
 (a) See Robb v, Bowen, and Johnston u. Jackson, supra, and the cases cited 
 in the latter case. So under sec. 790 of the Revision (which is substantially a 
 copy of the Pennsylvania statute of April, 1804), which provides that " no action 
 for the recovery of real property sold for the non-payment of taxes shall lie, 
 unless the same be brought within five years from the date of sale," it is held, 
 that the period of limitaflon commences to run from the date of the execution 
 and recording of the treasurer's deed, ins'tead of from the time the land was 
 struck off to the bidder at the sale. The word " sale," as therein used, is con- 
 strued to mean a completed sale, which vests the title in the purchaser and places 
 him in a position to have the legality thereof tested in the Courts. Eldridge v. 
 Kuehl, 27 Iowa, 160 ; Henderson v. Oliver, 28 id. 20 ; McCready v. Sexton, 29 id. 
 356; Hurley v. Street, 29 id. 429 ; Jeffrey v. Brokajr, 35 id. 505. " This section 
 (790) undertakes to bar actions in cases only where the land 'has been sold for the 
 non-payment of taxes.' If there never has been in fact any sale of the land for 
 delinquent taxes, the owner is not concluded by the tax deed, or any recital 
 therein, from showing this fact." Case v. Albee, 28 Iowa, 277 ; see also McNamara 
 V. Estis, 22 Iowa, 246. The limitation in said sec. 790 operates as a bar upon 
 all actions based upon irregularities in the manner of sale, as that the tax deed 
 shows on its face that several tracts were sold together for a gross sum. 
 Douglass V. TuUock, 34 Iowa, 262 ; Thomas v. Stickle, 32 id. 71. Said sec. 790 
 does not preclude the person claiming under the tax sale and deed from bringing 
 his action against the original owner within five years, to cut off the right of such 
 owner and quiet title in himself. Stevenson v. Bonesteel, 30 Iowa, 286. 
 
IMPROVEMENTS. 677 
 
 CHAPTER XL. 
 
 OP COMPENSATION FOR IMPROVEMENTS MADE BY PERSONS IN 
 POSSESSION UNDER TAX TITLES. 
 
 According to the strict rule of the common law, the owner 
 recovers his land in ejectment, without being subjected to the 
 condition or obligation of paying for the improvements which 
 may have been made upon the land by an adverse possessor. 
 The improvements are regarded as annexed to and forming a 
 part of the freehold, and pass by the recovery, to the owner of 
 the latter. Every adverse possessor makes all improvements 
 upon the land at his peril, and, upon eviction, is entitled to no 
 remuneration whatever. It is even held, that they do not con- 
 stitute such a consideration as will support an express promise 
 by the owner to pay for them.^ The only instance in which 
 the common-law Courts grant any relief to the person who 
 made them, is, where, after a recovery in ejectment, the plain- 
 tiff brings an action of trespass for the mesne profits ; in 
 which case, it is said that all improvements of a permanent 
 character, which have increased the value of the land, maybe 
 treated as an equitable set-off, and the value thereof recouped.^ 
 The rule of the civil law was more equitable in its charac- 
 ter. It was, that the bond fide possessor was entitled to be 
 reimbursed, by way of indemnity, the expenses of beneficial 
 improvements, so far as they augmented the property in 
 value.3 The common * law proceeds upon the assump- * 588 
 tion, that it is the duty of government to assist the 
 rightful owner of property in recovering the possession of it, 
 when he has been unjustly deprived of it ; and that he ought 
 not to be clogged with onerous conditions in the prosecution 
 of his remedy ; that the improvements may be of such a costly 
 
 1 3 Kent, Com. 334 ; 5 Johns. 272 ; 1 A. K. Marsh. 444. 
 
 2 2 Johns. Cas. 441 ; 1 Johns. Cas. 281 ; 1 Johns. Ch. 887 ; 8 Wheat. 81, 82. 
 » 2 Kent, 336. 
 
678 IMPROVEMENTS, 
 
 character as to be beyond the ability of the claimant to refund ; 
 that he may have a just affection for the property on account 
 of home associations connected with it ; that it may have 
 answered all of his necessities and desires in its original- state, 
 without the improvements ; that the adverse possessor, by the 
 use of reasonable diligence, and cautious inquiry, might have 
 discovered whether the title which he purchased, and upon the 
 faith of which he made his improvements, was clear or clouded ; 
 that the maxim caveat emptor applies to the possessor, who 
 neglects to examine into the title before purchasing, and is 
 exceedingly conducive to the security of the rights of the real 
 owner ; that the possession was taken and improvements made 
 without the consent of the owner ; that they originated in 
 wrong, and that consequently there is no moral or legal obli- 
 gation resting upon the owner to pay for them. As a general 
 rule, this reasoning is entitled to great weight, but a distinction 
 ought to be made between ignorance and want of good faith. 
 The reasoning of Chief Justice Taneyj in Moore v. Brown, is 
 conclusive upon this point.^ 
 
 A case of great hardship, and which appeals most strongly 
 to the sense of justice of every man, may be thus stated : The 
 Supreme Court of Illinois held, that where a deed — commonly 
 called a quitclaim — purporting only to convey the present 
 interest of the grantor, was executed and delivered at a time 
 when he had no title, in law or equity, to the land, and he 
 afterwards acquired the legal title, the subsequently acquired 
 title enured to the benefit of his grantee. Upon the faith of 
 that decision, a title is acquired to, possession taken of, and 
 improvements made upon land similarly situated. Afterwards 
 the Supreme Court overrule their former opinion, an 
 * 589 innocent * purchaser is deprived of his land, and the 
 fruits of his labor. Who will sajr, under such circum- 
 stances, that he is entitled to no compensation for lasting 
 improvements, upon eviction ? 
 
 Whatever may be the rule of the common law, equity fol- 
 lows, to a great extent, the principle of the civil law. Thus, 
 where one, believing that he has title to a parcel of land, 
 enters and erects a building upon it, and the owner stands by 
 
 » Ante, pp. * 676, * 577. 
 
IMPROVEMENTS. 679 
 
 and permits him to go on with his improvements, w^ithout 
 giving him any notice of the adverse title, equity will decree 
 to the occupant compensation.^ So where the true owner 
 of an estate, after a recovery thereof at law, from a bond fide 
 purchaser, without notice, and for a valuable consideration, 
 seeks an account in equity, against such possessor, -for the 
 rents and profits, the defendant is allowed to deduct therefrom 
 the full amount of improvements made to the benefit of the 
 estate by him, and thus to recoup them from the rents and 
 profits.^ And where the true owner of an estate holds only 
 an equitable title thereto, and seeks the aid of a Court of chan- 
 cery to enforce it, this aid will only be given on the terms of 
 making compensation for the beneficial improvements made by 
 the defendant.^ 
 
 And it is very strongly intimated by Judge Story, that the 
 Com-ts will go one step further, and sustain a bill brought by 
 the possessor to recover against the owner, after a suit at law, 
 the plaintiff's expenditures for improvements.* Upon a review 
 of all the cases which have been decided in this country, in 
 whatever form they may have been presented to the Court, it 
 may be safely affirmed that equity will grant relief to the bond 
 fide possessor who has made lasting and valuable improve- 
 ments upon the land.* The right of a bond fide pos- 
 sessor to sustain * a bill for compensation, after an * 590 
 eviction at law, is denied in Winthrop v. Huntington.^ 
 Where the occupier has been guilty of fraud, or had notice of 
 
 1 6 Johns. Ch. 68, 69 ; 1 Schoales & Lefroy, 73 ; 1 Story's Eq. sec. 388 ; Brad- 
 ley V. Snyder, 14 111. 263. 
 
 ^ Bright V. Boyd, 1 Story, 478. ' Ihid. * Ibid. 
 
 6 Parkhurst v. Van Cortlandt, 1 Johns. Ch. 274 ; Botsford v. Burr, 2 Johns. 
 Ch. 405 ; Benedict v. Oilman, 4 Paige, 58 ; Stuke's Case, 1 Bland, 57 ; Southall 
 V. McKeand, 1 Wash. Va. 336 ; Dellet v. Whitner, 1 Cheves, 213, part 2 ; Gillis 
 V. Martin, 2 Dev. Ch. 470 ; Withers v. Yeedon, 1 Rich. Ch. 324 ; Kennedy v. Ken- 
 nedy, 2 Ala. 571 ; Goodwin ... Lyon, 4 Porter (Alabama), 297; Herring v. Pol- 
 lard, 4 Humph. 362 ; PuUiam v. Robinson, 1 Monr. 228 ; Stevenson v. Dunlap, 
 7 Monr. 134; Ballard v. Stevenson, 7 Monr. 364 ; Hamilton v. Hamilton, 6 Litt. 
 28 ; McCampbell v. McCampbell, 5 IJtt. 92 ; Richardson v. McKinson, 6 Litt. 320 ; 
 Thompson v. Mason, 4 Bibb, 195; Hewitt v. Berry man, 5 Dana, 162; Taylor v. 
 Whiting, 9 Dana, 399 ; Barlow v. Bell, 1 A. K. Marsh. 246 ; Griffith ... Depew, 
 3 A. K. Marsh. 177 ; Bell v. Barnet, 2 J. J. Marsh. 616 ; Hawkins v. Lowry, 6 J. 
 J. Marsh. 55. 
 
 « 3 Ohio, 335. ' 
 
680 IMPROVEMENTS. 
 
 the defect in his own title, or of a superior outstanding title, 
 he is not entitled to compensation.^ Such is believed to be 
 the equity rule in regard to compensation for improvements 
 made by a possessor who has acted in good faith.^ 
 
 For the purpose of remedying the injustice of the common- 
 law rule, and assimilating as nearly as possible to the more 
 just and equitable principles of the civil law in this respect, 
 many of the States have from time to time enacted laws for 
 the protection of the bond fide occupant, and securing to him 
 full compensation for any losses which he might otherwise sus- 
 tain by reason of an eviction under a paramount title, (a) 
 These laws are variously denominated, " betterment," " im- 
 provement," and " occupying claimant" laws. (S) They are 
 
 1 Van Home v. Fonda, 5 Johns. Ch. 388 ; Putnam v. Ritchie, 6 Paige, Ch. 
 390 ; McKim i>. Moody, 1 Rand. 68 ; Morris ii. Terrell, 2 Rand. 6 ; Ponieroy v. 
 Lamheth, 1 Ired. Ch. 65 ; DeBrahm ». Fenwiclc, 1 Dessaus. 114 ; Belton v. Briggs, 
 4 Dessaus. 465 ; Dellet v. Whitner, 1 Cheves, 213, part 2 ; Harrison v. Fleming, 
 7 Monr. 537 ; Harrison v. Baker, 5 Litt. 250 ; Scroggs v. Taylor, 1 A. K. Marsh. 
 247 ; Patrick ». Marshall, 2 Bibh, 40. 
 
 2 Ross V. Irving, 14 111. 176-178. 
 
 (a) Claims for improvements are properly pleadable only after the question 
 of title has been settled in favor of the plaintiff. Walton v. Gray, 29 Iowa, 440. 
 
 (6) The Ohio statute provides (in the present tense) tliat " when any occu- 
 pying claimant, being in quiet possession of land, from which he can show a 
 plain and connected title in law or equity," &c., " if any person shall set up 
 and prove an adverse and better title to said land, such occupying claimant 
 shall not be evicted until he shall be fully paid the value of all lasting and 
 valuable improvements made by such occupying claimant or the person under 
 whom he may hold the same, previous to receiving actual notice by commence- 
 ment of suit," &c., and under this statute it is held, that an occupying claimant is 
 entitled to pay as well for improvements made by him before his title commenced, 
 as for those made after. Lessee of Shaler v. Magin, 2 Ohio, 236 ; Lessee of Davis 
 V. Powell, 13 Ohio, 308. In this last case it is said that " the equity of the stat- 
 ute embraces all improvements made in an honest belief of ownership, if, at the 
 time of rendition of judgment, the occupant is in possession under such title as 
 brings him within the meaning of the statute. If such a state of facts exists as to 
 call the statute into action, it never stops until it has worked out complete equity 
 and justice, and embraced the entire improvements beneficial to the successful 
 claimant, and honestly made.'' " It rests on the broadest equity ; " " and may 
 justly claim a liberal construction." See also Stebbins o. Guthrie, 4 Kan. 368. 
 In this case, under a similar statute it was held, that being in possession of and 
 holding land under any sale for taxes authorized by law entitled the occupant 
 to the benefit of tlie act, if his possession was obtained without fraud or collu- 
 sion, and fraud or collusion must be affirmatively shown to defeat the claim; 
 and it seems that holding under a certificate of sale without a tax deed (inde- 
 pendent of the statutory provision for such case) is sufficientMo entitle the holder 
 
IMPROVEMENTS. 681 
 
 undoubtedly constitutional, standing upon equitable principles 
 and public policy for their support.^ They are sustainable 
 
 to the benefit of the act. A defective title only will enable the occupant to 
 make claim under the act, and where the claimant held under a. certificate of 
 sale describing the lot as " lot E, pt. 7, block 12, in old Atchison, in Atchison 
 City," but at the time of commencing the action, held under a tax deed with 
 ample description obtained after improvements made, it was sufficient to entitle 
 him to the benefits of the act ; and a fraudulent holding will not be inferred from 
 the vague description in said certificate. Under the Wisconsin statute the words 
 "officer authorized by law to execute the same" in sec. SO, ch. 141, K. S., 
 mean an officer authorized to execute tax deeds, and not one authorized to exe- 
 cute the particular deed under which the defendant in ejectment claims ; since no 
 officer is authorized to execute a defective or invalid deed, and such a restriction 
 of the words would defeat the purpose of the act. Oberieh v. Oilman, 31 Wise, 
 495. And where the statute provided that the tax-title claimant could recover 
 for his improvements only where the tax described in his deed was " lawfully 
 assessed," it was hdd, that a tax must be considered " lawfully assessed " within 
 the meaning of this statute, notwithstanding defects which invalidate the deed, 
 if it was assessed upon land liable to taxation, and for a sum which the owner 
 was justly liable to pay by reason of his ownership, and if there was no injustice 
 for which equity would relieve against it; thus a. failure to set opposite the 
 description of a lot in the assessment roll the name of the owner, or the word 
 "unknown," would be no ground for equitable relief against the tax, and, where 
 a deed was adjudged invalid on that ground, the grantee may under said statute 
 have the value of his improvements.- Oberieh v. Oilman, supra. Where one 
 entered upon land in good faith under one who had no title, but claimed to own 
 by virtue of a tax deed, and erected a wooden building thereon (resting on posts 
 and not let into the soil), to be occupied by him as a dwelUng or otherwise, as 
 a part of his adverse enjoyment, and before the expiration of his lease and after 
 judgment and ouster in ejectment against him, he re-entered and removed the 
 house from the premises, and where as against his lessor by custom he was en- 
 titled to remove the building during his term, it was held, that replevin would 
 lie therefor; and that the statute (R. S. ch. 141, sec. 16-33), following the com- 
 mon law, treats such improvements as » part of the realty, and not severable 
 therefrom, and so to belong to the owner of the realty ; it only preserves and 
 works out the equity of the party making* the improvements, and for this pur- 
 pose has declared what his remedy shall be, and to that remedy he must be 
 strictly confined ; he cannot at his pleasure sever and take away the improve- 
 ments, and then insist upon the equity recognized and defined by the statute, 
 as a defence to a suit at law brought against him to recover them or their value. 
 Huebschmann u. McHenry, 29 Wise. 655. Under the Michigan statute (2 Comp. 
 Laws of 1857, sec. 4603 to 4606), allowing the defendant in ejectment to file a 
 claim for compensation for improvements made by him or any person through 
 whom he claims title, &c., held, that this statute applies only to the lands de- 
 scribed in the plaintifi"'B declaration, and in the deeds or other instruments 
 
 1 Ross V. Irving, 14 111. 171, and cases there cited. The only cases which, 
 maintain the opposing doctrine are Nelson v. Allen, 1 Yerg. 360, and Green v. 
 Biddle, 8 Wheat. 1. See Cooley's Const. Lim. p. * 386, ante, p. * 433, note. 
 
682 IMPROVEMENTS. 
 
 upon the same principle that statutes of limitation and acts 
 curing or confirming void and defective titles, are held 
 * 591 valid, where they do not affect * vested rights. The 
 owner is bound to take notice of the general law, which 
 prescribes the time within which he must make his entry 
 upon, or bring his action for, land in the adverse possession of 
 another ; so he is bound to take notice of those general laws 
 which promulgate the rule, that if he lies by and suffers 
 another to enter upon his land and make improvements, with- 
 out giving the adverse possessor notice of the claim, he shall 
 be estopped from denying the duty of compensation* Such 
 laws are prospective in their character, and are no more unjust 
 to the owner, than the common-law rule was to the pos- 
 sessor. 
 
 Whether these laws are applicable to improvements made 
 under tax titles, and what kind of a tax title will constitute 
 a proper basis for a claim of compensation, will depend upon 
 the peculiar phraseology of each particular statute. The only 
 case reported where a claim for improvements was set up by 
 one in possession under a tax title, after eviction, is that of 
 
 through which defendant claims title ; and the identity of the lands claimed by 
 the defendant with those claimed by the plaintiff in liis declaration must be estab- 
 lished by the rules of law and evidence appUcable to the instruments under 
 which plaintiff and defendant respectively claim, and which they produce in 
 support of their respective titles ; the plaintiff in this case having no privity or 
 connection with defendant or those through whom he claims, and in no way re- 
 sponsible either for the description in the tax deed or the attempt to take pos- 
 session under them, there is no just principle upon which he can be made 
 accountable for a mistake of the parties claiming under the deed in taking pos- 
 session of plaintiff's land, or for the improvements made against his will. A 
 party purchasing at a tax sale as between himself and the owner of other lands, 
 is bound, at his peril, to take notice of the description in his own deed ; and if 
 he or his grantees make a mistake and go upon the lands of others, they must 
 bear the consequences. King v. Potter, 18 Mich. 134. This section (4603) con- 
 fines the privilege to cases where the possession has been held and the improve- 
 ments made by virtue of the specific titles therein mentioned, and excludes the 
 cases where the defendant claims title in any other way ; and where a defendant 
 entered into possession and claimed title under a sheriff's deed on an execution 
 sale and also under certain tax deeds, and made improvements, and continued 
 in possession more than six years before action brought, it was held, that he did 
 not come within the provision of the statute; but it seems that he might under 
 section 4602, by way of set-off, obtain compensation for improvements, if the plain- 
 tiff should proceed for the recovery of mesne profits. King u. Harrington, 18 
 Mich. 213. 
 
IMPROVEMENTS. 683 
 
 Ross V. Irving.^ The statute of Illinois exempted the adverse 
 possessor of land held under " a plain, clear, and connected 
 title in law or equity, deducible of record, without any actual 
 notice of a paramount title," &c., from an action for the mesne 
 profits, and gave him compensation for lasting and valuable 
 improvements made prior to the receipt of such notice. In 
 the case cited, where the defendant was in possession, and 
 made improvements under a tax deed which was not evidence 
 per se of title, and who failed to prove a compliance by the 
 officer, with the requirements of law, in the making of the 
 sale and conveyance, and where the Supreme Court had held, 
 that his deed was not even " a claim and color of title " under 
 the limitation law of 1839, it was held, that he was entitled to. 
 the benefit of this law. It would therefore seem to be the 
 settled rule in Illinois, that every possessor under a tax title, 
 of whatever grade, is protected in his improvements and ex- 
 empted from a suit for the back rents and profits. 
 
 The Pennsylvania statute of April 3, 1804, declared : 
 " That * no action for the recovery of land sold for taxes * 592 
 shall lie unless the same be brought within five years 
 after the sale thereof for taxes, as aforesaid ; provided, always, 
 that where the owner or owners of such lands sold as aforesaid, 
 shall, at the time of such sale, be minor or minors, or insane, 
 and residing within the United States, five years after such dis- 
 ability is removed, shall be allowed such person, or persons, 
 their heirs or legal representatives, to bring their suit or action 
 for recovery of the lands so sold ; but where the recovery is 
 effected in such case, the value of the improvements made on 
 the land so sold, after the sale thereof, shall be ascertained by 
 the jury trying the action for recovery, and paid by the person 
 or persons recovering the same, before he, she, or they shall 
 obtain possession of the land so recovered." ^ (a) In the con- 
 struction of this statute it has been held, that the purchaser 
 is entitled to compensation for improvements, whether the 
 
 1 14 111. 171. See also Neiswanger v. Gwynne, 13 Ohio, 74. 
 
 2 1 S. & R. 38 ; 4 Smith, Laws, 202, sec. 3. 
 
 (a) If the owner of land sold for taxes, during his minority, redeem within 
 ten years after arrival at age, under the 4th section of the act of March 13, 1815 
 (as to unseated lands), he must pay the purchaser the value of his improve- 
 ments. Lynch v. Brudie, 63 Penn. St. 206. 
 
684 IMPROVEMENTS. 
 
 lands, at the time of the sale, belonged to persons laboring 
 under disabilities, or those who were legally competent to pro- 
 tect their own interests, by the payment of the tax or a redemp- 
 tion from the sale.^ Where the land is seated at the time of the 
 sale, the purchaser is bound to take notice of it, and if he neg- 
 lects to make the necessary inquiries, he must be treated as a 
 maid fide purchaser, and cannot recover compensation for his 
 improvements, (a) If he knew that the land was seated, he 
 purchases in fraud of the law, and it is clear that he cannot 
 recover. The sale of seated land is absolutely void, and passes 
 neither title nor color of title. But the courts go one step 
 further, and hold, that the grantee of the purchaser, at the 
 sale, without notice of the illegality in the sale, is not entitled 
 
 to compensation.^ It was, however, held that, although 
 * 593 the sale of land exempt from taxation * was absolutely 
 
 void, yet the purchaser was entitled to the value of 
 his improvements under this statute.^ 
 
 In another case, it was held, that the purchaser was enti- 
 tled to recover the value of his improvements, where the taxes 
 for which the land was sold had been paid before the sale.* 
 This latter case lays down the broad principle, that under this 
 statute, compensation is incident to every recovery for irregu- 
 larity in the assessment, process, or sale ; in fine, that it was 
 designed for the protection of every hond fide purchaser at a 
 tax sale, who has expended money or labor on the faith of the 
 title he acquired.^ [And in Liggett v. Long,^ it was held, that 
 although the treasurer omitted to sign the deed, but attached 
 to it the receipt of the tax rents, and the surplus due, and ac- 
 knowledged the deed in open Court, which acknowledgment 
 
 1 Creigh v. Wilson, 1 S. & R. 38. 
 
 (a) Where the land sold for taxes is recovered by the owner, because it was 
 seated at the time of sale, under the act of April 12, 1842 (as to unseated lands), 
 he nmst pay for improvements, unless the purchaser knew when they were 
 made that the land was seated. Lynch v. Brudie, 63 Penn. St. 206. 
 
 2 M'Kee v. Lamberton, 2 W. & S. 107 ; Hockenbury v. Snyder, 2 W. & S. 240; 
 Miller v. Keene, 5 Watts, 350 ; Cranmer v. Hall, 4 W. & S. 36 ; Lambertson v. 
 Hogan, 2 Barr, 22. 
 
 ' Coney v. Owen, 6 Watts, 435. In this case Judge Kennedy dissented. 
 
 * Gilmore v. Thompson, 3 Watts, 106. 
 
 s See also Coney ti. Owen, 6 Watts, 436. 
 
 6 7 Harris (Penn.), 499. 
 
IMPROVEMENTS. 685 
 
 was duly certified on the deed, and entered on the records of 
 the Court, the purchaser was not deprived of the benefit of 
 improvements made on the faith of his title. But in Robson 
 V. Osborn,! it was held that a tax purchaser was not a posses- 
 sor in good faith, and not entitled to improvements, if his deed 
 was void, and if by proper diligence he might have known this 
 want of power in the officer to seU.] And it seems to be con- 
 ceded, that, in all cases where the purchaser knew of the ille- 
 gality of the sale, he is entitled to no compensation whatever. 
 But it is difficult to reconcile these cases upon principle. 
 Whether the land is seated, exempted from taxation, or the 
 taxes had in fact been paid at the time of the sale, the officer 
 had no authority to sell, and all of these cases should stand 
 upon the same footing -in construing the statute. The only 
 conceivable difference is, that where land is seated, the pur- 
 chaser is bound, at his peril, to take notice of the fact. This 
 is undoubtedly the rule in reference to a purchase made 
 by one * individual from another, where a third person * 594 
 is in possession under the vendor, or even adversely ; 
 but no rule is remembered which devolves upon a bidder at a 
 tax sale, before any right has become vested in him, and when 
 the State is offering lands for sale, in hostility to the title of 
 the true owner, to make inquiry. The fair construction of the 
 statute would be to compensate all purchasers at tax sales, 
 for money and labor expended in improving the land pur- 
 chased, unless the illegality of their titles appears upon the 
 face of the proceedings under which they claim, (a) 
 
 1 13 Texas, 307. 
 
 (o) In an action under the occupying- claimant law of Indiana (2 G. & H. 285), 
 in the absence of a general verdict, it is an essential fact for the jury to find 
 whether the claimant had color of title ; and where land is claimed by sereral 
 persons, each of whom has put improvements on his own part thereof, qwxre 
 whether all such persons can unite in a proceeding under said law. Cain v. 
 Hunt, 41 Ind. 466. 
 
OF THE INTERPEETATION AND 
 
 CHAPTER XLI. 
 
 OP THE INTERPRETATION AND CONSTRUCTION OP STATUTES 
 AFFECTING REAL PROPERTY. 
 
 Rights of property depend for their existence upon natural 
 law. But the evidence of those rights, and the remedies to 
 enforce and protect them, are the inventions of civil society. 
 Lord Camden remarks, that " the great end for which men 
 entered into society was to secure thpir property. That right 
 is preserved sacred and incommunicable, in all instances where 
 it has not been taken away, or abridged by some public law, 
 for the good of the whole. The cases where this right of 
 property is set aside, by positive law, are various. Distresses, 
 executions, forfeitures, taxes, &c., are all of this description, 
 wherein every man, by common consent, gives up that right 
 for the sake of justice and the general good." ' 
 
 The American constitutions, as we have seen, furnish many 
 safeguards for the protection of property from legislative 
 spoliation and private invasion. The government can take 
 it but in two ways; viz., for a public tax, levied upon 
 principles of just equality, and for public use, upon making 
 just compensation to the owners. And it is universally con- 
 ceded to be the duty of the government to furnish adequate 
 remedies to the owner, not only to recover the possession of 
 it when wrongfully or unjustly withheld from him ; but also 
 to protect him in the possession and use of it, by the punish- 
 ment of the wrong-doer. This remedial power of the govern- 
 ment imposes upon it the duty of furnishing to creditors 
 * 596 ample means to enforce the * collection of just debts, 
 by subjecting the estate of the debtor to their pay- 
 ment. The only additional power over private property, 
 which may be exercised by strangers, is that implied in the 
 common-law maxim, " Salus populi est mprema lex." 
 
 1 Entick V. Carrington, 19 Howell's St. Tr. 1066. 
 
CONSTRUCTION OF STATUTES. 687 
 
 There is an implied assent on the part of every member of 
 society, that his own individual welfare shall, in case of neces- 
 sity, yield to that of the community ; and that his property 
 shall, under certain circumstances, be placed in jeopardy, or 
 even sacrificed, for the public good. The instances given of 
 this class of powers are, the pulling down of private houses, or 
 the raising of bulwarks upon private property, for the necessary 
 defence of the State against a public enemy, and the demolition 
 of a house, in a populous place, for the purpose of arresting the 
 progress of a fire, and preventing a general conflagration. 
 Upon the same principle, a private mischief must be endured, 
 rather than a public inconvenience ; thus, if a public highway 
 be out of repair, and impassable, a passenger maj' lawfully go 
 over the adjoining land. In every instance above given, an in- 
 terference with private property is obvipuslj' dictated and jus- 
 tified summd necessitate — by State or private necessity — by a 
 due regard to the .public good and safety, or by the immediate 
 urgency of the occasion. The sale of land to pay debts is an 
 exception, that being founded upon principles of natural jus- 
 tice alone. It follows, as a necessary consequence, that all 
 statutes which are made with the view of interfering with, or 
 divesting, rights of property should be construed strictly 
 — especially where they are penal in their character or 
 effects.^ 
 
 The various rules of interpretation and construction which 
 have a dii-ect bearing upon this class of statutes, have been in- 
 cidentally cited and discussed in the preceding portions of this 
 work, especially those which govern statutes conferring powers 
 to be exercised over real property. It is now proposed — con- 
 trary to the original plan of the work — to conclude this 
 * chapter with a concise statement of those rules which * 597 
 are generally applied in the interpretation and construc- 
 tion of statutes of every class, inasmuch as they indirectly aid 
 in arriving at a proper conclusion in the exposition of statutes 
 affecting real estate. 
 " There is a primeval principle in man which ever urges 
 
 1 Smith's Com. 854; Sharp v. Speir, 4 Hill, 76; Smith v. Spooner, 3 Pick. 
 229 ; Wales v. Stetson, 2 Mass. 146 ; 9 Gill & J. 479; Broom's Legal Maxims, 
 S-6 and 465 ; ante, ch. 1 and 2. 
 
OF THE INTEftPRETATION AND 
 
 him, with irresistible power, to represent outwardly that which 
 moves him within : a pressing urgency of utterance." ^ What- 
 ever maybe our thoughts, emotions, will, desires, or commands, 
 the object we have in view can alone be accomplished by 
 resorting to outwai'd manifestations. There is no direct com- 
 munion between the minds of men. Signs are the only 
 mediums of communication. " The signs which man uses — 
 the using of which implies intention — for the purpose of 
 conveying ideas or notions to his fellow-creatures, are very 
 various ; for instance, gestures, signals, telegraphs, monu- 
 ments, sculptures of all kinds, pictorial and hieroglyphic 
 signs, the stamp on coins and seals, beacons, buoys, insignia, 
 ejaculations, articulate sounds, or their representatives, — 
 that is, phonetic characters, on stones, wood, leaves, paper, 
 &c., — entire periods or single words, names in a particular 
 place, and whatever other signs — even the flowers, in the 
 flower language of the East — might be enumerated." ^ A 
 tear, a blush, or a contortion of the countenance, may convey 
 the emotion or thought of a human being, as clearly as an 
 articulate sound, or a written statement. These signs are, 
 therefore, used to convey ideas ; and interpretation, in its 
 widest sense, is the discovery and representation of the true 
 meaning of them. The true meaning of any sign is that 
 which the person who used it is desirous of expressing. In 
 legal literature, we seldom deal with any other signs than 
 words, written or spoken. All laws were originally written, 
 or have been reduced to writing, by judges and commentators. 
 Statute laws, of course, are invariably in writing or print. 
 
 The signs used by the legislature are words. With 
 598 the interpretation of * such signs as are used by the 
 
 law-making body, we purpose to deal. There is a 
 manifest distinction between interpretation and construction, 
 though they are frequently confounded, and used as synony- 
 mous terms. Interpretation is the art of finding out the true 
 sense of any form of words ; that is, the sense which their 
 author intended to convey, and of enabling others to derive 
 from them the same idea which the author intended to com- 
 
 • Lieber's Legal and Political Hermeneutics, ch, 1, sec 2. 
 2 Lieber, ch. 1, sec. 3. 
 
 « 
 
CONSTRUCTION OF STATUTES. 689 
 
 municate. Construction, on the other hand, is the drawing 
 of conclusions, respecting subjects that lie beyond the direct 
 expression of the text — conclusions which are in the spirit, 
 though not within the letter, of the text. Construction must, 
 therefore, be bridled by the true principles of interpretation, 
 else it becomes a dangerous weapon in the hands of a judge, 
 giving to him a species of legislative discretion. The legis- 
 lature may use words which every one understands, and which, 
 for the case put in the text, are sufficiently clear ; but if you 
 were to ask each individual composing that body, as to the 
 exact limits to which he wishes to see the rule extended, or 
 put to him a number of cases, in progressive connection with 
 each other, he himself would be doubtful, in most instances, 
 how far he would extend the application of the rule. The 
 consequence is, that interpretation may be according to the 
 more or less comprehensive sense in which the words are 
 used. There are but few words which have not a contracted 
 and extended sense ; it is this which creates the necessity of 
 interpretation. The human mind is incapable of anticipating, 
 in an order or law, every possible combination of facts which 
 may arise, and fix a definite rule by which every case may be 
 governed; this gives rise to the doctrine of construction. 
 Interpretation gives effect to the intention of the legislature, 
 as manifested by a sound exposition of the words of the text ,; 
 while construction resorts to analogies, and treating the text 
 as simply putting cases by way of example,' holds, that all 
 cases which stand upon the same footing of reason and justice, 
 as those enumerated, were designed to be embraced by the 
 law-giver. The one carries into effect the open, and the 
 other the secret, intent of the law. But Courts some- 
 times, in the exercise of * that discretionary power * 599 
 which the doctrine of construction gives rise to, make 
 some remarkable decisions. Indeed, the tendency of the 
 doctrine is to drive the judges to extremes, neither of which 
 is permissible on general principles. 
 
 A statute may be defined to be the written will of the legis- 
 lative body of a State, solemnly expressed, according to the 
 forms prescribed in the constitution — an act of the legis- 
 lature. The word is used in contradistinction to the common 
 
 44 
 
690 OP THE INTERPRETATION AND 
 
 law. Statutes are divided into classes, each distinguished by 
 a technical name.^ They are general or special, public or 
 private. A general or public act is a universal rule, that 
 regards the whole community ; of which the Courts are bound 
 to take notice judipiallj' and ex officio, without the statute 
 being particularly pleaded or formally set forth by the party 
 who claims an advantage under it. Occasionally a private 
 statute is in terms declared to be a public statute. The only 
 effect of this declaration is to compel the Courts to take 
 judicial notice of it. Special or private acts are rather ex- 
 ceptions than rules, being only those which operate upon 
 particular persons and private concerns. Of these the Courts 
 are not bound to take notice, unless they be formally shown 
 and pleaded. Statutes are also either declaratory of the 
 common law, or remedial of some defects therein. A declara- 
 tory statute is one passed for the purpose of putting an end to 
 a doubt as to what the common law was at the time of its 
 enactment, and which in effect declares what that law then 
 was, and had ever been. So a statute which declares the 
 meaning of a prior statute, upon the construction of which 
 doubts had arisen, is called a declaratory act. Remedial stat- 
 utes are those which are made to supply the defects, or abridge 
 the superfluities which experience may prove to exist in the 
 common law. This class is subdivided into enlarging statutes, 
 by which, the common law is rendered more comprehensive and 
 extended than'it was before ; and into restraining statutes, 
 whereby the common law is narrowed down to that which is 
 regarded b}' the legislature as just and proper. The term 
 remedial is also applied to statutes which confer upon parties 
 
 a new right and a new remedy to enforce it, or which 
 * 600 simply recognize a * common-law right, and give to the 
 
 injured party a cumulative remedy.^ Another division 
 of statutes is into temporary and perpetual. A temporary 
 statute is one which is limited in its duration at the time of 
 its enactment ; whereas a perpetual statute is one which is 
 not limited by express words, and, consequently continues in 
 full force and effect until repealed by the legislature. Still 
 another division is into affirmative and negative. An affirm- 
 1 1 Black. Com. 85, 87. 
 
CONSTRUCTION OP STATUTES. 691 
 
 ative statute is one which is affirmative in its terms ; such a 
 statute does not ^rogate or repeal the gommon law. To' 
 illustrate : a statute authorizing the acknowledgment of deeds, 
 and declaring the certificate of the officer evidence of the due 
 and legal execution of the deed, is an affirmative statute, and 
 does not take away the common-law mode of proving the exe- 
 cution of the deed by the subscribing witnesses, or in any other 
 mode known to the common law. A negative statute, on the 
 other hand, is expressed in negative terms, and so controls the 
 common law that it has no force in opposition to the statute. 
 Examples of this class of statutes may be thus given : The 
 recording laws declare a deed void as to subsequent purchas- 
 ers, unless it is recorded in the time prescribed by the statute : 
 the statute of frauds declares that no action shall be brought 
 whereby the defendant shall be charged with the debt of 
 another, unless the promise is in writing and signed by the 
 defendant ; and the stamp acts provide that no written instru- 
 ment shall be received in evidence, unless regularly stamped, 
 &c. In all of these instances, the statutes supersede the com- 
 mon law — repeal it by implication, because both cannot be 
 enforced. And, lastly, some statutes are called penal. By 
 this term is not only included those statutes which iniiict a 
 penalty, or ex vi termini^ work a forfeiture, but it extends to all 
 statutes which give a summary remedy; those made in favor 
 of corporations or individuals in derogation of common right ; 
 those made in derogation of the common law ; those which 
 affect property ; those which are technically called disabling 
 acts ; and statutes which impose restrictions upon trade 
 or common occupations, or * which levy an excise or tax * 601 
 upon the citizen — indeed, it embraces all laws which 
 in any manner affect the liberty or property of the citizen, in 
 violation of the established maxims of the common law. The 
 civil-law division of statutes recognized but three classes : real, 
 personal, and mixed. Real statutes related to property in 
 terms ; personal, to persons alone, and only treated of property 
 incidentally ; mixed, were those which equally concerned 
 persons and property. 
 
 The common-law rules by which Courts expound statutes, 
 being founded upon the reasoning of the ethical writers, and 
 
692 OP THE INTERPRETATION AND 
 
 borrowed from the civilians, it is proper to review, in a con- 
 cise manner, the principles by which the writers upon the 
 natural and civil law were governed in construing and inter- 
 preting a given text. Lieber, in his work on " Legal and 
 Political Hermeneutics," thus defines the different species of 
 interpretation; 1. Close — where for just reasons connected 
 with the formation and character of the text, we are induced 
 to take the words in their narrowest meaning. 2. Exten- 
 sive — that which induces us towards the adoption of the more 
 or most comprehensive signification of the words. 3. Ex- 
 travagant — that mode of interpretation which substitutes 
 such meaning as is evidently beyond the true meaning, and 
 hence not genuine. 4. Free or unrestricted — that which 
 proceeds simply on the general principles of interpretation in 
 good faith, without being tied down by any specific or supe- 
 rior principle. 5. Limited or restricted — this takes place 
 when other rules and principles than those which are strictly 
 speaking hermeneutic, limit and control us. 6. Predesti- 
 nated — is that where the person who interprets, either con- _ 
 sciously or unknown to himself, yet laboring under a strong 
 bias of mind, makes the text subservient to his preconceived 
 views, or some object he desires to arrive at. This seems to 
 be frequently adopted as the rule of action by judges and 
 lawyers. It seems to be an artful rule, devised by the cun- 
 ning, to prove that a text means something which never entered 
 into the mind of the author of it. And, 7. Authentic — or 
 that which proceeds from the author himself. Professor 
 Lieber also divides construction into close, comprehen- 
 * 602 sive, and * transcendent or extravagant, and thus de- 
 fines them : 1. Close — that which inclines to the 
 directest possible application of the text, or the principles it 
 involves ; to new or unprovided cases, or to contradictory 
 parts — in short, to subjects which lie beyond the words of 
 the text. 2. Comprehensive — or that which inclines to an 
 extensive application of the text, or the principles which it 
 involves; to new, unprovided, or not sufficiently specified 
 cases or contradictions. 3. Transcendent — or that which is 
 derived from, or founded upon, a principle superior to the 
 text ; and, nevertheless, aims at deciding on subjects belong- 
 
CONSTRUCTION OP STATUTES. 693 
 
 ing to the province of that text. 4. Extravagant — is that 
 which carries the effect of the text beyond its true Kmits, and 
 is, therefore, no longer genuine construction — as the previ- 
 ous species becomes of a more and more doubtful character, 
 the more it approaches to this. The difference between 
 transcendent and extravagant construction is this : the former 
 remains, in spite of its transcendency, within the spirit of the 
 law, or document to be construed ; while extravagant con- 
 struction abandons it. That the attempt, by malconstruction, 
 to carry designs into the sphere of an instrument, amounts to 
 the same with carrying the effect beyond its limits, is clear. 
 Having ascertained the different species of interpretation and 
 construction, Lieber proceeds to note the following principles 
 of interpretation, to be applied to every kind of text. 1. We 
 must convince ourselves of the genuineness of the text to be 
 interpreted. 2. No sentence, or form of words, can have more 
 than one true sense, and it is this we must inquire for. This 
 is the basis of all interpretation. Interpretation without it has 
 no meaning. Every man or body of persons making use of 
 words, does so in order to convey a certain meaning ; and to 
 find this precise meaning is the object of all interpretation. 
 To have two meanings in view is equivalent to having no 
 meaning — and amounts to absurdity. 3. In no case of hu- 
 man life, in which we are called upon to act — to apply rules 
 or to understand what others say — can we dispense with 
 common sense and good faith ; but they are peculiarly requi- 
 site in interpretation, because its object is to discover 
 something that * is doubtful, obscure, vailed ; which * 603 
 therefore may admit of different explanations. If 
 without common sense, we make, even of strict syllogism, an 
 instrument, apparently, to prove absurdities, how much more 
 are those two ingredients of all honesty necessary in interpre- 
 tation. Common sense and good faith are the leading stars 
 of all genuine interpretation. Good faith and interpretation 
 mean that we conscientiously desire to arrive at truth, that 
 we honestly use all means to do so, and that we strictly ad- 
 here to it, when known to us ; it means the shunning of 
 subterfuges, quibbles, and political shuffling ; it means that we 
 take the words fairly as they were meant. 4. We have to 
 
694 .• OF THE INTERPRETATION AND 
 
 take words in their most probable sense, not in their original, 
 etymological, or classical, if the text be such that we cannot 
 fairly suppose the author used the words with skill, knowl- 
 edge, and accurate care and selection. 5. We must tr}"^ to 
 ascertain the meaning of doubtful words from other passages 
 of the same text ; or, 6. Ascertain it from other sources 
 which we consider fully competent. The doctrine of con- 
 temporaneous interpretation is founded upon this principle. 
 7. If technical terms, belonging distinctly to the terminology 
 of an art or science, are used as such, the same good faith 
 demands that they must be taken in their technical, and not 
 in their common, sense. 8. Tropes are to be taken as tropes, 
 and direct expressions as direct. 9. The special, particular, 
 and inferior cannot militate with the general and superior. 
 10. We must endeavor to arrive at the sense in which words 
 are used, as much as possible from the words themselves, and 
 bring to our assistance extraneous principles, rules, or other 
 aid, in that measure and degree only as the strictest interpre- 
 tation becomes difficult or impossible. 11. That which is 
 probable is preferable to the improbable ; the fair to the un- 
 fair ; the customary to the unusual ; the easy to the difficult ; 
 the intelligible to the unintelligible. 12. We are to follow 
 the special rules of interpretation which have been prescribed 
 by proper authority. 13. We must endeavor to find assist- 
 ance in that which is near, before we resort to that which is 
 
 less so. Thus, we must first try to ascertain the mean- 
 * 604 ing of the text from the words used ; if we do * not 
 
 understand the words, we try whether its connection 
 in a sentence will shed light upon it ; if we do not succeed, 
 we endeavor to derive assistance from the period ; if this be 
 unavailing, we examine the whole instrument or work ; if that 
 leads us to no satisfactory result, we examine other writings, 
 &c., of the same author ; and if that does not suffice, we re- 
 sort to contemporaneous writers, or declarations, or laws, 
 similar to that which forms our text. 
 
 The rules of construction laid down by Lieber are, 1. That 
 the principles of interpretation, when applicable at all, con- 
 stitute valid rules of construction. 2. That the main guide 
 of construction is analogy, or rather reasoning by parallelism. 
 
CONSTRUCTION OP STATUTES. 695 
 
 3. That the aim and object of the text are essential, if dis- 
 tinctly known, in construing them. 4. So, also, are the 
 causes of a law. 5. That no text imposing obligations is un- 
 derstood to demand impossible things. 6. That privileges, 
 or favors, are to be construed so as to be least injurious to 
 the non-privileged or unfavored. 7. That the more the text 
 partakes of the nature of a compact, or solemn agreement, 
 the closer ought to be its construction. 8. That a text 
 imposing a performance, expresses the minimum, if the per- 
 formance is a sacrifice to the performer ; the maximum, if it in- 
 volves a sacrifice or sufferance on the side of the other party. 
 9. That the construction ought to harmonize with the sub- 
 stance and spirit of the text. 10. That the effects which 
 would result from the one or the other construction, may 
 guide us in deciding which construction we ought to adopt. 
 11. That the older a law, or any text containing regulations 
 of our actions, though given long ago, the more extensive the 
 construction must be in certain cases. 12. That nothing con- 
 tributes more to the substantial protection of individual 
 liberty, than an habitually close interpretation and construc- 
 tion. 13. It is important to ascertain whether the words were 
 used in a definite, absolute, and circumscribed meaning, or in 
 a generic, relative, or expansive character. 14. Let the weak 
 have the benefit of a doubt, without defeating the general 
 object of the law ; let mercy prevail, if there be real doubt. 
 
 15. A consideration of the entire text or discourse is 
 
 * necessary, in order to construe fairly and faithfully. * 605 
 
 16. Above all, be faithful in all construction. It is not 
 
 the object of construction to force extraneous matter into a 
 text. The same principles constitute the basis of interpreta- 
 tion and construction in the civil code.^ The best classifica- 
 tion of the several species of construction and interpretation is 
 that of Rutherford — he divides them into literal, rational, 
 and mixed. 1. Literal — where we collect the intention from 
 the words only, as they lie before us. 2. Rational — where 
 the words do not express that intention perfectly, but exceed 
 or fall short of it, and we are to collect it from rational or 
 probable conjecture only. 3. Mixed — where the words, 
 1 Smith's Com. ch. 12; Vattel's Laws of Nations, oh. 17. 
 
696 OP THE INTERPRETATION AND 
 
 though they do express the intention when they are right- 
 fully understood, are of themselves of doubtful meaning, and 
 we are bound to have resort to like conjecture, to find out in 
 what sense they are used. The principles applicable to each 
 class of expositions are similar to those laid down by Lieber. 
 
 The common law, though it resorts to the same principles, 
 for the purpose of ascertaining the true intent of the law- 
 giver, is more simple in the classification of the species. There 
 are but two modes of interpreting and construing statutes 
 known to that law — liberally and strictly. To expound a 
 statute strictly, is to adhere precisely to the words or letter 
 of the law, which includes, of course, fewer particulars than 
 a freer construction. To interpret it liberally, largely, or 
 comprehensively, is to carry the meaning of the law-giver 
 into more complete effect than a strict or confined exposition 
 would allow. This latter mode is analogous to the rational 
 rule of the civil law, and ethical writers. 
 
 Such being the general principles by which treaties, laws, 
 and contracts are expounded, the reader is prepared for the 
 particular rules and maxims which the Courts of England and 
 this country lay down in construing statutes of different 
 kinds ; and thej' are inserted here for the convenience of the 
 profession. The author is aware that there are many 
 * 606 other rules of * construction not to be found in the fol- 
 lowing digest, but he is confident that in no other book 
 can as many be found, and so conveniently arranged for the 
 use of the practitioner. 
 
 MAXIMS AND RULES OP INTERPRETATION AND CONSTEUCTION. 
 
 1 . Courts have nothing to do with the propriety or expe- 
 diency of a statute. 3 Seammon, 153 ; 8 Johnson, 51. 
 
 2. The rules and maxims of interpretation and construction, 
 laid down by the sages of the common law, must be adhered 
 to. 3 Seammon, 157 ; 7 Cranch, 52 ; 2 United States, Cond. 
 412 ; 1 Kent, Com. 465 ; 10 Johnson, 479. 
 
 3. The common law enters largely into the construction of 
 every statute, and a just interpretation is ever controlled by 
 that law. 10 Johnson, 586. 
 
CONSTRUCTION OF STATUTES. 697 
 
 4. It is said to be the best construction of a statute, to ex- 
 pound it as near to the rule and reason of the common law 
 as possible, and by that course which that law observes in simi- 
 lar cases. Dwarris, C95 ; 1 P. Williams, 252 ; 1 Saunders, 
 240 ; 10 Johnson, '279 ; Douglas, 27 ; 1 Burrows, 445 ; 1 Kent, 
 Com. 464 ; 6 Bacon, Abr. 383 ; Coke, Littleton, 272, b ; Plow- 
 den, Com. 365 ; 3 Coke, 7 ; 4 Coke, 4. 
 
 5. When a power is given by statute, but the means of exe- 
 cuting it are not prescribed, the power must be executed 
 according to the course of the common law; and where the 
 provisions of the statute are general, it is subject to the control 
 and order of the common law — in other words, the statute is 
 to receive such a construction as may be agreeable to the rules 
 of the common law, in cases of that nature. 6 Bacon, Abr. 
 title Statute, 383, 384. 
 
 6. When a word is used in a statute, which has a well-known 
 and definite meaning at common law, it is presumed that the 
 legislature intended to use it in that sense. 6 Bacon, Abr. 383 ;. 
 
 6 Modern, 143 ; 1 New Hampshire, 555, 556 ; 4 Gilman, 205, 
 206 ; 8 Iredell, 147; Dwarris, 696. 
 
 7. When a statute makes an innovation upon the established 
 principles of the common law, it must be strictly con- 
 strued. * 16 Johnson, 7 ; 2 Gilman, 184 and 429 ; 4 Bin- * 607 
 ney, 116 ; 5 Denio, 119 ; 1 Barbour, 65 ; 3 KeUy, 31 ; 
 
 4 Gilman, 20 ; 4 Massachusetts, 471 ; 15 Massachusetts, 205 ; 
 9 Pickering, 496 ; 13 Pickering, 284 ; 3 Stewart and Porter, 
 13; 2 Humphreys, 320. 
 
 8. The power to construe statutes is vested in the Courts 
 alone. 1 Blackstone, Com. 87, note 26 ; 7 Johnson, 494 ; 
 
 7 Johnson, 508, 509. 
 
 9. The legislature have no right to usurp this judicial pre- 
 rogative, by means of declaratory and explanatory laws, espe- 
 cially where they injuriously affect vested rights. 7 Johnson, 
 508, 509. 
 
 10. The rules for the construction of statutes are the same, 
 at law and in equity. Peters, C. C. 188. 
 
 11. ■ There is no difference in the rules of construction, appli- 
 cable to public and private statutes. 9 Porter, 266. 
 
 12. The validity of a rule of construction is not to be 
 
698 OF THE INTERPRETATION AND 
 
 tested by extreme cases. 8 Johnson, 420, 421; 12 John- 
 son, 483. 
 
 13. The intention of the legislature must always control in 
 the construction of a statute. 2 Cranch, 10 ; 2 Cranch, 358 ; 
 5 Term, 449 ; 3 Cowen, 89 ; 3 Scammon, 153 ; Brevard, 243 ; 
 Brevard, 249 ; 12 Johnson, 176 ; 15 Johnson, 358 ; 4 Gushing, 
 314; 1 Mississippi, 147 ; 2 Harris & Johnson, 69 ; 2 Harris & 
 Johnson, 167 ; 2 Peters, 662 ; 1 Peters, 64 ; 21 Wendell, 211 ; 
 
 1 Green, 240. 
 
 14. All statutes, whether penal or remedial, are to be con- 
 strued according to the apparent intent of the legislature, to 
 be gathered from the entire language used, in connection with 
 the subject-matter and purpose of the law. 19 Connecticut, 
 292. 
 
 15. The Court must judge of the intent of the legislature, 
 from the language they have used to express that intent, and 
 where the language is clear and explicit, and susceptible of but 
 one meaning, and there is nothing incongruous in the act, the 
 Court is bound to suppose the legislature intended what their 
 language imports. Walker, Ch. 394. 
 
 16. Although it is a fundamental rule that every law must 
 be construed according to the intention of the makers, 
 
 * 608 that * intention is never resorted to for any other pur- 
 pose than to ascertain what the}s in fact, intended to 
 do, and not for the purpose of ascertaining what they have 
 done. 3 Barbour, 9. 
 
 17. Where a law is plain and unambiguous, whether ex- 
 pressed in general or more limited terms, there is no room left 
 for construction, and a resort to extrinsic circumstances is not 
 permitted for the purpose of ascertaining the meaning. 9 
 Porter, 266. 
 
 18. In such cases, the legislative will must be obeyed by the 
 Courts. 2 Cranch, 358 ; 2 Gilman, 1 ; 3 A. K. Marshall, 489 ; 
 
 2 Peters, 662 ; 1 Pickering, 45 ; 1 Pickering, 250. 
 
 19. Courts may give a sensible and reasonable interpreta- 
 tion to legislative expressions which are obscure, but they 
 have no right to distort those which are clear and intelligible. 
 13 Massachusetts, 324. 
 
 20. The ordinary rule is, that the intention can only be 
 
CONSTRUCTION OP STATUTES. 699 
 
 determined by the fair and natural import of the terms used, 
 and in view of the subject-matter of the law. 19 Vermont, 
 131 ; 3 Kelly, 146 ; 21 Vermont, 152 ; 3 Missouri, 496 ; 25 
 Maine, 493. 
 
 21. Without reference to any traditional history of the occa- 
 sion of the enactment of the statute, unless that results from 
 some known state of embarrassment under the former law. 
 19 Vermont, 131. 
 
 2^ Where the language is so obscure as to cloud the inten- 
 tion, or when it is couched in ambiguous terms, so that the 
 real meaning is doubtful, then every extrinsic fact and circum- 
 stance may be resorted to for the purpose of ascertaining the 
 unexpressed intention of the legislature. 2 Cranch, 358 ; 7 
 Cranch, 52. 
 
 23. Thus, you may resort to the title of the statute. 3 
 Wheaton, 610 ; 2 Cranch, 358 ; 1 Kent, 469 ; 14 Johnson, 206 ; 
 2 Bailey, 334 ; 1 Hammond, 469 ; 3 Hawks, 403 ; 9 Porter, 
 266 ; 1 Kelly, 157. 
 
 24. To the preamble. 4 Term, 793 ; 2 Cowper, 543 ; 3 
 Scammon, 465 ; 15 Johnson, 89 ; 15 Johnson, 390 ; 
 Coke, * Littleton, 79, a ; 3 McCord, 298 ; 1 Pickering, * 609 
 248 ; 1 Harrington, 285 ; 1 Kelly, 157 ; 1 Kent, 461. 
 
 25. To usage under it. 1 Term, 728 ; 1 Scammon, 71 ; 3 
 Scammon, 100 ; 3 Scammon, 470 ; 1 Louisiana, Ann. 419 ; 5 
 Cranch, 22 ; Harper, 101 ; 5 Iredell, Eq. 71. 
 
 26. To a comparison with other laws. 1 Blackstone, Com. 
 60 ; 9 Cowen, 506. 
 
 27. To contemporaneous construction. 3 Scammon, 97 ; 3 
 Scammon, 465 ; Brevard, 213 ; 1 Gilman, 517 ; 2 Gilman, 1 ; 
 1 Kent, 464 ; 16 Ohio, 599. 
 
 28. To arguments founded upon the hardship of the law. 
 9 Cranch, 203. 
 
 29. To the history and situation of the country at the time 
 the law was enacted. 1 Wheaton, 115 ; 3 Scammon, 160 ; 3 
 Scammon, 609 ; 17 Vermont, 479. 
 
 30. To the reason and spirit of the law. 6 Cranch, 307 ; 3 
 Scammon, 153 : 15 Johnson, 358 ; 3 A. K. Marshall, 489 ; 4 
 Comstock, 140. 
 
 31. To the inconveniences which will result from a particu- 
 
700 OF THE INTERPRETATION AND 
 
 lar construction. 2 Cranch, 358 ; Brevard, app. 22 ; 3 Scatn- 
 mon, 153 ; Coke, Littleton, 66 a, and Butler and Hargrave's 
 note 6 ; 3 Massachusetts, 215 ; 3 Massachusetts, 523 ; 7 Mas- 
 sachusetts, 306 ; 11 Pickering, 487 ; 2 Massachusetts, 475. 
 
 32. To the absurd consequences which will follow it. 2 
 Cranch, 358 ; Brevard, app. 22 ; 3 Scammon, 153. 
 
 33. It is always presumed that the legislature intend the most 
 reasonable and beneficial construction of their acts, where the 
 design of them is not apparent. 4 Massachusetts, 534« 12 
 Massachusetts, 383. 
 
 34. If it is apparent, that by a particular construction of a 
 statute in a doubtful case, great public interests will be en- 
 dangered or sacrificed, it ought not to be presumed that such 
 a construction was intended by the legislature. 3 Scammon, 
 153. 
 
 35. The intention must be collected from the whole act. 
 2 Cranch, 358 ; 2 Scammon, 224 ; 3 Scammon, 35 ; 3 Scam- 
 mon, 153 ; 1 Kent, Com. 461 ; 12 Johnson, 175. 
 
 * 610 * 36 . The most natural and genuine way of construing 
 a statute, is to construe one part by another part of the 
 same statute, and so that, if possible, no sentence, clause, or 
 word shall be treated as superfluous, void, or insignificant, and 
 especially where the two clauses are parts of the same section, 
 inseparably connected with, and necessarily dependent on, 
 each other. Kentucky, Dec. 301 ; 4 Gill and Johnson, 1 ; 
 22 Pickering, 571 ; 1 Harrington, 285 ; 4 Blackford, 148 ; 
 2 Michigan (Gibbs), 138 ; 1 Louisiana, Ann. 162. 
 
 37. In construing a statute. Courts are to look to the 
 language of the whole act ; and if they find, in any particular 
 clause, an expression not so broad in its import as those used 
 in other parts of the statute, if, upon a view of the whole act, 
 they can collect the real intention of the legislature from the 
 broader expressions, it is their duty to give effect to them. 
 12 Georgia, 526 ; 2 Scammon, 223 ; 3 Scammon, 37, 157. 
 
 38. If any part of a statute is obscure, intricate, or doubt- 
 ful, the proper way to discover the intention of the legislature 
 is to consider the other parts of the act ; for the words and 
 meaning of one part of a statute frequently lead to the sense 
 of the other. 4 Maryland, 335. 
 
CONSTRUCTION OF STATUTES. 701 
 
 39. The genera] system of legislation upon the subject- 
 matter may be taken into view, in order to aid the construc- 
 tion of one statute relating to the same subject; and it is 
 proper to consider other statutes in pari materia, whether 
 they be repealed or unrepealed. 3 Massachusetts, 17, 296, 
 418 ; 1 Pickering, 248 ; 10 Pickering, 236 ; 2 Bailey, 541, 554 ; 
 Cooke, 258 ; Brevard, 185, 213, 243 ; 3 Scammon, 144 ; 9 
 Cowen, 507 ; 5 Monroe, 157 ; 15 Johnson, 380 ; 1 Kent, 433 ; 
 2 Bibb, 80, 96 ; 1 KeUy, 32 ; 3 Zabriskie, 143 ; 4 Oilman, 221 ; 
 19 Vermont, 230 ; 4 Florida, 445 ; 3 Howard, U. S. 516 ; 12 
 New Hampshire, 284. 
 
 40. In the construction of statutes, it is a rule of universal 
 application, that effect must be given to the words used by 
 the legislature, if there be no uncertainty or ambiguity in 
 their meaning. 4 M'Lean, 463. 
 
 41. Where words in a statute are express, plain, and 
 
 clear * they ought to be understood according to their * 611 
 natural and genuine signification, unless by such expo- 
 sition a contradiction or inconsistency would arise by reason 
 of some prior or subsequent clause, and it should thence ap- 
 pear that the intention of the legislature was different. 2 
 Maryland, 111. 
 
 42. The natural import of the words of any statute, ac- 
 cording to the common use of them, when applied to the 
 subject-matter of the act, is to be considered as expressing the 
 intention of the legislature, unless the intention so resulting 
 from the ordinary import of the words be repugnant to sound, 
 acknowledged principles of national policy. If that intention 
 be repugnant to such principles, then the import of the words 
 ought to be enlarged or restrained, so that it may comport 
 with those principles, unless the intention of the legislature 
 be clearly and manifestly repugnant to them. 7 Massachu- 
 setts, 523. 
 
 43. When terms of art or peculiar phrases are made use 
 of, it must be presumed that the legislature had in view the 
 subject-matter about which such terms or phrases are com- 
 monly used. 1 Pickering, 261. 
 
 44. In construing an ordinary statute, every word must be 
 understood according to its legal meaning, unless the context 
 
702 OF THE INTERPRETATION AND 
 
 shows that the legislature used it in its more popular sense ; but 
 in penal enactments, where it is sought to depart from the or- 
 dinary meaning of the words used, the intention of the legis- 
 lature that those words should be understood in a larger or 
 more popular sense, must plainly; appear. 18 English Law 
 and Eq. 50. 
 
 45. Words are to be understood according to the most 
 known and popular use of them. 1 Kent, 46 ; 9 Co wen, 506 ; 
 1 Blackstone, Com. 60. 
 
 46. And in a lawful and rightful sense. Coke, Littleton, 
 381, b. 
 
 47. Also accordrng to their context. 1 Blackstone, Com. 
 60. 
 
 48. And the subject-matter of the statute. 1 Blackstone, 
 Com. 60. 
 
 49. But technical words are to be understood in 
 * 612 their * technical sense. 1 Blackstone, Com. 60 ; 1 
 Kent, 462 ; 4 Pickering, 411 ; 1 Washington, C. C. 463 ; 
 3 Washington, C. C. 209 ; 5 East, 10 ; 5 Humphreys, 392. 
 
 50. In the construction of a statute, a word which has two 
 significations, should ordinarily receive that meaning which is 
 generally given to it in the community ; but when this con- 
 struction would contravene the manifest intention of the leg- 
 islature, this rule must be departed from, and effect given td 
 the intention of the law. 22 Alabama, 621. 
 
 51. The words of a statute ought not to be expounded to 
 destroy natural justice. Dwarris, 716. 
 
 52. Where terms, or modes of expression, are employed in 
 a new statute, which had acquired a definite meaning and 
 application in a previous statute on the same subject, or one 
 analogous to it, they are generally supposed to be used in the 
 same sense ; and, in settling the construction of such new 
 statute, regard should be had to the known and established 
 interpretation of the former. 20 Vermont, 49 ; 3 Zabriskie, 
 143. 
 
 53. If the language in different portions of a statute is 
 inconsistent, it should be so construed as to accord with the 
 leading object of the enactment. 1 G. Greene, 325. 
 
 64. When the words of tire enacting clause of a statute are 
 
CONSTRUCTION OP STATUTES. 703 
 
 more general than the title, the enacting clause must govern 
 9 Howard, U. S. 351. 
 
 55. General words in a statute are to receive a general con- 
 struction, unless there is something in the statute to restrain 
 their operation. 12 Georgia, 526 ; 6 Shepley, 308. 
 
 56. The rule that general and unlimited terms are restrained 
 and limited by particular recitals, where used in connection 
 with them, does not require the rejection of them entirely, and 
 it is to be taken in connection with other rules of construction, 
 such as that an act shall be so construed as to carry out the 
 declared intention of the legislature. 2 Strobhart, 474. 
 
 57. If a statute makes use of a word, in one part of it, sus- 
 ceptible of two meanings, and in another part, it is used in a 
 definite sense, it is to be understood throughout in the latter 
 sense, unless the object to which it applies, or the con- 
 nection * in which it stands, requires it to be differ- * 613 
 ently understood in the two places. 1 Harrington, 285. 
 
 58. If a statute, which grants a right or privilege, admits of 
 two interpretations, one of which is extensive, and the other 
 more restricted, so that a choice is fairly open, and either may 
 be adopted without violating the apparent object of the grant 
 — and if, in such case, one interpretation would render the 
 grant entirely inoperative and worthless, while the other 
 would give it force and effect, the latter should be adopted. 
 2 Oilman, 198. 
 
 59. General words in a statute do not ordinarily bind the 
 sovereign power ; the State is bound only by express words, 
 or necessary implication. Crabbe, 307 ; 11 Coke, 66 ; 7 Mon- 
 roe, 443 ; 7 Iredell, 48. 
 
 60. Where a statute speaks of persons, natural persons 
 alone are intended. Brevard, app. 10 ; 1 Scammon, 178. 
 
 Contra. — It will include corporations, if not inconsistent 
 and absurd. 15 Johnson, 358 ; 11 Wheaton, 392 ; 8 Porter, 
 404. This is expressly declared in the dictionary clause of 
 the Illinois statute. Revised Statutes, 1845, p. 462, sec. 29. 
 
 61. A law which in general terms speaks of plaintiffs and 
 defendants, applies to persons only, and States, counties, and 
 municipal corporations are not affected by its provisions un- 
 less expressly named and brought within them . 4 Gilman,- 20. 
 
704 OP THE INTERPRETATION AND 
 
 62. Statutes treating of inferior persons or things, cannot be 
 extended to those of a superior order or dignity. 1 Black- 
 stone, Com. 88 ; Brevard, 296 ; 1 Scammon, 140. 
 
 63. On subjects relating to Courts, process, practice, &c., 
 the legislature are to be considered as speaking technically, 
 unless, from the statute itself, it appears that they used the 
 terms in a more popular sense. 4 Pickering, 405. 
 
 64. A statute, applicable in terms to particular actions, can- 
 not be extended by implication so' as to embrace others stand- 
 ing upon the same reason. 1 Brockenbrough, 523, 524 ; 4 
 Gilman, 207. 
 
 65. The term " void" has sometimes been construed to be 
 voidable only. 13 Massachusetts, 515 ; 6 Pickering, 483. 
 
 * 614 * 66. The relative " which " and the adjective " said " 
 were held to refer to the last antecedent, and not'to 
 include a clause or word preceding the last. 4 Foster, 9. 
 
 67. The word " such," when it is apparent that it has no 
 reference to any thing which precedes it, may be rejected. 5 
 Missouri, 91. 
 
 68. A conjunctive clause may be taken in a disjunctive 
 sense, when it is obvious that such was the intention of the 
 legislature. 19 Vermont, 131. 
 
 69. The words " shall forfeit," vest only a right or title, 
 and not the freehold in deed, or in law, without office to find 
 the certainty of the land. Dwarris, 743 ; Plowden, Com. 
 486. 
 
 70. Affirmative words in a statute may be construed as a 
 negative of that which is not affirmed. 5 Texas, 418. 
 
 71. No mere misnomer of a person or corporation in a 
 statute is fatal to its validity, if the person or corporation 
 really intended can be collected from the terms of the act. 3 
 Sumner, 279. 
 
 72. Where words in the same section or statute are clearly 
 repugnant to and irreconcilable with each other, the last will 
 supersede the first. 1 Swift, Dig. 12 ; 1 Blackstone, Com. 70; 
 Smith, Com. 673. 
 
 73. Where the words have no signification, or a very absurd 
 one, if taken according to their literal acceptation, then it is 
 necessary to deviate from the common sense of the words, and 
 
CONSTRUCTION OP STATUTES. 705 
 
 construe them in such manner as will result in a rational and 
 consistent meaning. 1 Swift, Dig. 12. 
 
 74. The general words in one clause of a statute, may be 
 restrained by particular words in a subsequent clause ; but if 
 a particular thing be given or limited in the precedent part of 
 a statute, this shall not be taken away or altered by any sub- 
 sequent general words. 8 Modern, 8 ; 1 Levinz, 8,0 ; 1 Swift, 
 Dig. 12. 
 
 75. The meaning of a word may be ascertained by reference 
 to the meaning of words associated with it. " Noscitur a So- 
 eiisr 3 Term, 87 ; Broom, Max. 458 ; 1 Vermont, 225 ; 1 
 Barnewall & Cresswell, 644 ; 13 East, 531 ; 4 Bacon's 
 Works, *26; 2 Bulstrode, 182; 2 Bingham, 391; 4 *615 
 Terra, 227 ; -Smith, Com. 655, 658. 
 
 76. " It is, in my opinion," observes Mr. Justice Coleridge, 
 in a recent case, " so important for the Court, in construing 
 modern statutes, to act upon the principle of giving full effect 
 to their language, and of declining to mould that language, in 
 order to meet either an alleged inconvenience, or an alleged 
 equity upon doubtful evidence of intention, that nothing will 
 induce me to withdraw a case from the operation of a section 
 which is within its words, but clear and unambiguous evidence 
 that so to do is to fulfil the general intent of the statute, and 
 also, that to adhere to the literal interpretation, is to decide 
 inconsistently with other and overruling provisions of the same 
 statute. When the evidence amounts to this, the Court may 
 properly act upon it ; for the object of all rules of construction 
 being to ascertain the meaning of the language used, and it 
 being unreasonable to impute to the legislature inconsistent 
 intents upon the same general subject-matter, what it has 
 clearly said in one part must be the best evidence of what it 
 has intended to say in the other ; and if the clear language be 
 in accordance with the plain policy and purview of the whole 
 statute, there is the strongest reason for believing that the 
 interpretation of a particular part, inconsistently with that, is 
 a wrong interpretation. The Court must apply, in such a case, 
 the same rules which it would use in construing the Umitations 
 of a deed ; it must look to the whole context, and endeavor to 
 give effect to all the provisions, enlarging or restraining, if 
 
 45 
 
706 OP THE INTERPRETATION AND 
 
 need be for that purpose, the literal interpretation of any 
 particular part." 6 Adolphus & Ellis, 7; s. c. 33 English 
 Common Law ; Broom, Leg. Maxims, 253, 254. 
 
 77. Where a word is evidently omitted by mistake in one 
 section of a statute, which omission is explained in another 
 part of the same statute by a reference to such section, the 
 defective section may be enforced according to such explana- 
 tion. 2 Kelly, 143. 
 
 78. The word " may," is imperative, where the rights and 
 interests of the public are concerned, or where the 
 
 * 616 public or third * persons have a claim de jure that the 
 power should be exercised, or the duty .performed. 4 
 Gilman, 20 ; 5 J. C. R. 101 ; 5 Cowen, 195 ; 14 Sergeant & 
 Rawle, 429 ; 1 English Common Law, 46 ; 1 Peters, 46 ; 1 
 Saunders, 58, n. 2 ; 2 Salkeld, 609 ; Croke, Eliz.' 655 ; Croke, 
 Jac. 184. 
 
 79. Where a statute makes no exceptions, the Courts can 
 make none. 25 Mississippi, 571. 
 
 80. The exception of a particular thing or person, or class 
 of things or persons, from the general words of a statute, 
 proves that, in the opinion of the legislature, the thing or 
 person, or class of things or persons, would be within the gen- 
 eral clause but for the exception ; and the exception of the one 
 specifically is an exclusion of every other object embraced in 
 the general words. Marshall, Dec. 360 ; 12 Wheaton, 488 ; 
 12 Johnson, 290 ; 15 Johnson, 391. 
 
 81. A statutory rule must be construed with reference to 
 the whole system of pleading and practice of which it forms 
 a part. 14 Georgia, 674. 
 
 82. The punctuation of a statute will not vary its true 
 construction or sense. 1 Ohio, 385. 
 
 83. The debates in the legislative body cannot influence 
 the construction of a statute. 3 Howard, U. S. 1. 
 
 84. A recital in the preamble of a statute, does not limit 
 the general words of the enacting clause to the cases recited 
 in the preamble. Hardin, 335. Thus the Illinois statute 
 of February 23, 1819, entitled " An act to enable persons to 
 remove fences made by mistake on the lands of other per- 
 sons," is preceded by this preamble : " Whereas, in many 
 
CONSTRUCTION OF STATUTES. 707 
 
 parts of this State there is much prairie, and the lines run by 
 the United States are not well known to the inhabitants even 
 who bought the lands enclosed by said lines, and frequently 
 the inhabitants have made their fences on the lands of other 
 persons by mistake." The law then provides in substance, 
 that when such mistake is discovered, upon an official survey 
 of the boundary, the right of removing the fence may be 
 exercised by the party who erected it. This law is held 
 to apply as well to timber as prairie lands. Gale, Stat. 
 433. 
 
 * 85. In construing a revised code of laws, they are * 617 
 to be considered as contemporaneous acts, parts of 
 one entire system of law. 1 Chipman, 348. 
 
 86. The common law relative to any subject is superseded 
 by a revision of the whole of that subject by the legislat- 
 ure. 10 Pickering, 37. 
 
 87. Where, in the revision of statutes by incorporating 
 several former statutes into one, the construction of the 
 words would give a meaning clearly at variance with the 
 intention of the legislature, the true construction may be 
 arrived at by giving such words the meaning in which they 
 were used in the old statute. 3 Zabriskie, 180. 
 
 88. Where a provision in a statute has received a judicial 
 construction, and is afterwards inserted in another statute, 
 the same construction will be given to it. But if the clause 
 varies, it shows a different intent on the part of the legislat- 
 ure. 1 Pickering, 154 ; 5 Massachusetts, 462. 
 
 89. Where a statute law, previous to a revision, is settled, 
 either by clear expressions in the law itself, or by adjudica- 
 tions, a mere change in the phraseology shall not be deemed 
 a change of the old law, unless the language of the revising 
 statute shows an intention on the part of the legislature to 
 effect such change. 2 Gaines, Ga. 151 ; 4 Johnson, 359 ; 6 
 Texas, 34 ; 7 Barbour, 191 ; 4 Sanford, 374. 
 
 90. But where, in a revising statute, words in the old law, 
 embracing a particular case or class of cases, are omitted, 
 this is evidence of an intent to change the law. 1 Pickering, 
 45 ; 4 Gilman, 207 ; 31 Maine, 34. 
 
 91. Where the common and statute law conflict, the latter 
 
708 OP THE INTERPRETATION AND 
 
 is to be regarded. 1 Blackstoue, Com. 89 ; 8 Johnson, 331 ; 
 
 3 Zabrislde, 38. 
 
 92. But an affirmative statute does not repeal the common 
 law. There must be negative words or a direct conflict to 
 effect a repeal. 3 Bibb, 518. 
 
 93; Where an old and new statute differ, the latter must 
 prevail. 1 Blackstone, Com. 89 ; 1 Ohio, 10 ; 2 Carter, 440 ; 
 
 7 Blackford, 314 ; 14 Illinois, 106, 
 * 618 * 94. Courts cannot supply defective enactments, 
 by an attempt to carry out fully the purposes which 
 may be supposed to have occasioned those enactments. 27 
 Maine, 285. 
 
 95. A casus omissus in a statute cannot be supplied by judi- 
 cial interpretation. 4 Gilman, 208 ; 14 Johnson, 479 ; 15 
 Maine, 167 ; 6 Pickering, 362 ; 9 Porter, 669 ; 6 Missouri, 
 257 ; 7 WendeU, 241 ; 2 Binney, 279 ; 8 Johnson, 322. 
 
 96. A mere failure of justice is not a sufficient gi'ound for 
 construing statutes against their clear meaning, so as to give 
 a Court jurisdiction. 10 Pickering, 506. 
 
 97. Where the reasons of an enactment are made known 
 by any authentic document, they may be referred to in con- 
 struing a statute which is ambiguous. Davies, 38. 
 
 98. Parties are not estopped from questioning the truth of 
 recitals in tlie preamble to a statute. 9 Gill, 105. 
 
 99. Where a positive enactment, contained in a code of 
 laws, is at variance with the dictionary clause of the code, 
 the latter must be regarded as modified by the clear inten- 
 tion of the former. 1 Louisiana, Ann. 435. 
 
 100. It is the duty of Courts, so far as it is practicable, to 
 reconcile the different provisions of a statute, so as to make 
 the whole act consisteiit and harmonious ; and where this is 
 impossible, to give effect to that which was manifestly the con- 
 troUing idea of the legislature. 2 Michigan (Gibbs), 138. 
 
 101. If the meaning of a statute be doubtful, the Courts 
 will seek for the meaning of the legislature, by looking at the 
 occasion and necessity of the law, the mischief felt, and the 
 object and remedy had in view. 2 Michigan (Gibbs), 486 ; 
 
 4 Comstock, 140. 
 
 102. An erroneous construction merely acquiesced in, but 
 
CONSTRUCTION OP STATUTES. 709 
 
 never disputed or judicially litigated, is not binding. Doug- 
 lass, 68 ; 1 Caines, 191 ; 1 Caines, Ca. 54 ; 1 Scammon, 165. 
 
 103. But the maxim " communis error facit jus," is oc- 
 casionally applied in the construction of Statutes. Broom, 
 Leg. Max. 104; 3 Ohio, 140; 3 Barbour, Gh. 528. 
 
 104. When the legislature adopt the statute of another 
 State or country, the construction of that statute by 
 
 the Courts of the * State or country from whence it * 619 
 was borrowed, will be adopted by the Courts. 3 
 Scammon, 288; 2 Peters, 1; 21 Vermont, 256; 23 Missis- 
 sippi, 213 ; 13 Illinois, 15. 
 
 105. But in matters of practice, the rule is not inflexible. 
 4 Scammon, 402 ; 3 Ohio, 479, 480. 
 
 106. Nor where the construction in the foreign place is not 
 applicable to the condition and mode of practice of the adopt- 
 ing State. 5 Ohio, 121. 
 
 107. Two acts, passed at the same session, upon the same 
 subject-matter, must be construed as one act. 3 Monroe, 80. 
 
 108. To constitute a public act, it is not necessary that it 
 should be equally applicable to all parts of the State. It is 
 sufficient, if it extends to all person's within the territorial 
 hmits described in the statute. 9 Greenleaf, 54. 
 
 109. Or contains provisions in which the public have a 
 direct interest, and which provisions are general in their 
 operation. 2 Greenleaf, 303 ; 2 Pennsylvania, 1050 ; 1 Mis- 
 souri, 24 ; 1 Devereux & Battles, 115 ; 6 Alabama, 289 ; 4 
 Blackford, 234. 
 
 110. So where it is recognized in a public act. 2 Green- 
 leaf, 301. 
 
 111. Or relates to a public corporation. 7 Massachusetts, 
 9; 10 Massachusetts, 91; 8 Shepley, 58 ; 4 Shepley, 69. 
 
 112. Where the means for carrying into effect any par- 
 ticular constitutional power are not specified, those means 
 which interfere with established relations, and violate exist- 
 ing rights and obligations, as fixed by law, will not be presumed 
 to have been intended, unless they are strictly necessary. 24 
 Pickering, 227. 
 
 113. Statutes which apparently conflict with each other, 
 are to be reconciled, as far as may be, upon any fair hypoth- 
 
710 OP THE INTERPRETATION AND 
 
 esis, and validity given to each, if it can be. 4 Howard, 
 U. S. 37. 
 
 114. The intention of the draftsman of a statute, or of the 
 legislature which passed it, not expressed in the statute itself, 
 affords no legitimate ground to control the judicial construc- 
 tion of it. 3 Zabriskie, 180. 
 
 115. Where an old statute has received an early practical 
 construction, which, if it were res Integra, it might be 
 
 * 620 difficult * to maintain, it will be adhered to, especially 
 if great mischief would follow a contrary construc- 
 tion. 2 Massachusetts, 475 ; 17 Massachusetts, 122 ; 3 Pick- 
 ering, 517. 
 
 116. When a known statute is re-enacted in terms, its 
 known interpretation will be presumed to have been adopted 
 by the legislature. 6 English, 594. 
 
 117. Where a statute has received a judicial construction, 
 and is then repealed or expires by its own limitation, and 
 afterwards it is re-enacted in the same terms, the legislat- 
 ure will be held to have adopted such construction. 27 
 Maine, 9. 
 
 118. Statutes enacted at the same session are to be taken 
 in pari materia, and they should receive such a construction 
 as will give effect to each, if possible. 2 Blackford, 249; 2 
 Brockenbrough, 325. 
 
 119. Where two statutes were passed in 1844, on the same 
 day, one limiting a judgment lien to two years, and the other 
 extending it to five years ; and a statute passed two years 
 afterwards recognized the former statute as existing and in 
 full force ; it was held, that it would prevail over the other. 
 11 Smedes & Marshall, 43. 
 
 120. The decision of a State Court, in the construction of 
 a statute of that State, is binding upon the Courts of every 
 other State. 3 Strobhart, 269 ; 3 Zabriskie, 690. 
 
 121. In the construction of statutes of other States, judi- 
 cial decisions in such States are entitled to much attention ; 
 but, in the absence of such decisions, such statutes are to be 
 construed in the same manner as acts of our own legislature. 
 8 Massachusetts, 472. 
 
 122. A special statute is sometimes regarded as merged in 
 
CONSTRUCTION OP STATUTES. 711 
 
 a general statute passed subsequently, if the provisions of 
 the two are repugnant. 4 Pickering, 399. 
 
 123. Where a statute creates a right, or defines a wrong 
 which had no existence at the common law, and prescribes a 
 remedy to enforce or protect the one, or redress the other, no 
 action will lie at common law — but that provided by statute 
 must be pursued. 23 Pickering, 36 ; 3 Metcalf, 380 ; 1 Met- 
 calf, 130, 558 ; 2 Metcalf, 599 ; 13 Barbour, 209 ; 32 
 
 * Maine, 553 ; 5 Johnson, 175 ; 1 Blackford, 405 ; 7 * 621 
 Hill (N. Y.), 575 ; 1 Manning (Mich.), 193. 
 
 124. If a statute merely gives a new remedy where one 
 existed at common law, it is cumulative, and the injured 
 party has his election to pursue either. 1 Shepley, 371 ; 13 
 Wendell, 341 ; 5 Cowen, 165 ; 5 Johnson, 175 ; 10 Johnson, 
 389; 10 Pickering, 383; 1 Blackford, 405; 2 Caines, 169. 
 
 125. But if the statute contains negative words, denying 
 or withholding the common-law remedy, that provided by 
 statute alone can be resorted to. 1 Shepley, 371. 
 
 126. Where a statute creates an offence, and does not pre- 
 scribe a mode of prosecution, an indictment, or other appro- 
 priate common-law remedy, may b* adopted. 1 Metcalf, 
 232 ; 2 Metcalf, 599. 
 
 127. Where a statute prohibits the doing of an act, any 
 thing in contravention of. the prohibition must be adjudged 
 inoperative and void, if the statute cannot otherwise be made 
 effectual to accomplish the object contemplated by its enact- 
 ment. 17 Vermont, 73. 
 
 128. But where a penalty is superadded, this implies a pro- 
 hibition, and renders any act done in violation of the law 
 void, 1 Story, 106 ; 14 New Hampshire, 294 ; 14 Johnson, 
 273 ; 1 Binney, 110. 
 
 129. In construing a statute, if there be a mistake apparent 
 upon the face of the act, which niay be corrected by other 
 language in the act itself, the mistake is not fatal. 3 Sum- 
 ner, 279. 
 
 130. A statute cannot become obsolete by disuse, or con- 
 trary usage, or by any adjudication whatever. 1 Bland, 550. 
 
 131. Statutes are not to be construed retrospectively, unless 
 the intention is palpable. Brevard, 224, 295 : 1 Scammon, 
 
712 OF THE INTERPEETATION AND 
 
 335 ; 3 A. K. Marshall, 138 ; 5 Monroe, 129, 140 ; 4 Bur- 
 rows, 2460 ; 7 Johnson, 477 ; 3 Maine, 333 ; 9 Gill, 105 ; 1 
 Denio, 128; 3 Shepley, 134; 2 Seammon, 499; 10 Massa- 
 chusetts, 437 ; 12 Massachusetts, 383 ; 16 Massachusetts, 
 215 ; 14 Smedes & Marshall, 127; 3 English Law & Eq. 30 ; 
 
 Schenck v. Peay, 1 Woolworth (U. S. C. Ct.), 175. 
 * 622 * 132. Nor will a previously existing right or remedy 
 
 be construed away by implication. Brevard, 296. 
 138. Where rights are infringed, fundamental principles 
 overthrown, and the general system of the laws is departed 
 from, the legislative intention must be expressed with irresist- 
 ible clearness to induce a Court of justice to suppose a 
 design on the part of the legislature to effect such objects. 
 1 Peters, Cond. 425. 
 
 134. Nor should a statute be construed against the plain 
 and obvious dictates of reason. 7 Johnson, 502. 
 
 135. Statutes must be so construed as to suppress the mis- 
 chief, advance the remedy, and preserve fundamental princi- 
 ples. Coke, Littleton, 381, b ; 8 Johnson, 41 ; 10 Johnson, 
 467. 
 
 136. And so that no innocent man be punished or endam- 
 aged. 7 Johnson, 482, 495, 496 ; Coke, Littleton, 360, a. 
 
 137. They are never to be construed so as to work injustice. 
 7 Johnson, 495, 496. 
 
 138. Nor the destruction of a previously acquired right. 6 
 Johnson, 103 ; 7 Johnson, 503. 
 
 139. The province of a proviso to a statute or constitution, 
 is not to enlarge the enacting clause ; it can only restrain, 
 qualify, or explain it. 1 Seammon, 258 ; 4 Seammon, 342. 
 
 140. A saving clause, in the form of a proviso, in a statute, 
 restricting the operation of the general language of the enact- 
 ing clause, is not void, because the language of both clauses 
 is repugnant. 23 Maine, 360. 
 
 141. The terms of a proviso may be limited by the general 
 scope of the enacting clause, to avoid repugnancy. 19 Ver- 
 mont, 129. 
 
 142. A limitation of an authority to do a thing contained in 
 the proviso to a statute, is a negation thereof. 2 Barr, 218. 
 
 143. Where a statute specifies a time within which a public 
 
CONSTRUCTION OP STATUTES. 713 
 
 officer is to perform an official act regarding private rights, it 
 is merely directory as to the time within which the act is to be 
 done, unless, from the nature of the act, or the phrase- 
 ology of * the statute, the designation of the time must *623 
 be considered a limitation of the power of the officer. 
 22 Alabama, 116 ; ante, pp. * 156, * 157. 
 
 144. This rule is alike applicable to public interests. 22 
 Alabama, 116. 
 
 145. In computing time under a statute which requires an 
 act to be performed within a limited time, the day of the date 
 upon which the act is performed, is to be excluded in the com- 
 putation. 2 Alabama, 494; 6 Shepley, 106; 1 Douglass 
 (Mich.), 450. 
 
 146. Where a statute uses the word " month," a lunar 
 month is intended. 3 Johnson, Ch. 74 ; 6 Term, 226 ; 7 
 Johnson, 217 ; 15 Johnson, 119; 1 Johnson, Ca. 99; 4 Wen- 
 dell, 512 ; Smith, Com. 730. Unless upon the whole law a 
 different intention is apparent. 10 Wendell, 398 ; ante, 
 pp. * 435, * 436. In Massachusetts and Pennsylvania, it is 
 held, that calendar months will be intended. 2 Massachusetts, 
 170; 4 Massachusetts, 460; 19 Pickering, 532; 2 Dallas, 
 302 ; 4 Dallas, 144 ; 3 Sergeant & Rawle, 184. 
 
 147. Where a statute gives a new power, and at the same 
 time provides the means of executing it, those who claim the 
 power can execute it in no other way. 6 Massachusetts, 40 ; 
 14 Massachusetts, 286 ; 1 Blackford, 39 ; 1 Missouri, 428 ; 1 
 Missouri, 147 ; 2 McCord, 117. 
 
 148. Where an act requires a thing to be done in a particu- 
 lar way, that way alone can be pursued. 3 Brevard, 396 ; 15 
 Massachusetts, 205 ; 9 Pickering, 496 ; 13 Pickering, 284 ; 3 
 Stewart & Porter, 13. 
 
 149. If a power is given by statute, every thing essential 
 to the exercise of that power is impliedly given. 1 McCord, 
 546. 
 
 150. A statute giving joint power to five commissioners, 
 does not make valid the act of four of them. 1 Bay, 354. 
 
 151. Where a statute gives authority to one person ex- 
 pressly, all others are excluded ; a special power is ever to be 
 strictly pursued. Dwarris, 767 ; 11 Coke, 59-64. 
 
714 OP THE INTERPRETATION AND 
 
 152. Where a statute enacts that a public functionary 
 * 624 may * act in a certain way which is beneficial to third 
 persons, he must act in that way. 9 Howard, U. S. 
 248. 
 
 153. Statutes seemingly repugnant should be so construed, 
 if possible, that both should stand and harmonize with each 
 other. 8 Smedes & Marshall, 9. 
 
 154. Where a statute gives a power to any Court or officer 
 to hear and determine an offence in a summary way, it is 
 necessarily implied and supposed, as a part of natural justice, 
 that the party be first cited by summons, and have an oppor- 
 tunity to be heard and answer for himself. Dwarris, 167, 168 ; 
 
 1 Hawkins, chap. 64, sec. 60 ; 1 Scammon, 515. 
 
 155. Where a statute provides that a criminal prosecution 
 shall be based " on complaint," it must be under oath or affir- 
 mation — this is implied as a part of the technical meaning of 
 the expression. 4 Shepley, 117. 
 
 156. In a grant by statute, any words which express the 
 intention of the legislature to invest the party with title, are 
 suiScient. 3 Monroe, 161. 
 
 157. Ordinarily, statutes take effect from their passage, and 
 any act done contrary to the statute, on the day of its passage, 
 will be governed by it, although it was impossible that the 
 existence of the law should have been known at the time and 
 place when and where the act was performed. 8 Alabama, 
 119 ; 8 Georgia, 380 ; R. M. Charlton, 587 ; 1 Alabama, 312 ; 
 
 2 Alabama, 26 ; 1 Scammon, 655. 
 
 168. Where a statute, by its terms, is to take effect " from 
 and after its passage," the Courts will inquire into the question 
 as to the precise moment when it received the governor's 
 assent. 1 California, 406. 
 
 159. Where the means for carrying into effect any particular 
 constitutional or statutory power are not specified, those means 
 which interfere with established relations, and violate existing 
 rights and obligations, as fixed by law, will not be presumed to 
 be intended, unless they are strictly necessary. 24 Pickering, 
 227. 
 
 160. Where the words of a statute, in their primary mean- 
 ing, do not expressly embrace the case before the Court, 
 
CONSTRUCTION OP STATUTES. 715 
 
 and * there is nothing in the context to attach a different * 625 
 meaning to them, capable of expressly embracing it, 
 the Court cannot extend the statute, by construction, to that 
 case, unless it falls so clearly within the reasons of the enact- 
 ment as to warrant the assumption that it was not specifically 
 enumerated among those described by the legislature, only 
 because it may have been deemed unnecessary to do so. 
 Where the general intention of the statute embraces the specific 
 case, though it be not enumerated,' the statute may, neverthe- 
 less, be applied to it by an equitable construction, in promotion 
 of the evident design of the legislature. But when this is 
 done, it is always presupposed that such a case was within 
 their general contemplation or purview when the statute was 
 enacted ; for if the case be there omitted, because not foreseen 
 or contemplated, it is a casus omissus, and the Court, having 
 no legislative power, cannot supply the defects of the enact- 
 ment. 2 Strobhart, Eq. 174. The literal interpretation of a 
 statute is not, therefore, always adhered to. The words of 
 the statute are not the only signs of the legislative will. 
 Paley's Works, 26 ; 4 Littell, 377. 
 
 161. Cases within the reason — though not withi» the 
 letter of the law — are sometimes construed to be embraced 
 in its provisions, 4 Littell, 377 ; 7 Johnson, 486 ; 15 Johnson, 
 381. 
 
 162. And cases within the letter, but without the reason, 
 are sometimes withdrawn from its operation. 4 Littell, 377 ; 
 15 Johnson, 381. 
 
 163. But this rule is not of general application. 1 Gilman, 
 672 ; 4 Gilman, 194 ; 15 Johnson, 394 ; 1 Bibb, 214. 
 
 164. Equitable constructions of statutes are not tolerated, 
 as a general rule. 10 Johnson, 580 ; 22 Pickering, 387. 
 
 165. But such a construction is occasionally allowable. 
 Coke, Littleton, 24, b ; Coke, Littleton, 290, a ; 2 Bosan- 
 quet & Puller, 255 ; 10 Johnson, 457 ; 12 Johnson, 290 ; 
 14 Massachusetts, 88 ; 1 Pickering, 248 ; 12 Massachusetts, 
 383. 
 
 166. Thus, it has been extended so as to embrace persons 
 not named. Coke, Littleton, 272 ; Coke, Littleton, 290, a. 
 
 167. And to actions not named. Coke, Littleton, 365, b. 
 
716 OP THE INTERPRETATION AND 
 
 * 626 * 168. And to another form of conveyance than those 
 enumerated. Coke, Littleton, 365, b. 
 
 169. So the generality of words have been restrained by 
 the equity of the statute, arid effect given to rights opposed 
 to the letter of the law. Coke, Littleton, 290, a. 
 
 170. It is only when statutes are ambiguous in their terms, 
 that the Courts exercise the power of so controlling the lan- 
 guage, as to give effect to what they may ' suppose to have 
 been the intention of the law-makers. 1 Manning (Mich.), 469. 
 
 171. A literal interpretation, which would defeat the pur- 
 poses of a statute, will not be adopted, if any other reasonable 
 construction can be given to it. 20 Alabama, 54. 
 
 172. Where the literal interpretation of a statute would 
 lead to a gross absurdity of restriction, the Court will extend 
 its application to cases within the same equity, though at the 
 expense of forcing the construction of the words. 18 Ver- 
 mont, 479. 
 
 173. If the general meaning and object of a statute should 
 be inconsistent with the literal import of any particular clause 
 or section, such clause or section must, if possible, be construed 
 according to the spirit of the act ; but, to warrant the applica- 
 tion of this rule, the intention of the legislature must be clear 
 and manifest. 1 Pickering, 248 ; 10 Pickering, 235 ; 20 Pick- 
 ering, 267. 
 
 174. Where the manifest intention of the legislature may 
 be gathered from prior existing laws, and from the prevailing 
 tone of other sections of the act, conflicting words may be 
 diverted from their literal meaning, in order to harmonize 
 with more explicit portions ; and they may be restrained, en- 
 larged, or qualified, so as to give effect to the obvious intention 
 of the legislature. 1 G. Greene, 325. 
 
 175. Every statute must be construed so as to give it a rea- 
 sonable effect. 3 Massachusetts, 523 ; 5 Massachusetts, 380 ; 
 7 Massachusetts, 458 ; 15 Massachusetts, 205 ; 2 Pickering, 
 571 ; 23 Pickering, 93. 
 
 176. And it is the duty of Courts to put such a construction 
 upon statutes, if possible, as to uphold and carry them into 
 
 effect. 10 Georgia, 190. 
 * 627 177. * Such a construction as will defeat the purpose 
 of the law must never be given to it. 9 Wheaton, 81. 
 
CONSTRUCTION OP STATUTES. 717 
 
 178. Courts ought not so to construe a statute as to suffer 
 it to be eluded. 15 Johnson, 381. 
 
 179. A fraud upon, or evasion of, a statute, will not be tol- 
 erated. 9 Johnson, 356 ; 10 Johnson, 461 ; 15 Johnson, 510. 
 
 180. A statute shall never have an equitable construction 
 to overthrow an estate. Dwarris, 729 ; Kentucky, Dec. 301. 
 
 181. A statute which takes away the common law, ought 
 not to receive an equitable construction. Dwarris, 729. 
 
 182. Equitable constructions, though they may be tolerated 
 in remedial, and, perhaps, some other statutes, should always 
 be resorted to with great caution, and never extended to penal 
 statutes or mere arbitrary regulations of public policy. 22 
 
 ■ Pickering, 387 ; ante, p. * 60. 
 
 183. An act confirming and quieting the title of bond fide 
 purchasers, ought to be liberally construed. 15 Johnson, 114. 
 
 184. A statute treating of superior Courts, cannot be ex- 
 tended to those of inferior dignity. 15 Johnson, 243. 
 
 185. A toll-bridge charter was so construed as to secure to 
 the corporation their legal tolls, and protect those who used 
 it from imposition. 7 Johnson, 185. 
 
 186. Declaratory or explanatory statutes are construed ac- 
 cording to the letter of them. 7 Johnson, 497. 
 
 187. So are statutes which take away or clog a common-law 
 remedy. 7 Johnson, 497 ; 10 Johnson, 580. 
 
 188. So of a statute which takes away a remedy given by a 
 prior statute. 7 Johnson, 497. 
 
 189. Acts of incorporation are to be construed favorably to 
 the public at large, and most strongly against the corporators. 
 2 New Jersey, 623 ; Brevard, app. 10 ; 2 Cowen, 419. 
 
 190. They will not be extended beyond their express words, 
 or their clear import. 7 Georgia, 221. 
 
 191. In expounding remedial statutes, the Courts will ex- 
 tend the remedy so far as the words will admit upon a hberal 
 construction. 7 Ohio, 247 ; 6 Term, 429 ; 1 Maryland, Ch. 
 Decis. 342 ; 2 New Jersey, 623 ; 9 Georgia, 253 ; 1 
 Pennsylvania, * 211 ; 1 Hammond, 256, 385, 481 ; 2 * 628 
 Hammond, 74 ; 1 Barbour, 65 ; 3 Massachusetts, 254 ; 
 
 4 Massachusetts, 439. 
 
 192. But where the language of the statute is clear, direct. 
 
718 OP THE INTERPRETATION AND 
 
 and positive, leading to no absurd resnlts, and affording a suit- 
 able remedy for an existing evil, Courts are to be governed 
 by the obvious meaning and import of its terms, and not to 
 extend its operation because they suppose the legislature 
 intended to give a more effectual remedy. 3 Kelly, 146. 
 
 1 93. In construing a remedial statute, which has for its end 
 the promotion of important public objects, a large construction 
 is to be given, when it can be done without doing actual vio- 
 lence to its terms. This rule was laid down in reference to 
 the laying out of public highways under a general statute. 
 19 Connecticut, 697. 
 
 194. Statutes of limitation are to receive a liberal construc- 
 tion. 4 Wheaton, 207 ; 3 Massachusetts, 206 ; 1 Peters, 351 ; 
 
 3 Peters, 278, 279 ; 3 WendeU, 189. 
 
 195. The statute of frauds is to be construed liberally and 
 beneficially. Coke, Littleton, 268, b ; 1 Blackstone, Com. 88 ; 
 
 4 Cranch, 224. 
 
 196. Revenue statutes are to be construed most favorably to 
 the citizen. Dwarris, 743, 749 ; 10 Wendell, 186 ; 9 Picker- 
 ing, 414; 8 Georgia, 30-; 1 Devereaux & Battles, Eq. 218; 
 Dudley, 132. Contra. — 1 Speers, 343 ; 2 Monroe, 27 ; 1 
 McMuUen, 421 ; 2 Story, 369 ; 4 Florida, 402. 
 
 197. Penal statutes are to be construed strictly. 1 Black- 
 stone, Com. 88 ; 5 Wheaton, 76, 94, 96 ; 2 Wheaton, 119, 121 ; 
 2 Johnson, 379 ; 4 Massachusetts, 473 ; 2 Cowen, 419 ; 6 
 Cowen, 567 ; 7 Cowen, 252 ; 2 Massachusetts, 512 ; 4 Binney, 
 13 ; 3 Burrows, 1284 ; 2 Strange, 1105 ; 2 Scammon, 461, 561 ; 
 2 New Hampshire, 623; 20 Ohio, 7; 8 Pickering, 370, 514; 
 1 Pennsylvania, 210 ; Minor, 143 ; 6 Greenleaf, 268 ; 4 Con- 
 necticut, 61 ; 18 Alabama, 687 ; 3 Hill, 96 ; 8 Porter, 664 ; 2 
 Story, 202 ; 1 Story, 251 ; 12 New Hampshire, 255 ; 6 Watts 
 & Sergeant, 269. 
 
 198. But the plain and manifest intention of the legislat- 
 ure ought to be regarded. 13 Johnson, 498; 5 Wheaton, 
 
 76, 94. 
 629 * 199. And a statute which is penal as to some per- 
 sons, may be equitably construed, provided it is gener- 
 ally beneficial. ' 13 Johnson, 497 ; Coke, Littleton, 54, b. 
 200. The rule requiring penal statutes to be construed 
 
 * 
 
CONSTRUCTION OP STATUTES. 719 
 
 strictly means only that they are not to be so extended, be- 
 yond the legitimate import of the words used in them, as to 
 embrace cases or acts not clearly described by such words, and 
 so as to bring them within the prohibition or penalty of such 
 statutes. 19 Connecticut, 292. 
 
 201. But this rule does not apply to a case where the party 
 has a remedy at common law, and the statute merely gives 
 an increase of damages. 10 Missouri, 781. 
 
 202. If a statute be both penal and remedial, it is to be con- 
 strued strictly. 9 Shepley, 541. 
 
 203. A statute which creates a right of action in an indi- 
 vidual, or a particular class of individuals, is not penal, but 
 remedial. 12 Georgia, 104. 
 
 204. Statute of costs construed strictly. 2 Strange, 1105 ; 
 
 3 Burrows, 1284-1287 ; 4 Binney, 13 ; 2 Massachusetts, 512. 
 
 205. A statute which extends human liberty is to be liber- 
 ally construed, but a statute which restrains it, is to be strictly 
 construed. 1 Blackstone, Com. 88, note ; 12 Johnson, 373 ; 
 
 4 Shepley, 255. 
 
 206. Statutes authorizing suits against the State, are to be 
 liberally construed. 7 English, 321. 
 
 207. Statutes of a local character, which refer to persons, 
 places, or things, unless otherwise expressed, are to be confined 
 to such persons, places, and things as existed at the time of 
 then- passage. 2 Ohio, 7. 
 
 208. Laws exempting property from taxation, are to be con- 
 strued strictly. 19 Ohio, 110 ; ante, p. * 409. 
 
 209. Laws which have reference to the public welfare, or 
 the policy of a State, are to be liberally construed. 4 Flor- 
 ida, 445. 
 
 210. Statutes giving summary remedies, are to be strictly 
 construed. Dudley, 105 ; 7 Blackford, 556. 
 
 211. Statutes against frauds, are to be liberally construed, 
 in suppression of the frauds prohibited. Dudley,. 182. 
 
 * 212.. Where a statute requires a thing to be done * 630 
 in a particular way, that way alone must be pursued. 
 3 Brevard, 306. 
 
 213. Where a statute prescribes the form of any order, or 
 summary proceeding, it must be followed as far forth as is con- 
 
720 OP THE INTERPRETATION AND 
 
 sistent with the nature and exigency of the particular proceed- 
 ing. 22 Wendell, 132 ; 1 East, 64. 
 
 214. Private statutes, conferring _ new and extraordinary 
 powersof a special nature, upon particular persons, affecting 
 the property of individuals, should receive a strict interpreta- 
 tion. Dwarris, 750. 
 
 215. A statutory power, derogatory to private property, 
 ought to be construed strictly, and not enlarged by intendment. 
 Dwarris, 750. 
 
 216. A statute which takes away the right of trial by jury, 
 ought to receive the most strict construction. Dwarris, 749. 
 
 217. If a statute provide a remedy unknown to the common 
 law, and by which no notice to the person proceeded against 
 is required, it will be strictly construed. 1 California, 162. 
 
 218. Statutes giving jurisdiction to inferior Courts are to 
 be construed strictly. 3 Yerger, 62. 
 
 219. Statutes which are in derogation of the common law, 
 and which have the effect to divest or affect the title to real 
 estate, are to be strictly construed. 2 Michigan (Gibbs), 
 486. 
 
 220. A statute which authorizes a Court " to render such 
 judgment as substantial justice shall require," means, that the 
 Court shall render substantial legal justice, ascertained and 
 determined by fixed riiles and positive statutes, and not the 
 abstract varying notions of equity entertained by each indi- 
 vidual, or judge. 1 California, 94. 
 
 221. The power to take land for public purposes is in dero- 
 gation of the common law, and is to be construed strictly. 4 
 Hill, 76, 92. 
 
 222. Statutes which impose restrictions on trade or common 
 occupations, or which levy an excise or tax upon them, must 
 be construed strictly. 9 Pickering, 412. 
 
 228. Statutes, which for any cause disable persons of full 
 
 age and sound mind to make contracts, are to be con- 
 
 * 681 strued * strictly ; for though founded in policy and a 
 
 just regard to the public welfare, they are in derogation 
 
 of private rights. 8 Pickering, 229. 
 
 224. In enforcing a summary remedy given by a statute, it 
 must be strictly pursued. 7 Blackford, 556. 
 
CONSTRUCTIO"N OF STATUTES. 721 
 
 225. Laws conferring bounties are to be construed liberally. 
 1 Peters, 655. 
 
 226. Where particular powers are granted to a company or 
 corporation, if they enter upon any man's laad, they must 
 clearly show their authority ; and if the words of the statute 
 upon which they rely, are ambiguous, every presumption is 
 to be made against the company or corporation, and in favor 
 of private property. Dwarris, 750. 
 
 227. A statute giving an association power to hold land, is 
 to be construed liberally. 2 Edwards, 304. 
 
 228. If a statute be so defectively drawn, that in one part it 
 appears that it is to be executed in a summary manner, and in 
 another part in the usual way, the latter is to be preferred. 
 3 Gaines, 259. 
 
 229. Statute provisions for indemnity for losses sustained by 
 one citizen, by means of special privileges conferred by the leg- 
 islature upon another citizen, ought to receive a liberal con- 
 struction in favor of the citizen damnified. 2 Pickering, 33 ; 
 2 Massachusetts, 33. 
 
 230. Private statutes made for the accommodation of pai-tic- 
 ular citizens or corporations, ought not to be construed to affect 
 the rights or privileges of others, unless such construction 
 result from express words, or from necessary implication. 4 
 Massachusetts, 140 ; 2 Massachusetts, 143 ; 3 Massachusetts, 
 263 ; 7 Massachusetts, 263. 
 
 231. Where the words of a statute, prescribing compensa- 
 tion to a public officer, are loose and obscure, and admit of 
 two interpretations, that which is most favorable to the 'officer 
 should be adopted. 3 Story, 87. 
 
 232. Statutes made relative to the administration of justice, 
 are to be liberally construed for the attainment of that impor- 
 tant object. 1 Gill, 66. 
 
 *■ 238. Statutes in favor of particular persons or cor- * 632 
 porations, are to be construed strictly. 3 Kelly, 31. 
 
 234. Attachment laws to be strictly construed. 1 Morris, 
 97, 456. 
 
 235. A statute specifying a time within which a public offi- 
 cer is to perform an official act regarding the rights and duties 
 of others, is directory merely, unless the nature of the act to 
 
 46 
 
722 OP THE interpr'etation and 
 
 be performed, or the phraseology of the statute, is such that 
 the designation of time must be considered as a limitation of. 
 the power of the officer. Ante, p. * 157. 
 
 236. It has been resolved, that, for the true and sure inter- 
 pretation of all statutes, be they penal or beneficial, restrictive 
 of or enlarging the common law, four points are to be consid- 
 ered : 1. What was the common law before the making of the 
 act ; 2. What was the mischief and defect for which the com- 
 mon law did not provide ; 3. What remedy the Parliament 
 hath resolved and appointed to cure the disease of the common- 
 wealth ; and, 4. The true reason of the remedy ; — and then 
 the office of the judges is always to make such construction as 
 shall suppress the mischief, and advance the remedy. Smith's 
 Com. 660 ; 3 Coke, 7. 
 
 237. There is a known distinction between circumstances 
 which are the essence of the thing required to be done by a 
 statute, and clauses merely directory. 1 Burrows, 447 ; 1 
 Swift, Dig. 13. This distinction is fully explained in Chap- 
 ter 14, ante, p. * 260. 
 
 238. If a statute repealing another be afterwards repealed, 
 the first statute is revived without any express words, by mere 
 implication. 1 Swift, Dig. 13 ; 1 Institutes, 315 ; 1 Black- 
 stoue. Com. 90; Broom, Max. 27. 
 
 289. Statutes at variance with the laws of God are void. 
 
 1 Blackstone, Com. 58; Broom, Max. 58 ; Doctor & Student, 
 15 ; Dwarris, 642 ; 2 Barnewall & Cresswell, 471. 
 
 240. Expressio unius est exclusio alterius. The express 
 mention of one thing implies the exclusion of another. Coke, 
 Littleton, 210, a ; Broom, Max. 506. 
 
 241. Where a statute is passed for the benefit of a 
 * 633 railway, * canal, or other company, it is regarded as a 
 contract between a company of adventurers and the 
 public, the terms of which are set forth in the act, and the 
 rule of construction in all such cases is fully established to be, 
 that any ambiguity in the law of the contract will operate 
 against the adventurers, and in favor of the public, the former 
 being entitled to claim nothing which is not clearly given by the 
 act. 2 Barnewall & Adolphus, 793 ; 2 Scott, N. R. 226, 370 ; 
 
 2 Scott, N. R. 228 ; 11 East, 685 ; 3 Scott, N. R. 803 ; 6 Scott, 
 
CONSTRUCTION OP STATUTES. 723 
 
 N. R. 831 ; 1 Mylne & Keen, 195 ; 4 Meeson & Welsby, 482 ; 
 Smith, Com. 650 ; Broom, Max. 7. 
 
 242. A statute is not to be nullified because some of its 
 provisions are absurd, repugnant, or untrue ; it should be so 
 construed as to make it effective, rather than destroy it. If 
 enough remains, after rejecting the parts vfhich are inappro- 
 priate, to show .what the legislature intended, this will suffice. 
 6 Hill (N. Y.), 616 ; 2 RoUe, 127 ; Hobart, 93, 97 ; 10 Coke, 
 57 ; 1 Pickering, 105. 
 
 243. Sometimes the makers of a statute put the strongest 
 cases, and, by construction, the lesser shall be included ; here 
 the cases are put by way of example, and not as excluding 
 other things of a similar nature. Where, moreover, the words 
 are general, and a statute is only declaratory of the common 
 law, it shall extend to others besides the persons or things 
 named. Sometimes, on the contrary, the expressions used are 
 restrictive, and intended to exclude all things which are [not] 
 enumerated. Thus, where certain specific things are taxed, 
 or subjected to any charge, it seems probable that it was in- 
 tended to exclude every thing else, even of a similar nature, 
 and, a fortiori, all things different, in genus and description, 
 from those which are enumerated. So, too, where a general 
 act confers immunities which expressly exempt certain persons 
 from the effect and operation of its provisions, it excludes all 
 exemptions to which the subject might have been before en- 
 titled at common law ; for the introduction of the exemption 
 is ijecessarily exclusive of all other independent extrinsic ex- 
 ceptions. 3 Bingham, N. C. 85 ; 5 Maule & Selwyn, 
 
 240; * 8 Term, 442; 6 Term, 21 ; 2 East, 166; 7 * 634 
 Term, 60 ; 5 East, 478 ; Dwarris, 712 ; Smith, Com. 
 655. 
 
 244. In construing a doubtful clause in a statute, it will 
 often be a question whether the clause be a substantive inde- 
 pendent clause, or only a qualification of an antecedent one. 
 It is difficult to lay down any precise rule applicable to all 
 such cases. But when a section is by way of proviso, or in 
 the nature of an exception, it must be regarded as dependent, 
 unless a manifest intent, apparent upon an examination of the 
 entire act, forbids it. Smith, Com. 711. 
 
724 OP THE INTERPRETATION, ETC, OP STATUTES. 
 
 245. A saving clause must relate to a thing in esse. The 
 nature of a saving clause is to preserve a former right, and 
 not to create a new one. It may restrain or qualify the pur- 
 view, or body of the act, but is never allowed to,overturn or 
 enlarge it. Smith, Com. 711. 
 
 246. There is a known distinction in law between an 
 exception in the enacting and in the proviso clause of the 
 statute. If in the former, it must be negatived in pleading 
 — if in the latter, it need not be. Smith, Com. 712 ; Dwar- 
 ris, 661 ; 1 Term, 114 ; 8 Term, 542 ; Foster, 430 ; East, 
 P. C. 167. 
 
 247. Where it is apparent that a statute, in the delegation 
 of a power, reposes a special trust and confidence in the ap- 
 pointee of it, it cannot be delegated. 11 Coke, 64 ; Smith, 
 Com. 713 ; 26 Wendell, 485. 
 
APPENDIX. 
 
 Foe the convenience of the profession, and with a view to the completeness of 
 this work, the author appends an abstract of a tax title, which, he trusts, will be 
 acceptable, especially to conveyancers. The law of Illinois, enacted February 26, 
 1839, is the basis of the abstract, and that is selected because it is more familiar. 
 The bar and conveyancers will be enabled to obtain, from an abstract founded 
 upon that statute, the general requisites of such a document. Nothing more can 
 be expected, inasmuch as the abstract must vary according to the provisions of 
 the respective statutes under which the tax sales may have been made. 
 
 ABSTRACT 
 
 Of 3 Cai SCttle to Lot 1, Block 1, in the original Plat op the City or 
 Chicago, Illinois, aoqdired under a Sale hade May 18, 1840, for the 
 Taxes oe 1839. 
 
 1. John Doe was appointed assessor of the justice's district within which the 
 lot in question was situated, by the County Commissioners' Court of Cook 
 County, at the March term thereof, 1839, and on the 8th day of March, took and 
 subscribed the following oath of office, to wit : — 
 
 " State of Illinois, I 
 Cook Codnty, ) 
 
 " I, John Doe, do solemnly swear that I will faithfully and impartially perform 
 the duties required of me as assessor of taxable property in the County of Cook, 
 according to the best of my skill and judgment. 
 
 "John Dob. 
 
 " Subscribed and sworn to before ^ 
 me, this the 8th day of March, 1839. V 
 " Louis D. Hoard, ) 
 " Clerk of the Circuit Court of, Cook County, Illinois." 
 
 March 9, 1839, the Clerk of the County Commissioners' Court delivered to 
 the said assessor an abstract of the taxable lands in the said assessor's district. 
 
726 
 
 APPENDIX. 
 
 May 1,1839, the said assessor returned to the county clerk his assessment list, 
 in substance as follows, to wit : — 
 
 "List of Property in the First District, in the County of Cook, with the Names of the 
 Oumers, and the Value of the Property, assessed by John Doe, for the year 1839. 
 
 Owner. 
 
 Description. 
 
 Lot 1, Block 1, original 
 plat, Chicago. 
 
 Taluation. 
 
 $2,000.00. 
 
 Remarks. 
 
 May 1, 1839. 
 
 John Doe, 
 Assessor of District No. 1, Cook Co., Illinois.' 
 
 2. March 8, 1839, Kichard Koe was appointed collector of the County of Cook, 
 by the county commissioners, and took and subscribed the oath, and executed 
 and delivered the bond required by law. 
 
 3. The County Commissioners' Court of Cook County, at the June term, 1839, 
 by an order of record, levied a tax of four mills on each dollar's worth of taxable 
 property in the county. 
 
 4. The amount of tax charged upon the lot in question, for the year 1839, was 
 as follows, viz. : — 
 
 Valuation |2,000.00. 
 
 State tax $4.00. 
 
 County tax ' . . 8.00. 
 
 Total tax . .• $12.00 
 
 5. August 20, 1839, the lists of taxable property returned by the assessors 
 were delivered by the clerk of the County Commissioners' Court, to the collector 
 aforesaid, and a duplicate receipt thereof was filed in the clerk's office. This list 
 is a transcript of the assessors' return. 
 
 6. March 10, 1840, the collector advertised, in the " Chicago Democrat," the 
 delinquent list in the manner following, that is to say, — 
 
 The caption of the advertisement is in these words, viz. : — 
 
 " List of Lands and other Real Estate, situated in the County of Cook, and State of 
 Illinois, upon which the taxes remain due and unpaid, for the year herein set forth. 
 
 Description. 
 
 Owner. 
 
 Tax. 
 
 Costs. 
 
 Interest. 
 
 Year for which 
 tax due. 
 
 Lot 1, Block 1, 
 
 origiaal plat, 
 
 Chicago. 
 
 
 John Jones. 
 
 $12.00. 
 
 14 
 
 16 
 
 1839." 
 
 The notice of the collector, appended to the list, is in these words : — 
 " The owners of the lands, and other real estate described in the foregoing 
 list, and all others who may be interested in said property, are hereby notified 
 
APPENDIX. 
 
 727 
 
 that I sha 1, on the trst day of the next ensuing term of the Circuit Court of the 
 M . .? 1 """f • *° '^ '""'''' ''' *« court-house in the city of JSgo on 
 Monday, the first day of May, 1840, make a report of the foregoing list of de'lin 
 quents and apply to said Court for an order to sell the said lands and other real 
 state described therein, for the purpose of satisfying the tax. interest, and c t 
 charged against the same respectively, and specifically mentioned in the said 
 Tt . °"'"^'''' ^""^ °"'^™ interested, are further notified that, on the 
 second Monday next succeeding the said term of tl,e said Court, I shall expose 
 to public sale all of the lands and other real estate against whicli judgment shall 
 be pronounced by the said Court, and for the sale of which such order shall be 
 made, for the amount of taxes, interest, and costs due thereon. 
 
 " Richard Roe. 
 "Collector of Cook County, Illinois. 
 Chicago, March 10, 1840." 
 
 To this advertisement is appended a certificate of the printer and publisher of 
 the " Chicago Democrat," in these words, namely : — 
 
 " I, John Wentworth, printer and publisher of the ' Chicago Democrat,' a 
 weekly newspaper printed and published in tlie city of Chicago, in the County 
 of Cook and State of Illinois, do hereby certify that the foregoing list, and notice 
 thereto attached, was published in said newspaper on the 10th day of March, 
 1840 ; and tliat tlie number of said paper in which said list and notice was pub- 
 lished, was delivered by carriers, or transmitted by mail, to each of the subscrib- 
 ers to said paper, according to tlie accustomed mode of business in said office. 
 
 " John Wentwobth, 
 " Printer and Publisher of the 'Chicago Democrat.' 
 
 " Chicago, March 12, 1840." 
 
 7. A copy of said advertisement, together with the certificate of the said printer, 
 &c., was filed in the office of the clerk of the said Circuit Court, May 1, 1840, 
 
 8. On the said first day of May, the collector aforesaid made a report of the 
 deUnquent list to the said Court in these words r — 
 
 " List of Lands and other Real Estate, situated in the County of Cook, and State of 
 Illinois, on which taxes remain due and unpaid, for the year herein set forth. 
 
 Names 
 
 of present; 
 
 owner. 
 
 Cost. 
 
 Interest. 
 
 Amount 
 
 of 
 
 Tax. 
 
 Year for 
 
 which tax 
 
 is due. 
 
 Valuation. 
 
 Description. 
 
 County. 
 
 J. Jones. 
 
 14 
 
 16 
 
 S12.00. 
 
 1839 
 
 $2,000.00 
 
 Lot 1, Block 1, 
 
 original plat, 
 
 Chicago. 
 
 Cook. 
 
 " I, Richard Roe, collector within and for said county, do hereby certify that 
 the foregoing is a true copy of the delinquent list, upon which the taxes remain 
 due and unpaid for the year 1839, and that I have been unable to find any per- 
 sonal property belonging to the owners virhose names are mentioned in said list, 
 within the said county, of value sufficient to satisfy said taxes, interest, and costs, 
 hy a seizure and sale thereof. 
 
 " Richard Roe, Collector." 
 
728 
 
 APPENDIX. 
 
 9. The said repwt and certificate of the printer were recorded by the clerk of 
 said Court, May 1, 1840. 
 
 10. On the 6th day of May, 1840, the said Court rendered judgment upon such 
 delinquent list, in these words, to wit : — 
 
 " State of Illinois, 1 
 Cook County. ) 
 
 " Whereas Richard Koe, collector of said county, returned to the Circuit Court 
 of said county, on the first day of May, 1840, the following tracts and parts of 
 tracts of land, as having been assessed for taxes by the assessor of said county of 
 Cook, for the year 1839, and that the taxes thereon remained due and unpaid on 
 tlie day of the date of the said collector's return, and that the respective owner 
 or owners have no goods and chattels within his county on whicli the said col- 
 lector can levy for the taxes, interest, and costs due and unpaid on the following 
 described lands, to wit : — 
 
 Present 
 owner. 
 
 Description. 
 
 Valuation. 
 
 Tax. 
 
 Costs. 
 
 Interest. 
 
 County. 
 
 John Jones. 
 
 Lot 1, Block 1, 
 
 original plat of 
 
 Chicago. 
 
 S2,000.00 
 
 S12.00 
 
 14 
 
 16 
 
 Cook. 
 
 " And whereas, due notice has been given of the intended application for a 
 judgment against said lands, and no owner hath appeared to make defence or 
 show cause why judgment should not be entered against the said lands for the 
 taxes, interest, and costs due and unpaid thereon, for the year or years herein 
 .set forth : Therefore, it is considered by the Court that judgment be, and is 
 hereby, entered against the aforesaid tract or tracts of land, or parts of tracts, in 
 the name of the State of Illinois, for the sum annexed to each tract or parcel of 
 land, being the amount of taxes, interest, and costs due severally thereon ; and 
 it is ordered by the Court, that the said several tracts of land, or so much thereof 
 as shall be suflicient for each of them to satisfy the amount of taxes, interest, and 
 costs annexed to them severally, be sold, as the law directs." 
 
 11. The precept issued May 13, 1840, and was in these words : — 
 
 " State or Illinois, 1 
 Cook County. J 
 
 " "Whereas Richard Roe, collector of said county, returned to the Circuit Court 
 of said county, on the first day of May, 1840, the following tracts and parts of 
 tracts of land, as having been assessed for taxes by the assessor of said county 
 of Cook, for the year 1839, and that the taxes thereon remained due and unpaid 
 on the day of the date of the said collector's return, and that the respective 
 owner or owners have no goods and chattels within this county on which the 
 said collector can levy for the taxes, interest, and costs due and unpaid on the 
 following described lands, to wit : — 
 
 Present 
 
 owner. 
 
 Deficription. 
 
 Valuation. 
 
 Tax. 
 
 Costs. 
 
 Interest. 
 
 County. 
 
 John Jones. 
 
 Lot 1, Block 1, 
 
 original plat of 
 
 Chicago. 
 
 • 
 $2,000.00 
 
 S12.00 
 
 14 
 
 16 
 
 Cook. 
 
APPENDIX. 
 
 729 
 
 " And whereas, due notice has been given of the intended application for a 
 judgment against said lands, and no owner hath appeared to make defence or 
 show cause wliy judgment should not he entered against the said lands for the 
 taxes, interest, and costs due and unpaid thereon, for the year or years herein 
 set forth : Therefore, it is considered by the Court, that judgment be, arid is 
 hereby, entered against the aforesaid tract or tracts of land, or parts of tracts, 
 in the name of the State of Illinois, for the sum annexed to each tract or parcel 
 of land, being the amount of taxes, interest, and costs due severally thereon ; and 
 it is ordered by the Court, that the said several tracts of land, or so much thereof 
 as sliall be sufScient of eacli of them to satisfy the amount of taxes, interest, and 
 costs annexed to them severally, be sold, as the law directs." 
 
 And to which precept this certificate was added : — 
 
 " State of Illinois, ) 
 Cook Cocnty. J ®®- 
 
 " I, Louis D. Hoard, clerk of the Circuit Court, within and for said county, 
 do certify that the foregoing precept is a full and perfect copy of the collector's 
 report of delinquent lands and owners, made to the said fiourt May 1, 1840, and 
 also the order of the said Court thereon. 
 
 " Witness my hand and the seal of said Court, at the city of Chicago, 
 this 13th day of May, 1840. 
 
 " Louis D. HoASD, Clerk." 
 
 [seal.] 
 
 12. The sale book relating to this parcel of land is in these words, namely : - 
 "Register of Sales for Taxes on the 18(/i day of Mat), 1840. 
 
 Ovraer. 
 
 Description. 
 
 Valuation. 
 
 Tax. 
 
 ,C08t. 
 
 Interest. 
 
 Total. 
 
 Purchaser.' 
 
 Joha 
 Jones 
 
 Lot 1, Block 1, 
 
 Orig. Plat, 
 
 Chicago. 
 
 S2,000.00 
 
 S!12.00 
 
 14 
 
 16 
 
 $12.30 
 
 John 
 
 Smith." 
 
 13. Certificate of sale, dated May 19, 1840, assigned to John Johnson. 
 
 14. Tax deed to John Johnson, dated May 20, 1842, in these words : — 
 
 " Sitato all flen bg tfjcsc Presents, that whereas, at the May term, 1840, of 
 the Circuit Court of Cook County, a judgment was obtained in said Court, in 
 favor of tlie State of Illinois, against lot 1, Block 1, Original Plat, Chicago, for 
 the sum of twelve dollars and thirty cents, being the amount of taxes, interest, 
 and costs, assessed upon said tract of land for the year 1839 ; and whereas, on 
 tlie 18th day of May, 1840, I Ricliard Roe, sheriff of the county aforesaid, by 
 virtue of a precept issued out of the Circuit Court of the county aforesaid, dated 
 the 13th day of May, and to me directed, did expose to public sale at the door 
 of the court-house, in the county aforesaid, in conformity with all the requisitions 
 of the statute in such case made and provided, the tract of land above described, 
 for the satisfaction of the judgment so rendered as aforesaid : and wliereas, at 
 .the time and place aforesaid, John Smith, of the County of Cook, and State of 
 Illinois, having offered to pay the aforesaid sum of twelve dollars thirty cents, 
 for the wliole parcel, which was the least quantity bid for, the said tract was 
 stricken off to him at that price. And whereas, it appears that the certificate of 
 
730 APPENDIX. 
 
 said purchase has been assigned by the said John Smith to John Johnson. Now, 
 tlierefore, I, Richard Roe, sheriff as aforesaid, for and in consideration of the 
 said sum of twelve dollars and thirty cents, to me in hand paid by the said John 
 Smith, at the time of the aforesaid sale, and by virtue of the statute in such case 
 made and provided, liave granted, bargained, and sold, and by these presents do 
 grant, bargain, and sell, unto the said John Johnson, his heirs and assigns. Lot 1, 
 in Block 1, Original Plat, Chicago. To have and to hold, unto him, the said 
 John Johnson, his lieirs and assigns, for ever ; subject, however, to all the rights 
 of redemption provided by law In witness whereof, I, Richard Roe, sheriff as 
 aforesaid, have hereunto subscribed my name, and affixed my seal, this 20th <lay 
 of May, 1842. 
 
 " Richard Roe, [seal.] 
 " Sheriff of Cook Couniy and ex-officio CoUfictor.'' 
 
 This deed was aeknowJedged before the clerk of the Circuit Court, May 20, 
 1842, and duly recorded May 21, 1842. 
 
 Ordinarily such an abstract, or one as full, alone can enable counsel to deter- 
 mine the legality of a tax title under the Illinois law of 1839. 
 
 The following may be adopted by persons competent to examine a tax title 
 as a shorter form of an 
 
 ABSTRACT. 
 
 1. John Doe was regularly appointed assessor, and Richard Roe, collector, 
 for the year 1839, each of wliom were duly qualified. 
 
 2. March 9, 1839, the clerk delivered the abstract to the assessor. 
 
 3. List returned by assessor May 1, 1839, regularly authenticated. Valuation 
 $2,000.00. 
 
 4. County tax of four mills levied June 6, 1839. 
 
 5. List delivered to the collector August 20, 1839 — these regularly authenti- 
 cated. 
 
 6. The advertisement was published in the " Chicago Democrat," March 10, 
 1840, and is in conformity with the law, and regularly certified, with these excep- 
 tions : 1. There is no caption to the list. 2. The amount of costs and interest is 
 omitted. 3. Tlie certificate of publication does not show in what paper the list 
 was published. 4. The notice does not show where the sale will be held. 
 
 7. Collector's report made May 1, 1840, and is regular, with this exception : it 
 does not show in what county the premises in question are situated. 
 
 8. The report and certificate of publication were duly filed and recorded. 
 
 9. Judgment rendered May 6, 1840, in due form, except that the time of filing 
 the collector's report is not recited. 
 
 10. The precept is dated May 13, 1840, and follows the judgment, with this 
 exception : it omits the recital that the taxes " remained unpaid on the day of the 
 date of the collector's return." 
 
 11. The registry of sales shows that the lot in question was struck off to 
 John Smith, May 18, 1840. 
 
 12 The deed is in the form prescribed, except it omits a recital of the pre- 
 cept. This deed bears date May 20, 1840, was duly acknowledged and reported 
 May 22, 1842. 
 
APPENDIX. 731 
 
 Memo. — The description of the lot and the name of the owner correspond in 
 the abstract, assessor's list, collector's list, advertisement, report, judgment, pre- 
 cept, sale book, and deed, with the exception that the precept omits the words 
 " original plat, Chicago," simply describing the lot as " lot 1, block 1, Chicago." 
 
 An accurate conveyancer making such an abstract, will be able in the above 
 compass, to give all the information necessary to enable counsel to give an 
 opinion upon the question as to the regularity of the tax sale. 
 
INDEX. 
 
 The Pages referred to are the Star Pages. 
 
 A. 
 
 ABANDONMENT , ' 140, 142, 143 
 
 ABSTRACT OF A TAX TITLE (Appendix) 685-641 
 
 ABUSE OF AUTHORITY IN SALE OF THE LAND . 437 
 
 ACKNOWLEDGMENT OF TAX DEED 79 note, 370 
 
 ACTS IN PAIS, 
 
 party claiming title must prove 71 
 
 ACTS OF RECORD 58 
 
 ADJOURNMENT OF SALE 287 
 
 ADMINISTRATOR'S 
 
 sale under order of court 65 
 
 deed, form of 42 
 
 ADVERSE POSSESSION 666 et seq. and notes 
 
 ADVERTISEMENT OF SALE 213-250 
 
 essential in tax proceedings 214, 215 
 
 contra note, 215 
 
 a non-essential in sheriff's sales 214 
 
 must purport to be an official act 217, 218 
 
 may be made by an officer de facto 218 
 
 must be signed 218 
 
 must be published in the paper designated 219 
 
 change in name of newspaper 219, 220 
 
 State paper authorized to publish — ceased to be recognized 
 
 as such 220 
 
 when insertion required in several papers must be com- 
 plied with 220 
 
 must not be published until the time designated .... 221, 222 
 
 form and requisites of 223 
 
 when form prescribed must be pursued 223-225 
 
 when none prescribed — substance of statute requirements to 
 
 be followed 225, 233 
 
 description of the land 225-230 
 
 when amount of the tax must be stated 231 
 
 should state time of sale 233 
 
734 INDEX. 
 
 ADVERTISEMENT OF SALE, — eonUmied. 
 
 and place of sale 233 
 
 names of the owners to be inserted 235 
 
 must be published the requisite length of time 236 
 
 number of insertions 240 
 
 in several languages 241 
 
 in newspaper having the greatest circulation 241 
 
 in extra sheets of a newspaper 243 
 
 strictness required in the advertisement 244 
 
 posting of additional notices 245, 509 note 
 
 consent will not dispense with 249 
 
 presumptions of regularity seldom indulged in 249, 531 
 
 date of, prima facie evidence of time when published . . . 248 
 
 mistake in date cannot be aided by parol 249 
 
 proof of 514 
 
 when presumed 520-623 
 
 AGENTS, 
 
 public and private 51 
 
 AMENDMENT, 
 
 of the proceedings 358-363 
 
 APPORTIONMENT NECESSARY IN ALL TAXATION . -7 note 
 
 ASSESSMENT 106 et seq. 
 
 See Listing. 
 
 assessments, special 1, 7 notes 
 
 ASSIGNMENT, 
 
 of the certificate of purchase 376 
 
 AUTHENTICATION OF THE DIFFERENT DOCUMENTS 345-351 
 
 by the official signature of the officer 345 
 
 advertisement must purport to be an official act .... 347 
 
 where one person holds two offices 348 
 
 assessment list must be verified 112 et seq., 348, 349 
 
 signing of record 349 
 
 signing of authority to sell 349 
 
 slight variances in name of officers immaterial 350 
 
 AUTHORITY, 
 
 abuse of in the sale of the land 437 
 
 excess of, in the sale of the land 437 
 
 power to sell land for taxes, a common law 441 
 
 depends upon statute 33 
 
 is special 33 
 
 and a naked power 33 
 
 depends upon the high prerogative of the State .... 33 
 
 to sell land for taxes a special one 42, 66 
 
 a special, to be strictly pursued 43, 66, 66 
 
 must be proved in all cases 76 
 
 AUTHORITIES, 
 
 distinction between general and special 36 
 
 power to sell land for taxes special 44 
 
 nature of an authority over real property 54 
 
INDEX. 735 
 
 AUTHORITIES, — continued. 
 
 statutory 38 
 
 under statute of uses 37, 38 
 
 AUTHORITY TO COLLECT, 
 
 essential 168 
 
 distinction to be taken between this and authority to sell . 167 
 
 variously denominated . , 167 
 
 in the nature of an execution 167 
 
 must be made out by proper officer 168 
 
 and delivered to proper officer 168 
 
 must be legally authenticated 168, 169 
 
 delivered after day named by statute, void 170 
 
 so'when delivered before the day 170 
 
 must recite the statute 170 
 
 AUTHORITY OF THE OFFICER TO SELL 251-269 
 
 distinction between this and authority to col ect .... 167 
 
 essential to validity o sale 251 
 
 a condition precedent 251 
 
 various modes in which this is derived 262 
 
 the authority must be regular in all respects 2.H, 265 
 
 regarded as similar to an execution . . 253, 256, 275 note, 281 7iote 
 
 must be delegated at the prescribed time 255, 257 
 
 and executed within the time fixed by law 256, 258 
 
 verification of the list or other evidence of the authority . . 266 , 258 
 
 formalities in authority disregarded in one case 258, 269 
 
 deed not evidence of the authority 259 
 
 B. 
 
 BIDS, PUFFING 399 
 
 BIDDERS, 
 
 highest, entitled to the property 276 
 
 who are the highest 276 
 
 frauds among the, vitiates the sale 398 
 
 BODY SOMETIMES SEIZED IN SATISFACTION OF 
 
 THE TAX 176 
 
 C. 
 
 CAVEAT EMPTOR 51,65,442 
 
 CERTIFICATE OF SALE, 
 
 as evidence '^ ""'* 
 
 nature and effect of 296 
 
 interests which are acquired by 296, 297, -98 
 
 assignment of 296 nofe, 299, 376, 377, 378 
 
 right which vests after time of redemption expires .... 298 
 right acquired by, descends to heirs, and does not vest in 
 
 executor .' ' " 
 
 transfers a vested interest, protected by the constitution . . 299 
 
736 INDEX. 
 
 CERTIFICATE OF SALE, — continued. 
 
 interest which passes by, prior to the expiration of the period 
 
 of redemption 296, 297, 300 
 
 must be recorded when required by statute .... 299, 300, 314 
 
 CITIZEN, 
 
 immunities to which he is entitled under federal constitution 6 
 
 CLOUD UPON TITLE, 
 
 remedies to prevent and remove, pleading, &c. 481 et seq. and notes, 
 
 600 note 
 
 COLOR OF TITLE, 
 
 defined 564, 565 and note, 576, 681 et seq. and notes 
 
 COMMON LAW, 
 
 enters largely into the construction of statutes , 45 
 
 CONDEMNATION OF LAND FOR PUBLIC USES . . 4, 39 
 
 CONDITIONS PRECEDENT 2?,i et seq. 
 
 CONDITIONS SUBSEQUENT TO THE SALE .... 303 
 
 general doctrine as to conditions 300, 301 
 
 return of sale 304, 310 
 
 making of survey 304 note 
 
 lodging deed 308 
 
 record^of proceedings 308, 310, 314 
 
 record of certificate of purchase 314, 315 
 
 execution and filing of surplus bond 315, 320 
 
 notice to redeem 320, 342 
 
 distinction between conditions imposed upon the purchaser 
 
 and officer 342-344 
 
 common law 31, 82 
 
 CONDITIONAL ESTATES, 
 
 defined 300 
 
 how may arise 301 
 
 depending on conditions precedent 302 
 
 subsequent 302 
 
 CONFIRMATION OF SALE, 
 
 essential when required by law 352-354 
 
 See Foreclosure, &c. 
 
 CONSENT OF OWNER, 
 
 to irregularities in the proceedings 445 
 
 CONSIDERATION, 
 
 cannot be recovered back on failure of tax title .... 442 note 
 
 inadequacy of 43 
 
 mere inadequacy of no valid objection to a tax title 396 note, 489 note 
 
 CONSTRUCTION. See Statutes. 
 
 CONSTRUCTIVE NOTICE 44 
 
 CONSTITUTIONALITY OF TAX LAWS 26,80 
 
 CONSTITUTION, 
 
 definition of, 9 
 
 guarantees in favor of life, liberty, and reputation in . . . 10, 11 
 
 properly 11, 12 
 
INDEX. 737 
 
 CONSTITUTION, — continued. 
 
 distribution of power under the 12 16 
 
 CONTINUING POWER ' ' 312 
 
 CORPORATIONS .' .' 447 
 
 may be authorized to levy and collect taxes 164 
 
 cannot be compelled to incur debt without their consent . . 447 note 
 
 no implied power to sell land for taxes 448 
 
 power may be delegated to them 448 
 
 must exercise the power according to the principles of the 
 
 constitution ". 443 
 
 and in conformity with their charter 448 
 
 no powers by implication 448 
 
 assumpsit the appropriate remedy to collect taxes by . . . 448 
 
 no power to convey, unless expressly granted 448, 449 
 
 cannot exempt property from taxation 449 
 
 cannot declare tax deed prima facie evidence 449 
 
 corporation taxes are not public taxes 449 
 
 no power to levy double taxes 450 
 
 when permitted to assess taxes "according to law" means 
 
 law in force when assessment made 450 
 
 no power to defeat the policy of the general laws .... 430 
 when charter silent as to the mode, &c., must follow the. gen- 
 eral law 450 
 
 facts necessary to be proved by one claiming under a corpora- 
 tion tax sale 451 
 
 sales by private corporations 461, 457 
 
 proprietary tax sale 457 
 
 COURTS GRANT NO INDULGENCE TO TAX PUR- 
 CHASER 68 
 
 and never lean in his favor 68 
 
 COVENANTS OF THE OFFICER WHO SELLS AND 
 
 CONVEYS 442 
 
 CREDIT SALES 278 
 
 CURATIVE LEGISLATION 116, 118 note, 136, 163 note 
 
 D. 
 
 DEED 364 
 
 definition of a tax deed 364 
 
 not a patent 79 note 
 
 operation or legal effect of 364 
 
 . must be allowed all the effect as evidence given by law at 
 
 time of sale notes on pages 299, 364 
 
 recorded tax deed draws constructive possession of vacant* 
 
 lands 300no«e 
 
 must be written or printed 366 
 
 must be on parchment or paper 365 
 
 must be sealed 365, 499 note 
 
 47 
 
738 INDEX. 
 
 DEED, — continued. 
 
 need not be stamped 365 note 
 
 must be delivered 367 
 
 must recite the power of officer 368 
 
 form of deed 368 d seq. 
 
 date of deed 369, 370 
 
 acknowledgment of 79 note, 370 
 
 recording of 79 note, 371 
 
 when to be made 371 
 
 power to execute a continuing one 372 et seq. 
 
 mandamus lies to compel its execution 299, 373 
 
 so a bill in equity 373 
 
 what officer must execute 374 
 
 proof of execution of 79 note 
 
 to whom to be executed 376 
 
 death of owner of land does not deprive officer of power to 
 
 execute 380 
 
 several tracts may be included in one deed 380 
 
 deed which shows upon its face a non-compliance with the 
 
 law, void 380 
 
 must give a certain description of the land 381 
 
 when it takes eifect 383 
 
 relation of 383-386 
 
 power to execute a deed depends upon express grant . . 389 et seq. 
 
 covenants in 442 
 
 recitals in, eifect of as evidence 73, 79, 381 and notes 
 
 construction of statutes declaring deed prima facie evidence 79-85 
 construction of statutes declaring deed conclusive evidence 
 
 82-85 and notes, 88 
 power of legislature to declare deed conclusive evidence, 
 
 (fee 79-82 note, 90 note 
 
 See Certificate of Sale. 
 DELINQUENCY. See Payment. 
 DELINQUENT LIST, 
 
 return of 181, 413 
 
 DEMAND OF THE TAX, 
 
 essential 172 
 
 tax no debt until demanded * . . . 172 
 
 cannot seize body, ^ 
 
 distrain goods, or ^ until demanded, or notice given . . . 172-175 
 sell limd, J 
 
 DEPUTY, 
 
 proof of official character of 66 note 
 
 when one may act by 275, 375 
 
 tax dSed evidence of authority of %•> note 
 
 DESCRIPTION OF LAND LISTED AND SOLD 123, 281, 359 note, 381 
 See Location of Land Sold. 
 
 DIRECTORY REQUIREMENTS -. 60, 200 
 
 there is a distinction between positive and 260 
 
INDEX. 739 
 
 DIRECTORY REQUIREMENTS, - co»<m«ed 
 
 rule stated oca ^ 
 
 », „ . , . , 260 note 
 
 there is a plain rule as to time 261 
 
 no general rule is safe . ofil 
 
 it is a rule of discretion ' ' gfli 
 
 easier to comply than to assign reasons for non-compliance .' 261 
 
 Courts should seldom hold a provision directory .... ^62 
 the principle is that a sound discretion must be exercised iii 
 
 construing the statute 262 
 
 the application to tax laws denied \ 262 
 
 all formalities having a semblance of benefit to owner to be 
 
 complied with noo 
 
 for sensible rules, see 264 265 
 
 See Time . 
 
 DISCRETIONARY POWERS . 42 
 
 "DOLLAR MARK" ' 116 no(e, 163noie, 202 no^e 
 
 DOOMING 3Q 
 
 DOUBLE TAXATION, 
 
 not favored ^rb 
 
 how collected qq 
 
 DUTY OF OWNER TO PAY TAXES . . ' ." .' .' .' 67 
 
 E. 
 
 EMINENT DOMAIN, 
 
 distinction between, and taxing power 1 
 
 EQUALITY. See Taxation. 
 
 EQUITY metseq. 
 
 ESTOPPEL 445 note, 446 and note, 488 note 
 
 EVIDENCE, 
 
 onus probandi on purchaser 65-90 
 
 best evidence requisite 77 note, 610 
 
 presumption as to safe custody of records 510 note 
 
 secondary evidence 612 
 
 office books 513 
 
 certificates not evidence 613-616 
 
 proof of publication 514 
 
 officer a competent witness 614 
 
 presumptive evidence 515, 633 
 
 amount of necessary to rebut prima facie presumption . . 83 note 
 
 EXCESS OF AUTHORITY IN THE SALE OF THE LAND 437 et seq. 
 
 EXECUTION, 
 
 sales under 56 
 
 EXEMPTION 6 note, 7 note, 406 
 
 sale void where land exempt from taxation 406 
 
 owner not bound to enjoin 406 
 
 constitutional exemption 406 
 
740 INDEX. 
 
 EXEMPTION, — continued. 
 
 by c.ompact 406 
 
 statutory 406 
 
 constitutionality of exemption laws 407, 409 
 
 exemption laws construed strictly 409 
 
 corporations no power to exempt 410 
 
 lands belonging to State or other taxing power exempt . . 410 
 
 " Railroad" and " Indian lands" when exempt .... ill notes 
 
 EX PARTE PROCEEDINGS 44 
 
 EXTENDING EXECUTIONS 52 
 
 F. 
 
 FEOFFMENT 31 
 
 FORECLOSURE OF TAX TITLE. See notes on pages 352-354, 381, 
 
 414 
 
 FORFEITURES OF LAND TO THE STATE 459 
 
 defined 459 
 
 equity will not aid 460 
 
 Court of law leans against 460 
 
 and requires strict proof 460 
 
 foundation of the right to forfeit 460 
 
 whether inquisition necessary 460, 471 
 
 redemption of forfeited lands 471 
 
 waiver of forfeiture 471 
 
 forfeiture by tenants for life 472 
 
 FORM, 
 
 of tax deed 369 
 
 must be adhered to 365 
 
 FRAUDULENT SALES, 
 
 manner of pleading 396 note 
 
 fraud will vitiate a tax sale 396 
 
 positive frauds 396 
 
 constructive frauds 396 
 
 partnerships to purchase at tax sales are fraudulent ... 397 
 
 agreements among the bidders not to bid against each other 398 
 
 puffing bids •. . . . 399 
 
 purchase by those who are legally bound to pay the tax . . 399 
 
 1. Mortgagor 399 
 
 2. Mortgagee 399 
 
 3. Possessor ' . . 400 
 
 4. Heir 400 
 
 6. Vendee 400 
 
 6. Agent to pay tax, &c 401 
 
 7. Tenant in common 401 
 
 8. Tenant for life 401 
 
 9. Judgment creditor 402 
 
 10. By the officer who sells 402 
 
INDEX. 741 
 
 G. 
 
 GOVERNMEXT, 
 
 origin of g 
 
 duty of g 
 
 powers of 8-10 
 
 the declared ends of ... . 8_1() 
 
 GUARDIAN'S SALES .......... '. '. '. 55 
 
 H. 
 
 HEIR, 
 
 how to prove title of 76 
 
 I. 
 
 IDEM SONANS 137 note, 393 
 
 ILLINOIS STATUTE OF 1839 190-212 
 
 when Court has jurisdiction under 199 
 
 report of collector under 199 
 
 notice of application and sale under 201 
 
 requisites and form of judgment under 202 
 
 form and requisites of precept under 206 
 
 purchaser must prove judgment and precept 210 
 
 requisites relative to deed under 210 
 
 facts to be established by purchaser under 210 
 
 who may attack the deed under 211 
 
 what facts may be proved to overthrow deed 211 
 
 IMPLIED POWERS, 
 
 not permissible in tax proceedings 274, 389 
 
 IMPROVEMENTS, 
 
 taxation of 5 note 
 
 valuation of 148 and note 
 
 compensation for, made under tax titles 687-594 
 
 INJUNCTION. See Equity. . 
 
 INTERPRETATION, 
 
 necessity of 697 
 
 definition of 698 
 
 distinction between interpretation and construction . . . 599 
 species as defined by ethical writers, 
 
 1. Close .'...: 601 
 
 2. Extensive 601 
 
 3. Extravagant 601 
 
 4. Free or unrestricted 601 
 
 6. Limited or restricted 601 
 
 6. Predestinated 601 
 
 7. Authentic 601 
 
 ethical rules of interpretation, 
 
 1. Is the text genuine 602 
 
742 INDEX. 
 
 INTERPRETATION, — continued. 
 
 2. There is but one true sense 602 
 
 3. Good faith and common sense requisite 603 
 
 4. Words to be taken in their most probable sense . . 603 
 
 5. Doubtful words to be ascertained by reference to other 
 
 passages of the same text 603 
 
 6. And from competent sources which are extraneous . 603 
 
 7. Technical terms to be interpreted according to the art 
 
 or science from whence taken 603 
 
 8. Tropes to be taken as tropes, &c 603 
 
 9. Special, particular, and inferior, cannot overthrow 
 
 general and superior 603 
 
 10. The words themselves to be first resorted to and 
 
 extraneous principles only under compulsion . . . 603 
 
 11. The probable, fair, easy, customary, and intelligible, 
 
 is preferable to their opposites 603 
 
 12. To follow prescribed rules 603 
 
 13. Must resort to that which is near, in preference to that 
 
 which is distant 603 
 
 rules of the civilians, 
 
 1. Literal 605 
 
 2. Rational 605 
 
 3. Mixed 605 
 
 common-law ru^es, 
 
 1. Strict 605 
 
 2. Liberal 605 
 
 See Statutes. 
 "ITA LEX SCRIPTA EST" 60 
 
 J. 
 
 JUDGMENT, 
 
 void, unless Court had jurisdiction 184 
 
 1. Of the person 184 
 
 2. Of the subject-matter . . ^ 184 
 
 conclusive on parties and privies 184 
 
 reversal of, will not affect the title of a purchaser under it . 187 
 
 under the tax laws of Tennessee 188 
 
 Indiana 189 
 
 Ohio 189 
 
 Illinois 190-212 
 
 "JUDGMENT OP HIS PEERS," 
 
 meaning of expression 17 and note, 24 
 
 JUDICIAL PROCEEDINGS 26-28 
 
 must intervene in some States 184, 212 
 
 tax proceedings are quasi 44 
 
 JURISDICTION . ! 184, 481 
 
 over the person 184 
 
 subject-matter 184 
 
INDEX. 743 
 
 JURISDICTION, — continued. 
 
 distinction between Courts of general and special jurisdiction 184 
 
 when jurisdictional facts must appear of record 184 
 
 when presumed -104 
 
 strictness required in the exercise of jurisdiction, in the exe- 
 
 ciition of the taxing power 185 
 
 See Remedies. 
 
 K. 
 
 KNOWLEDGE OF THE PURCHASER, 
 
 how far he is chargeable with 65, 66 
 
 L. 
 
 LANDLORD AND TENANT 400 noie 
 
 "LAW OF THE LAND," 
 
 meaning of the expression 17-24 
 
 " LEGAL REPRESENTATIVE," 
 
 who is 296 
 
 LEGISL.A.TIVE POWER, 
 
 over property, principles by which controlled, &c. . . . 7-30 
 
 to establish rules of evidence 80 
 
 whether competent to declare a tax deed conclusive evidence 
 
 of title 80-82 
 
 LEVY OF THE TAX 154 
 
 essential 154 
 
 designation of percentage sufficient 154 note 
 
 onus on purchaser to prove 155 
 
 a municipal act 155 
 
 must be levied by the proper authority 165 
 
 must be levied when the statute directs 156-158 
 
 power to levy a tax a limited one 159 
 
 excessive levy vitiates sale 159 
 
 one of several levies illegal, sale void 160 and note 
 
 " de minim!* Jion carai Zea; " not applicable 162 
 
 overlayings excessive, and sale void 161 
 
 less tax than allowed, sale sustained 162 
 
 for illegal purpose, sale void 162 
 
 several taxes ought not to be blended together 163 
 
 back taxes may be levied 163 
 
 legislature may delegate the power to levy a tax to local tri- 
 bunals 164 
 
 power of corporation to levy must be clear 165 
 
 illegal tax may be recovered back 165 
 
 statutes levying taxes to be strictly construed 165 
 
 not to be construed as authorizing double taxes .... 166 
 
 LIEN OF THE STATE FOR TAXES 163, 644 note 
 
744 INDEX. 
 
 LIMITATION, 
 
 statutes of, tax titles under 661 ei «ej. 
 
 LIMITED, 
 
 all powers are 64 
 
 LIST, 
 
 delinquent, return of 181 
 
 LISTING 106, 107 
 
 essential to validity of tax title 79, 106 
 
 definition of 108 
 
 authority to several, how executed 110-112 
 
 onus on purchaser 109 
 
 evidence of 109, 110 
 
 must be an official document 112 
 
 power to list conferred upon several, all must convene and 
 
 confer 110-112 
 
 list must be verified by official signature 112, 113 
 
 power to list is special and limited 114 
 
 if property beyond jurisdiction of assessor, list void 114-117, see 295 
 
 return and lodging copy of, essential 117 
 
 must be returned in time prescribed 117-123 
 
 description must be certain and accurate 123-151 
 
 listing depends upon character of the land 137 
 
 of seated and unseated lauds 136 note, 137-143 
 
 abandonment 140, 142, 143 
 
 of non-resident lands 143 
 
 of lands in name of owner or occupant 143-146 
 
 of lands of unknown owners 144 
 
 must be in owner's name 143, 144 
 
 each ti-act must be listed separately 146-148 
 
 LOCATION, 
 
 of the land sold 355-359 
 
 M. 
 
 MANDAMUS 53 
 
 to compel execution of tax deed .... 63, 299, and notes, 492 
 to compel redemption 435, 491 
 
 MANDATORY REQUIREMENTS. See Diekctory Re- 
 quirements, Time, Listing. 
 
 "MAY," 
 
 construed 293, 615 
 
 MORTGAGOR AND MORTGAGEE .... 399 note, 534 et seq. 
 
 MUNICIPAL CORPORATIONS. See Corporations. 
 
 NOTICE, 
 
 is of the essence of things required to be done 213 
 
 essential in all judicial proceedings 213 
 
INDEX. 745 
 
 NOTICE, — continued. 
 
 where statute is silent, notice is implied 213 
 
 in special proceedings, notice must appear, of record . . . 214 
 
 must appear at large, recital insufficient 214 
 
 notice in sheriff's sale unessential 214 
 
 essential in tax sales 215 
 
 to present objections to an assessment 118 note 
 
 of application for judgment 201 
 
 of application for tax deed 299 note 
 
 to redeem 320, 435 
 
 requisites of a valid notice 172, 233 
 
 where law requires to be posted in a public place .... 216 
 
 by proclamation 246 
 
 consent of owner will not dispense with a legal notice of a 
 
 tax sale 249 
 
 by posting 245 
 
 by advertisement 213-250 
 
 difference in construction of actual and constructive notice 
 
 by the Courts ^ . 341,342 
 
 o. 
 
 OATH, 
 
 whether essential to title of officer 91-105 
 
 power to administer, judicial 257 
 
 OFFICE, 
 
 definition of an 92 
 
 no such thing as an office de facto 92 
 
 OFFICER, 
 
 election and qualification of, in connection with tax proceed- 
 ings 91-105 
 
 where a right is derived under one who purports to act in an 
 official character, the fact th:it he was an officer must ap- 
 pear 91 
 
 definition of an officer de jure 92 
 
 defacto 92 
 
 acts of an, defacto, when valid 93-95 
 
 this principle applicable to tax sales 96, 97 
 
 acts of an assessor defacto, when valid 98, 99, 110 
 
 when void .... 99, 102, 103 note 
 
 a collector defacto, when valid 103 
 
 void 102-104 
 
 OFFICIAL CHARACTER, 
 
 whether proof of is necessary to give effect to deed 66 note, 79 note, 
 
 99 note 
 
 "OMNIA PRiESUMUNTUR RITE ESSE ACTA" 71, 414 mrfe, 524 
 
 ONUS PROBANDI 65-90 
 
 upon the purchaser in tax sales ''•^ 
 
 reasons 65-90 
 
746 INDEX. 
 
 ONUS FROBATi(T)I,— cmUnued. 
 
 exceptions to the rule 74 
 
 how far this rule changed by legislature 79-90 
 
 ORDER OF PROOF linote 
 
 OWNER, 
 
 who is 420 
 
 OWNERSHIP, 
 
 defined 426 
 
 PATENTS, 
 
 distinction between, and tax titles 78 
 
 PAYMENT OF THE TAX, 
 
 what amounts to notes on pages il3, iU, ilG-ilS 
 
 sale void when tax paid before sale 412-417 
 
 how proved . . . .' 417 
 
 to whom 414 
 
 when it may be made 417 
 
 mistake as to tract paid upon 414 
 
 by owner of an interfering survey 414 
 
 by a tenant in common 414 
 
 as a condition of relief 491 and note 
 
 PENAL STATUTES, 
 
 definition of 53 
 
 PENALTY OR DOUBLE TAX 29, 30 
 
 PERSONALTY TO BE FIRST EXHAUSTED BEFORE 
 
 SELLING THE LAND 176 
 
 PLEADING, 
 
 manner of, a tax title 500-609 
 
 POSSESSORY CLAIM, 
 
 to land may be taxed 5 note 
 
 POSTING NOTICES 245 
 
 POWERS, 
 
 at common law 31 
 
 under .statute of uses . 32-36 
 
 statutory 33-3 
 
 distinction between naked and those coupled with an interest 44, 441 
 
 POWER TO SELL LAND FOR TAXES, 
 
 a stranger to the common law 31 
 
 origin of 33 
 
 a high prerogative 33 
 
 a naked authority ; . 33-44 
 
 a statutory power 33 
 
 a special power 34 
 
 PRESUMPTIONS, 
 
 ordinarily denied in support of a tax title 71-73 
 
 they are indulged in support of a long possession .... 515-528 
 
 contra 528-633 
 
INDEX. 747 
 
 PRESUMPTIONS, - cmtinued. 
 
 general principles rejative to 533 
 
 possession must be open and exclusive . . tiqo 
 
 PROPERTY, ■ ■ ■ 
 
 secuiitv of, under constitution . 7_in 
 
 PUBLIC DOMAIN, 
 
 whether it may be taxed bv the States . . . 642-544 
 PURCHASER AT TAX SALE, " " 
 
 not an owner prior to expiration of redemption 297 
 
 extent of his interest prior to that time 300-803 
 
 may compel execution of deed by martrfaOTMs 299 
 
 acquires a vested interest by his purchase 299, 300 
 
 title which passes to the 634-560 
 
 who may purchase 296 note, 400 
 
 Q. 
 
 QUANTITY OF LAND WHICH MAY BE SOLD ... 286 
 
 QUASI JUDICIAL PROCEEDINGS 44 
 
 QUO WARRANTO, 
 
 proper mode of testing title to an office 89 
 
 R. 
 
 REASSESSMENT OF TAXES 163, and note 
 
 RECEIPTS 417 and note, 435 and note 
 
 RECITALS IN TAX DEED NOT EVIDENCE .... 73 
 
 RECORDING OF THE TAX DEED 79 note, 371 
 
 REDEMPTION 418 
 
 defeats title of purchaser 418 
 
 who may redeem, " owner," " party in interest," &c. . . . 420-432 
 
 redemption laws to be construed liberally 432 
 
 minors cannot redeem under designation of " orphans " . . 432 
 
 widow cannot redeem her dower interest as a "feme covert'''' 432 
 
 agent may effect redemption — no authority required . . . 432 
 
 must be made within the time prescribed 419, 433 
 
 mode pointed out must be pursued 433 
 
 judicial proceedings upon application to redeem .... 427 note 
 
 precise sum due must be tendered 433 
 
 to whom a tender must be made 434 
 
 offer to redeem , 433 note, 434 
 
 receipt for redemption money, evidence 435 
 
 mandamus lies to compel a 435 
 
 notice to redeem 320-344, 435 
 
 RELATION OF A TAX DEED 383 
 
 REMEDIES, 
 
 origin of 7,8 
 
 when common-law remedies may be adopted . . 46, 481 and notes 
 when equitable remedies may be adopted . . 481 and notes, et seq. 
 
748 INDEX. 
 
 REMEDIES OF OWNER, 
 
 sale may be enjoined 481, 488-491 
 
 deed may be cancelled in equity 491, 492 
 
 tax title not favored in equity 492 
 
 complainant must offer to refund tax, &c 492 
 
 redemption may be enforced by mandamus 492 
 
 REMEDIES OF CREDITORS AGAINST TAX SALE . . 491 
 
 REMEDIES OF PURCHASER, 
 
 may compel execution of deed by mandamus 492 
 
 or bill in chancery 492 
 
 whether when he purchases an equity he may compel a con- 
 veyance of the legal title 492 
 
 cannot recover possession by forcible entry and detainer . 492 
 
 ejectment is the appropriate remedy 492 
 
 no defects in title aided in equity 492-496 
 
 REPEAL OF LAW UNDER WHICH SALE MADE, &c., 
 
 effect of 473 
 
 cannot effect vested rights 475 et seq. 
 
 nor impair the obligation of contracts 476 et seq. 
 
 repeals by implication not favored 480 
 
 REPRESENTATIVE, 
 
 who is the " legal representative " 298 
 
 RETURN OF DELINQUENT LIST, 
 
 basis of power to sell 181 
 
 omission of oath thereto, when required, avoids the sale . . 182, 183 
 
 RIGHTS, 
 
 derived from nature 8-10 
 
 of property 9-29 
 
 guarantees in favor of 9-29 
 
 SALE OF THE LAND 266 
 
 when no authority, void 251-266 
 
 must be public 266 
 
 and at the time designated in notice 268 
 
 and at the place named 274 
 
 may be conducted by a deputy 275 
 
 power of the officer to adjourn sale 275 
 
 must be to highest bidder 276 
 
 and for cash — a sale on credit void 278 
 
 part of the land liable to sale — part not— the sale is illegal 280 
 
 so where part of the taxes are illegal, sale void 280 
 
 sale must be according to the description contained in the 
 
 anterior proceedings 281 
 
 sale of "right, title, and interest" not the same as sale of 
 
 the land notes on pages 281, S(j8 
 
 sale of the interest of a tenant in common 283 
 
INDEX. 749 
 
 SALE OF THE LMfiD, — continued. 
 
 how the land is to be located 283 
 
 several parcels belonging to the same person — must be sold 
 
 for their separate tax 285, 286 note 
 
 quantity which may be sold 286 
 
 sale after county divided 114 note, 295, 392 note 
 
 certificate of sale 296 
 
 rights under invalid sale 406, 412, 437 
 
 who may purchase at 400 
 
 fraudulent sales 396 et seq. 
 
 SEAL. See Deed. 
 
 SEIZURE, 
 
 of body or goods to satisfy the tax, before sale of land . . 176-180 
 
 SHERIFF'S SALE, 
 
 advertisement not essential 214 
 
 purchaser must show judgment and execution 95 
 
 SPECIAL PROCEEDINGS, 
 
 affecting property 38-42, 184 
 
 STARE DECISIS, 
 
 relative to tax titles 656 
 
 STATUTES, 
 
 1. Definition of 699 
 
 2. Division of 699 
 
 1 . General or special 699 
 
 2. Public or private 699 
 
 3. Declaratory 699 
 
 4. Remedial 699 
 
 1. Enlarging 699 
 
 2. Restraining 699 
 
 5. Temporary ^^^ 
 
 6. Perpetual 600 
 
 7. Affirmative 600 
 
 8. Negative 600 
 
 9. Penal 600 
 
 8. Construction of, 
 
 1. Definition of construction 597-601 
 
 2. Distinction between construction and interpre- 
 
 tation 598 
 
 3. The different species of construction, as defined 
 
 by ethical writers 6*^* 
 
 4. Ethical rules of construction 604 
 
 6. Species of, as defined by the civilians, 
 
 1. Literal 606 
 
 2. Rational 60o 
 
 3. Mixed 605 
 
 6. Common-law species, 
 
 1. Strict 605 
 
 2. Liberal 605 
 
750 INDEX. 
 
 STATUTES, — continued. 
 
 7. Common-law rules of construction, 
 
 1. Courts nothing to do with the expediency 
 
 of a statute 606 
 
 2. The rules and maxims of construction to be 
 
 adhered to 606 
 
 3. Common law enters largely into the con- 
 
 struction of statutes 606 
 
 a just interpretation is ever controlled by 
 that law 606 
 
 the best construction is to approach as 
 near to the rule and reason of the com- 
 mon law as possible 606 
 
 and to conform to the course which that 
 law observes in similar cases .... 
 
 where power is given by statute, but the 606 
 
 means of executing it are not prescribed, 
 it' must be executed according to the 
 course of the common law 606 
 
 and where the provisions of a statute are 
 general, it is subject to the control and 
 order of the common law 606 
 
 the statute is to receive such a construction 
 as may be agreeable to the rules of the 
 common law, in cases of a similar nature 606 
 
 where a common-law word is used, we must 
 
 resort to that law for its meaning . . 606 
 
 a statute which makes an innovation upon, 
 or is in derogation of, the common law, 
 must be strictly construed 606 
 
 4. The power to construe statutes is judicial . 607 
 
 the legislature, no right to usurp this judi- 
 cial prerogative, by means of declara- 
 toiy and explanatory statutes . . . 607 
 
 6. Rules of construction same at law as in 
 
 equity 607 
 
 6. And are equally applicable to public and 
 
 private statutes 607 
 
 7. The validity of a rule of construction is 
 
 not to be tested by extreme cases . . 607 
 
 8. The intention of the legislature, the polar 
 
 star of construction 607 
 
 this rule applicable to all classes of statutes 607 
 
 this intent to be gathered from the words 
 
 used 607 
 
 the words are never departed from but to 
 
 ascertain intent 608 
 
 when the words are plain and unambigu- 
 ous, they must be followed .... 608 
 
INDEX. 751 
 
 STATUTES, — continued. 
 
 Courts may give a sensible interpretation 
 to words which are obscure, but they 
 have no right to distort those which are 
 clear 608 
 
 the fair and natural import of the words in 
 connection with the subject-matter, is the 
 true mode of ascertaining the intent . . 608 
 
 and this without reference to any tradi- 
 tional history of the occasion of the 
 enactment 608 
 
 unless the statute was the result of some 
 
 known state of public embarrassment . 608 
 
 when the language is obscure or ambigu- 
 ous, then every extrinsic fact may be 
 resorted to 608 
 
 thus, you may have resort to the 
 
 1. Title of the statute 'B08 
 
 2. To its preamble 608 
 
 3. To usage under it 609 
 
 4. To a comparison with other laws . 609 
 
 5. To contemporaneous construction . 609 
 
 6. To the hardship of the law . . . 609 
 
 7. To the history and situation of the 
 
 country 609 
 
 8. To the reason and spirit of the stat- 
 
 ute . . 609 
 
 9. To the inconvenience of a particu- 
 
 lar construction 609 
 
 10. To the absurd consequences which 
 
 will follow it 609 
 
 11. To the public interests .... 609 
 it is always presumed that the legislature 
 
 intend the most reasonable and beneficial 
 construction of their acts 609 
 
 the intention must be collected from the 
 whole act 609 
 
 and effect given to every clause, sentence, 
 
 and word 610 
 
 the most natural mode of construction is to 
 
 give effect to every part of a statute . . 610 
 
 the broader expressions are to control the 
 
 less comprehensive 610 
 
 statutes in pari materia may be considered 
 where the intention is obscure or doubt- 
 ful 610 
 
 9. The general rule is that effect must be given 
 
 to the words of the statute 610 
 
752 INDEX. 
 
 STATUTES, — continued. 
 
 they ought to be understood according to 
 
 their natural and general signification . 610 
 
 unless by giving to them such meaning, 
 an inconsistency or contradiction would 
 arise between the meaning thus given 
 and other parts of the statute .... 610 
 
 they are to be understood with reference 
 
 to the subject-matter 610 
 
 words to be understood according to their 
 
 most known and popular use .... 611 
 
 but technical words must be regarded as 
 
 employed in their technical sense . . . 611 
 
 all words must be taken in a lawful and 
 rightful sense 611 
 
 and according to their context .... 611 
 
 and the subject-matter of the statute . . 611 
 
 when susceptible of two meanings, they 
 must be construed as generally under- 
 stood 611 
 
 they ought not to be expounded so as to 
 
 destroy or impair natural justice . . . 612 
 
 when words which had a definite meaning 
 in an old statute, are used in a new one, 
 they shall be construed alike .... 612 
 
 when words used in different parts of a 
 statute conflict, they should be construed 
 according to the leading object of the 
 enactment 612 
 
 when the words of the enacting clause are 
 more general than those used in the 
 title, the former must prevail . . . 612 
 
 general words to receive a broad construc- 
 tion 612 
 
 unless restrained by other words in the 
 
 same statute 612 
 
 but general and less comprehensive words 
 should be so construed as to harmonize 
 with each other . 612 
 
 when a statute uses a word which is sus- 
 ceptible of two meanings, and in another 
 part of the statute it is used in a definite 
 sense, the latter is the true meaning . . 612 
 
 unless its context requires a different con- 
 struction 613 
 
 when the words of a grant are susceptible , 
 of two meanings, one extensive and the 
 other restrictive — and a choice is fairly 
 open, and cither may be adopted without 
 
INDEX. 753 
 
 STATUTES, -continued. 
 
 violating tie object of the grant — that 
 which will give the fullest effect to the 
 grant ought to bo adopted 613 
 
 general words do not embrace the State . 613 
 
 the word " persons " means natural persons 613 
 
 cont7-a — corporations will be included . . 613 
 
 the word " plaintiff" or " defendant" will 
 not include States, counties, and muni- 
 cipal corporations 613 
 
 statutes treating of inferior persons and 
 things will not be construed to embrace 
 those of a superior dignity 613 
 
 statutes speaking of Courts, process, prac- 
 tice, &c., must be regarded as using 
 technical language 613 
 
 statutes relating to particular actions can- 
 not be extended to others of the same 
 species 613 
 
 "void" — sometimes means uot(ia6/e . . 613 
 
 "which" and "said" relate to the last 
 antecedent 614 
 
 " such " -may be rejected, when .... 614 
 
 a conjunctive clause may be taken in a dis- 
 junctive sense 614 
 
 the words " shall forfeit," give only a right 
 to enforce the forfeiture, and not the 
 right itself 614 
 
 a misnomer, in a statute, of a person or 
 corporation, will not defeat the act, if 
 intention is apparent 614 
 
 where the words of a statute or section are 
 repugnant to each other, the last must 
 prevail 614 
 
 when a word, taken according to its literal 
 import, would have no effect, or an ob- 
 scure one, it must have a more effective 
 construction 614 
 
 general words may be restrained by more 
 particular ones 614 
 
 but where a thing is given or limited in the 
 precedent part of the statute, it shall not 
 be taken away or altered by subsequent 
 
 general words 614 
 
 the meaning of a word may be ascertained 
 by reference to the meaning of words as- 
 sociated with it . • 614 
 
 affirmative words may be construed as a 
 negative of that which is not affirmed . 614 
 
 48 
 
754 INDEX. 
 
 STATUTES, — continved. 
 
 ■when the natural import of the words may 
 be departed from 615 
 
 a word is omitted in one section, and the 
 omission is supplied in another section, 
 by reference to the section which omits 
 the word, the defective section may be 
 enforced according to such explanation . 615 
 
 the word " maj/ " is imperative, when . . 293,615 
 
 10. When a statute makes no exceptions, the 
 
 Court cannot 616 
 
 an exception implies, that but for the ex- 
 ception the thing or person excepted 
 would be within the statute .... 616 
 
 and the exception of one thing, is proof 
 that every other thing is embraced within 
 the general words 616 
 
 11. A statutory rule relating to pleading or 
 
 practice, must be construed with refer- 
 ence to the whole system of which it 
 forms a part 616 
 
 12. Punctuation will not vary the construction 
 
 of a statute 616 
 
 13. The debates in the legislative body cannot 
 
 influence the construction of a statute . 616 
 
 14. A recital in the preamble of a statute will 
 
 not limit or restrain the enacting words 
 
 of the statute 616 
 
 15. In construing a revised code, they are to 
 
 be considered as contemporaneous acts . 617 
 
 the common law is superseded by a revision 
 of the subject-matter, by the legislative 
 authority 617 
 
 words in a prior statute, which are incor- 
 porated in a revision, are to be construed 
 as though they were in the oi-iginal stat- 
 ute 617 
 
 when words in a statute have received a 
 judicial construction, and are afterwards 
 incorporated in a revised code, the same 
 construction will be adhered to . . . 617 
 
 when a statute, previous to a revision, is 
 clear, a change in the phraseology of 
 the revision will not authorize a different 
 construction 617 
 
 unless there is an intent to effect a change 617 
 
 16. Where the common and statute law differ, 
 
 the latter must prevail 617 
 
 but an affirmative statute does not repeal 
 
 the common law . . 617 
 
INDEX. 755 
 
 STATUTES, — continued. 
 
 where an old and new statute differ, the 
 
 latter must prevail 617 
 
 17. Courts cannot supply defective enactments, 
 
 a casus omissus cannot be helped by the 
 
 Courts 618 
 
 a mere failure of justice is not a reason 
 for construing a statute against its clear 
 meaning 618 
 
 18. Where the reasons of a law are made known 
 
 by any authentic document, the latter 
 may be referred to in construing a 
 doubtful statute 618 
 
 19. Recitals in a statute are not conclusive 
 
 upon any one 618 
 
 20. Where a positive enactment of a code is 
 
 at variance with the dictionary clause of 
 the code, the latter must give way to 
 the former 618 
 
 21. Courts must reconcile conflicting provi- 
 
 sions of a statute 618 
 
 22. In doubtfiil casess, the occasion and neces- 
 
 sity of the law, the mischief felt nud the 
 object and remedy had in view, may be 
 considered 618 
 
 23. " Communis error facit jus " 618 
 
 24. The adoption of a statute of a sister State, 
 
 or foreign nation, carries along with it 
 the construction put upon it in the State 
 or country from whence it was derived . 618 
 
 in matters of practice, the rule is not in- 
 flexible 619 
 
 nor where the law is not applicable to 
 the condition of the people .... 619 
 
 25. Two statutes, at same session, on same 
 
 subject, to be considered as one act . . 619 
 
 26. Definition of a public act 619 
 
 27. Where the means of carrying a constitution 
 
 or statute into effect are not prescribed, 
 those means which do not interfere with 
 established relations and vested rights 
 may be adopted 619 
 
 28. Conflicting statutes must be reconciled, if 
 
 possible 619 
 
 29. Intention of the draftsman of a law is enti- 
 
 tled to no consideration 619 
 
 30. Custom is entitled to weight in construing 
 
 an old statute 619 
 
 31. An old statute re-enacted, the construction 
 
756 INDEX. 
 
 STATUTES, — continued. 
 
 formerly given to it must be adhered 
 
 to 619 
 
 32. Statutes enacted at the same session to be 
 
 constmeiin pari materia 620 
 
 33. Two statutes passed on the same day, -which 
 
 are in direct conflict, and afterwards an- 
 other statute is passed which recognizes 
 one of them in force, the recognized 
 statute will be regarded as containing 
 the true rule 620 
 
 84. The decision of a court of one State upon a 
 statute of that State, will be received as 
 the true construction in another State . 620 
 
 36. A special statute is sometimes merged in a 
 
 general one 620 
 
 36. Whether statute remedies supersede the 
 
 common law 620 
 
 37. A statute penalty implies a prohibition . 621 
 
 38. Where there is a mistake in a statute which 
 
 may be corrected by other parts of the 
 
 statute, it is not fatal 621 
 
 39. A statute cannot become obsolete by dis- 
 
 use 621 
 
 40. Statutes cannot be construed retrospec- 
 
 tively 621 
 
 41. A right or remedy will not be construed 
 
 away by implication 622 
 
 42. Where rights are infringed, fundamental 
 
 principles are overthrown, and the gen- 
 eral system of the law is departed from, 
 the legislative intention must be clear to 
 induce a Court to suppose that the legis- 
 lature designed these consequences . . 622 
 
 43. Statutes not to be construed against reason 622 
 
 44. They must be construed to suppress the 
 
 mischief, advance the remedy, and pre- 
 serve fundamental principles .... 622 
 
 45. And so that no innocent man be punished 
 
 or endangered 622 
 
 46. Not to be construed so as to work injustice 622 
 
 47. Nor the destruction of a previously ac- 
 
 quired right 622 
 
 48. The province of a proviso 622 
 
 the terms of a proviso maybe limited by 
 
 the scope of the enacting clause . , 622 
 
 a limitation of an authority to do a thing 
 contained in the proviso to a statute, 
 is a negation thereof 622 
 
INDEX. 757 
 
 STATUTES, — coHKrawed. 
 
 a saving clause repugnant to the body of 
 
 the act is not void in all cases . . . 622 
 49. When time is directory, and when not . . 623 
 60. In computing time, day of the date ex- 
 cluded 623 
 
 51. "Word "month" means calendar or lunar, 
 
 according to circumstances .... 623 
 
 62. Where a statute gives a new power and' 
 
 provides the means of executing it, those 
 
 means must be adopted 623 
 
 63. When a statute requires a thing to be done 
 
 in a particular way, that way alone can 
 
 be pursued 623 
 
 64. Where a .statute confers a power, every 
 
 thing essential to its exercise is implied 623 
 
 55. Joint power given by statute to five, four, 
 
 or any less number, cannot exercise it . 623 
 
 56. Where a statute gives an authority to a 
 
 particular person or officer, all others 
 
 are excluded 624 
 
 57. Where a statute declares tliat a public offi- 
 
 cer may act in a certain way, which is 
 beneficial to third persons, he must act 
 in that way 624 
 
 58. Repugnant statutes to be reconciled . . 624 
 
 59. Where a statute directs judicial proceed- 
 
 ings — notice is implied 624 
 
 60. Construction of the word " complaint," 
 
 relative to criminal proceedings . . . 624 
 
 61. Words necessary to a statute grant . . . 624 
 
 62. Statutes take effect from their passage . . 624 
 
 63. Statutes will not be construed to affect 
 
 vested rights 624 
 
 64. How far statutes may be construed accord- 
 
 ing to their equity 625 
 
 65. Statutes must have a reasonable effect . . 626 
 
 Courts must uphold them 625 
 
 they should never be eluded .... 625 
 
 a fraud upon, or evasion of, will not be 
 
 tolerated 625 
 
 66. Statutes which are construed liberally, 
 
 1. Those confirming titles and granting 
 
 possession 625 
 
 2. Statutes of limitation 625 
 
 3. Statutes of frauds 626 
 
 4. Remedial statutes 626 
 
 5. Statutes authorizing suits against the 
 
 Stats 629 
 
758 INDEX. 
 
 STATUTES, — continued. 
 
 6. Statutes relative to the welfare or 
 
 policy of the State 626 
 
 7. Laws^conferring bounties .... 631 
 
 8. Laws authorizing an association to 
 
 hold land 631 
 
 9. Statutes relative to the administration 
 
 of justice 626 
 
 67. Statutes which are to be construed strictly, 
 
 1. Declaratory and explanatory statutes 626 
 
 2. Statutes which take away or clog 
 
 common-law remedies 626 
 
 3. Statutes which take away a remedy 
 
 given by a prior statute .... 627 
 
 4. Acts of incorporation 627 
 
 5. Revenue statutes 628 
 
 6. Penal statutes 628 
 
 7. Statutes which are both penal and 
 
 remedial 629 
 
 8. Statutes of costs 629 
 
 9. Statutes affecting human liberty . . 630 
 
 10. Laws exempting property from tax- 
 
 ation 629 
 
 11. Statutes giving summary remedies . 629 
 
 12. Statutes affecting property .... 630 
 
 13. Statutes which take away the right of 
 
 trial by jury 630 
 
 14. Statutes providing a remedy unknown 
 
 to the common law 630 
 
 15. Statutes giving jurisdiction to infe- 
 
 rior Courts 630 
 
 16. Statutes in derogation of the common 
 
 law 630 
 
 17. Statutes taking private property for 
 
 public uses 630 
 
 18. Statutes imposing restrictions upon 
 
 trade or common occupations . . 630 
 
 19. Statutes which disable persons . . 630 
 
 20. Statutes in favor of particular persons 631 
 
 21. Attachment laws 632 
 
 68. Construction of a toll-bridge charter . . 628 
 
 69. Statutes of a local character 629 
 
 70. Statutes prescribing the form of doing a 
 
 thing 630 
 
 71. Statutes authorizing a Court to render sub- 
 
 stantial justice 630 
 
 72. Where a statute gives a remedy and it may 
 
 be construed as a summary or usual 
 
INDEX. 759 
 
 STATUTES, — continued. 
 
 common-law remedy, the latter will be 
 intended g3j^ 
 
 73. Statutes in re'ation to the fees of public 
 
 officers, the construction ought to lean 
 
 in favor of the officer 631 
 
 74. Statute time — mode of computation . . 632 
 7o. In construing statutes we must look to the 
 
 old law, the mischief and the remedy . 682 
 
 76. Directory statutes 632 
 
 77. Eepealing aw — repealed — first law re- 
 
 vived 632 
 
 78. Statutes at variance with the law of God . 632 
 
 79. The expression of one thing is the exclu- 
 
 sion of another 632 
 
 SO. Railway and canal company acts . . . 633 
 
 81. A statute not to be nullified because some 
 
 of its provisions are absurd, repugnant, 
 
 or untrue 633 
 
 82. Cases which may be regarded as within or 
 
 without the words of a statute . . . 633 
 
 83. Distinction between a dependent and in- 
 
 dependent clause 634 
 
 84. Office of a saving clause 634 
 
 85. Distinction between an exception in the 
 
 enacting and proviso clause of a statute 634 
 
 86. A statutory power cannot be delegated . 634 
 
 87. Statute declaring tax deeds prima facie or 
 
 conclusive evidence of title, construed 
 
 rigidly and strictly 83-90 
 
 STRICTI JURIS, 
 
 tax sales are regarded as 63 note, 69 
 
 STRICTNESS, 
 
 required in tax sales 34-64 
 
 reason of the rule 35-59 
 
 degree of strictness exacted 69-65 
 
 SUMMARY PROCEEDINGS 45 
 
 SURPLUS BOND 315 
 
 T. 
 
 TAX, 
 
 distinction between a public and private 84 
 
 distinction between and excise, and assessment 1 note 
 
 definition of a 1 
 
 not a judgment 172 
 
 not a contract 172 
 
 cannot be set off 172 
 
 not a debt until demanded 172 
 
760 INDEX. 
 
 TAX, — continued. 
 
 levy of, essential 154 
 
 must be levied by competent authority 155 
 
 and wilhin the time limited 156 
 
 levy of, a municipal act 156 
 
 power to levy a, a limited one 159 
 
 too much, sale void 159 
 
 overlayings render sale void 161 
 
 part legal — part illegal — sale void 161 
 
 maxim, " de minimis,'''' &c., no application 162 
 
 for an illegal purpose, void 163 
 
 too little, sale valid 163 
 
 several taxes levied, ought not to be blended 163 
 
 back, may be levied 163 
 
 State, a lien for the 161 
 
 who should pay 399 et seq. 
 
 TAXATION, 
 
 apportionment necessary in . 7 note 
 
 limited 2 
 
 equality and unilbrmity of . . . 5-7, 106 note, 149 note, 488, noie 
 
 objects of, and purposes for which exercised 1, 2, 6, 7 
 
 TAXES, 
 
 causes of non-payment of 48 
 
 TAXING POWER, 
 
 what included within the 80 
 
 distinction between the, and eminent domain 1 
 
 no existence in a state of nature 1 
 
 government begets its necessity 1 
 
 the creature of civil society 1 
 
 indispensable to every government 2 
 
 an incident of sovereignty 2 
 
 a legislative power and not judicial 2 note, 26 
 
 expressly granted in Federal constitution 2 
 
 implied in State constitutions 2 
 
 exercised by de facto governments 2 note 
 
 no limitation of the, as to amount or. objects 2 
 
 extends to all persons or property 2 
 
 limited in some respects 2-7 
 
 limitation of, in State constitutions 10 
 
 limitations by compact 3-7 note 
 
 limitations upon, in Federal constitution 3 
 
 TAX LAWS, 
 
 though summary, constitutional 28 and note, 29 
 
 have a double intent 47-51 
 
 construed strictly, &c 29, 165, 166 
 
 TAX SALES, 
 
 rule of strictness required in 37-65 
 
 reasons of this strictness 38-60 
 
 degree of strictness required in 60-65 
 
INDEX. 761 
 
 TENANTS IN COMMON, 
 
 sale of their interest 283 
 
 TENDER 435, 446 no<« 
 
 TERM, 
 
 one day in law 272 
 
 TIME 260, 268, 623, 632 
 
 when directory in a statute 260-262 
 
 when mandatory in a statute 118 note 
 
 of tax sale 268 
 
 See Directory Rbquirbmbkts, Listing. 
 
 TITLE, 
 
 meaning of 677 
 
 what sufficient to recover as against a worthless tax title 74 and note 
 bill to quiet, without being in possession .... 17 note, 482 note 
 See Cloud upon Title, Remedies. 
 
 TITLE OF THE PURCHASER 634-555 
 
 See Certificate of Sale. 
 
 U. 
 
 UNIFORMITY. See Taxation. 
 
 USURPER, 
 
 defined 92, 93 
 
 his acts void - 102 
 
 V. 
 
 VALIDITY, 
 
 of proceedings determined under law in force when done . 34 note 
 VALUATION, 
 
 essential 7, 147-153 
 
 VARIANCES, 
 
 between different documents 392-395 
 
 W. 
 WARRANT 167 
 
 49 
 
 Cambridge: Press of John Wilson & Son.