(Jnrn^U Ham Btl^aal ICibraty 
 
Cornell University Library 
 KF 685.T2B63 
 
 A practical treatise on the power to sel 
 
 3 1924 018 781 801 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018781801 
 
A Moft Valuable Acquifition to every 
 
 Lawyer, Real Eftate Owner and 
 
 Conveyancer. 
 
 THE GREAT LEGAL WORK. 
 
 BLACKWELL ON TAX TITLES, 
 
 A Praftical Treatise on the Power to Sell Land for the Non-Payment 
 of Taxes AfleiTed thereon, embracing the decifions of the Federal 
 Courts, and of the Supreme Judicial Tribunals of the feveral States. 
 By Robert S. Blackwell, Efq., of the Chicago Bar. One Vol., 
 8 vo., about 800 pages. Price $5.50, 
 
 From the numerous letters which "we have received from persons highly qualified to judge 
 of the merits of the work, we make the following extracts ; 
 
 ILLINOIS. 
 
 From Hon. J. 1). Caion. 
 "I have perused with attention the early sheets of Blackwell on Tax Titles. You have ar- 
 ranged your subject in an admirable and philosophical manner. Your extensive practice and 
 great familiarity with the subject of which you treat, have eminently qualified you for the 
 task you have undertaken. I am satisfied you liave done yourself and your subject eminent 
 justice. The want of a practical treatise on the subject of Tax Titles has long been felt by the 
 profession, especially in the Western States. By accomphshing your task with the same 
 fidelity and industry which is indicated in that portion whioh I have examined, you will 
 have rendered an invaluable service to both the bench and the bar. No Law Library can be 
 considered complete without your work. The mechanical execution of the work is such as 
 leaves nothing to be desired in that department." 
 
 From Hon. 0. C. Skinner. 
 "It seems to me the book is one of great practical utility, and demanded at this period by 
 the wants of the pr&fcssion. The fact alone that it gives complete reference to all the leading 
 adjudications upon the vexed questions arising out of Titles derived under Tax Sales, renders 
 the work peculiarly valuable, and the matter of the text appears highly creditable to the pro- 
 fession and to the author." 
 
 From Hon. S. H. Treat 
 
 "I have examined Mr. Blackwell's Treatise on Tax Titles, and regard it as a valuable 
 work, and well worthy the patronage of the profession. " 
 
 From Hon. D. M. Woodson. 
 
 "As far as I can judge of the work, I regard it as one of great merit. It treats on a subject 
 of much interest to the American Lawyer, and must doubtless meet with that favor from the 
 profession which it deserves. Such a work is greatly needed, and the author is entitled to 
 the thanks of the legal profession for the labor which he has bestowed on a branch of the law 
 to which but little attention has been directed." 
 
 From Hon. John M. Wilson. 
 
 "I have examined with care Mr. Blackwell's Treatise on Tax Titles, and am confident that 
 it will fully meet the expectations of the profession even in the "West where his reputation 
 as an able lawyer is best known. Ilis extensive practice in cases involving the investigation 
 of questions applicable to this branch of the law has enabled him to present the subject in a 
 manner eminently practical. 
 
 The arrangement of the subject is perspicuoiis and the citations of authorities upon all the 
 main topics are full, and embrace all the cases bearing upon the several points discussed; 
 the subject is one of great and increasing importance, and this is the first effort to bring order 
 out of apparent chaos, of decisions scattered through the numerous American Keports . I 
 have no doubt that his book will compare favorably with the best and most popular law trea- 
 tises." 
 
Z TESTIMONIALS. 
 
 From Chief Justice Scates. 
 
 "A digest of the laws and principles settled by tlie construction of them by the many deci- 
 feions of Great Britain and the federal und state cdurts, scattered through so many volumes of 
 laws and reports, hart become necessary to thu profession. 1 highly approve the undertaking, 
 and am plea-ed to ttnd embraced within the plan of your work such thorougimess and com- 
 pleteness in tracing the subject from first principles through all its nice and difficult distinc- 
 tion?', from the source of the power to a valid title under it. 
 
 Judging of the whole work by the chapters I have examined, your labors will supply a 
 pressing want of the profession, and will, I have no doubt, meet their approbation and en- 
 couragement as they deserve." 
 
 From Hon. Thomas Drummond. 
 
 '*! understand that you have in press and are soon to publish a vrork on the "Power to sell 
 land tor non-payment of taxes," b., It. S. Blackwellof this city. My official duties have caused 
 me to become somewhat familiar with the subject treated by Mr. Blackwell, as I have been 
 called on to decide numerous cases upon that branch of the law within the last few years. I 
 was much gratified to learn that he was preparing a work on that subject for the press. It has 
 grown to be a very important branch of the law, particularly in the Western Sfcites, and I am 
 confident the work of Mr. Blackwell will greatly facilitate the labors of the bench and the bar 
 in cases involving the questions treated by him. I have had an opportunity of examining the 
 work in its progress througti tiie pre.=s, and I am much pleased with the manner in which Mr. 
 B has discharged the duty he has taken upon himself. The subject appears to be arranged 
 with clearness, and discussed with learning and ability. Allow me to add, in conclusion, that 
 you are producing the book in a style that is exceedingly creditable to your-house." 
 
 From Hon. R. S. Wilson. 
 "This work I am sure will be of great service to the practitioner, and it will in my opinion 
 furnish the student with more liseful knowledge than can be obtained within the lids of work 
 containing the same number of pages. It will unquestionably be a popular and useful book in 
 every State in the Union." 
 
 From Hon. David Davis. 
 
 "I am happy to bear my testimony to the merits of your forthcoming work on Tax Titles, 
 so far as I am able to judge from the chapters which you were kind enough to send me. The 
 decisions of our courts on the subji;ct of Taxo and Tax Sales are scattered thi-ough a great 
 number of volumes, and thereby rendered in a measure inaccessible to the great majority of 
 the profession in the AVestern States. 
 
 A book bringing together those decisions with the laws on which they are founded, and giving 
 the references to them must, prove eminently useful to the bar of this country. Kvery lawyer 
 and in lact every business man who is engaged in real estate transactions, needs the work, and 
 will certainly procure a copy. I trust that a discerning and liberal profession will amply re- 
 pay you for the time and labor bestowed in the preparation of your book." 
 
 From Hon. Norman H. Purple. 
 "I have examined the three first chapters of your work on Tax Titles; furnishing, as the 
 same is designed to do, to the profession, a ready reference to all the laws and decisions, with 
 a brief and luciJ abstract of the same, in relation to Taxes and Tax Sales, in the United States, 
 It must prove highly useful and beneficial to the legal profession at home and abroad, andin- 
 dispensable to such as are extensively engaged in the investigation of titles to real estate. I 
 take great pleasure in recommending it to the public." 
 
 From Isaac N. Arnold, Esq. 
 "I have been highly gratified in looking over several chapters of your "Practical treatise 
 on the power to sell land. &c." Itis a book which supplies a wantfelt more and more by the 
 profession, and which will relieve all who have any thing to do with investigations connected 
 with Tax Titles from much labor. Its posses^ioQ by me during the past year would have saved 
 me lueeks of labor. 1 think the execution of the work highly creditable to yourself; ex- 
 hibiting great research, industry andaccuracy, and nice discrimination in statement of cases. 
 In the production of thi^ work, I think you have honorably discharged the "debt which," as 
 Lord Coke says, "every man owes to his profession." 
 
 From Hon. Fhenezer Peck. [State Reportei\) 
 "It is a treatise of much merit, prepared with great care, and carries with it evidence of 
 study and learning. The book will make a valuable addition to the library of every western 
 lawyer, and in truth to the library of every Inw.^ er who desires to be well informed upon the 
 subjects of which Mr. Blackwell treats. The mechanical execution of the work is superior and 
 will do credit to yourselves as publishers." 
 
 From Hon. P. H. Walker. 
 "I feel no hesitation in saying that I regard it a very valuable addition to the present stock 
 of our legal learniug. I think it will prove highly valuable to both the student and practi- 
 tioner. It seems to cover the entire subject, and is very complete in its arrangement. Such a 
 work has been greatly needed and its appearaooe will be highly acceptable to the profession." 
 
 MARYLAND. 
 
 From Chief Justice R. B. Taney. 
 
 Chief Justice Taney received specimen sheets of the work while indisposed, at "Old Point 
 Comfort;" he therefore was unable to give the work more than a cursory examination. lie 
 writes as follows: 
 
 "So far as I looked into it, my opinion was a favorable one, and certainly a irork on that 
 subject is very desirable." 
 
TiSSTIMONIALS. O 
 
 OHIO. 
 
 From Hon. John McLean. 
 
 *'I am very favorably impressecl with the work. Such a treatise was much needed, not only 
 in the ^Vesteru States where lands are frequently sold for taxes, bat also for land holders in 
 the West who reside in other parts of the Union. 
 
 I have no doubt that it will not only be extensively useful, but very creditable to the author.. 
 The manner in which the book has been printed, does credit to the publishers and the press 
 of Chicago." 
 
 From Hon. W. Y. Ghohon. 
 "The portions of Mr. Blackwell's Treatise on Tax Titles, which you were so kind as to send 
 me have been examined. It is an able and very carefully prepared work, and promises entirely 
 to exhaust the subject; much labor must have been bestowed on the examination of the cases 
 having any bearing on the subject discust^ed, and 1 must confess that I am surprised they 
 were found to be so numerous. The woi'k when completed will be a most valuable aid to all 
 whose business or researches lead them into an investigation of the questions discussed. The 
 mode in which the work has been got up is creditable to the art^ in your city." 
 
 MISSOURI. 
 
 From the Hon. John M. Kruvi, St. Louis. 
 
 "I have read with great interest and satisfaction Blackwell's Treatise on Tax Titles, 
 which you were so kind as to r-end me, as the work was goingthrough the press. 
 
 Having myself given this subject more than ordinary study and attention during the last 
 fifteen years, 1 was the more anxious to see this work when its publication was announced. 
 
 In my judgment the author has succeeded well in presenting hi.^ subject in clear and vig- 
 orous language, and with marked perspicuity and point. He has succeeded equally well in 
 stating thu facts and the points decided ia the many Tax Title Cases that have been adjudi- 
 cated in the several courts of the United States, and which are reviewed in the text. 
 
 This feature in the work renders it a most valuable acquisition to every practicing law- 
 yer." 
 
 INDIANA. 
 
 From Hun. S. E. Perkins. 
 
 "I have looked with some care through Blackwell on Tax Titles, and am pleased with the 
 work. 
 
 The branch of the law treated of, is sufficiently important and extensive to be made the 
 subject of avolume, and is, I judge, systematically and thoroughly examined by Mr. B. The 
 work will be of great practical value to the profession, and should, and I have no doubt will, 
 meet with an extensive sale. 
 
 I am satisfied it will take its place among our standard text books, along side of Angel & 
 Ames' Corporations, "Sedgwick on damages," &c." 
 
 VIRGINIA. 
 
 From Hon. Andrew Johnston. 
 "I have read attentively the first sheets of Blackwell on Tax Titles. Such a work is very 
 much needed by the bar ; being the first attempt, so far as I know, to digest in a separate 
 treatise the cases and doctrines belonging to a subject of great and increasing importance. I 
 have no doubt Mr. Blackwell's undertaking will prove an essential service to the profession, 
 and confirm the reputation he has already acquired." 
 
 WISCONSIN. 
 
 From Hon. Levi Hahhell. 
 
 "I have noticed with much pleasure, your announcement, of a work in press entitled 
 "Blackwell on Tax Titles. " From an examination of the advance sheets, I am satisfied it will 
 prove a work of merit and prove extensively serviceable to the bench and the bar. If the 
 work is completed in accordance mth the prospectus, Mr. B. will haveadmirably cultivated a 
 new field of professional reputation." 
 
 NEW JERSEY. 
 
 From Hon, B. Williamson. 
 "The work is one wftich has been greatly needed by the profession. The collection of the 
 scattered authoriiies upon the subject of the treatise would of itself make this a most accept- 
 able work both to the bench and the bar. It has, however, much more merit than this; and 
 I am sure the author will receive, as he deserves, a suitable return for his own valuable labors 
 by which he has so much abbreviated the labors of others, and supplied a deficiency in the 
 library of the lawyer." 
 
 MICHIGAN. 
 
 An eminent lawyer in Michigan, who has received the work in sheets as it came out, thus 
 writes : 
 
 ' 'I have received from you, and read with equal pleasure and profit the first eleven chapters 
 of "Blackwell on Tax Titles." 
 
 It has long been matter of astonishment to me that so important a subject as that of Titles 
 to Real Estate under sales for Taxes, should remain so entirely unnoticed by commentators on 
 American Law, While every freeholder in the country is interested in knowing whatarethe 
 safeguards which the law throws around his property, and how strictly those must be regarded 
 by officers who would punish his neglect of duty by the forfeiture of his estate, while the 
 
4 TESTIMONIALS. 
 
 title to millioDS of acres is yearly "being transferred or attempted by law to be transferred from 
 those who have bought in good faith and for a full consideration to speculators who pay a 
 nominal price only, and while every municipal corporation has a vital interest in the question 
 of the validity of tax sales, by the aid of which aloue it can maintain its revenues — this great 
 branch of American Jurisprudence has scarcely received the passing notice of authors, and 
 the lawyer who would make himself familiar with it, has been obliged to wade through 
 series after series of reports, collect the scattered cases, examine them in the light of the 
 various statutes affecting them, and with great labor sift the grains of correct doctrine from 
 the conflicting decisions. 
 
 Rejoicing, therefore, to learn that Mr. Blackwell was engaged in the work of bringing to- 
 gether and analysing the American decisions on Tax quesuons, I assure you that I was both 
 surprised and delighted to find his Treatise so clear in its statements of fundamental princi- 
 ples, so comprehensive in its plan, and so complete in its collection of anthorilies as the first 
 portion shows it to be. That this great professional want should be at once so completely 
 supplied, was more than we could reasonably have hoped, and Mr. Blackwell has well earned 
 the thanks of the profession, and the high reputation he is certain to attain by bringing a 
 well-disciplined mind and a large experience to the elucidation of this subject." 
 
 ALABAMA. 
 
 Frora Hon. W. P. Chilton. 
 
 "I am in receipt of some of the early sheets of Mr. Blackwcll's work on Tax Titles, which 
 you did me the honor to forward. From the specimen I feel confident the work will be highly 
 acceptable- to the legal profession, as it is the only one exclusively devoted to this branch of 
 the law. The author appears to have bestowedmuch care and labor to make it accurate, and 
 well deserves the gratitude of his professional brethren. I have no doubt the publishers will 
 find for it a very ready sale." 
 
 SOUTH CAROLINA. 
 FroTii Hon. Job Johnston. 
 
 "I have as you desired examined with such attention as my business allowed, portions of 
 Blackwell on Tax Titles issued from your press, and am quite pleased with them. 
 
 Judging from the research into authorities, the clearness of exposition, and the soundness 
 of reasoning manifested in the chapters already out, and the subjects indicated in the table of 
 contents, I shall expect the work when completed to rank well among American judicial pub- 
 lications. 
 
 The subject of the taxing power considered as a matter of law, is well handled, and the in- 
 vestigation of what is intended by the phrase Lex Terra, is uncommonly extensive and able. 
 If the remainder shall correspond in excellence with what I have seen, this work will, in my 
 opinion, establish a high reputation for its author." 
 
 From Hon. John Belton O'Neale. 
 "I received a few days ago your favor, together with "Blackwell on Tax Titles." I hare 
 read the work with attention, and am much pleased with the plan and the contents." 
 
 GEORGIA. 
 From Hon. E. A. Nesbet. 
 *'I am in receipt of some of the early sheets of ''Blackwell on Tax Titles," which you pro- 
 pose soon to publish. I have looked into the work, and find it written with precision and 
 accuracy, and its positions sustained by copious references. The title really has no place in 
 the elementary books of the profession Such a treatise is a professional want. It will be 
 useful more especially in our new States. That it will be successful I have no doubt." 
 
A 
 
 PHACTICAL TREATISE 
 
 POWER TO SELL LAID 
 
 NON-PAYMENT OF TAXES 
 
 ASSESSED THEE EON, 
 
 EMBRACING 
 
 THE DECISIONS OF THE FEDERAL COURTS, AND OF THE SUPREME 
 JUDICIAL TRIBUNALS OF THE SEVERAL STATES. 
 
 ROBERT S. gLACKWELL, 
 
 OF THE IlCiNOIS BAR. 
 
 CHICAGO: 
 D. B. COOKE & CO., 
 
 BOOKSELLERS AND PUBLISHEES, 
 
 135 LAKE STBEET. 
 1855. 
 
^/^ti'-fa 
 
 Eatered, According to the Act of Congress, June 15, 1855, by 
 
 EGBERT S. BLACKWELL, 
 
 In the Clerk's office of tlie District Court of the United States, for the Northern District of 
 
 Illinois. 
 
 
 5COTT & FULTON, PRINTERS, 
 CHICAGO . 
 
TO 
 
 ARCHIBALD WILLIAMS, ESQ., 
 
 LATE UNITED STATES ATTOENET FOR THE DISTKICT OJ ILLINOIS: 
 
 AS ABLE LAWYEE, 
 
 THE PIONEER IN TAX TITLE LITIGATION IN 
 
 ILLINOIS, AND -WHO, BY HIS ADVICE AND ENCOUKAGEMENT, 
 
 HAS MATEKIALLT AIDED IN THE PKEPAEATION OP THIS WOKK, AND 
 
 POR WHOM THE AUTHOR ENTERTAINS THE HIGHEST SENTIMENTS 
 
 OP REStECT AND PRIENDSHIP, 
 
 THIS BOOK IS DEDICATED. 
 
TO THE EBADER. 
 
 That errors — grammatical, typographical, and 
 technical — exist in this work, is undeniable. These 
 will be corrected in the second edition. In the mean- 
 time, the author begs leave to say, that no error has 
 occurred which does not carry along with it its own 
 correction. For this reason, he omits the usual 
 enumeration of errors. In behalf of the printers, 
 he takes pleasure in saying, that their accuracy is 
 unprecedented. 
 
CONTENTS, 
 
 CHAPTEK I. 
 
 Of the PnuDAMENTAL Pkinoiples which conteol the Tax- 
 ing POWEK, 7 i2 
 
 CHAPTEE II. 
 
 Of the Nature of the Powek to Sell Land for the Non- 
 Payment OF Taxes, and of the Strictness Required in 
 SUCH Sales, 43—83 
 
 CHAPTEK III. 
 
 Op the Onus Probandi, 84 — 112 
 
 CHAPTEE IV. 
 
 Op the Election and Qualification of the several Offi- 
 cers WHO HAVE anything TO DO WITH THE EXECUTION OP 
 
 THE Power, lis — 129 
 
 CHAPTEE V. 
 Op THE Listing and Valuation of the Land, 130 — 183 
 
 CHAPTEE VI. 
 Op the Levy of the Tax, 184 — 198 
 
 CHAPTEE VII. 
 
 Op the Authority to Collect the Tax, 199 — 204 
 
 CHAPTEE VIII. 
 
 Of the Demand op the Tax, 205 — 208 
 
viii CONTENTS. 
 
 CHAPTEK IX. 
 
 Of the Seizuee op the Bodt, ok Goods and Chattels of 
 THE Delinquent, to Satisfy the Tax, 209 213 
 
 CHAPTER X. 
 
 Or the RETnRN of the Delinquent List, 214 216 
 
 CHAPTER XI. 
 
 Of the Pboceedings wheke a Judicial Condemnation is 
 Eequiked, 217-250 
 
 CHAPTER XII. 
 
 Of the Advertisement of the Time and Place op Sale,. 251 — 293 
 
 CHAPTER XIII. 
 
 Of the Authority op the Officer to Sell, 294 — 304 
 
 CHAPTER XIV 
 
 Of the Distinction between Conditions Precedent and 
 Directory Eequirements, 305 — 311 
 
 CHAPTER XV. 
 
 Of the Sale of the Land, 312 — 346 
 
 CHAPTER XVI. 
 
 Op the Certificate op Sale, 347 — 354 
 
 CHAPTER XVII. 
 
 Of Conditions subsequent to the Sale, 355 — 407 
 
 CHAPTER XVIII. 
 
 Of the Authentication op the Different Documents, . . . 408—416 
 
 CHAPTER XIX. 
 Of the Confirmation op the Sale, 417 — 419 
 
 CHAPTER XX. 
 Of the Location of the Land Sold, 420 — 422 
 
CONTENTS. IX 
 
 CHAPTEE XXI. 
 Of the Amendment of the Pkoceedings, 423 — 429 
 
 CHAPTER XXII. 
 Of the Tax Deed, 430 — 460 
 
 CHAPTEE XXIII. 
 
 Of Vabiances between diffekent Documents and Eecoeds 
 Relating to the Peoceedings, 461 — 465 
 
 CHAPTER XXIV. 
 
 Of Sales Actually and Constktictivelt Fraudulent, . . . 466—476 
 
 CHAPTER XXV. 
 
 Or THE Effect of the Sale and Deed wheee the Land sold 
 
 WAS Exempt fkom, ok not Subject to Taxation, 477 — 483 
 
 CHAPTEE XXVI. 
 
 Of the Effect op the Sale and Deed where the Taxes 
 
 HAVE BEEN PAID BEFORE THE SaLE, 484 — 489 
 
 CHAPTER XXVII. 
 
 Of the Effect of the Sale and Deed where a Redemption 
 FROM THE Sale has been made, 490 — 509 
 
 CHAPTEE XXVIII. 
 Of the Effect of the Sale and Deed where the Officer 
 
 HAS abused OR EXCEEDED HIS AUTHORITY, 510 — 515 
 
 CHAPTEE XXIX. 
 Op THE Covenants op the Ofeicek, contained in the Tax 
 Deed, 516—519 
 
 CHAPTEE XXX. 
 
 Of the Consent of the Owner to Irregularities in the 
 Proceeeings, 520 — 522 
 
 CHAPTEE XXXI. 
 
 Of Sales of Land for Taxes under the Charter and 
 
 Ordinances of Municipal and other Corporations, 523 — 535 
 
 B 
 
X CONTENTS. 
 
 CHAPTEK XXXII. 
 
 Of the Foefeituke of Lands to the State wheue the 
 Taxes have not been Paid, 536 — 552 
 
 CHAPTER XXXIII. 
 
 Or the Effect of the Repeal of the Law unbee which 
 the Peoceedings took place, 553 — 562 
 
 CHAPTER XXXIV. 
 
 Of the Jueisdiotion op the Courts in causes involving 
 the Validity op Tax Sales and of the Eemedies of 
 paeties inteeested theeein, 563 — 583 
 
 CHAPTER XXXV. 
 Op the Mode op Pleading a Tax Title, 584 — 596 
 
 CHAPTER XXXVI. 
 
 Op the eules op Evidence relative to the Maintenance 
 AND OvEETHEOw OP A Tax Title, .'. 597 — 626 
 
 CHAPTER XXXVII. 
 
 Op THE Title which passes to the Pukchasee at a Tax 
 
 Sale, 627—650 
 
 CHAPTER XXXVIII. 
 
 Or THE Principle of Stare Decisis concerning Tax Titles, 651 — 656 
 
 CHAPTER XXXIX. 
 
 Op Tax Titles as the Poundation op an Adverse Posses- 
 sion UNDER THE Statutes op Limitation, 657 — 687 
 
 CHAPTER XL. 
 
 Of Compensation foe Improvements made by Persons In 
 Possession unde Tax Titles, 688 — 696 
 
 CHAPTER XLI. 
 
 Of the Intepeetation and Construction of Statutes ap- 
 PECTiNG Keal Property, 697 — 745 
 
 Appendix, 747 — 752 
 
TABLE OF CASES. 
 
 The following table contains a double reference to the cases cited in this work^ 
 the name of the plaintiff being followed by v., thus : Abbott v. Yost. And when 
 the name of the defendant is first inserted in the table, it is succeeded by the 
 abbreviation, ats., thus : Yost ats, Abbott. 
 
 Abbott V. Yost, 200. 
 Adams v. Turrentine, 60. 
 ats. Hamilton, 96. 
 V. Jackson, 118, 122, 126. 
 V. Litchfield, 132. 
 V. Vanderbilt, 196. 
 V. Baintor, 321. 
 V. Adams, 511. 
 Aiken ats. Carmichael, 47, 173, 185, 
 267. 
 ats. Tucker, 115, 116, 121, 126. 
 ats. Paden, 196. 
 Ainsworth v. Dean, 121, 123, 124, 165, 
 
 175, 335. 
 Aldrich y. Aldrich, 200. 
 Allen V. Smith, 45, 47, 86, 94, 98, 254, 
 287, 293, 604, 619. 
 ats. State, 40. 
 V. Robertson, 94. 
 V. Scott, 200. 
 ats. Wentworth, 274, 535. 
 V. Parrish, 305. 
 ats. People, 306. 
 V. Everts, 438. 
 ats. Nelson, 692. 
 Alleghany City ats. Moore, 197, 200. 
 Alvord V. Collins, 47, 92, 94, 121, 174, 
 
 192, 276, 280. 
 Anderson ats. Coleman, 192, 609. 
 V. Patten, 222. 
 V. State, 481. 
 
 V. State of Mississippi, 571. 
 Andrews v. Senter, 331, 359. 
 Anthony ats. Wheeler, 174, 200. 
 Armstrong ats. Shoalwater, 106, 526, 
 528. 
 V. Treasurer of Athens Co., 
 481. 
 
 Arnold ats. Stackpole, 409. 
 Arrowsmith v. Burlingame, 15, 35, 
 
 661. 
 Ashville v. Means, 197. 
 Astor ats. Grignon's Lessee, 219. 
 Astrom v. Hammond, 483. 
 Atkins V. Kinman, 72, 81, 309, 436. 
 
 V. Hinman, 89, 178, 235, 236, 
 238, 243, 246, 247, 248, 249, 
 427, 627. 
 Atlantic Insurance Company of New 
 
 York ats. Conrad, 650. 
 Atwell ats. Blight, 425. 
 Atwater v. Woodbridge, 478. 
 Auditor v. Bleight, 197. 
 Aulanier v. The Governor, 115. 
 Auscomb V. Shore, 510. 
 Avis ats. Scales, 47, 210, 211, 277, 
 
 293, 521. 
 Bacon v. Conn, 508, 573. 
 Backus V. Lebanon, 478. 
 Bagshaw v. Goward, 510. 
 Bailey v. Wordye, 337. 
 ats. Gibson, 425. 
 Baker v. Towles, 94, 185. 
 ats. Parker, 118. 
 ats. Harrison, 692. 
 Ballon v. Bleeker, 7. 
 Balch ats. McGregor, 115, 118. 
 Baltimore v. Chase, 210. 
 Bellas ats. Donnell, 373. 
 Ballance v. Porsythe, 422, 470. 
 Ballard v. Stephenson, 691. 
 Bank v. Smyers, 684. 
 Bank of Columbia v. Oakey, 34. 
 
 of XJtica v. Mersereau, 165, 435, 
 
 436, 441, 575. 
 of Newbern ats. State, 198. 
 
TABLE 01? CASES. 
 
 Bank of Georgia v. Savannah, 198, 
 526. 
 of Illinois ats. Frye, 470. 
 of United States v. Shultz, 570. 
 Y. Osborn, 570. 
 ats. Irwin, 638. 
 Banks ats. Blight, 94, 424, 485, 490. 
 Bangs T. Snow, 192. 
 Barker v. Hesseltine, 172. 
 
 T. Blake, 175. 
 Bartlett ats. Madison County, 196. 
 Barnard v. Graves, 200. 
 Barron ats. Iron Manufac. Co., 298. 
 Barrows ats. Lessee of Ward, 617. 
 Barney's Lessee ats. Hawkins, 658. 
 Barnett ats. Bell, 691. 
 Bartlett ats. Greely, 327. 
 Barlow V. Bell, 691. 
 Barger v. Jackson, 418. 
 Barclay ats. Collins, 489, 638. 
 Bartholomew v. Leech, 375, 472. 
 Barley ats. Rawlings, 661. 
 Barbour v. Nelson, 543. 
 
 V. HoUingsworth, 576. 
 Baskins v. Winston, 335, 339. 
 Bassett v. Porter, 200, 209. 
 Bates V. Branch Bank of Mobile, 53, 
 59, 221. 
 V. P. & M. Bank, 59, 221. 
 Battomore v. White, 67, 85. 
 Bath ats. Lisbon, 186, 195. 
 Batcheller ats. Hapgood, 327. 
 Baumgard ats. Spiller, 302. 
 Bayard v. Inglis, 687. 
 Beatty v. Knowler, 45, 530. 
 Beard ats. Edward, 196. 
 V. Smith, 536, 537. 
 Bealls V. Guernsey, 305. 
 Beardsley ats. Comstock, 388, 396, 
 
 398, 399. 
 Beasley ats. Doty, 432. 
 
 ats. Masterson, 501, 506. 
 Bean ats. Wiley, 445, 448, 449. 
 Beebee ats. Fowler, 118. 
 Bedell v. Janney, 60. 
 Beekman v. Brigham, 94, 105. 
 Baintor ats. Adams, 321. 
 Bell v. Wilson, 47, 88, 444. 
 V. Bowen, 96. 
 ats. Raymond, 219. 
 ats. Peacock, 219. 
 ats. Barlow, 691. 
 V. Barnett, 691. 
 Bellows V. Elliott, 47, 94, 95, 368, 655. 
 
 V. Parsons, 655. 
 Belton V. Briggs, 692. 
 Bennett ats. Woodcock, 34. 
 
 ats. Chapman, 94, 322. 
 
 ats. Millikin, 168, 169, 171, 
 
 172. 
 ats. Lessee of HoUister, 194, 
 300, 360. 
 
 Bennett ats. Leland, 399. 
 ats. Wright, 495. 
 Benson v. Mayor of New York, 556. 
 Benedict V. Gilman, 691. 
 Bergen v. Clarkson, 41, 525. 
 Berlin ats. Middletown, 136. 
 Berry ats. Paris, 196. 
 
 ats. Williams, 220, 418. 
 Bergantz ats. McCord, 506, 638. 
 Berr^Tnan ats. Hewett, 691. 
 Bestor ats. Blakely, 153, 238, 471. 
 
 V. Powell, 249, 316, 317, 319, 
 442. 
 Bettis ats. Taylor, 221. 
 Beverly ats. Kinney, 34, 92, 132, 144, 
 
 254, 291, 325, 436, 539. 
 Bewdly Case, 654. 
 Biddle ats. Green, 692. 
 Bigler v. Karns, 643, 687. 
 Billings ats. Providence Bank, 9, 481. 
 Y. Detton, 150, 187, 249, 306. 
 Bishop V. Lovan, 47, 94, 294. 
 Blakenev v. Ferguson, 47, 80, 84, 574, 
 
 592. 
 Blaisdell ats. Moulton, 103, 254, 289, 
 
 328. 
 Blake v. Sturtevant, 119, 201. 
 ats. Barker, 175. 
 V. Howe, 470. 
 Blakely v. Bestor, 153, 238, 471. 
 Blackmore ats. Patterson, 167, 170. 
 Black V. Percifleld, 419. 
 Blanden ats. Cox, 421. 
 Blakeslee ats. Rowe, 477. 
 Blair v. Wagoner, 638, 
 Bleight V. Auditor, 197. 
 Bleeker v. Ballou, 7. 
 Bledsoe v. Doe, 97. 
 Blight V. Atwell, 425. 
 
 ats. Terry, 47, 94, 96. 
 V. Banks, 94, 424, 485, 490. 
 Blunt ats. Willard, 639. 
 Boardman v. Ford, 100. 
 
 ats. Forrester, 327. 
 V. HoUiday, 114. 
 Bodfish ats. Smith, 47, 80, 95, 464. 
 Bodley r. Hoard, 94, 
 Boisgerard v. Johnson, 47, 339. 
 Bolt V. Pearly, 205, 477, 535. 
 Botsford V. Burr, 691. 
 Eouldin v. Massie, 448. 
 Bourland ats. Ross, 634. 
 Bowen v. Bell, 96. 
 
 ats. Robb, 687. 
 Bowers v. Green, 654. 
 Boyd ats. Bright, 507, 579, 582, 691. 
 Branch Bank of Mobile ats. Bates, 53, 
 
 59, 221. 
 Bradford ats. Ware, 96. 
 
 ats. Williamson, 97. 
 ats. Craig, 305. 
 Bratton ats. Mitchell, 169, 185. 
 
TABLE OE CASES. 
 
 Brackett v. Whidden, 200. 
 Bradley v. Snyder, 690. 
 Brashears ats. Hogins, 438, 450, 460. 
 Branch Bank of Mobile ats. Dyer, 477, 
 
 478, 571, 637. 
 Branson v. Yancy, et al., 574. 
 Bradstreet v. Huntington, 658. 
 Brewster v. Hough, 9, 478, 479. 
 Brigham ats. Beekman, 94, 105. 
 Briggs V. Whipple, 602. 
 
 ats. Belton, 692. 
 Bright V. Boyd, 507, 579, 582, 691. 
 Brindle ats. Patterson, 505, 506. 
 Brown v. Veazie, 47, 80, 82, 84, 88, 
 175, 254, 267, 289, 562. 
 
 V. Smith, 47. 
 
 V. Dinsmore, 47, 83, 152, 164. 
 
 ats. Moore, 47, 67, 68, 85, 282, 
 314, 671, 690. 
 
 V. Wright, 47, 91, 93, 94, 203. 
 
 V. Wheeler, 53, 59, 221, 252. 
 
 V. Hummel, 35. 
 
 ats. Ksh, 169, 170. 
 
 ats. Commonwealth, 201. 
 
 V. Hutchinson, 263, 435. 
 
 ats. Gardner, 268. 
 
 ats. Taylor, 305. 
 
 V. Moore, 450. 
 
 ats. Finch, 506, 508, 644. 
 
 V. Connelly, 619. 
 Brownell ats. Irving, 47, 94, 180, 661, 
 
 675, 677, 683. 
 Brownlee ats. Pitman, 92. 
 Brooks V. Rooney, 47. 
 
 V. Hardwick, 508. 
 Brockway ats. Cooper, 490, 
 Bruen ats. Graves, 47, 132, 180, 182, 
 
 431, 438, 441, 599. 
 Brush V. Cook, 118. 
 Bruce v. Schuvler, 179, 180, 347, 351, 
 
 459, 556, 671. 
 Bryson ats. Lazarus, 476. 
 Bryan ats. Grand Gulf R. & B. Co., 
 350. 
 
 ats. Register, 47, 65, 308, 337, 
 548. 
 Buckner ats. Taylor, 682. 
 Bnckmaster ats. State Bank, 305. 
 Buckley v. Osborn, 477, 482, 548, 549. 
 Bucknam v. Buggies, 120. 
 Buchanan v. Upshaw, 521 . 
 Buffum ats. Farnham, 47, 57, 68, 254, 
 
 267, 276. 
 Bunnell ats. Ontario Bank, 197, 198, 
 
 527. 
 Burlingame ats. Arrowsmith, 15, 35, 
 661. 
 ats. Smith, 252. 
 Burger v. Carter, 31, 42, 197. 
 Burt ats. Lyon, 47, 94. 
 Burch V. Fisher, 47, 114, 121, 123, 135. 
 Burke v. Elliott, 118. 
 
 Burd V. Ramsey, lOT, 207, 210. 
 
 Burnham ats. Libby, 192. 
 
 Burgess v. Pue, 200. 
 
 Buram ats. Hamilton, 210, 211, 222. 
 
 Burns v. Lyon, 324, 374, 376. 
 
 Burrill v. Phillips, 327. 
 
 Burnett v. Delauny, 350. 
 
 V. Cincinnati, 567, 571. 
 Burger ats. Driesbach, 367. 
 Burchard v. Hubbard, 450. 
 Burr ats. Botsford, 691. 
 Busscy V. Gilmore, 195. 
 
 V. Leavitt, 47, 100, 258, 279. 
 Bush v. Davidson, 80, 355, 392, 399. 
 Busier v. Palmer, 555. 
 Butler V. Chariton County Court, 556. 
 Byers ats. Lafferty, 47, 94, 155, 157, 
 
 161, 254, 268. 
 Byrne v. Stewart, 32. 
 Byrnes ats. Croswell, 242. 
 Cain ats. Winchester, 185, 505. 
 Calder v. Rutherford, 431. 
 Camfranc ats. Dafour, 96. 
 Campbell v. Wilson, 168, 169, 170, 171 
 
 ats. Wyman, 219. 
 
 V. Mclrwin, 222. 
 
 ats. Fager, 374, 638. 
 
 V. Leach, 511. 
 Cambridge v. Chandler, 262, 288. 
 Camden and Amboy B. R. Company 
 
 V. Hillegar, 195. 
 Carlise v. Longworth, 47, 110. 
 Carpenter v. Sawyer, 47, 292, 367, 602. 
 Carmichael V. Aiken, 47, 173, 185, 267. 
 Carrol v. Perry, 482. 
 Carter ats. Burger, 31, 42, 197. 
 Carrington v. Entick, 697. 
 Cash ats. Fox, 473. 
 Casey ats. Fitch, 47, 84, 92, 431, 463. 
 Catlett ats. Shortbridge, 433. 
 Caul V. Spring, 638. 
 Chandler v. Spear, 47, 200, 263, 310, 
 435, 436. 
 
 ats. Cambridge, 262, 288. 
 Chapman v. Benett, 94, 322. 
 
 ats. Walker, 187, 307. 
 
 ats. Scarritt, 247. 
 Chapin v. Curtenius, 249, 499, 506. 
 Charlton ats. McKibbin, 169, 170. 
 Chase v. Sparhawk, 200, 201. 
 ats. Baltimore, 210. 
 V. Hathaway, 252. 
 Chambers v. Willson, 470. 
 Chariton C. Court ats. Butler, 556. 
 Cheaney v. Hooser, 524. 
 Chegaray v. Jenkins, 481. 
 Cheatham v. Ho\vell, 252. 
 Cheanut V. Marsh) 221, 235, 237, 238, 
 246, 249, 473. 
 ats. Marsh, 147, 187, 189, 306. 
 Chester ats. Farmer and Merchants' 
 Bank, 118. 
 
TABLE OF CASES. 
 
 Chillicothe ats. McCoy, 566. 
 
 Chotoau V. Jones, 470. 
 
 Christy v. Minor, 94. 
 
 Cliunn ats. Doe, 324, 459, 525, 527, 528. 
 
 Church V. Gilman, 434. 
 
 CiUey ats. Homer, 132, 200, 215, 262, 
 
 298. 
 City of Alton ats. Sawyer, 196. 
 Boston ats. Pierce, 205. 
 Cincinnati College v. State, 481. 
 ats. Burnett, 567, 571. 
 ats. Mays, 523. 
 Clarkson ats. Bergen, 41, 525. 
 Clark V. Courtney, 45, 515. 
 ats. Cummings, 119. 
 V. Tucker, 292, 365. 
 V. Graham, 448. 
 ats. Jackson, 576. 
 Clabaugh ats. Maxy, 180, 325, 351, 
 
 435, 441, 442, 575. 
 Claw ats. Kinderhook, 252. 
 Clements ats. Hobbs, 47, 266. 
 Click ats. State, 325. 
 Clinton ats. Whittlesey, 132. 
 Clutc ats. Mohawk & Hudson K R. 
 
 Co., 565. 
 Coates ats. Sheldon, 122, 129, 274, 
 
 414, 599. 
 Cochran ats. Plunter, 485, 486. 
 
 ats. Wilson, 517. 
 Cohen v. McElmoyle, 660. 
 Coit V. Wells, 121, 126, 292, 366, 600, 
 
 602. 
 Coleman ats. State, 32. 
 Collins ats. Hall, 47, 92, 93, 94. 
 
 ats. Alvord, 47, 92, 94, 121, 
 
 174, 192, 276, 280. 
 ats. People, 118, 119. 
 V. Barclay, 489, 638. 
 Columbia Turnpike Co. ats. Gilbert, 
 
 53, 54,601. 
 Cole ats. State, 65. 
 .Its. Taylor, 510. 
 V. Pennoyer, 661. 
 Colburnv. Ellis, 119. 
 Colby V. Russell, 140, 412. 
 Colkctt ats. Williston, 166. 
 Coleman v. Anderson, 192, 609. 
 Colt V. Eves, 306. 
 Commonwealth V. Fowler, 119. 
 V. Brown, 201. 
 V. Louisville Canal, 481. 
 Combs V. Warren, 470. 
 Commissioners v. Smith, 167. 
 Comstock V. Beardsley, 388, 396, 398, 
 
 399. 
 Coman v. State, 599.. 
 Conrad v. Darden, 185, 314. 
 
 V. The Atlantic Ins. Co. of 
 New York, 650. 
 Connelly v. Nedrow, 373. 
 ats. Brown, 619. 
 
 Coney v. Ownen, 477, 695. 
 Conn ats. Bacon, 508, 573. 
 Council ats. Kelly, 619. 
 Cooper V. Brockway, 490. 
 
 ats. State Bank, 31. 
 Cook ats. Brash, 118. 
 Conyers v. Kenans, 684. 
 Copman ats. Jacques, 269. 
 Corwin v. Merritt, 81, 309. 
 Corcoran ats. Smith, 93, 185. 
 Corrie v. Fowler, 94, 152, 162, 196, 
 
 268, 332, 421, 449. 
 Corliss v. Corliss, 252. 
 Costigan v. Mohawk & Hudson E. E. 
 
 Co., 95. 
 Courtney ats. Clark, 45, 515. 
 Coulters ats. O'Brien, 47, 94, 336, 511, 
 
 574. 
 Course ats. Stead's Executors, 46, 84, 
 
 94, 161, 210, 336, 594, 603. 
 County Court of Obion v. Maw, 186. 
 Commissioners ats. Norwich, 
 
 196. 
 of Washington ats. Emerson, 482. 
 Cox v. Blanden, 421. 
 ats. Webber, 253. 
 T. Grant, 210. 
 Crawford v. State, 59, 221. 
 Craig ats. Kelly, 134, 201, 289, 322, 600 
 Cranmer v. Hull, 167, 687, 695. 
 Craig V. Bradford, 305. 
 Crane ats. Haven, 421. 
 Creigh v. Wilson, 694. 
 Crocker ats. Morris, 47, 94. 
 ats. Dennett, 489. 
 Croswell v. Byrnes, 242. 
 Croke ats. Rex, 53, 219, 252, 601. 
 Culver V. Hayden, 47, 265, 292, 308, 
 
 365. 
 Culvert ats. Hoagland, 118. 
 Cummings v. Clark, 119. 
 
 ats. Jackson, 236, 237. 
 Curry v. Hinman, 102, 247, 249, 485, 
 
 486. 
 Curtenius ats. Spellman, 178,216, 221, 
 235, 240, 241, 243, 247, 
 249, 421, 661. 
 ats. Chapin, 249, 499, 506. 
 Cui'tiss V. Norton, 418. 
 Gushing V. Longfellow, 47, 326. 
 
 ats. Hale, 122, 123, 128. 
 Dafour v. Carafranc, 96. 
 Daggett V. Everett, 209. 
 Daily ats. Kennedy, 168, 169, 170, 438. 
 Dallam v. Oliver, 210. 
 Dangerfield ats. Douglass, 152, 156, 
 
 268, 470, 573, 574, 575, 576. 
 Dandridge ats. XJ. S. Bank, 619. 
 Darden ats. Conrad, 185, 314. 
 Darrow ats. Van Horn's Lessee, 324. 
 Darst ats. Frink, 653. 
 Davidson v. Gill, 53, 55. 
 
TABLE OF CASES. 
 
 Davis ats, Mayhew, 68, 94, 185, 207, 
 208, 213, 307, 573. 
 ats. Drew, 192. 
 V. Simms, 285. 
 ats. Stuart, 481. 
 V. Maynard, 602. 
 Davidson ats. Bush, 80, 355, 392, 399. 
 Davenport v. Farrar, 495. 
 Day V. Graham, 305. 
 Dean v. Ainsworth, 121, 123, 124, 165, 
 
 175, 335. 
 Deadrick ats. Hope, 196, 197, 524. 
 De Brahm v. Fenvrick, 691. 
 Decatur Co. ats. Parham, 40, 196. 
 De Camp ats. Sanford, 477. 
 De Chastelleux v. Fairchild, 23. 
 Decker v. Freeman, 535. 
 Dejarnett v. Haines, 95, 100. 
 Delogny v. Smith, 47, 254, 279, 283. 
 Delafleld ats. Illinois, 326. 
 Delauny v. Burnett, 350. 
 Delancy ats. Jackson, 421. 
 Delletv. Whitncr, 691, 692. 
 Dentler v. State, 47, 221, 223. 
 Dennis ats. Shaw, 196, 200. 
 Dennett V. Crocker, 489. 
 Dent ats. Talbot, 524. 
 Den V. Hunt, 684. 
 Depew ats. Griffith, 691. 
 Detroit Young Men's Society ats. 
 
 Scott, 94, 105. 
 Dettbn ats. Billings, 150, 187, 189, 
 
 249, 306. 
 Devours ats. Doe, 41, 210, 646. 
 Devore ats. Northup, 321, 418. 
 Devor v. McClintock, 345. 
 Dickinson v. Gilleland, 326. 
 
 College ats. McCoy, 434. 
 Dickey ats. Dougherty, 485, 487. 
 Dikeman v. Dikeman, 351. 
 
 V. Parrish, 600. 
 Dillingham v. Snow, 192, 200, 307, 
 
 524. 
 Dill ats. Rogers, 220. 
 Dinsmoreats. Brown, 47, 83, 152, 164. 
 Ditty ats. Spear, 47, 122, 128, 185, 
 257, 265, 292, 310, 366, 367, 410, 
 411, 435, 599, 605. 
 Divinney v. Reynolds, 326, 375. 
 Divers v. Whitesides, 495: 
 Dixon V. Doe, 451, 635. 
 Doe v. Devours, 41, 210, 646. 
 
 ats. Early, 47, 94, 254, 277, 489. 
 
 ats. Bledsoe, 97. 
 
 v. Himelick, 106, 304, 669. 
 
 ats. Kinney ex. dem. Laman, 136, 
 
 177, 178. 
 V. Whitlock, 215. 
 v. Wise, 219. 
 v. Flagler, 281. 
 V. Sweetser, 285, 288. 
 V. Chnnn, 324, 459, 525, 527, 528. 
 V. Strong, 339. 
 
 Doe ats. Dixon, 451, 635. 
 ats. McQuilken, 553. 
 ex. dem. Kelly v. Craig, 600. 
 V. Hearick, 667. 
 Donnell v. Bellas, 373. 
 Donahoe v. Veal, 456, 458. 
 Dorman ats. Lane, 31. 
 Dorr ats. Richardson, 47, 94, 361, 605. 
 Dorchester ats. Sumner, 197. 
 Doty V. Beasley, 432. 
 
 et al. ats. Rowland, 102, 105, 
 485, 486, 573. 
 Doughty V. Hope, 45, 47, 80, 84, 105, 
 
 136. 
 Douglass V. Dangerfield, 152, 156, 
 268, 470, 573, 574, 575, 576. 
 V. Wickware, 118. 
 Dougherty v. Dicky, 485, 487. 
 Dover ats. Perry, 602. 
 Downing v. Shoenberger, 506. 
 Downer v. Woodbury, 122, 128, 200. 
 Dowlie's Case, 539. 
 Dowling ats. Young, 577, 578. 
 Dranguet v. Prudhomme, 95. 
 Dresback v. McArthnr, 47, 94, 132, 
 
 185, 477, 666. 
 Drew v. Davis, 192. 
 Driesbach v. Berger, 376. 
 Dribble ats. Lessee of Perkins, 47, 
 
 153, 157. 
 Dubois V. Hepbume, 497. 
 Dudley v. Little, 57, 467, 572, 574. 
 Dugan V. Mayor, 525. 
 Dunning v. Smith, 66, 84, 86, 88. 
 
 V. Roberts, 200. 
 Dunlap ats. Witherspoon, 323. 
 ats. Hayden, 253, 305. 
 ats. Stevenson, 691. 
 Dunn V. Games et al., 94, 601. 
 V. Merriweather, 96. 
 V. Ralyca, 152. 
 Dunden v. Snodgrass, 166. 
 Dunham v. Osborn, 646. 
 Durham ats. McEntyre, 96. 
 Dykeman v. Parrish, 94, 95. 
 Dyer v. Branch Bank of Mobile, 477, 
 
 478, 571, 637. 
 Early v. Doe, 97, 94, 254, 277, 489. 
 Earl of Darlington v. Pultuey, 583. 
 Eastman v. Little, 276. 
 
 ats. Farrar, 278, 282, 293, 
 415,450,459, 535,617. 
 East India Co. ats. Williams, 619. 
 Ebbetts ats. Thompson, 565. 
 Eddy V. People, 252. 
 Edgerton ats. Latham, 220. 
 Edwin ats. Morton, 72. 
 Edward v. Beard, 196. 
 Egerton v. Third Municipality, 205. 
 Elkin V. People, 443. 
 Elliott ats. Bellows, 47, 94, 95, 368, 655 
 ats. Burke, 118. 
 V. Piersoll, 220, 242. 
 
TABLE OF OASES. 
 
 Elliott V. Glancy, 470, 472. 
 
 V. Gerard, 506. 
 Ellis ats. Colburn, 119. 
 V. Hall, 169, 171. 
 Elwellv. Sliaw, 192. 
 Eldridge r. Tibbitts, 562. 
 Emerson ats. Tolman, 97, 435, 606. 
 V. Co. of Washington, 482. 
 Emeriek ats. Treon's Lesee, 156, 268. 
 Emery v. Harrison, 94. 
 Enlow ats. Man-. 186. 
 Entrilcen ats. Myers, 327. 
 Entick V. Carrington, 697. 
 Erwin v. Helm, 171, 421, 452. 
 Esty ats. Jackson, 47, 87, 91, 93, 94, 
 
 385, 394, 395, 396, 397, 398. 
 Everett ats. Daggett, 209. 
 Eves ats. Colt, 306. 
 Everts ats. Allen, 438. 
 Eager V. Campbell, 274, 638. 
 Eairchild ats. De Chastelleux, 23. 
 Fairfax v. Hunter, 539, 542. 
 Fain v. Garthright, 684. 
 Falkenbinge ats. State, 195. 
 Famam v. Bufifum, 47, 57, 68, 254, 
 
 267,276. 
 Farmers & Merchants' Bank v. Chester, 
 118. 
 & Mechanics' Bank ats.Wood- 
 ' bum, 473. 
 Farquar ats. Kendrick, 481. 
 Farrar ats. Davenport, 495. 
 
 V. Eastman, 278, 282, 293, 415, 
 
 450, 459, 535, 617. 
 V. Perley, 535. 
 Faure v. Winans, 470. 
 Fearson ats. Mason, 47,'63, 342, 511, 
 
 528. 
 Fell V. Price, 453. 
 Fellows V. Pinney, 478. 
 Fcnwick ats. De Brahm, 691. 
 
 ats. Nalle, 47, 94, 132, 134, 
 185, 254, 277, 474. 
 Ferguson ats. Elakeney, 47, 80, 84, 
 574, 592. 
 V. Niles, 455. 
 Fetterman v. Hopldns, 118, 119. 
 Finch V. Brown, 506, 508, 644. 
 Fisher ats. Burch, 47, 114, 121, 123, 
 
 135. 
 Fish V. Brown, 169, 170. 
 Fiske ats. Wallingford, 330, 331, 667. 
 Fitch V. Pinckavd, 46, 47, 94, 178, 196, 
 254, 280, 524, 525, 626, 528. 
 V. Casey, 47, 84, 92, 431, 463. 
 Flagler ats. Doe, 281. 
 Fleming ats. Moody, 684. 
 
 ats. Harrison, 691. 
 Fletcher v. Peek, 556. 
 Flint V. Sawyer, 299. 
 Fonda ats. Van Home, 691. 
 Foot V. Stebbins, 219. 
 Ford ats. Boardman, 100. 
 
 Forsytheats. Ballance, 422, 470. 
 Forrester v. Boardman, 327. 
 Foster V. McDivit, 95, 170, 171. 
 
 ats. Huston, 47, 92, 95, 434. 
 ats. Hayden, 192, 196, 329, 334. 
 Foust V. Boss, 47, 94, 95. 
 Fowler ats. Corrie, 94, 152, 162, 196, 
 268, 332, 421, 449. 
 V. Bebee, 118. 
 ats. Commonwealth, 119. 
 Fox V. Cash, 473. 
 Foxcraft v. Nevins, 140, 412. 
 Franklin v. Tallmadge, 258. 
 Francis v. Russell, 210, 212, 222. 
 French ats. Taylor, 47, 292, 362, 367, 
 412, 414, 654. 
 ats. Webster, 187, 306. 
 Freeman ats. Decker, 535. 
 
 V. Tlmyer,615. 
 Fridge V. State, 219. 
 Frick V. Sterrett, 375. 
 Frink v. Darst, 653. 
 Frye ats. Silliman, 347, 450. 
 V. Phillips, 433. 
 V. Bank of Illinois, 470. 
 Fuller V. Hodgson, 470. 
 Furness v. Williams, 594, 595. 
 Gale ats. Wellington, 72, 602. 
 
 V. Mead, 306. 
 Galloway ats. Taylor, 45, 49, 515. 
 
 ats. Gait, 576. 
 Galt>. Galloway, 576. 
 Games v. Stiles, 4, 81, 84, 94, 132, 
 254, 601, 656. 
 et al. ats. Lessee of Dunn, 94, 
 601. 
 Garret v. Wiggins, 47, 94, 100, 104, 
 108, 253, 291, 561. 
 V. White, 185, 294. 
 Gardner ats. Thompson, 205, 207. 
 V. Brown, 268. 
 V. Gerrish, 470. 
 Garthright ats. Fain, 684. 
 Gatewood ats. Schmidt, 57. 
 Gates ats. Love, 94. 
 Gearhart ats. Isaacs, 337, 521. 
 Germain ats. Messenger, 143, 180,215 
 
 295. 
 Gerrish ats. Gardner, 470. 
 Gerrard ats. Elliott, 506. 
 Gibson V. Bobbins, 170. 
 
 ats. Manly, 235, 246, 248. 
 V. Bailey, 425. 
 V. Mussey, 516. 
 ats. Jones, 421, 486, 511, 548. 
 Giddings V. Smith, 361. 
 Gill ats. Davidson, 53, 55. 
 Gilbert v. Columbia Turnpike Co., 53 
 
 54, 601. 
 Gillet ats. Metcalf, 72. 
 V. Webster, 574. 
 Gillam V. Eeddick, 118. 
 Gilmore v. Holt, 118. 
 
TABLE OF CASES. 
 
 GUmore ats. Bussey, 195. 
 
 ats. Watts, 434, 464. 
 V. Thompson, 695. 
 Gilleland ats. Dickinson, 326. 
 Oilman ats. Church, 434. 
 
 ats. Bcnnedict, 691. 
 GilUsT. Martin, 691. 
 Glancy v. Elliott, 470, 472. 
 Glass V. Sloop Betsey, 220. 
 Glover ats. Kingman, 210, 302, 304. 
 Goodrich ats. Johnson, 138, 412. 
 
 ats. Hathaway, 200. 
 Goodale t. Harrison, 238. 
 Goodenow v. Tyler, 327. 
 Gordon ats. James, 46. 
 
 v. Tax Appeal Conrt, 478. 
 Goodyear ats. Heed, 614. 
 Goodwin v. Lyon, 691. 
 Gotham ats. Thompson, 94, 254, 531. 
 Governor ats. Aulanier, 115. 
 V. New York. 210. 
 Goward ats. Bagshaw, 510. 
 Gravier ats. McDonough, 47, 81, 308. 
 Graves v. Bruen, 47, 132, 180, 182, 
 
 431,438,441, 599. 
 Granger ats. Rising, 173, 209. 
 
 V. Parsons, 183. 
 Graves ats. Barnard, 200. 
 Grant ats. Cox, 210. 
 Graffies ats. Stewart, 302. 
 Graham ats. Day, 305. 
 
 ats. Clarke, 448. 
 Grand Gulf E. & B. Co. v. Bryan, 350. 
 Graves v. Hayden, 442. 
 Gray ats. Wiiliams, 472. 
 Greer ats. Kinney, 219, 654. 
 Greely v. "Bartlett, 327. 
 Green ats. Bowers, 654. 
 
 v. Biddle, 692. 
 Griffith V. Depew, 691. 
 Grignon's Lessee v. Astor, 219. 
 Guernsey ats. Bealls, 305. 
 Guilford ats. Mm-ray, 171. 
 Gwynn ats. Levy Court, 53. 
 Gwynne y. KTeiswanger, 111, 483, 575, 
 
 633. 
 Gwin V. Van Zant, 252. 
 Hahn ats. Weer, 381. 
 Haines ats. Dejarnett, 95, 100. 
 Hall V. Collins, 47, 92, 93, 94. 
 ats. Wheelock, 619. 
 ats. Payson, 114, 121, 125. 
 ats. Cranmer, 687, 695. 
 ats. Ellis, 169, 171. 
 Hale V. Gushing, 122, 123, 128. 
 
 V. James, 646. 
 Hamilton v. Hamilton, 691. 
 
 V. The St. Louis County 
 
 Court, 1.6. 
 V. Adams, 96. 
 v. Buram, 210, 212, 222. 
 Hammond ats. People ex. rel. Seaman, 
 347, 348. 
 
 Hammond ats. Astrom, 483. 
 Hanson ats. Pike, 121, 123. 
 Hanson v. Hayes, 308. 
 Hannel v. Smith, 109, 161, 200, 215, 
 262, 297, 413, 548, 550, 576, 
 655. 
 ats. Obert, 219. 
 Haman ats. Margate Pier, 115. 
 Hapgood v. Batcheller, 327. 
 Harris v. Wood, 40. 
 Harding v. Owings, 74. 
 Harrison ats. Emery, 94. 
 
 V. Fleming, 691. 
 
 ats. Goodale, 238. 
 
 V. Baker, 691. 
 Harbeson v. Jack, 169, 170. 
 Hartridge ats. Savannah, 198. 
 Hartley v. State, 200. 
 Harmon v. Stockwell, 215, 301. 
 Hart V. Seixas, 219. 
 Harriman v. Titus, 221. 
 Hartsoek ats. Pickett, 235, 241 . 
 Harber ats. Lusk, 248, 249. 
 Harris ats. Morton, 331, 638. 
 Hardy v. Williams, 478. 
 Hartford ats. Seymour, 479, 481. 
 Hardwick ats. Brooks, 508. 
 Hartwcllv. Root, 619. 
 Hathaway v. Goodrich, 200. 
 
 ats. Chase, 252. 
 Haven v. Crane, 421 . 
 Hawkins v. Kempe, 50, 82, 417. 
 V. Barney's Lessee, 658. 
 
 V. Lowry, 691. 
 Hayes v. Hansom, 308, 
 Hayden ats. Graves, 442. 
 
 ats. Culver, 47, 265, 292, 308, 
 365. 
 
 v. Foster, 192, 196, 329, 334. 
 
 V. Dunlap, 253, 305. 
 Hearick v. Doe, 667. 
 Headen ats. Pope et al. 47, 91, 94, 254, 
 
 278. 
 Heath v. Roome, 306. 
 Heister ats. Laird, 487, 599. 
 Helm ats. Erwin, 171, 421, 452. 
 Hemphill ats. Holt, 47, 84, 94, 132, 
 185, 200, 254, 294. 
 V. Holt, 576. 
 Henderson ats. Hoke, 35. 
 Henry V. Tillson, 601. 
 Hepburne ats. Dubois, 497. 
 Herring v. Pollard, 691. 
 Hesseltine ats. Baker, 172. 
 Hewett V. B^rryman, 691. 
 Heydon's Case, 59. 
 Hickey v. Stewart, 220. 
 Hilton ats. Williams, 470. 
 Hill V. Leonard, 47, 94. 
 ats. Polk, 249, 319. 
 Hileman ats. Smith, 53, 56, 72, 436. 
 Hildreth V. Mclntire, 114. 
 
TABLE OP CASES. 
 
 Hillegar ats. Camden & Amboy R. E. 
 
 Co. 195. 
 Himelick ats. Doe, 106, 304, 669. 
 Himely ats. Eose, 220. 
 Himebaugh ats. McCall, 687. 
 Hinman v. Pope, 58, 86, 89, 94, 95, 96, 
 107, 108, 243, 247, 248, 
 249, 295. 
 ats. Atkins, 89, 178, 235, 236, 
 238, 243, 246, 247, 248, 249, 
 427, 627. 
 ats. Cun-y, 102, 247, 249, 485, 
 486. 
 Hoard ats. Bodley, 94. 
 Hoagland v. Culvert, 118. 
 Hobb V. Clements, 47, 266. 
 Hockenbury v. Snyder, 167, 695. 
 Hodge V. Wilson, 45, 46, 334, 338, 339. 
 Hodgdon t. Wrigbt, 550. 
 Hogdon ats. Eiiller, 470. 
 Hogins Y. Brashears, 438, 450, 460. 
 Hogan ats. Lambertson, 695. 
 Hoke Y. Henderson, 35. 
 Holden y. James, 31. 
 
 ats. Upton, 200. 
 Holt V. Hemphill, 47, 84, 94, 132, 185, 
 
 200, 254, 294. 
 Holt ats. Gilmore, 118. 
 ats. Hemphill, 576. 
 Hole V. Rittenhouse, 92, 605. 
 HoHiday ats. Boardman, 114. 
 HoUister, Lessee of, y. Bennett, 194, 
 
 300, 360. 
 HoUiday v. Swails, 252. 
 
 V. Marshall, 433. 
 HoUey ats. People, 306. 
 Hollenbeck ats. Livingston, 564. 
 Hollingsivorth v. Barbour, 576. 
 Homer v. Cilley, 132, 200, 215, 262, 
 298. 
 Y. Smith, 220. 
 Hooker v. Young, 305. 
 Hood V. Mathers, 465, 506. 
 Hooser ats. Cheaney, 524. 
 Hope ats. Doughty, 46, 47, 80, 84, 105, 
 136. 
 Y. Deaderick, 196, 197, 524. 
 V. Sawyer, 249, 317. 
 Hopkins ats. Petterman, 118, 119. 
 
 ats. Yancey, 47, 59, 69, 84, 
 85, 174,210,221/474, 571, 
 574. 
 Horrell et al. ats. Lessee of Hughey, 
 47, 57, 68, 79, 141, 254, 260, 284, 
 287, 312. 
 Horde ats. Taylor, 663. 
 Hough ats. Brewster, 9, 478, 479, 481. 
 Houghton ats. Keene, 47, 313. 
 
 V. Matthews, 327. 
 Howard ats. Mayor, 525. 
 Howell Y. Maryland, 481 . 
 
 ats. Cheatham, 252. 
 Howe ats. Blake, 470. 
 
 Howe Y. Eussell, 94. 
 Hubbard ats. Burchard, 450. 
 Huff ats. Robinson, 541. 
 Hughey, Lessee of, v. Horrell et al. 47, 
 57, 68, 79, 141, 254, 260, 284, 287, 
 312. 
 Hull ats. Schuyler, 132, 183, 599. 
 
 ats. Cranmer, 167. 
 Hulick Y. Scoville, 434, 452. 
 Humphrey ats. Osborne, 478. 
 Hummel ats. Brown, 35. 
 Huntington ats. Broadstreet, 658. 
 Hunter ats. Kelly, 576. 
 Hunter v. Cochran, 485, 486. 
 ats. Fairfax, 539, 542. 
 Hunt ats. Lyon, 571. 
 
 ats. Den, 684. 
 Huston Y. Poster, 47, 92, 95, 434. 
 Huse v. Merriam, 193. 
 
 ats. Wilkins, 216, 221, 224, 254, 
 -274, 295, 320,418. 
 Hutchinson ats. Brown, 263, 435. 
 Illinois Y. Delafield, 326. 
 
 Mutual Fire Insurance Co. v. 
 Marseilles Manufacturing 
 Co. 495. 
 Inglis Y. Bayard, 687. 
 Inman ats. Shimin, 47, 175, 176, 276, 
 332, 360. 
 Y. Jackson, 535. 
 Iron Manufacturing Co. v. Barron, 
 
 298. 
 Irving Y. Brownell, 47^ 94, 180, 661, 
 
 675, 677, 683. 
 Irwin V. Bank of United States, 638. 
 Irvings ats. Eoss, 692, 693. 
 Isaacs Y. Wiley, 47, 80, 82, 121, 127, 
 257, 414. 
 f. Shattuck, 47, 259, 292, 364, 
 
 366, 368,411. 
 v Gearheart, 337, 521. 
 Ives Y. Lynn, 206, 207, 288, 335, 347, 
 
 351,361. 
 Jackson ats. Judevine, 47, 81, 292, 364, 
 428. 
 Y. Esty, 47, 87, 91, 93, 94, 385, 
 
 394, 395, 396, 397, 398. 
 Y. Moore, 88, 102, 105, 215, 
 
 485, 486. 
 V. Roberts, 96, 97, 435. 
 Y. Delancy, 421. 
 ats. Adanis, 118, 122, 126. 
 V. Shepherd, 47, 93, 94, 207, 
 
 210, 295. 
 ats. Wilcox, 220, 634. 
 v. Cummings, 236, 237. 
 ats. Barger, 418. 
 V. Roosevelt, 421. 
 V. Wood, 432. 
 ats. Inman, 535. 
 ats. Plymouth, 556. 
 V. Clark, 576. 
 V. Shaffer, 619. 
 
TABLE OE CASES. 
 
 Jackson v. Thomas, 684. 
 Jack V. Harbeson, 169, 170. 
 Jacques v. Copman, 269. 
 Jacoby ats. Spangler, 71. 
 James ats. Reynolds, 29. 
 ats. Holden, 31. 
 V. Gordon, 46. 
 V. Stookey, 242. 
 ats. Hale, 646. 
 Janney ats. Bedell, 60. 
 Jarrot v. Vaughn, 495. 
 Jay ats. Phebe, 23. 
 Jenkins ats. Monk, 308. 
 
 ats. Chegaray, 481. 
 Jesse V. Preston, 45, 47, 92, 94. 
 Job T. Tebbetts, 132, 180, 182, 183, 
 
 208, 213, 236, 245, 246, 599. 
 Johnson ats. Boisgerard, 47, 339. 
 ats. Sharp, 81, 309. 
 V. Goodrich, 138, 412. 
 V. M'Intire, 174, 207. 
 Jones ats. Mack, 9, 524, 525, 527. 
 V. Perry, 30. 
 ats. Oldham, 94, 472. 
 ats. Sewell, 198. 
 r. Gibson, 421, 486, 512, 548. 
 ats. Choteau, 470. 
 V. Mack, 482. 
 Joyner v. Thii-d School District of 
 
 Egremont, 191, 197. 
 Judevine v. Jackson, 47, 81, 292, 364, 
 
 428. 
 Judson V. State, 59, 221. 
 Kammerer ats. Wister, 47, 254. 
 Kai-ns ats. Bigler, 643, 687. 
 Keating v. "Williams, 169. 
 Keene t. Houghton, 47, 313. 
 
 ats. Miller, 695. 
 Keith V. Preston, 47, 93, 94. 
 Kelley v. Craig, 134, 201, 289, 322. 
 V. Hunter, 576. 
 V. Connell, 619. 
 Kellar v. Savage, 140, 412. 
 Kellogg V. McLaughlin, 279, 292, 325. 
 Kemper v. McClelland, 63, 190, 192, 
 
 524. 
 Kempo ats. Hawkins, 50, 82, 417. 
 
 V. Kennedy, 219. 
 Kempton ats. Stetson, 192, 195, 524. 
 Kemble ats Messing, 510. 
 Kennedy v. Kennedy, 691. 
 
 T. Daily, 168, 169, 170, 438. 
 ats. Kempe, 219. 
 Kenny T. Grier, 219, 654. 
 Kendrick v. Farquar, 481. 
 
 ats. White, 32. 
 Kenans ats. Conyers, 684. 
 Keogh ats. Young, 72, 418, 577, 578. 
 Kidd ats. Van Eansellaer, 564, 565, 
 Kinney y. Beverly, 34, 92, 132, 144, 
 254, 291, 325, 436, 539. 
 V. Doe ex. dem. Laman et al. 
 136, 137, 178. 
 
 Kinman ats. Atkins, 72, 81,309,436. 
 King T. Whitcomb, 200. 
 Kingman v. Glover, 210, 302, 304. 
 Kinderhook v. Claw, 252. 
 Kirkpatrick ats. United States, 305. 
 
 V. Mathiot, 472. 
 Knowler ats. Beaty, 45, 503. 
 Knoxville ats. Swan, 196. 
 Lafferty v.Byers, 47, 94, 155, 157, 161, 
 
 254, 268. 
 Laird v. Heister, 487, 599. 
 Lake v. Morse, 429. 
 Laman et al. ats. IQnney, 136, 137. 
 Lamberton ats. McKee, 167, 695. 
 Lambeth ats. Pomeroy, 692. 
 Lambertson v. Hogan, 695. 
 Lane v. Dorman, 31 . 
 V. Sharpe, 508. 
 Langdon v. Poor, 47, 80, 256, 266, 
 
 292, 293, 428. 
 Landon v. Litchfield, 478. 
 Langworthy ats. Merchant, 305. 
 Lancaster v. Pope, 602. 
 Lathrop ats. Thames Manufacturing 
 
 Co., 47, 88, 145, 149, 187, 306. 
 Latimer v. Lovett, 94, 105. 
 Lathan v. Edgerton, 220. 
 Lawrence v. Speed, 305. 
 Lazarus v. Bryson, 476. 
 Leavitt ats. Bussey, 47, 100, 258, 279. 
 Leach ats. Campbell, 511. 
 Lebanon ats. Backus, 478. 
 Leech ats. Bartholomew, 375, 472. 
 Leicester ats. Rex, 306. 
 Leiper's Heirs ats. Reynolds, 550. 
 Leland v. Bennett, 399. 
 
 ats. Thomas, 196. 
 Leonard ats. Hills, 47, 94. 
 Lessee of Dresback v. McArthur, 47, 
 94, 132, 185, 477, 666. 
 Perkins v. Dribble, 47, 153. 
 Holt's Heirs v. Hemphill's 
 Heirs, 47, 84, 94, 132, 
 185, 254, 294. 
 Dunn V. Games et al. 94. 
 Massie's Heirs v. Long etal. 
 
 156, 600. 
 James v. Stookey, 242. 
 McMillan v. Robbins, 551. 
 "Winters V. Stirling, 618. 
 "Wallace v. Seymour, 635. 
 "Ward V. Barrows, 617. 
 Levy Court v. Gwynn, 53. 
 
 v. Smith, 180. 
 Levert v. P. & M. Bank, 59. 
 Lewis V. Robinson, 472. 
 Libby v. Bumham, 192. 
 Light ats. Matthews, 47, 94, 272. 
 Lisbon v. Bath, 186, 195. 
 Little ats. Dudley, 57, 467, 572, 574. 
 V. Thurston, 82. 
 V. Smith, 654. 
 ats. Eastman, 276. 
 
TABLE OF CASES. 
 
 Little ats. Thurston, 132, 1S3, 192. 
 Litchfield ats. Adams, 132. 
 ats. Landon, 478. 
 Livingston v. IVloore, 41. 
 
 ats. Robertson, 327. 
 V. Hollenbeck, 564. 
 Logwood V. P. & J\I. Bank, 59. 
 Longworth ats. Carlisle, 47, 110. 
 Longfellow ats. dishing, 47, 326. 
 
 V. Quiraby, 328. 
 Long ats. Lessee of Massie's Heirs, 156, 
 600. 
 V. Long, 238. 
 Loomis V. McClintook, 49. 
 Lorrain ats. Young, 52, 219, 220. 
 Lorimer ats. McCall, 134, 167, 168, 
 
 169, 599. 
 Lonisville Canal v. Commonwealth, 
 
 481. 
 Lowd V. Penniman, 333. 
 Lovan ats. Bishop, 47, 94, 294. 
 Lovett ats. Latimer, 94, 105. 
 Lore V. Gates, 94. 
 Lowry ats. Hawkins, 691. 
 Liicey ats. Martin, 255. 
 Luffborough v. Parker, 254, 602, 638. 
 Lunt V. Wormell, 173. 
 Lusk V. Harber, 24S, 249. 
 Lyerly v. Wheeler, 97. 
 Lynn ats. Ives, 206, 207, 288, 335, 347, 
 351, 361. 
 ats. Sheaver, 220. 
 Lyon V. Burt, 47, 94. 
 
 ats. Burns, 324, 374, 376. 
 V. Hunt, 571. 
 ats. Goodwin, 691. 
 Mack V. Jones, 9, 524, 525, 527. 
 
 ats. Jones, 482. 
 Maenamara ats. Stevens, 94. 
 Madison ats. Marbury, 23. 
 
 County V. Bartlett, 196. 
 Magee ats. Zurcher, 53, 59, 221. 
 Mallet ats. Mead, 362, 654. 
 Manly v. Gibson, 235, 246, 248. 
 Mansfield ats. Martin, 174. 
 Martin ats. Young, 47, 80, 167, 288. 
 V. Mansfield, 174. 
 V. Tax Collector, 197. 
 ats. Thurston, 140, 477. 
 V. Lucey, 255. 
 ats. Giliis, 691. 
 Margate Pier v. Hannan, 115. 
 Marsh v. Chesnut, 147, 187, 189, 306. 
 ats. Chesnut, 221, 235, 237, 238, 
 
 246, 249, 473. 
 ats. State Bank, 252. 
 ats. Wriglit, 556. 
 Man- V. Enslow, 186. 
 Marshall ats. Holding, 433. 
 ats. I^atrick, 692. 
 Maryland ats. Howell, 481. 
 Marseilles Manufacturing Comp'y ats. 
 Illinois Mutual Fire Insurance Co. 
 495. 
 
 Marbury v. Madison, 23. 
 Mariner v. Saunders, 598. 
 Mason V. Pearson, 47, 63, 342, 511, 
 528. 
 V. Woods, 185, 191. 
 ats. Thompson, 691. 
 Massie's Heirs, Lessee of, v. Long, et al. 
 
 156, 600. 
 Massie ats. Bouldin, 448. 
 Masterson v. Beasley, 501, 506. 
 Matliiot ats. Kirkpatrick, 472. 
 Matliers ats. Hood, 465, 506. 
 Matthews ats. Houghton, 327. 
 
 V. Light, 47, 94, 472. 
 Maus ats. McDonald, 372, 374. 
 Maurice ats. United States, 114, 118. 
 Maw ats. County Court of Obion, 186. 
 Maxy V. Clabaugh, 180, 325, 351, 436, 
 
 441, 442, 575. 
 Maxwell ats. Mitchell, 323. 
 Mayor of Brooklyn ats. People ex rel. 
 Griffin, 7. 
 of ISTew York ats. People, 69, 
 
 110, 509. 
 of Albany ats. Van Wormer, 
 
 219. 
 of Albany ats. O^vners, 252. 
 of New York ats. Wiggin, 305. 
 ats. Benson, 556. 
 V. Howard, 52,5. 
 ats. People, 575. 
 ats. Dugan, 525. 
 Mays V. Cincinnati, 523. 
 Mayhew v. Davis, 68, 94, 185, 207, 208, 
 
 213, 307, 573. 
 Mayo V. AVilson, 28, 60. 
 Maynard ats. Davis, 602. 
 McArthur ats Lessee of Dresback, 47, 
 94, 132, 185,477, 666. 
 V. Nevil, 576. 
 McCarroU v. Weeks, 40, 221, 222. 
 McComb ats. Waldron, 45, 515. 
 McClintock ats. Loomis, 49. 
 ats. Devor, 345. 
 McClelland ats. Kemper, 63, 190, 192, 
 
 524. 
 McCall V. Lorimer, 134, 167, 168, 169, 
 599. 
 V. Nealy, 082, 684. 
 V. Himebaugli, 687. 
 McCoy ats. Michew, 166. 
 V. Chillicothe, 566. 
 V. Tuck, 295. 
 V. Dickinson College, 434. 
 McCampbell v. McCampbell, 691. 
 McClung V. Ross, 222. 
 McCord V. Bergantz, 506, 638. 
 McDonough v. Gravier, 47, 81, 308. 
 McDonald ats. Westcott, 94. 
 V. Maus, 372, 374. 
 McDivit ats. Foster, 95, 170, 171. 
 McEachron ats. Rea, 418. 
 McElmoyle v. Cohen, 660. 
 McEntire v. Durham, 96. 
 
TABLE OF CASES. 
 
 McGregor v. Balch, 115, 118. 
 McGrew ats. Smith, 167. 
 Mclntire ats. Hildreth, 114. 
 
 ats. Johnson, 174, 207. 
 Mclnstry v. Tanner, 118. 
 Mcintosh ats. State, 186. 
 Mcllroy v. Speed, 219. 
 Mclrwin ats. Campbell, 222. 
 McKeand ats. Southall, 691. 
 MeKee t. Lamberton, 167, 695. 
 McKibbin ats. Charlton, 169, 170. 
 McKabe v. Sheaffer, 169, 170. 
 McKinstry v. Picrsall, 327. 
 McICin V. Somers, 118. 
 McKinson ats. Richardson, 691. 
 McKim T. Moody, 692. 
 McLaughlin ats. Kellogg, 279, 292, 
 
 325. 
 McLean ats. Minor, 94, 216, 301, 600. 
 McMillan v. Bobbins, 88, 551. 
 McQuilken ats. Weed, 185, 192. 
 
 V. Doe, 653. 
 Means ats. Ashville, 197. 
 
 V. Osgood, 429. 
 Meadows ats. Propst, 219. 
 Mead ats. Gale, 306. 
 V. Mallet, 362. 
 Merritt ats. Corwin, 81, 309. 
 
 V. Thompson, 175, 238, 240, 
 241. 
 Merriweather ats. Dunn, 96. 
 Meredith ats. Montgomery, 142. 
 Mersereau ats. Bank of Utica, 165, 
 
 435, 436, 441, 575. 
 Merrills ats. West School District of 
 
 Canton, 190, 524. 
 Merriam ats. Huse, 193. 
 Merchant v. Langworthy, 305. 
 Messenger V. Germain, 143, 173, 180, 
 
 215, 295. 
 Messing v. Kemble, 510. 
 Meyers ats. Taylor, 576. 
 Metcalf V. Gillett, 72. 
 Michie v. Mullen, 276. 
 Miohew v. McCoy, 166. 
 Middletown v. Berlin, 136. 
 Milliken r. Bennett, 168, 169, 171, 172. 
 Millbury ats. Torey, 192, 309. 
 Miles ats. Ferguson, 455. 
 Miller V. Keene, 695. 
 Minor v. Natchez, 92, 96, 253, 254, 294. 
 ats. Natchez, 46, 48. 
 ats. Christy, 94, 
 V. McLean, 94, 216, 301, 600. 
 Mirehouse v. Rennell, 651. 
 Mitchell V. Bratton, 169, 185. 
 
 V. Maxwell, 323. 
 Mix V. Whitlock, 185. 
 Mohawk & Hudson Railroad Company 
 
 ats. Costigan, 95. 
 Mohawk & Hudson Railroad Company 
 
 Y. Clute, 565. 
 
 Montgomery t. Meredith, 142. 
 Monk V. Jenkins, 308. 
 Moody ats. McKim, 692. 
 
 V. Fleming, 684. 
 Moore ats. Livingston, 41. 
 
 V. Brown, 47, 67, 68, 85, 282, 
 
 314, 671, 690. 
 ats. Brown, 450. 
 ats. Jackson, 88, 102, 105, 215, 
 485, 486. 
 
 V. Alleghany City, 197, 200. 
 Morton v. Reed, 47. 
 
 ats. Reed, 47, 59, 68, 79, 98, 
 100, 307, 347, 351, 369. 
 
 V. Edwin, 72. 
 
 Y. Harris, 331, 638. 
 Morris y. Crocker, 47, 94. 
 
 V. Terrell, 692. 
 Moreman ats. Smith, 96. 
 Moreland ats. Paine, 219. 
 Morse ats. Lake, 429. 
 Morgan ats. Winterbourne, 510. 
 Moulton Y. Blaisdell, 103, 254, 289, 
 
 328. 
 Mullen ats. Michie, 276. 
 
 ats. O'Connor, 429. 
 Murray Y. Guilford, 171. 
 Mussey v. White, 93, 305. 
 
 ats. Gibson, 516. 
 Myers v. Entriken, 327. 
 Nalle V. Fenwick, 47, 94, 132, 134, 185, 
 
 254, 277, 474. 
 Nancarrow v. Wethersljee, 94, 185. 
 Natchez y. Minor, 46, 48. 
 
 ats. Minor, 92, 96, 253, 254, 
 294. 
 Nashville ats. Nichols, 524. 
 Nealy ats. McCall, 682, 684. 
 Nedrow ats. Connelly, 373. 
 Negus ats. Pond, 187, 306. 
 Neiswanger ats. Gwyune, 111, 483, 
 
 575, 633. 
 Nelson v. Pierce, 175, 186, 287, 601. 
 
 ats. Sutton, 371, 372. 
 
 v. Allen, 692. 
 
 ats. Barbour, 543. 
 New York ats. Governeur, 210. 
 New Jersey v. Williams, 478. 
 Nevins ats. Foxcraft, 140, 412. 
 Nevil ats. McArthur, 576. 
 Nichols v. Walker, 477. 
 
 V. Nashville, 524. 
 Norton ats. Curtis, 418. 
 Northup Y. Devore, 321, 418. 
 Norwich v. Co. Commissioners, 196. 
 Oakey ats. Bank of Columbia, 34. 
 O'Brien Y. Coulters, 47, 94,336, 511, 
 
 574. 
 Obert Y. Hannel, 219. 
 O'Conner v. Mullen, 429. 
 Olcott v. State, 239, 242, 243. 
 Oldham v. Jones, 94, 472. 
 
TABLE OF CASES. 
 
 Oliver ats. Dallam, 210. 
 
 Ontario Bank v. Bunnell, 197, 198, 
 
 527. 
 Orono ats. Treat, 95. 
 Osborne v. United States Bank, 566. 
 ats. Bank of United States, 
 570. 
 Osborn ats. Buckley, 477, 482, 584, 
 549. 
 V. Humphrey, 478. 
 
 ats. Dunham, 646. 
 Osgood ats. Means, 429. 
 Owens V. Vanhook, 167. 
 Owen ats. Coney, 695. 
 Owings ats. Hardin, 74. 
 Owners v. Mayor of Albany, 252. 
 Ownen ats. Coney, 477. 
 Paden v. Aiken, 196. 
 Page's Case, 539. 
 
 Pago ats. Proprietors of Cardigan, 125, 
 126, 175, 185,186,203,299,325,600. 
 Painter ats. Plymouth, 115, 118. 
 Painev. Moreland, 219. 
 Palmer ats. Wiley, 11. 
 
 ats. Butler, 555. 
 Parker v. Rule, 47, 207, 210, 254. 
 
 T. Smith, 106, 210, 599. 
 
 V. Baker, 118. 
 
 ats. LufFborough, 254, 602, 638. 
 
 V. Kedfield, 478. 
 Park ats. Rogers, 221. 
 Parkburst v. Van Cortlandt, 691. 
 Parham v. Decatur County, 40, 196. 
 Parrish ats. Dikeman, 94, 95. 
 
 ats. Allen, 305. 
 
 ats. Stuart, 575, 629, 635. 
 
 V. Stevens, 687. 
 
 ats. Dikeman, 600. 
 Parsons ats. Granger, 183. 
 ats. Bellows, 655. 
 Paris V. Berry, 196. 
 Patterson r. Blackmore, 167, 170. 
 
 V. Brindle, 505, 506. 
 Patten ats. Anderson, 222. 
 Patrick v. Marshall, 692. 
 Payson v. Hall, 114, 121, 125. 
 Pearly ats. Bolt, 205, 477. 
 Peacock v. Bell, 219. 
 Peck ats. People, 306. 
 
 ats. Pletcher, 556. 
 Pejepscut Proprietors v. Ransom, 608. 
 Pembevton ats. State, 196. 
 Penniman ats. Loud, 333. 
 Pentland v. Stewart, 185, 200, 296. 
 Pennoyer ats. Cole, 661 . 
 People ex. rel. GrifBu v. Mayor of 
 Brooklyn, 7. 
 
 •.'. Mayor of New York, 69, 
 110, 509. 
 
 V. Collins, 118, 119. 
 
 ats. Prickett, 118. 
 
 ats. Taylor, 208, 213, 221, 237. 
 
 ats. Eddy, 252. 
 
 People V. Peck, 306. 
 V. Allen, 306. 
 V. HoUey, 306. 
 ex. rel. Seaman v. Hammond, 
 
 347, 348. 
 ats. Elkin, 443. 
 ats. State Bank, 482. 
 V. Mayor, 575. 
 Perry ats. Jones, 30. 
 ats. Can-ol, 483. 
 V. Dover, 602. 
 Perkins, Lessee of, v. Dribble, 47, 153, 
 157. 
 ■V. Proctor, 477. 
 Percifield ats. Black, 419. 
 Perley ats. Bolt, 535. 
 ats. Farrar, 535. 
 Peyton ats. Williams, 45, 46, 47, 91, 
 
 94, 98, 254. 
 Phillips ats. Frye, 433. 
 Phebe y. Jay, 23. 
 Phillips ats. Bunill, 327. 
 Piatt V. St. Clair's Heirs, 470. 
 Pickett V. Hartsock, 235, 241. 
 Pierce ats. Sergeant, 72. 
 
 ats. Nelson, 175, 186, 287, 601. 
 V. City of Boston, 205. 
 PiersoU ats. Elliott, 220, 242. 
 ats. McKinstry, 327. 
 Pike T. Hanson, 121, 123. 
 Pillow V. Roberts, 100, 685. 
 Pinckard ats. Fitch, 46, 47, 94, 178, 
 
 196, 254, 280, 524, 525, 526, 528. 
 Pinney ats. Fellows, 478. 
 Pitman v. Brownlee, 92. 
 Pitkin V. Yaw, 235, 243, 247, 248, 330, 
 
 428, 459, 462, 465. 
 P. & M. Bank ats. Levert, 59. 
 
 ats. Logwood, 59. 
 ats. Bates, 59, 221. 
 Planters' Bank ats. Steadman, 100, 
 
 111. 
 Piatt ats. Washington, 254, 272, 339, 
 
 342, 528. 
 Plymouth V. Painter, 115, 118. 
 
 V. Jackson, 556. 
 Piatt V. Rice, 481. 
 Polk V. Hill, 249, 319. 
 Pollard ats. Herring, 691. 
 Pomeroy v. Lambeth, 692. 
 Pond V. Negus, 187, 306. 
 Poor ats. Langdou, 47, 80, 256, 266, 
 
 292, 293, 428. 
 Pope ats. Hinraan, 58, 86, 89, 94, 95, 
 96, 107, 108, 243, 247, 248, 
 249, 295. 
 et al. V. Headen, 47, 91, 94, 254, 
 
 278. 
 ats. Lancaster, 602. 
 Porter ats. Taylor, 29, 33. 
 
 r. Whitney, 47, 286, 293, 535, 
 
 605. 
 ats. Bassett, 200, 209. 
 
TABLE OS CASES. 
 
 Porter ats. Wallace, 576. 
 Powell V. Tuttlo, 46, 79, 81, 136. 
 
 ats. Thatcher, 47, 48, 52, 81, 
 210, 212, 215, 220, 222, 622. 
 ats. Bestor, 249, 316, 317, 319, 
 442. 
 Preston ats. Jesse, 45, 47, 92, 94. 
 ats. Keith, 47, 93, 94. 
 ats. Robinett, 95, 622. 
 Price ats. Sell, 453. 
 Prickett V. People, 118. 
 Prideanx ats. Roe, 511. 
 Providence Bank v. Billings, 9, 481 . 
 Proprietors of Cardigan v. Page, 125, 
 126, 175, 185, 186, 202, 299, 325, 600. 
 Propst T. Meadows, 219. 
 Proctor ats. Perkins, 477. 
 Prudhomme ats. Dranguet, 95. 
 Pae ats. Burgess, 200. 
 Pultney ats. Earl of Darlington, 583. 
 PuUiamv. Robinson, 691. 
 Putnam v. Ritchie, 691. 
 Quimbyats. Longfellow, 328. 
 Ralyea ats. Dunn, 152. 
 Ramsay ats. Burd, 167, 207, 210. 
 Ransom ats. Pejepscut Proprietors, 
 
 608. 
 Rawlings v. Barley, 661. 
 Raymond v. Bell, 219. 
 Rea T. McEaohron, 418. 
 Reddick ats. Gillam, 118. 
 Redfield ats. Parker, 478. 
 Reed v. Wright, 33. 
 T. Goodyear, 614. 
 ats. Sherwood, 46. 
 ats. Morton, 47. 
 
 V. Morton, 47, 59, 68, 79, 98, 
 100, 307, 347, 350, 369. 
 Reeves v. Towles, 94, 185. 
 Register v. Bryan, 47, 65, 308, 337, 548. 
 Rennick v. Wallace, 224, 575, 635. 
 Rennell ats. Mirehouse, 651. 
 Reynolds ats. Divinney, 326, 375. 
 v. Leiper's Heirs, 550. 
 Rex V. Sparrow, 306. 
 V. Leicester, 306. 
 V. Croke, 53, 219, 252, 601. 
 Rhinehart v. Schuyler, 28, 107, 179, 
 
 180, 671. 
 Richardson v. Dorr, 47, 94, 361, 605. 
 V. McKinson, 691. 
 V. State, 162. 
 Rice ats. Piatt, 481. 
 
 V. White, 347, 349. 
 Risley ats. Scheleucker, 118, 119, 201. 
 Rising V. Granger, 173, 209. 
 Ritienhouse ats. Hole, 92, 605. 
 Ritchie ats. Putnam, 691. 
 Robb V. Bowen, 687. 
 Robbins ats. Gibson, 170. 
 
 ats. McMillan, 88, 551. 
 Robertson ats. Allen, 94. 
 
 V. Livingston, 327. 
 
 Robinett v. Preston, 95, 622. 
 Roberts ats. Jackson, 96, 97, 435. 
 ats. Pillow, 100, 685. 
 ats. Dunning, 200. 
 Robinson ats. Stevens, 96. 
 
 V. Williams, 171, 374. 
 ats. Pulliam, 691. 
 Roc V. Prideanx, 511. 
 Rogers ats. Thompson, 207, 299, 312. 
 V. Dill, 220. 
 V. Park, 221. 
 Roland v. Doty, 573. 
 Ronkendorff v. Taylor, 46, 47, 80, 94, 
 125, 254, 262, 269, 273, 282, 314, 
 332. 
 Rooney ats. Brooks, 47. 
 Eoome ats. Heath, 306. 
 Roosevelt ats. Jackson, 421. 
 Root ats. Hartwell, 619. 
 Ross V. Bourland, 634. 
 V. Irving, 692, 693. 
 ats. Eoust, 47, 94, 95. 
 ats. McClung, 222. 
 Rosenberger v. SchuU, 171. 
 Rose V. Himely, 220. 
 Eowe V. Blakeslee, 477. 
 Rowland v. Doty et al. 102, 105, 485, 
 
 486. 
 Ruggles ats. Buckman, 120. 
 Rule ats. Parker, 47, 207, 210, 254. 
 Runnels v. State, 23. 
 Russell ats. Howe, 94. 
 
 ats. Colby, 140, 412. 
 ats. Prancis, 210, 212, 222. 
 Rutherford ats. Calder, 431. 
 Same v. Wendell, 432. 
 Sanford v. DeCamp, 477. 
 Saunders v. Springstein, 141. 
 
 ats. Mariner, 598. 
 Sawyer ats. Smith, 400. 
 ats. Hint, 299. 
 ats. Hope, 249, 317. 
 V. City of Alton, 196. 
 ats. Carpenter, 47, 292, 367, 
 602. 
 Savage ats. Kellar, 140, 412. 
 Savannah v. Hartridge, 198. 
 
 ats. Bank of Georgia, 198, 
 526. 
 Scarritt v. Chapman, 247. 
 Scales V. Avis, 47, 210, 211, 277, 293 
 
 521. 
 Schuyler ats. Rhinehart, 28, 107 179 
 180, 671. 
 V. Hull, 132, 183, 599. 
 ats. Bruce, 179, 180, 347, 
 
 351, 459, 556, 671. 
 ats. Thompson, 180, 437, 
 
 438. 
 ats. Vance, 180, 305. 
 Schull ats. Rosenberger, 171. 
 Schelencker V. Risley, 118, 119,201. 
 Schmidt v. Gatewood, 57. 
 
TABLE OF CASES. 
 
 Scott r. Detroit Young Men's Society, 
 
 94, 105. 
 
 ats. Allen, 200. 
 
 ats. Wallace, 168. 
 
 ats. Surnam, 327. 
 
 Scoville ats. Hulick, 434, 452. 
 
 Lessee ats. Willey, 176, 330, 
 465. 
 Scraggs V. Taylor, 692. 
 Seixas ats. Hart, 219. 
 Senter ats. Andrews, 331, 359. 
 Sergeant v. Pierce, 72. 
 Sewell V. Jones, 198. 
 Sexton ats. Wlieaton, 96. 
 Seymour v. Hartford, 479, 481. 
 
 ats. Wallace, 575, 576, 635. 
 Shaw V. Dennis, 196, 200. 
 
 ats. Elwell, 192. 
 Sharpe v. Spier, 45, 46, 53, 523, 524, 
 699. 
 ats. Lane, 508. 
 Sliattuclc ats, Isaacs, 47, 259, 292, 364, 
 
 366,368,411. 
 Sliarp V. Johnson, 81, 309; 
 Shaffer ats. Jackson, 619. 
 Sherwood v. Reed, 46. 
 Sherman ats. Sumner, 47, 82, 88, 362. 
 Shearer v. Woodburn, 47, 80, 505. 
 Shepherd ats. Jackson, 47, 93, 94, 207, 
 
 210,395. 
 Sheldon v. Coates, 122, 129, 274, 414, 
 599. 
 T. Van Buskirk, 200. 
 Sheaffer v. McKalee, 169, 170. 
 Shriver v. Lynn, 220. 
 Shearman ats. Wain, 687. 
 Shimin V. Inman, 47, 175, 176, 276, 
 
 332, 360. 
 Shoenfelt ats. Stewart, 482. 
 Shoenberger v. Downing, 506. 
 Shore ats. Auscomb, 510. 
 Shoalwater v. Armstrong, 106, 526, 
 
 528. 
 Shoemaker ats. Strunch, 166, 638. 
 Shortbridge v. Catlett, 433. 
 Shultz ats. Bank of United States, 570. 
 Sliumway v. Sluimway, 252. 
 Sibley v. Smith, 139, 166, 309, 323, 
 
 412, 431, 459,460. 
 Silliman v. Frye, 347, 350. 
 Simms ats. Davis, 285. 
 Sisk v. Smith, 646. 
 Six Carpenters' Case, 510, 514. 
 Slocum ats. Thevenin, 603. 
 Sloop Betsey ats. Glass et al. 220. 
 Smiley ats. Wright, 654. 
 Smith v. Allen, 45, 47, 86, 94, 98, 254 
 287, 293. 
 ats. Allen, 604, 619. 
 V. Bodflsh, 47, 80, 95, 464. 
 ats. Brown, 47. 
 
 ats. Delogny, 47, 254, 279, 283. 
 V. Hileman, 53, 56, 72, 436. 
 
 Smith ats. Dunning, 66, 84, 86, 88. 
 V. Corcoran, 93, 185. 
 V. Moreman, 96. 
 V. State, 96, 221, 464. 
 ats. Parker, 106, 210, 599. 
 ats. Hannel, 109, 161, 200, 215, 
 262, 297, 413, 548, 550, 576, 
 655. 
 ats, Wilcox, 115, 118. 
 ats. Sibley, 139, 166, 309, 323, 
 
 412, 431, 459, 460. 
 ats. Commissioners, 167. 
 V. McGrew, 167. 
 ats. Levy, 180. 
 ats. Homer, 220. 
 V. Burlingame, 252. 
 ats. Stanley, 255, 485. 
 ats. Tidd, 288. 
 ats. Spooner, 699. 
 ats. Giddings, 361. 
 V. Sawyer, 400. 
 ats. Beard, 536, 537. 
 ats. Sisk, 646. 
 ats. Little, 654. 
 Smyers ats. Bank, 684. 
 Snodgrass ats. Dunden, 166. 
 Snow ats. Bangs, 192. 
 
 ats. Dillingham, 192, 200, 307, 
 524. 
 Snyder ats. Hockenbury, 167,695. 
 
 ats. Bradley, 690. 
 Somers ats. McKin, 118. 
 Southall Y. McKeand, 691. 
 Spanglerv. Jacoby, 71. 
 Sparhawk ats. Chase, 200,201. 
 Sparrow ats. Eex, 306. 
 Sparks ats. St. Louis Co., 187, 306. 
 Spear v. Ditty, 47, 122, 128, 185, 257, 
 265, 292, 310, 366, 367, 410, 
 411,435, 599, 605. 
 ats. Chandler, 47, 200, 263, 310, 
 435, 436. 
 Spellman T. Curtenius, 178, 216, 221, 
 235, 240, 241, 243, 247, 249, 421, 661. 
 Speed ats. Mcllroy, 219. 
 ats. Lawrence, 305. 
 Spiller ats. Baumgard, 302. 
 Spier ats. Sharpe, 45, 46, 63, 523, 524, 
 
 699. 
 Spooner ats. Smith, 699. 
 Springstein ats. Saunders, 141. 
 Spring ats. Caul, 638. 
 Stackpole r. Arnold, 409. 
 State ats. Eunnels, 23. 
 
 Bank t. Cooper, 31. 
 v. Marsh, 252. 
 T. Buckmaster, 305. 
 V. People, 482. 
 ats. Coman, 599. 
 V. Coleman, 32. 
 ats. Dentler, 47, 231, 223. 
 V. Allen, 40. 
 ats. Crawford, 59, 221. 
 
fm v^w^ 
 
 TABLE OF CASES. 
 
 ^V< 
 
 Uiiiutkt^^^^ 
 
 State ats. Judson, 59, 221. 
 V. Cole, 65. 
 
 ats. Smith, 96, 221, 464. 
 ats. Richardson, 162. 
 ats. "Waters. 179, 197. 
 V. Mcintosh, 186. 
 V. Falkinbinge, 195. 
 V. Pemborton, 196. 
 Y. Bank of Newbern, 198. 
 T. Woodside, 200. 
 ats. Hartley, 200. 
 ats. Fridge, 219. 
 ats. Williams, 221, 223. 
 ats. Olcott, 239, 242, 243. 
 of Mississippi ats. Anderson, 571. 
 V. Click, 305. 
 
 ats. Cincinnati College, 481. 
 ats. Anderson, 481. 
 V. Wilson, 482. 
 Stanley y. Smith, 255, 485. 
 Stead's Executors v. Course, 46, 84, 
 
 94, 162, 210, 336, 594, 603. 
 Steadman v. Planters' Bank, 100, 111. 
 Stearns et al. ats. Thayer, 183. 
 Stewart ats. Byrne, 32. 
 
 ats. Pentland, 185, 200, 296. 
 V. Graffies, 302. 
 V. Shoenfelt, 482. 
 Stetson V. Kempton, 192, 195, 524. 
 
 ats. Wales, 699. 
 Sterling ats. Winder, 215, 618, 619. 
 Stebbins ats. Foote, 219. 
 Sterrett ats. Frick, 375. 
 Stevens ats. Varny, 472. 
 V. McNamara, 94. 
 V. Robinson, 96. 
 ats. Parrish, 687. 
 Stephens v. Wells, 486. 
 Stevenson v. Dunlap, 691. 
 Stephenson ats. Ballard, 691, 
 Steele ats. Taylor, 490, 508. 
 Stiles a,U. Games, 4, 81, 84, 94, 132, 
 
 254, 601, 656. 
 Stookey ats. Lessee of James, 242. 
 Stowell V. Zouch, 59. 
 Stockwell ats. Harmon, 215, 301. 
 St. Louis Co. Court v. Hamilton, 16. 
 
 V. Sparks, 187, 306. 
 St. Clair's Heirs ats. Pratt, 470. 
 Striker v, Kelly, 46, 105, 305. 
 Strunch v. Shoemaker, 166, 638. 
 Stringer v. Young, 305. 
 
 ats. Taylor, 475. 
 Strong ats. Doe, 339. 
 
 ats. Willard, 470. 
 Stuke's Case, 691. 
 Stukerajts. Watson, 94, 95. 
 Sturtevant ats. Blake, 119, 201. 
 Stuart r. Davis, 481. 
 
 V. Parrish, 575, 629, 635. 
 Sumner v. Sherman, 47, 82, 88, 363, 
 
 V. Dorchester, 197. 
 Surman ats. Scott, 327. 
 
 Sutton V. Nelson, 371, 372. 
 Swailes ats. Holliday, 252, 
 Swan V. KnoxviUe, 196. 
 Sweetser ats. Doe, 285, 288. 
 Tabele v. Tabele, 646. 
 Taft ats. Usher, 300, 312. 
 Tallman ats. Varick, 45, 46, 47, 58, 84, 
 98, 100, 105. 
 V. White, 57, 105, 152, 153, 
 154, 215,267, 450. 
 Tallmadge ats. Franklin, 258. 
 Talbot V. Dent, 524. 
 Tanner ats. Mclnstry, 118. 
 Taylor v. Porter, 29, 33. 
 
 V. Galloway, 45, 49, 515. 
 ats. Ronkendorif, 46, 47, 80, 94, 
 122. 254, 262, 269, 273, 
 282, 314, 332, 528. 
 V. French, 47, 292, 362, 367, 
 
 412, 414, 654. 
 V. People, 208, 213, 221, 237. 
 ats. Bettis, 221. 
 V. Brown, 305. 
 V. Stringer, 475. 
 ats. Terrett, 478. 
 V. Steele, 490, 508. 
 V. Cole, 510. 
 V. Meyers, 576. 
 V. Horde, 663. 
 V. Whiting, 691. 
 V. Buckner, 682. 
 ats. Scroggs, 692. 
 Tax Collector ats. Martin, 197. 
 
 Appeal Court ats. Gordon, 478. 
 Tebbetts ats. Job, 132, 180, 182, 183, 
 
 208, 213, 236, 245, 246, 599. 
 Terry v. Blight, 47, 94, 96. 
 Terrett v. Taylor, 478. 
 Terrill ats. Mon-is, 692. 
 Thatcher v. Powell, 47, 48, 52, 81, 210, 
 
 212, 21f, 220, 222, 622. 
 Thames Manufaetur'g Co. v. Lathrop, 
 
 47, 88, 145, 149, 187, 306. 
 Thayer v. Stearns et al., 183. 
 
 ats. Freeman, 615. 
 The King v. The Coi-poration of Bed- 
 ford Level, 115. 
 Thevenin v. Slocum, 603. 
 The Corporation of Bedford Level ats. 
 
 The King, 115. 
 Third School District of Egremont ats. 
 Joyner, 191, 197. 
 Municipality ats. Egerton, 205. 
 Thompson v. Gotham, 94, 254, 531. 
 
 ats. Merritt, 175, 238, 240, 
 
 241. 
 v. Schuyler, 180, 437, 438, 
 ats. Gilmore, 695. 
 V. Gardner, 205, 207. 
 V. Mason, 691, 
 V. Rogers, 207, 299, 313, 
 V. Ebbetts, 565. 
 ats. Young, 241, 428, 
 
TABLE or CASES. 
 
 Thompson ats. Tilson, 438. 
 Thomas v. Leland, 196. 
 
 ats. Vovis, 470, 472. 
 ats. Jackson, 684. 
 Thurston ats. Little, 82. 
 
 T. Little, 132, 183, 192. 
 V. Martin, 140, 477. 
 Tibbetts ats. Eldridge, 562. 
 Tidd Y. Smith, 288. 
 Tiernan v. Wilson, 337. 
 Tilson V. Thompson, 438. 
 
 ats. Henry, 601. 
 Tipton V. Weyand, 96. 
 Titus ats. Harriman, 221. 
 Tolman v. Emerson, 97, 435, 606. 
 Torrey v. Millbury, 192, 309. 
 Tovvles ats. Reeves, 94, 185. 
 ats. Baker, 94, 185. 
 Townsen v. Wilson, 140. 
 Treas'r of Athens Co. ats. Armstrong, 
 
 481. 
 Treon's Lessee t. Emorick, 156, 268. 
 Treat v. Orono, 95. 
 Trustees of Paris v. Berry, 196. 
 Tucker v. Aiken, 115, 116, 121, 126. 
 
 ats. Clarke, 292, 365. 
 Tuck ats. McCoy, 295. 
 Turner r. Watterson, 376. 
 Turney v. Yoeman, 152, 159, 431. 
 Turrentine ats. Adams, 60. 
 Tuttle ats. Powell, 46, 79, 81, 136. 
 
 ats. Waldron, 92, 94, 332, 623, 
 666. 
 Tyler ats. Goodenow, 327. 
 United States v. Maurice, 114, 118. 
 V. Kirkpatrick, 305. 
 r. Van Zandt, 305. 
 Bank ats. Voorhees,219, 
 ats. Osborne, 566. 
 V. Dandridge, 619. 
 Upton V. Holden, 200. 
 Upshaw ats. Buchanan, 521. 
 Usher v. Taft, 300, 312. 
 VanzantT. Waddell, 30. 
 Vanhook ats. Owens, 167. 
 Vance v. Schuyler, 180, 305. 
 Vanderbilt v. Adams, 196. 
 Van Buskerk ats. Sheldon, 200. 
 Van Woi-mer t. Mayor of Albany, 219. 
 Van Zant ats. Gwin, 252. 
 
 ats. United States, 305. 
 Van Horn's Lessee v. Darrow, 324. 
 
 T. Eonda, 691. 
 Van Alden v. Vanderpool, 327. 
 Vanderpool ats. Van Alden, 327. 
 Van Eansellaer v. Kidd, 364, 565. 
 Van Cortlandt ats. Parkhurst, 691. 
 Varick v. Tallman, 45, 46, 47, 58, 84, 
 
 98, 100, 105. 
 Vamy v. Stevens, 472. 
 Vaughn ats. Jarrot, 495. 
 Veal ats. Douahoe,456, 458. 
 Vernon's Case, 59. 
 
 Veazie ats. Brown, 47, 80, 82, 84, 88, 
 
 175, 254, 267, 289, 562. 
 Voorhees r. United States Bank, 219. 
 Voris V. Thomas, 470, 472. 
 Waddell r. Vanzant, 30. 
 Waggoner ats. Blair, 638. 
 Waldron r. McComb, 45, 515. 
 
 V. Tuttle, 92, 94, 332, 623, 
 666. 
 Walker v. Chapman, 187, 306. 
 
 ats. Nichols, 477. 
 Wallace ats. Eennick, 224, 575, 635. 
 V. Scott, 168. 
 
 V. Seymour, 575, 576, 635. 
 V. Porter, 576. 
 Wallingford v. Fiske, 330, 331, 667. 
 Wain V. Shearman, 687. 
 Wales V. Stetson, 699. 
 Ware v. Bradford, 96. 
 Warren ats. Combs, 470. 
 Ward V. Barrows, 617. 
 Watson V. Stuker, 94, 95. 
 Watterson v. Wilson, 168, 170, 172. 
 Waters V. State, 179, 197. 
 Watt V. Gilmore, 434, 464. 
 Waterson ats. Turner, 376. 
 Watkins v. White, 657. 
 Washington y. Pratt, 254, 272, 339, 
 
 342, 528. 
 Webster v. French, 187, 306. 
 
 ats. Gillett, 574. 
 Webber v. Cox, 253. 
 Weeks ats. McCarroU, 40, 221, 222. 
 Weed V. McQuiUcen, 185, 192. 
 Weer v. Hahn, 381. 
 Wellington v. Gale, 72, 602. 
 Wells ats. Coit, 121, 126, 292, 366, 
 600, 602. 
 ats. Stephens, 486. 
 Wentworth v. Allen, 274, 535. 
 Wendell ats. Same, 432. 
 Wetherbee ats. Willard, 41. 
 Wethersbee ats, Nancarrow, 94, 185. 
 Westcott T. McDonald, 94. 
 West School District of Canton v. 
 
 Merrills, 190, 524. 
 Weyand v. Tipton, 96. 
 Wheeler ats. Brown, 53, 59, 221, 252. 
 ats. Lyerly, 97. 
 ats. Anthony, 174, 200. 
 Wheaton v. Sexton, 96. 
 Wheelock v. Hall, 619. 
 Wliipple ats. Briggs, 602. 
 White V. Kendrick, 32. 
 V. White, 33. 
 ats. Watkins, 657. 
 ats. Tallman, 57, 105, 152, 153, 
 
 154, 215, 267,450. 
 ats. Battemore, 67, 85. 
 ats. Mussey, 93, 305. 
 ats. Garrett, 185, 294. 
 ats. Rice, 347, 349. 
 V. Willard, 373. 
 
*IAn2l904 
 
 TABLE OF CASES. 
 
 Whitney ats. Porter, 47, 286, 293, 535, 
 
 605. 
 Whittlesey v. Clinton, 132. 
 Whitlock ats. Mix, 185. 
 ats. Doe, 215. 
 Whidden ats. Brackett, 200. 
 Whitcomb ats. King, 200. 
 Whiteside \. Divers, 495. 
 Whitner ats. Dellet, 691, 692. 
 Whiting ats. Taylor, 691. 
 Wickwire ats. Douglass, 118. 
 Wiggins ats. Garrett, 47, 94, 100, 104, 
 108, 254, 291, 561. 
 V. Mayor of New York, 305. 
 Wiley V. Palmer, 11. 
 
 ats. Isaacs, 47, 80, 82, 121, 127, 
 
 257, 414. 
 V. ScoviU's Lessee, 176, 330, 
 
 465. 
 V. Bean, 445, 448, 449. 
 Wilson ats. Mayo, 28, 60. 
 
 ats. Hodge, 45, 46, 334, 338, 
 
 339. 
 ats. Creigh, 694. 
 V. Bell, 47, 88, 444. 
 ats. Townsen, 140. 
 ats. Campbell, 168, 169, 170, 
 
 171. 
 V. Watterson, 168, 170, 172. 
 ats. Chambers, 470. 
 ats. New Jersey, 478. 
 ats. State, 481. 
 ats. Tiernan, 337. 
 V. Cochran, 517. 
 Willard v. Wethersbee, 41. 
 ats. White, 373. 
 V. Blunt, 639. 
 V. Strong, 470. 
 Williams v. Peyton, 45, 46, 47, 91, 94, 
 98, 254, 289. 
 ats. Furness, 594, 595. 
 ats. Keating, 169. 
 V. East India Company, 619. 
 ats. Eobinson, 171, 374. 
 V. Berry, 220, 418. 
 V. State, 221, 223. 
 V. Hilton, 470. 
 V. Grey, 472. 
 ats. Hardy, 478. 
 Williamson v. Bradford,' 97. 
 
 Wilcox v. Smith, 115, 118. 
 
 V. Jackson, 220, 634. 
 Williston V. Colkett, 166. 
 Wilkins v. Huse, 216, 221, 224, 254, 
 
 274, 295, 320, 418. 
 Winchester y. Cain, 185, 505. 
 Winder v. Sterling, 215, 618, 619. 
 Winston ats. Baskins, 335, 339. 
 Winans ats. Faure, 470. 
 Winterbourne v. Morgan, 510. 
 Wister v. Kammerer, 47, 254. 
 Wise ats. Doe, 219. 
 Witherspoon y. Dunlap, 323. 
 Withers v. Yeadon, 691. 
 Woodburn ats. Shearer, 47, 80, 505. 
 
 V. Farmers & Mechanics' 
 Bank, 473. 
 Woodcock V. Bennett, 34. ' 
 
 Wood ats. Harris, 40. 
 
 ats. Jackson, 432. 
 Woodbury ats. Doivner, 122, 128, 200. 
 Woods ats. Mason, 185, 191. 
 Woodside ats. State, 200. 
 Woodbridge ats. Atwater, 478. 
 Worraell ats. Lunt, 173. 
 Wright ats. Peed, 33. 
 
 ats. Brown, 47, 91,93, 94,203. 
 
 V. Bennett, 495. 
 
 ats. Hodgdon, 550. 
 
 V. Marsh, 556. 
 
 ats. Smiley, 646. 
 Wyman t. Campbell, 219. 
 Yancy t. Hopkins, 47, 59, 69, 84, 85, 
 174, 210, 221, 474, 571, 574. 
 
 et al. ats. Bronson, 574. 
 Yaw ats. Pitkin, 235, 243, 247, 248, 
 
 330, 428, 459, 462, 465. 
 Yeadon ats. Withers, 691. 
 Yeoman ats. Turney, 152, 159, 431. 
 Yost ats. Abbott, 200. 
 Young v. Martin, 47, 80, 167, 283. 
 
 T. Lorrain, 52, 219, 220. 
 
 v. Keogh, 72, 418, 577, 578. 
 
 v. Thompson, 241, 428. 
 
 V. Stringer, 305. 
 
 ats. Hooker, 305. 
 
 V. Dowling, 577, 578. 
 Zouch ats. Stowell, 59. 
 Zurcher v. Magee, 53, 59, 221. 
 Zylstra's Case, 32. 
 
AMEEICAN EEPOETS CITED. 
 
 NAME or KEPORTEE. 
 
 Addisoa, 
 
 Adams, 
 
 Aiken, 
 
 Alabama or Minor, 
 
 Alabama, N. S. 
 
 Appleton, 
 
 Ashmead, 
 
 Bailey, 
 
 Bailey's Chancery, 
 
 Baldwin, 
 
 Barliour, 
 
 Barbour's Chancery, 
 
 Barr, 
 
 Bay, 
 
 Bibb, 
 
 Binney, 
 
 Blackford, 
 
 Bland's Chancery, 
 
 Blatchford, 
 
 Brayton, 
 
 Breese, 
 
 Brevard, 
 
 Brockenbrough, 
 
 Caines', 
 
 Caines' Cases in Error. 
 
 California, 
 
 Call, 
 
 Carolina Law Repository, 
 
 Cameron & Norwood, 
 
 Carter, 
 
 Chandler, 
 
 Charlton, {T. U. P.) 
 
 Charlton, (R. M.) 
 
 Cheves' Chancery Cases, 
 
 Chipman, (N.) 
 
 Chipman, (D.) 
 
 Clarke's (Vice Chancellor,) 
 
 Cobb, 
 
 Coleman & Caines' Cases 
 
 Comstock, 
 
 Conference, 
 
 Connecticut, 
 
 Constitutional Court. 
 
 Pennsylvania, 
 
 New Hampshire, 
 
 Vermont, 
 
 Alabama, 
 
 Alabama, 
 
 Maine, 
 
 Pennsylvania, 
 
 South Carolina, 
 
 South Carolina, 
 
 U. S. Circuit, 
 
 New York, 
 
 New York, 
 
 Pennsylvania, 
 
 South Carolina, 
 
 Kentucky, 
 
 Pennsylvania, 
 
 Indiana, 
 
 Maryland, 
 
 U. S. Circuit Court, 
 
 Vermont, 
 
 Illinois, 
 
 South Carolina, 
 
 U. S. Circuit, 
 
 New York, 
 
 New York, 
 
 California, 
 
 Virginia, 
 
 North Carolina, 
 
 North Carolina, 
 
 Indiana, 
 
 Wisconsin, 
 
 Georgia, 
 
 Georgia, 
 
 South Carolina, 
 
 Vermont, 
 
 Vermont, 
 
 New York, 
 
 Georgia, 
 
 New York, 
 
 New York, 
 
 North Carolina, 
 
 Connecticut, 
 
 South Carolina, 
 
 ABBEEVIATION. 
 
 Addis. R. 
 N. H. R. 
 Aik. R. 
 Cited as Minor. 
 Ala. E. 
 App. R. 
 Ashm. R. 
 Bail. R. 
 Bail. C. R. 
 Balw. R. 
 Barb. S. C. R. 
 Barb. C. R. 
 Barr R. 
 Bay R. 
 Bibb R. 
 Bin. R. 
 Blackf. R. 
 Bland's Ch. R. 
 Blatchf. R. 
 Brayt. R. 
 Bre. R. 
 Brev. R. 
 Brock. R. 
 Caines' R. 
 Caines' Cas. 
 Cal. R. 
 Call R. 
 
 Car. Law Rep. 
 Cam. & Norw. R. 
 Carter R. 
 Chand. R. 
 Charl. R. 
 R. M. Charlt. 
 Che. Ch. Ca. 
 Chipm. R. 
 D. Chipm. R. 
 Clarke R. 
 Geo. R. 
 
 Col. & Cai. Cas. 
 Comst. R. 
 Conf. R. 
 Conn. R. 
 Const. Ct. E. 
 
AMEKICAN EEPOKTS CITED. 
 
 ust 
 
 \ikftt**''* 
 
 NAME 03? KEPOKTEK. 
 
 Cooke, 
 
 Cowcn, 
 
 Coxe, 
 
 Crabbe, 
 
 Cranch, 
 
 Cashing, 
 
 Cushman, 
 
 Dallas, 
 
 Dana, 
 
 Day, 
 
 Denio, 
 
 Desaussure, 
 
 Devereux's Equity, 
 
 Devcreux's Law, 
 
 Devereux & Battle, 
 
 Devereux & Battle's Equity, 
 
 Douglass, 
 
 Dadley, 
 
 Dudley's Law, 
 
 Dudley's Equity, 
 
 Edwards' Chancery, 
 
 English, 
 
 Eairfield, 
 
 Florida, 
 
 Eoster, 
 
 Ereeman's Chancery, 
 
 Gallison, 
 
 Gibbs, 
 
 Gill, 
 
 Georgia Reports, 
 
 Gill & Johnson, 
 
 Oilman, 
 
 Gilmer, 
 
 Gilpin, 
 
 Grattan, 
 
 Green, 
 
 Green's Chancery, 
 
 Green, 
 
 Greenleaf, 
 
 Griswold, 
 
 Hall, 
 
 Halsted, 
 
 Halsted Chancery, 
 
 Hammond, 
 
 Hardin, 
 
 Harper's Law, 
 
 Harper's Equity, 
 
 Harrington, 
 
 Harris, 
 
 Harris & Gill, 
 
 Harris & Johnson, 
 
 Harris & McHenry, 
 
 Harrison, 
 
 Hawks, 
 
 Haywood, 
 
 Henning & Munford, 
 
 Heywood, 
 
 Hill, 
 
 Hill, 
 
 Hill's Chancery, 
 
 Hoffman, 
 
 Hopkins' Chancery, 
 
 Tennessee, 
 
 New York, 
 
 New Jersey, 
 
 XJ. S. Circuit, 
 
 U. S. Supreme Court, 
 
 Massachusetts, 
 
 Mississippi, 
 
 Pennsylvania, 
 
 Kentucky, 
 
 Connecticut, 
 
 New York, 
 
 South Carolina, 
 
 North Carolina, 
 
 North Carolina, 
 
 North Carolina, 
 
 iNorth Carolina, 
 
 Michigan, 
 
 Georgia, 
 
 South Carolina, 
 
 South Carolina, 
 
 New York, 
 
 Arkansas, 
 
 Maine, 
 
 Florida, 
 
 New Hampshire, 
 
 Mississippi, 
 
 U. S. Circuit, 
 
 Michigan, 
 
 Maryland, 
 
 Georgia, 
 
 Maryland, 
 
 Illinois, 
 
 Virginia, 
 
 XJ. S. Circuit, E. Dis., Pa. 
 
 Virginia, 
 
 New Jersey, 
 
 New Jersey, 
 
 Iowa, 
 
 Maine, 
 
 Ohio, 
 
 New York, 
 
 New Jersey, 
 
 New Jersey, 
 
 Ohio, 
 
 Kentucky, 
 
 South Carolina, 
 
 South Carolina, 
 
 Delaware, 
 
 Pennsylvania, 
 
 Maryland, 
 
 Maryland, 
 
 Maryland, 
 
 New Jersey, 
 
 North Carolina, 
 
 North Carolina, 
 
 Virginia, 
 
 Tennessee, 
 
 New York, 
 
 South Carolina, 
 
 South Carolina, 
 
 New York, 
 
 New York, 
 
 ABBREVIATION. 
 
 Cooke R. 
 
 Cow. R. 
 
 Coxe R. 
 
 Crabbe R. 
 
 Cra. R. 
 
 Cush. R. 
 
 Cushm. R. 
 
 Dall. R. 
 
 Dana R. 
 
 Day R. 
 
 Denio R. 
 
 Desaus. R. 
 
 Dev. Eq. R. 
 
 Dev. R. 
 
 Dev. & Bat. R. 
 
 Dev. & Bat. Eq. R. 
 
 Doug. (Mich.) R. 
 
 Dudl. R. 
 
 Dudl. Law R. 
 
 Dudl. Eq. R. 
 
 Edw. Ch. R. 
 
 Eng. R. 
 
 Fairf. R. 
 
 Fla. R. 
 
 Foster R. 
 
 Freem. C. R. 
 
 Gal. R. 
 
 Gibbs R. 
 
 Gill R. 
 
 Geo. R. 
 
 G. &J. R. 
 
 Gilm. R. 
 
 Gilmer R. 
 
 Gilp. R. 
 
 Gratt. R. 
 
 Green R. 
 
 Green C. R. 
 
 G. Green R. 
 
 Greenl. R. 
 
 Ohio R. 
 
 Hall R. 
 
 Halst. R. 
 
 Halst. C. R. 
 
 Ham. R. 
 
 Hardin R. 
 
 Harp. R. 
 
 Harp. Eq. R. 
 
 Harr. R. 
 
 Pa. State R. 
 
 H. & G. R. 
 
 H. & J. R. 
 
 H. & McH. R. 
 
 Harrison R. 
 
 Hawks R. 
 
 Hayw. R. 
 
 Hen. & Munf. E. 
 
 Heyw. R. 
 
 Hill N. Y. R. 
 
 Hill S. C. R. 
 
 Hill's C. R. 
 
 Hoffm. R. 
 
 Hopk. R. 
 
AMERICAN REPOKTS CITED. 
 
 NAME OF KEPOETEK. 
 
 Howard, 
 
 Howard, 
 
 Hughes, 
 
 Humphrey, 
 
 Illinois Eeports by E. Peck, 
 
 Iredell's Law, 
 
 Iredell's Equity, 
 
 Jefferson, 
 
 Jones, 
 
 Johnson, 
 
 Johnson's Cases, 
 
 Johnson's Chancery, 
 
 Kelly, 
 
 Kentucky Decisions, 
 
 Kirby, 
 
 Leigh, 
 
 Littell, 
 
 Littell's Select Cases, 
 
 Louisiana, 
 
 Louisiana Annual E. 
 
 Maine, 
 
 Manning, 
 
 Martin, 
 
 Martin, 
 
 Martin & Yerger, 
 
 Marshall, (A. K.) 
 
 Marshall, (J. J.) 
 
 Mason, 
 
 Massachusetts, 
 
 Maryland Reports, 
 
 Maryland Chancery, 
 
 M'Cord, 
 
 M'Cord's Chancery, 
 
 M'Lean, 
 
 M'MuUan, 
 
 M'Mullan's Chancery, 
 
 Meigs, 
 
 Metcalf, 
 
 Mississippi, 
 
 Minor, 
 
 Missouri, 
 
 Monroe, Thomas 
 
 Moni'oe, Benjamin, 
 
 Morris, 
 
 Munford, 
 
 Murphy, 
 
 New Hampshire, 
 
 New Jersey, 
 
 Nott & M'Cord, 
 
 Ohio, 
 
 Overton, 
 
 Paige, 
 
 Paine, 
 
 Peck, 
 
 Peck, 
 
 Pennington, 
 
 Pennsylvania, 
 
 Penrose & Watts, 
 
 Peters' Circuit Court, 
 
 Peters, 
 
 Peters' U. S. Condensed. 
 
 Pike, 
 
 Mississippi, 
 
 U. S. Supreme Court, 
 
 Kentucky, 
 
 Tennessee, 
 
 Illinois, 
 
 North Carolina, 
 
 North Carolina, 
 
 Virginia, 
 
 Pennsylvania, 
 
 New York, 
 
 New York, 
 
 New York, 
 
 Georgia, 
 
 Kentucky, 
 
 Connecticut, 
 
 Virginia, 
 
 Kentucky, 
 
 Kentucky, 
 
 Louisiana, 
 
 Louisiana, 
 
 Maine, 
 
 Michigan, 
 
 North Carolina, 
 
 Louisiana, 
 
 Tennessee, 
 
 Kentucky, 
 
 Kentucky, 
 
 U. S. 1st Circuit Court, 
 
 Massachusetts, 
 
 Maryland, 
 
 Maryland, 
 
 South Carolina, 
 
 South Carolina, 
 
 U. S. 7 th Circuit Court, 
 
 South Carolina, 
 
 South Carolina, 
 
 Tennessee, 
 
 Massachusetts, 
 
 Mississippi, 
 
 Alabama, 
 
 Missouri, 
 
 Kentucky, 
 
 Kentucky, 
 
 Iowa, 
 
 Virginia, 
 
 North Carolina, 
 
 New Hampshire, 
 
 New Jersey, 
 
 South Carolina, 
 
 Ohio, 
 
 Tennessee, 
 
 New York, 
 
 U. S. Circuit, 
 
 Tennessee, 
 
 Illinois, 
 
 New Jersey, 
 
 Pennsylvania, 
 
 Pennsylvania, 
 
 XJ. S. 3rd Circuit Court, 
 
 TJ. S. Supreme Court, 
 
 Supreme Court TJ. S. 
 
 Arkansas, 
 
 ABBKEVIATION. 
 
 How. E. 
 How. U. S. R. 
 Hughes E. 
 Humph. E. 
 111. E. 
 Ire. E. 
 Ire. Eq. E. 
 Jef. R. 
 Pa. State E. 
 John. R. 
 John. Cas. 
 John. Ch. E. 
 Kelly E. 
 Print. Dec. 
 Kirby E. 
 Leigh E. 
 Litt. E. 
 Litt. Sel. Ca. 
 Lou. R. 
 Lou. An. E. 
 Me. R. 
 Mann. R. 
 Martin N. C. R. 
 Martin Lou. E. 
 M. & Y. R. 
 
 A. K. Mar. E. 
 J. J. Mar. E. 
 Mason E. 
 Mass. E. 
 Md. E. 
 
 Md. Ch. Decis. 
 M'Cord E. 
 M'Cord Ch. E. 
 M'Lean R. 
 M'Mnl. E. 
 M'Mul. Ch. E. 
 Meigs R. 
 Mete. E. 
 Miss. R. 
 Minor R. 
 Mis. E. 
 Mon. E. 
 
 B. Mon. R. 
 Morris R. 
 Munf. R. 
 Murphy, E. 
 N. H. E. 
 N.J. R 
 
 N. & M'C. R. 
 Ohio R. 
 Overt E. 
 Paige R 
 Paine R. 
 Peck E. 
 111. R. 
 Penning. E. 
 Pa. R. 
 
 Pern-. & W. E 
 Pet. C. C. R. 
 Pet. E. 
 Pet. Cond. E. 
 Piko R. 
 
AMERICAN REPORTS CITED. 
 
 NAME OP REPORTER. 
 
 Pickering, 
 ■ Porter, 
 Porter, 
 Eandolph, 
 Eawle, 
 Rice, 
 
 Rice's Equity, 
 Biicliardson's Law, 
 Eicliardson's Equity, 
 Riley's Cliancery Cases 
 Riley's Law Cases, 
 Robinson, 
 Robinson, 
 Root, 
 
 Sanford's Chancery, 
 Sanford's Sup. Court, 
 Saxton's Cliancery, 
 Scammon, 
 Selden, 
 
 Sergeant & Rawle, 
 Shepley, 
 Slade, 
 
 Smedes & Marshall, 
 Smedes & Marshall's Chanc' 
 Smith, 
 Southard, 
 South Carolina, 
 Spear, 
 
 Spear's Equity, 
 Spencer, 
 Stanton, 
 Stewart, 
 
 Stewart & Porter, 
 Story, 
 Strobhart, 
 
 Strobhart's Chancery, 
 Summer, 
 Taylor, 
 Tennessee, 
 Texas, 
 Tyler, 
 Vermont, 
 Virginia Cases, 
 Walker, 
 Wallace, 
 
 Walker's Chancery, 
 Washburn, 
 
 Washington Circuit Court, 
 Washington, 
 Watts, 
 
 Watts & Sergeant, 
 Wendell, 
 Weston, 
 Wharton, 
 Wright, 
 Wheaton, 
 Wilcox, 
 
 Woodbury & Minot, 
 Wythe's Chancery, 
 Yeates, 
 Yerger, 
 Zabrislde, 
 
 Massachusetts, 
 Alabama, 
 Indiana, 
 Virginia, 
 Pennsylvania, 
 South Carolina, 
 South Carolina, 
 South Carolina, 
 South Carolina, 
 South Carolina, 
 South Carolina, 
 Virginia, 
 Louisiana, 
 Connecticut, 
 New York, 
 New York, 
 New Jersey, 
 Illinois, 
 New York, 
 Pennsylvania, 
 Maine, 
 Vermont, 
 Mississippi, 
 'yMississippi, 
 Indiana, 
 New Jersey, 
 South Carolina, 
 South Carolina, 
 South Carolina, 
 New Jersey, 
 Ohio, 
 Alabama, 
 Alabama, 
 
 IT. S. 1st Circuit Court, 
 South Carolina, 
 South Carolina, 
 XT. S- 1st Circuit Court, 
 North Carolina, 
 Tennessee', 
 Texas, 
 Vermont, 
 Vermont, 
 Virginia, 
 Mississippi, 
 U. S. Circuit, 
 Michigan, 
 Vermont, 
 
 U. S. 3rd Curcuit Court, 
 Virginia, 
 Pennsylvania, 
 Pennsylvania, 
 New York, 
 Vermont, 
 Pennsylvania, 
 Ohio, 
 
 TJ. S. Supreme Court, 
 Ohio, 
 
 XJ. S. 1st Circuit Court, 
 Virginia, 
 Pennsylvania, 
 Tennessee, 
 New Jersey, 
 
 ABBREVIATION. 
 
 Pick. R. 
 Port. R. 
 Port. la. E. 
 Rand. E. 
 Rawle R. 
 Eice E. 
 Eice Eq. E. 
 Eich. E. 
 Rich. Eq. R. 
 Riley Ch. Ca. 
 Riley Law Ca. 
 Rob. Va. R. 
 Rob. Lou. R. 
 Root E. 
 Sandf. Ch. R. 
 Sandf. S. C. R. 
 Saxton C. R. 
 Scam. R. 
 Selden R. 
 S. & R. 
 Shep. R. 
 Vt. R. 
 S. &M. 
 S. & M. Ch. E. 
 Smith R. 
 South. R. 
 S. C. R. 
 Sj^ear E. 
 Spear Eq. R. 
 Spencer R. 
 Ohio. 
 Stew. R. 
 S. &P. R. 
 Story E. 
 Strobh. E. 
 Strobh. Ch. R. 
 Sum. R. 
 Taylor N. C. E. 
 Tenn. E. 
 Texas R. 
 Tyler E. 
 Vt. E. 
 Va. Ca. 
 Walk. R. 
 Wal. R. 
 Walk. Ch. R. 
 Vt. R. 
 
 Wash. C. C. R. 
 Wash. Va. R. 
 Watts R. 
 W. &S. 
 Wend. R. 
 Vt. R. 
 Whart. R. 
 Wnght E. 
 Whea. R. 
 Ohio E. 
 W. & M. 
 ' Whythe C. R. 
 Yea. R. 
 Yerg. E. 
 Zabr. 
 
BRITISH REPORTS CITED. 
 
 REPOKTEES. 
 
 Adolphus & EUis, - 
 
 Ambler, 
 
 Barnewall & Cresswell, 
 
 Barnewall & Adolphus, 
 
 Bingham's Reports, 
 
 Bingham's New Cases, 
 
 Broderip & Bingham, 
 
 Bulstrode, 
 
 Barrows, 
 
 Campbell's Nisi Priiis Reports, 
 
 Clark & Finelly, 
 
 Coke E., 
 
 Cowper, 
 
 Croke's Charles, 
 
 Croke's Elizabeth, 
 
 Croke's James, 
 
 Douglass, 
 
 East, 
 
 Dow, 
 
 English Law and Equity Reports. 
 
 English Common Law Reports, 
 
 Espannasse, 
 
 Hobart, 
 
 Howard's State Trials, 
 
 Levinz, 
 
 Lord Raymond, - 
 
 Maule & Selwyn, 
 
 Meeson & Welshy, 
 
 Mylne & Keen, 
 
 Modern, 
 
 Plowden. 
 
 Peere Williams, 
 
 EoUe, 
 
 Salkeld, 
 
 Saunders, 
 
 Scott's New Reports, 
 
 Taunton, 
 
 Term Reports, - 
 
 William Blackstone, 
 
 Wilson, - 
 
 ABBKETIATIONS. 
 
 A. &E. 
 
 Amb. R. 
 
 B. &C. 
 B. & Ad. 
 Bing. R. 
 Bing. N. C. 
 B. &B. 
 Bulst R. 
 Burr. R. 
 Camp. N. P. R. 
 CI. & Fin. 
 
 Co. or Rep. 
 Cowp. R. 
 Cro. Car. 
 Cro. Eliz. 
 Cro. Jac. 
 Doug. R. 
 East R. 
 DowR. 
 E.L. &.Eq. R. 
 E. C. L. R. 
 Esp. R. 
 Hob. R. 
 How. St. Tr. 
 Lev. R. 
 Ld. Raym. 
 M. &S. 
 M. & W. 
 Myl. & K. 
 Mod. R. 
 Plow. Com. 
 P. Wms. 
 RoUe R. 
 Salk. R. 
 Saund. R. 
 Scott N. R. 
 Taunt. R. 
 T. R. 
 W. Bl. 
 Wils. R. 
 
MISCELLANEOUS WOEKS CITED. 
 
 NAME OF WORK. ABEKETIATION. 
 
 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, BI. Com. 
 
 Broom's Legal Maxims, Broom's Max. 
 
 CMtty's Pleadings, - ChittyPl. 
 
 Coke's Littleton, Co. Litt. 
 
 Comyn's Digest, Com. Dig. 
 
 Cruise's Digest, Cru. Dig. 
 
 Doctor and Student, Doct. & Stu. 
 
 Dwarris on Statutes, Dwarris. 
 
 East's Pleas of the Crown, Bast P. C. 
 
 Eden on Injunctions by Waterman, Eden Injunc. 
 
 Federalist, Fed. 
 
 Fonblanque's Equity, Fonb. B. 
 
 Foster's Pleas of the Crown, Fost. P. C. 
 
 Gale's Statutes of Illinois, Gale's Stat. 
 
 Greenleaf's Evidence, Greenl. Ev. 
 
 Institutes by Coke, Inst. 
 
 Kent's Commentaries, - - Kent Com. 
 
 Lieber's Legal and Political Hermeneutics, Lieber Herm. 
 
 LitteU's Statutes of Kentucky, - Litt. Stat. 
 
 Marshall's Decisions, .... Marsh. Dec. 
 
 Opinions of the Attorneys G«ne)'al of the United States, Op. Atty. Gen. 
 
 Paley's Works, - Paley's Works. 
 
 Perkins' Treatise on Conveyances, Perk. 
 
 Kevised Statutes of Illinois, 1845, K. S. Bl. 1845. 
 
 Eevised Laws of IlUuois, 1833, B,. L. 111. 1833. 
 
 Sergeant's Laud Laws of Pennsylvania, Serg. Land Laws. 
 
 Shepherd's Touchstone, Touch. 
 
 Smith's Commentaries, Smith's Com'. 
 
 Smith's Laws of Pennsylvania, Smith's Laws. 
 
 Starkie's Evidence, - Stark. Ev. 
 
 Story on Constitution, - Stoiy Const. 
 
 Story's Equity Jurisprudence, Story Eq. 
 
 Sugden on Powers, Sug. 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. 
 D* 
 
INTEODUCTION 
 
 The subject of the following work is a matter of 
 controlKng importance to the landed interest of the 
 United States, inasmuch as it relates to an extraordi- 
 nary power, which is annually exercised over estates, 
 and which, when well executed, works a complete 
 divestiture of the title against the will of the owner, 
 and oftentimes without his knowledge. This power 
 has been exercised by aU the States since their 
 admission into the Union ; and it has, on several occa- 
 sions, been resorted to by the Federal Government. 
 A very large nmnber of cases involving the validity 
 of titles, having their origin in this power, have been 
 adjudicated by the Federal and State tribimals. The 
 principles of law which relate to powers of this char- 
 acter, are calculated to enlist the attention of every 
 lawyer; and in the new states especially, are of con- 
 stant 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 subject, and Mr. Hilliard, in 
 
INTEODUCTION. 
 
 his work on Eeal Property, dismisses it quite sum- 
 marily; 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 decisions of our courts upon the 
 subject, — numbering upwards 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 
 work which shall present the principles relating to 
 the execution of this class of powers, as illustrated 
 by the numerous decisions of the Courts, is therefore 
 much needed, and the importance of the subject justi- 
 fies its publication. The attention of the author has 
 been directed to this matter, by his emplojonent 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 re- 
 ceived by the profession at large. He accordingly 
 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 approved of the project, but promised to 
 render every assistance in his power. The author 
 
INTKODUCTION. 3. 
 
 remembering the remark of Lord Coke, that some 
 addition to the general stock of learning is "a debt 
 which every man mves to Ms profession" cheerfully under- 
 took 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 pubhc criticism. The 
 author does not claim for himself originaHty in the 
 execution of the work, either as to the ideas ad- 
 vanced, or even the language employed to express 
 them. He has endeavored to present the principles 
 which eminent judges and lawyers have laid down 
 for the control of ofl&cers 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 language. 
 
 The plan of the work embraces the entire field of 
 litigation upon the subject. The subject is arranged 
 in the most natural manner which suggested itself to 
 the mind of the author; the authorities upon which 
 he has relied are invariably cited in the margin, and 
 the author trusts that the subdivision of the work 
 into chapters, appropriately headed, and the addition 
 of a table of cases and contents, and a complete in- 
 dex, will render it easy of reference to every lawyer. 
 
 Reducing to a system, the rules which apply to tax 
 sales, 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 
 
INTRODUCTION. 
 
 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' K. 322,) which came up 
 from the State of Ohio: "The laws of Ohio, imposing 
 a tax on lands, and regulating its collection, like simi- 
 lar laws in, perhaps, almost all the other States, are 
 peculiar in their p-ovisions, 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 char- 
 acter, and wliich more directly concern reed 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 con- 
 struction of any other class of laws." Again, the sale 
 of land for the non-payment of taxes, is a proceeding 
 unknown to the common law of England. While 
 the feudal tenure prevailed in that coimtry, the en- 
 forcement of the collection of the tallage, scutage or 
 hidage tax, by a sale of the land itself, would have 
 been contrary to the policy 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 stiU retained the 
 paramount right ; and the fief was distinguished from 
 aUodial possessions, by the circumstance that it could 
 not be aliened without the consent of the feudal lord. 
 No tenant could be imposed upon him against his 
 
INTEODUOTION. 
 
 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 feud, 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 execution 
 against them out of the Exchequer. In modern times 
 the land tax is farmed out, with a clause of entry 
 and distress, and when these fail, resort is had to 
 a suit in the Exchequer, by the farmer of the reve- 
 nue, and sometimes a composition takes place between 
 the land owner and the government, and the tax is 
 redeemed by the payment of a gross sum. Thus the 
 common law is a stranger to the power of sale exer- 
 cised 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 lan- 
 guage of Judge Story, "May it ever continue to 
 flourish here, for it is the latv of liberty, and the watchful 
 and inflexible guardian of private property and fublic 
 rights." 
 
 CniCAGO, June, 1855. 
 
POWEE TO SELL LAND 
 
 FOE NON-PAYMENT OF TAXES. 
 
 CHAPTER I. 
 
 OF THE FUNDAMENTAL PRINCIPLES 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.-^ 
 
 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 conferred by the government, in the proper 
 appUcation of the tax. "When, however, property is 
 appropriated by virtue of the right of eminent do- 
 main, it is taken, not as the owner's share of a pubhc 
 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 interwoven in the frame 
 
 i6JohnE.,92; U John K., 77; BW»r v. BaZZou, 3 Wend. E., 263. 
 
 ^ The People ex rd Griffin y. The Mayor of Brooklyn, i Comstock's R. 419. 
 
or THE FUNDAMENTAL PRINCIPLES 
 
 of every government a general j^ower of taxation. 
 Money is, witli propriety, considered as the vital 
 principle of tlie body politic; as that wliich sustains 
 its life and motion, and enables it to perform its most 
 essential functions. A complete power, therefore, to 
 procure a regular and adeqtiate supply of revenu.e, 
 as far as the resources of the community will permit, 
 may be regarded as an indispensable ingredient in 
 every constitution. From a deficiency in this partic- 
 ular, one of two evils must necessarily ensue ; either 
 the people must be subjected to continual plunder, or 
 the government 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 cordd ex- 
 ercise the powers expressly delegated to it. In vain 
 have the people, in their primary capacity, established 
 government, and armed it Avith legislative, judicial 
 and executive powers, unless the means of perform- 
 ing 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 ^Hevy 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 '' Legislcdive foiverT It is 
 implied upon the principle, that a grant of legislative, 
 judicial and executive powers, carries with it, by con- 
 struction, all of the means necessary for their execu- 
 tion. It is also implied from the limitations to be 
 found in the several State Constitutions, as to the 
 manner of levying taxes. The power of taxation 
 
 "^Federalist, No. 30. 
 
WHICH CONTROL THE TAXING POWER. » 
 
 operates upon all persons and property within the ter- 
 ritorial jurisdiction of a State. There is no limita- 
 tion 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 onli/ security against 
 unjust and excessive taxation. These principles are 
 fully sustained by the authorities.-"- Such is the na- 
 ture, necessity and extent of the taxing power. 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 justifi- 
 cation of the grant of an adequate 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 governments, designed, while confer- 
 ring the taxing power for the express purpose of 
 preventing the indiscriminate plunder of their prop- 
 erty by public agents, to legalize a system by which 
 the very evil they intended to guard against, might 
 finally prevail. 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 
 
 1 Providence Bank v. Billings, 4 Peter's B. 514 ; Brewster v. Hough, 10 N. H. 
 R. 138 ; Mack v. Jones, 1 Foster E. 393. 
 ^ Alexander Hamilton's Tederalist, No. 30. 
 2 
 
10 OF THE rUNDAMENTAL PKINCIPLES 
 
 were invaded, intended to confer an arbitrary power 
 of taxation upon the government, in the exercise of 
 which his property would be rendered equally inse- 
 cure 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 govern- 
 mental plunder. Happily for the people, the power 
 of taxation which they have delegated to their gov- 
 ernment, is not an arUtrary one, but Iwiited by the 
 words and spirit of the Constitution, and the principles 
 of natural justice. Under the Federal Constitution, 
 all revenue bills must originate in the popular branch 
 of Congress; direct taxes must be apportioned among 
 the States according to their respective niunbers, 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 only be laid 
 for the purpose of paying the debts, and providing 
 for the common defence and general welfare of the 
 United States; no direct tax can be levied unless in 
 proportion to the enumeration of persons as contained 
 in the census, directed to be taken by the Constitu- 
 tion. In some of the States, aU, and in others, many 
 of the following limitations are imposed upon the 
 taxing power. No tax can be levied, under any pre- 
 tence whatever, without the consent of the people or 
 their representatives. Revenue bills must originate 
 in the lower branch of the legislature. Taxes can 
 only be levied and collected for public purposes; this 
 
WHICH CONTROL THE TAXING POWBK. 11 
 
 is also implied from the very definition of a tax. 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 produce equality in the assess- 
 ments, 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 compact, the lands of non-resident proprietors 
 cannot be taxed higher than lands belonging to resi- 
 dents 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 monies raised 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 appropria- 
 tions made by law; and that the people may keep 
 watch of their agents, it is further provided that ac- 
 curate statements of the public receipts and expendi- 
 tures shall be attached to and pubhshed with the laws, 
 at the end of each session of the legislature. 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 
 
 1 WUey V. Parmer, 14 Ala. E. 627. 
 
22 OS THE EUNDAMENTAL PKINCIPLES 
 
 and some of the new States, it is expressly stipulated 
 that bounty lands, granted, or to be granted by the 
 United States for military 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; 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. Restrictions imposed by the Federal Consti- 
 tution 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 Gov- 
 ernment of the Union, with the assent of the State, 
 for the erection of forts, magazines, arsenals, dock 
 yards, mints, post of&ces, court and custom houses, 
 and other needful buildings, which may be necessary 
 in carrying into effect the powers entrusted to the 
 Federal Government. This would be taxing the 
 means employed by the General Government in the 
 execution of its acknowledged powers. Besides, "ex- 
 clusive 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 consent 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. That 
 such exist is clearly established by the authorities.^ 
 It is a fundamental principle in our government 
 and laws, that individuals are protected in the enjoy- 
 ment of their property, except so far as it may be 
 
 14 Whea. E. 316; 9 Whea. R. 738. 
 
 2 5 Dana E. 31 ; 9 Ibid. 516 ; 4 N. H. E. 556 ; 6 Har. & John. R. 382-3 ; 6 
 Barbour E. 209. 
 
MkY 1 Z 1904 
 
 WHICH CONTROL THE TAXING POWEEi lo 
 
 taken in one of two ways, viz: as a pubuc tax, upon 
 principles of just equality, or for public use, with a 
 just compensation, ascertained according to the provi- 
 sions of the Constitution. As money is property, the 
 collection of every tax is taking property from the 
 citizen, and to be legal, must be referable to one of 
 the two modes above mentioned. The principle of 
 just equahty is, therefore, the governing one by which 
 the validity of every tax levied by the legislature, is 
 to be determined. This equality can only be secured 
 by imiformiiy in levying the tax, and a periodical valu- 
 ation 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. The legislature have not 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 pretence of taxation. The 
 distinction between constitutional taxation, and the 
 taking of private property for public use, by legisla- 
 tive power, may not be definable with perfect preci- 
 sion. But it is clear, that whenever the property of 
 a citizen shall be taken from him by the sovereign 
 will, and appropriated, without his consent, for the 
 benefit of the public, the exaction should not be con- 
 sidered 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 mem- 
 bers of the same community generally, as own the 
 same kind of property. This is in accordance with 
 
l^ OF THE FUNDAMENTAL PKINCIPLES 
 
 the well known maxim, that a common burden shall 
 be sustained by a common contribution. The ascer- 
 tainment 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 of the citizens 
 of the state or district, and compel all to share equally 
 in the common burden. Such are the principles by 
 which the legislative power in this country is con- 
 trolled 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 ad- 
 judged 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 prop- 
 erty, so that no one class of individuals, and no one 
 species of property, may be unequally or unduly 
 assessed."^ 
 
 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 found in our written con- 
 stitutions, and are deducible in a three-fold manner. 
 1. From the declared ends of government. 2. From 
 
 1 6 Barbour R. 209 ; 5 Dana R. 31 ; 9 Ibid. 516 ; 6 N. H. R. 556 ; 6 Har. 
 & John. R. 382-3 ; 4 Comstock R. 419. 
 2 2 Kent's Com. 331. 
 
WHICH CONTROL THE TAXING PC WEE. 15 
 
 the particular provisions of the Constitution. 3. 
 From the structure of the government itself. In 
 discussing this subject Ave shall refer to the Constitu- 
 tion of Illinois, because it is more famUiar to us, while 
 at the same time, it is substantially like that of every 
 other State in the Union. The thirteenth article of 
 that instrument, in order "that the general, great and 
 essential principles of liberty and free government 
 may be recognized and unalterably estabhshed," pro- 
 ceeds to declare: 1. "That all men are born equally 
 free and independent, and have certain inherent and 
 indefeasible rights, among which are those of enjoy- 
 ing and defending life and hberty, and of acquiring, 
 possessing and protecting property and reputation, 
 and of pursuing their own happiness." 2. "That all 
 power is inherent in the people, and aU free govern- 
 ments are founded on their authority, and instituted 
 for 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, repu- 
 tation and property, independent of human laws. 
 
 3. That these rights are indefeasible 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 
 preservation and perpetuation of these inherent pow- 
 ers and rights. 
 
 They all affirm the great truth, that '■'■rights are from 
 nature, while iitles and remedies are the invention of 
 society."^ The Hon. Edward Bates, now Judge of the 
 
 1 Judge Pope, in Arrowsmith v. Bmiingame, i M'Loan B. 497. 
 
IQ OF THE FUNDAMENTAL PRINCIPLES 
 
 Land Court in St. Louis, in his argument in the case 
 of HamiMon v. The St. Louis County Court} thus en- 
 forces 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 heginmng of a com- 
 mimity, nor the origin of private rights; it is not the 
 fountain of law, nor the incipient state of govern- 
 ment; it is not the cause, but consequence of personal 
 and political freedom; it grants no rights to the peo- 
 ple, 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 frame-AVork of the political government, 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 pre-supposes an organized society, law, 
 order, property, personal freedom, a love of pohtical 
 liberty, and enough of cultivated intelligence to know 
 how to guard it against the encroachments of tyranny. 
 A written constitution is, in every instance, a limita- 
 tion upon the powers of government, in the hands of 
 agents, for there never was a written republican con- 
 stitution which delegated to functionaries all the 
 latent powers which lie dotnnant in every nation, and 
 are boundless in extent, and incapable of definition. 
 Our Constitution, in express terms, acknowledges and 
 continues in force all former rights, laws, of&ces and 
 functions of office." A similar recognition of exist- 
 ing 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 
 
 115 Mis. R. 13-14. 
 
WHICH CONTROL THE TAXING POWER. 17 
 
 the form of a government do not overturn the estab- 
 hshed rights, duties and obhgations which may have 
 been acquired or created prior to the change.^ Nor 
 has a conquest any such effect? Rights and obhga- 
 tions depend upon the natural law for their existence 
 and mode of enforcement. Force was the vital prin- 
 ciple of society in a state of nature. This led to 
 violence and bloodshed. Peace and civihzation de- 
 manded 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 enforcement of every 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 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 simple 
 duty of government, to regulate the mode of acquisi- 
 tion 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 government, nor any depart- 
 ment thereof, has any inherent power; that it can 
 rightfully exercise such powers only as have been dele- 
 gated to it by the people, in their written constitu- 
 tion; and that these powers are to be exercised, in 
 
 1 9 Cra. E. 43 ; 4 Whea. R. 518 ; 8 Whea. E. 464. 
 
 2 8 Whea. E. 588; 1 Pet. E. 542; 7 Pet. E. 51 ; 12 Pet. E. 410. 
 
 3 
 
18 OP THE FUNDAMENTAL PKINCIPLES 
 
 subservience to, and not in subversion of, the declared ends 
 of government. We must, therefore, look to the con- 
 stitution itself to ascertain what power is delegated to 
 the government, and each of its departments. That 
 constitution declares, that "the legislative authority 
 of this State shall be vested in a General Assembly, 
 which shall consist of a Senate and Plouse of Repre- 
 sentatives, both to be elected by the people;" that 
 "the executive power of the State shall be vested in 
 a governor;" 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 injustices 
 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 government 
 in trust, to be exercised for the protection, and not 
 destruction, of the rights of life, liberty, reputation 
 and property. This simple lunitation, resulting from 
 the declared ends of the government, if faithfully ob- 
 served, would be a sufficient guarantee against govern- 
 mental wrong. But the people, in the abundance of 
 their caution, have thought proper to impose many 
 specific limitations on these general poAvers of the 
 government, for the purpose of more effectually pro- 
 tecting the life, liberty, reputation and property of 
 the citizen. Those relating to the security of hfe, 
 liberty and reputation, may be thus enumerated. No 
 ex fost facto law shall ever be passed. No person shall, 
 for the same offence, be twice put in jeopardy. No 
 person 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 
 
WHICH CONTROL THE TAXING POWEB. 19 
 
 a citizen, are prohibited. In all criminal prosecutions 
 the accused hath a right to be heard, by himself and 
 counsel; to demand the nature and cause of the 
 accusation against him; to confront the witnesses 
 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 vicin- 
 age. AU persons shall be bailable by sufficient sure- 
 ties. 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 con- 
 tracts 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 and 
 possessions from imreasonable searches. Besides the 
 foregoing, there are three additional guarantees in 
 favor of the rights of the citizen: 1. "No freeman 
 shall be imprisoned, or disseized of his freehold, liber- 
 ties or privileges, or outlawed, or exiled, or in mii/ 
 mamier deprived of his life, liberty or property, but 
 by the judgment of his peers, or the law of the 
 LAND." 2. "Every person in this State ought to find 
 
20 OF THE FUNDAMENTAL PKINCIPLES 
 
 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 obhged to purchase it, completely and 
 without denial, promptly and without delay, conform- 
 ably 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 property; 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 emphat- 
 ically declared "That a frequent recuirence to the 
 fundamental principles of civil government, is abso- 
 lutely necessary to preserve the blessings of liberty." 
 These provisions, and the declared ends of govern- 
 ment, would seem to afford ample security to the 
 rights of individuals, 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 governmen- 
 tal 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 pro- 
 tected by the dead letter of the laws, if the Constitu- 
 tion had provided no other method to secure their 
 actual enjoyment. It has, therefore, established cer- 
 tain other auxiliary subordinate rights of the subject, 
 which serve principally as ontworks or barriers, to 
 protect and maintain inviolate, the three great and 
 primary rights of personal security, personal liberty 
 and private property."-^ The people of the United 
 
 1 1 Blackstoae's Com. 140. 
 
WHICH CONTROL THE TAXING POWER 
 
 
 States have, in their Constitutions, done the same 
 thing, with this essential diflference, that the out- 
 works 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, sub- 
 stantially as they are by the Common Law, but with 
 us the declaration of rights is absolutely binding 
 upon the government, and every department thereof, 
 while in England they do not bind the government. 
 There the practical maxim is, that Parliament is 
 omnipotent, and the only guarantee the subject has 
 against legislative aggression, is in the organization 
 of Parliament, and in the individual responsibility of 
 the members of the popular branch, to their con- 
 stituents. In this country, we have an appeal to an 
 independent and impartial 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 unconstitu- 
 tional 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. The reasoning in support of it is unanswer- 
 able. 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 es- 
 tablished. It is the supreme, permanent and fixed 
 will of the people, in their original, unlimited and 
 sovereign capacity. In it the inherent rights of the 
 citizen are recognized, and the obligation and duty 
 of the entire community to protect and preserve 
 them inviolate, are specifically provided for. It is 
 
22 or THE PTINDAMENTAL PRINCIPLES 
 
 the power of attorney of the people to their servants 
 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 car 
 pacity. The Constitution is the commission of 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 ab- 
 solutely 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 ofl&cer of the 
 government, demands, at the hands of the judges, 
 an adherence 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 bind- 
 ing upon the minority, they must be in conformity 
 with the principles of the Constitution; to the adop- 
 tion and continuance of which, every one 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, — and instead of looking up to the fabric 
 of our political institutions with reverence, as the 
 means of establishing an immense empire, in Avhich 
 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 distin- 
 
WHICH CONTBOL THE TAXING POWER. 23 
 
 guished 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. Experi- 
 ence proves that the Constitution is thoughtlessly, 
 but habitually, violated; and the sacrifice of individ- 
 ual rights is too remotely connected with the objects 
 and contests of the masses, to attract their attention. 
 From its every position, it is apparent that the con- 
 servative 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 by the legislature, but sometimes without hear- 
 ing or evidence."^ 
 
 In the election, qualification and organization of 
 the various officers which constitute the several de- 
 partments of the government, our constitutions are 
 also more complete than in the English system. Here 
 the people elect all of their officers. In England 
 most <.)f 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-ordinate departments, and the consequent limita- 
 tion of 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, absolutely incapable of lim- 
 
 '^ Runnels i. State, Walker E. 147; Phebev. Jay, Bre. E. 209, il/arSiin/ v. 
 Madison, 1 Cranch E. 137. 
 '^De Chastelleux v. Fairchild, 15 Pa. State E. 18. 
 
24 OF THE FUNDAMENTAL PRINCIPLES 
 
 itation; consequently that an act passed with the 
 usual solemnities, however oppressive and unjust it 
 may be, is absolutely obligatory, and mtist 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 governmental abuse of power, which we pro- 
 pose to consider minutely. 
 
 The Constitution of Illinois sets out with this 
 declaration: "The powers of the government shall le 
 divided into three distinct departments, and each of 
 them be confided to a separate 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 representar 
 tives, and investing it with the legislative power of 
 the State; by the organization of an executive de- 
 partment, called the governor, in which the executive 
 power of the State is lodged; and by the organiza- 
 tion of supreme and inferior courts, to whom the 
 judicial power of the State is delegated. The Con- 
 stitution then limits the power of each of these great 
 departments as heretofore shown, and declares in the 
 most explicit language, "that no person, or collection 
 of persons, being one of these departments, shall 
 exercise any poiver properly belonging to either of the 
 others, except as hereinafter expressly directed or per- 
 mitted, and all acts in contravention of this section, shall 
 he VOID." It will be perceived, by a careful analysis 
 of the whole instrument, and the above sections, that 
 all legislative power is vested in the general assem- 
 bly; that the whole judicial power which the people 
 
WHICH CONTROL THE TAXING POWEE. 25 
 
 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 
 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 
 impeachment of public officers. The House of Rep- 
 resentatives 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 per- 
 ceived, that the general assembly and governor, or 
 either of them, cannot exercise any judicial func- 
 tions; that neither the general assembly or the 
 courts can exercise any executive power; and that 
 neither the governor or 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 disqualification 
 extends to the person and the department. The great 
 principle thus established is, that no person or depart- 
 ment 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 difficulty in carrying 
 them into practical operation, seems to be in defining 
 with precision the exact limits of legislative, execu- 
 tive 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 proposi- 
 tion, that the power of the legislative department is 
 4 
 
26 OF THE FUNDAMENTAL PKINCIPLES 
 
 limiied to the maJdng of laws, and not to the cxposHion 
 or cxecidioii of them. Again, it is the province of the 
 legislature to declare what the law sMM be, and not 
 what it is, or was. The exercise of their power, pre- 
 cedes the conduct intended to be affected by it. It 
 would be contrary to the first principles of justice, 
 to deprive a citizen of his hfe, liberty 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 intol- 
 erable — as unjust as 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 attri- 
 bute of government."-" On the other hand, the judi- 
 cial power of the State acts upon past conduct, and 
 declares what the law ivas at the time of the hap- 
 pening of the act complained of It will thus be 
 seen that the true distinction betAveen 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 poAver, is strictly observed 
 and rigidly enforced, the difficulty attending this 
 
 1 16 Pa. State R. 266. 
 
WHICH CONTROL THE TAXING POWER. 27 
 
 controversy will be surmounted, and the rights of 
 the citizen more fully secured. 
 
 Our Constitutions all declare "That no freeman 
 shall be imprisoned or disseized of his freehold, lib- 
 erties or privileges, or outlawed, or exUed, 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 on the 
 subject under consideration, as well as its great im- 
 portance when properly understood, as a protection 
 against legislative spoliation, also deserves a critical 
 examination. It will be observed that the clause 
 does not absolutely prohibit the legislature from de- 
 priving 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 admitted to mean a judgment rendered 
 upon the verdict of a jury; or, 2. "By the law of 
 the land," — this, in England, where the same lan- 
 guage was used in Magna Charta, was welh understood 
 to require a judgment; and embraced judgments, by 
 confession in criminal and civil causes, upon demur- 
 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, convictions under the military and 
 naval laws of the kingdom, judgments in the ecclesi- 
 astical and other courts, proceeding according to the 
 course of the civil law. Lord Coke said, that "to 
 judge a man in a civil or criminal case, without af- 
 fording him an opportunity to be heard in his own 
 defense, would be against this provision."^ 
 
 That this was the meaning of the expression, "law 
 
 1 Sullivan's Lee, C. 39 and 40. 
 
28 OF THE TONDAMENTAL PKINCIPLES 
 
 OF THE LAND," as used in the great charter of English 
 rio-hts, 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 Constitution, has 
 not been so universally agreed. Some judges have 
 been greatly perplexed in attempting to ascertain its 
 true meaning, and have given judgment in entire 
 disregard of it. One judge, at least, admitting that 
 it did mean and require a "judgmei'd" obviated its 
 force by saying it applied only to criminal cases, 
 and that, unless the clause was so restricted, it would 
 be in opposition to legislative usage.^ The Supreme 
 Court of New Hampshire, in the Dartmouth College 
 case, decided "That all statutes, not repugnant to 
 ani/ other clauses of the Constitution, seem always to 
 have been considered as 'the law of the land,' within 
 the meaning of thiv clause."^ But their judgment 
 was reversed by the Supreme Court of the United 
 States.^ In another case, where the validity of a 
 statute authorizinij an arrest in a criminal case, with- 
 out oath or warrant, came in question, the same court 
 held the following language: "No subject shall be 
 arrested but by the 'km of the ImuV, — that is, by due 
 process of law warranted by the Constitution, by the 
 common law adopted by the Constitution, or by stat- 
 utes passed in pursuance of the Constitution."* On 
 the other hand, Judge Bronson says that these words 
 "Do not mean a statute passed for the purpose of 
 working the wrong. That construction would render 
 the restriction nugatory, and turn this part of the 
 Constitution into mere nonsense. The people would 
 
 1 Rliinehart v. Schmjler, 2 Gilm. E. 520. 
 
 2 1 N. H. R. 130. 
 34. Whca. R. 518. 
 
 * Mayo V. Wilson, 1 N". H. R. 53. 
 
WHICH CONTKOIi THE TAXING POWER. 
 
 29 
 
 be made to say to the two houses, 'You shall be vest- 
 ed 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 es- 
 tablished law of the kingdom, in opposition to the 
 civil or Eoman law, which was about being introduced 
 into the land, to the exclusion of the former laws of 
 the country. They are now, in their most usual accep- 
 tation, regarded as general public lazvs, binding upon all 
 the members of the community, imder all circum- 
 stances, and not partial or private laws, affecting the 
 rights of private individuals, or classes of individuals."^ 
 The conjecture of Judge Hemphill, that it was the 
 common as contradistinguished from the civil law, in- 
 tended 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 prac- 
 tice 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, with- 
 out the legislative power of modifying and improving 
 it, to meet the progressive demands of modern civili- 
 zation. 
 
 1 Taylor y. Porter, 4 Hill E. 146. 
 
 2 JaTMs V. Eei/nolds, 2 Texas R. 251-2. 
 
30 OF THE FUNDAMENTAL PRINCIPLES 
 
 Judge Catron remarks, that "the clause, '■lam of the 
 land" means a general and ^nMc haw, erjually bhiding 
 upon 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 
 ever// other member of the body politic, or Hand^ under 
 similar circumstances; and every fartial or private 
 law, which directhj proposes to destroy or affect indi- 
 vidual rights, or does the same thing by affording 
 remedies leading to similar consequences, is unconsti- 
 tutional and void. Were this otherwise, odious indi- 
 viduals and corporate bodies would be governed by 
 one rule, and the mass of the community, Avho made 
 the law, by another. The idea of the people, through 
 their representatives, 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 wUling to be bound, is too 
 odious to be tolerated in any government where free- 
 dom has a name."^ This doctrine is advanced by 
 Judge Peck, in the same case, in these Avords: "A law 
 which is partial in its operation, intended to affect 
 particular individuals alone, or to deprive them of 
 the benefit of the general law, is unwarranted by the 
 Constitution, and void."^ The principle was again 
 affirmed in Jones v. Perrij? In this case the court 
 held that the sale of the estate of a ward, by his 
 guardian, under a special act of the legislature, no 
 judicial proceedings intervening, was not a sale ac- 
 cording to the "law of the land." The same principle 
 was applied by the Supreme Court of Illinois, upon 
 
 ^ Vanzant v. \faddell, 2 Yerger R. 270. 
 
 2 2 Yerger R. 269. 
 
 3 10 Yerger R. 59. 
 
WHICH CONTROL THE TAXING POWER. 31 
 
 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 di- 
 rected 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 unconstitutional because it 
 Avas an exercise of judicial power by the legislature, 
 and also, to use the language of the court, it "dis- 
 seizes the freehold of the heirs of the ancestor, with- 
 out a hearing, iipon 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 tAvo other cases.^ In 
 the latter case it was held, that an act of the legisla- 
 ture, declaring it a felony for a servant to embezzle 
 the funds of a particular bank, Avhile the same ci-ime, 
 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 
 particular class of creditors.^ In South Carolina they 
 hold that the Constitution guarantees to the citizen 
 "a trial accar ding to the course of the common law, which," 
 says Judge O'Neall, "I understand to be the meaning 
 of the words Hhe latv of the land'"^ Again, in Byrne 
 
 1 Lane, v. Dorman, 3 Scam. R. 238. 
 
 2 State Bank v. Cooper, 2 Yerger E. 605-6 ; Budd y. State, 3 Humphrey R. 483. 
 ^ Holden V. James, 11 Mass. R. 396. 
 
 * Burger v. Carter, 1 McMuUen R. 413; State v. Simons, 2 Speer R. 767; 
 
32 01? THE FUNDAMENTAL PEINCIPLES 
 
 V. Steivart, Chancellor Watties remarks: «It has been 
 determined by the Constitutional Court, in several 
 cases, that the lex terrce contemplated by our Consti- 
 tution, not only means the common lato, which is un- 
 questionably 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. The masterly and comprehen- 
 sive definition of this clause by Daniel Webster, is, 
 perhaps, the true one, and sustained with more una- 
 nimity by the authorities than any other: "By the 
 laiv 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. 
 Everything which may pass under the form of an 
 enactment is not, therefore, to be considered as the law 
 of the land. K this were the case, acts of attainder, 
 bills of pains and penalties, acts of confiscation, acts 
 reversing judgments, and acts directly transferring 
 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, completely inoperative and void. The 
 administration of justice would be an empty form 
 
 Zylstra's Case, 1 Bay R. 384 ; White >'. Kendrick, 1 Brevard R. 471 ; State v. 
 Coleman, 1 McMullen E. 502. 
 1 3 Dessaussure E. 478. 
 
WHICH CONTROL THE TAXINQ POWER. 33 
 
 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 
 Tayhr v. Porter^ Judge Bronson says of this provision: 
 " The meaning of this section, then, seems to he, that 
 no member of the State shall be disfranchised, or 
 deprived of any of his rights or privileges, unless 
 the matter shall be adjudged against him upon trial, 
 had according to the course 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 he done ly mere legisla- 
 tion!' Again he remarks: "It will be seen that the 
 same measure of protection against legislative en- 
 croachment, is extended to life, liberty and property; 
 and if the latter can be taken without a forensic trial 
 and judgment, there is no security for the others." He 
 concludes that "the law of the land" and "due pro- 
 cess of law," are synonymous terms. A similar de- 
 cision was made in White v. White? The doctrine of 
 Webster and Bronson is adopted, in its fullest extent, 
 by the Supreme Court of Iowa.* 
 
 Judge Story says that "this clause, in effect, af&rms 
 the right of trial according to the process and pro- 
 ceedings of the common law."^ Chancellor Kent 
 says: "The words, 'by the law of the land,' as used 
 in Magna Charta, &c., are understood to mean due 
 process of law."^ Justice Johnson, in delivering the 
 opinion of the court in the JBank of Columbia v. 
 
 1 Argument in the Dartmoath College Case, 5 Webster's Works, 487-8. 
 
 2 4 Hill, 146. 
 
 8 5 Barber S. C. R. 481-3. 
 * Reed v. Wright, 2 Greene Iowa R. 22-4. 
 ' Story on the Constitution, Sec. 1783. 
 ^2 Kent's Commentaries, 13. 
 5 
 
34 OP THE FUNDAMEXTAL PRINCIPLES 
 
 Oaliey} and speaking of these words, says, that "after 
 volumes spoken and written with a view to their ex- 
 position, the good sense of mankind has at length 
 settled down to this, that they were intended to se- 
 cure the individual from the arlitrary exercise of the 
 powers of government, unrestrained by the established 
 principles of private right and distributive justice." 
 The clause in question accomplishes this intention 
 completely, 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 Woodworth, in Woodcoclc v. Bennett^ remarks 
 that "it is one of the great principles upon which 
 our security depends, under a government of laws, 
 that no pei-son shaU 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 hy due course 
 of Imv" Judge Tucker says of these words, "the 
 meaning and intention of which, certainly is, that no 
 man shall be deprived of his property, loithout heing first 
 heard in his oivn defence."^ Chief Justice Euffin says : 
 "This clause does not mean an act of the legislature, 
 for that construction would abrogate all restriction 
 on legislative authority. The clause means that statr 
 utes 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 
 
 1 4 Pet. Cond. E. 443. 
 
 ■■2 1 Coweu K. 740. 
 
 3 Kenny v. Beverly, 3 Hen. & Munf. E. 336. 
 
WHICH CONTROL THE TAXING POWER. 35 
 
 not be the law of the land in the sense of the Con- 
 stitution."^ 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 established in a fair open trial, or an opportu- 
 nity given for such trial, in open court, and by due 
 course and process of law; not a bUl 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 Urvine's Appeal,^ state that this 
 clause "Is an afl&rmation 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 terrcB, mean by due process of law, 
 and being brought into court to answer according to 
 law. If government is interdicted from taking pri- 
 vate property, even for public use, without just com- 
 pensation, how can the legislature take it from one 
 man, and dispose of it as they think fit ? The great 
 principle is, that a man's property is his own, and 
 that he shall enjoy it according to his pleasure — in- 
 juring no other man, — until it is proved, in due 
 process of law, that it is not his, but belongs to an- 
 other." Judge Pope af&rms the same general prin- 
 ciple in Arrowsniith v. BurKngame^ 
 
 Upon a careful review of all the authorities, it 
 may be safely affirmed as a principle of consti- 
 tutional law, that the clause in question requires 
 
 1 Holce V. Henderson, 4 Dev. R. 15. 
 
 2 6 Ban-. E. 87. 
 
 8 16 Pa. State R. 256. 
 * 4 McLean E. 498. 
 
36 or THE FUNDAMENTAL PRINCIPLES 
 
 judicial as well as legislative 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 Eng- 
 land, 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 mean- 
 ing; thus bringing the Constitution 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 Parliament 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 peo- 
 ple, 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, Avhich authorizes a seizure and divestiture 
 of his right thereto, for such violation. This is most 
 clearly the true reading and exposition of the text 
 
WHICH CONTROL THE TAXING PO*En'. 37 
 
 of the Constitution. If, however, the requirements 
 of the Constitution must yield to legislative usage, 
 in direct violation thereof, then, of necessity, all leg- 
 islative 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 be considered improper to make a few sugges- 
 tions in relation to the constitutional mode of enforc- 
 ing the collection of taxes. 
 
 The power to levy a tax properly belongs to the 
 legislative power. The collection of it involves the 
 exercise of judicial 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, author- 
 izes the collector to seize the body or goods of the 
 delinquent, 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 at 
 taches. 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 difierence; it is the exercise of 
 judicial power, and the officer who sells performs an 
 executive function; so that, in point of fact, the 
 legislative, judicial and executive departments of the 
 government, all aid in the execution of the taxing 
 
38 OF THE PUNDAMENTAL PRINCIPLES 
 
 power. The legislature declare what facts shall 
 constitute a cause of forfeiture; the judiciary ascer- 
 tain the facts, apply the rule of law prescribed, and 
 pronounce a judgment of condemnation. For these 
 reasons it has been suggested by an eminent lawyer 
 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 departments of the govern- 
 ment concur in the condemnation." It was in ac- 
 cordance with this suggestion that the Legislature of 
 Illinois, in 1839, passed a new revenue law, levying 
 an uniform 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 satis- 
 faction. The collector was 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 judg- 
 ments against their lands, first giving notice in a 
 newspaper, of his intention to make the application. 
 Upon filing his report, and a copy of the advertise- 
 ment, certified by the printer, if no objection was 
 taken to the regularity or legahty of the proceedings, 
 the court was authorized to render a judgment for 
 the taxes, and order a sale of the land. After judg- 
 ment the clerk was required to make out, under the 
 seal of the court, and deliver to the collector, a pre- 
 cept 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 
 
WHICH CONTKOL THE TAXING POWER. 39 
 
 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 exercised over the estates of the citi- 
 zen, 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 declares 
 that private property may be taken for public use, 
 upon making just compensation. The legislature di- 
 rect the laying out of a public highway. Before the 
 title of the owner is divested, a regular judicial 
 inquiry takes place. The questions, whether the use 
 is a public one, or whether it is a mere legislative pre- 
 tence to divest the title of the owner, and confer it 
 upon a favorite, and what compensation shall be 
 made to the owner, as an equivalent for the loss of 
 his estate, are all inquired into and judicially decided, 
 after due notice and a hearing. So in every case 
 where the title to real or personal property is sought 
 to be divested under the general laws of the land, 
 judicial proceedings always intervene. 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 the 
 other? The only answer is, state necessity and imme- 
 morial usage. The former demands, and the latter 
 sanctions, this departure from the letter and spirit of 
 
40 OP THE FUNDAMENTAL PRINCIPLES 
 
 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 ^irgent necessity — tvhich admits no property in the 
 citizen while it remains unsatisfied. The right to tax is 
 coeval with all governments. It springs out of the 
 organization of the government. All property is a 
 pledge to pay the necessary debts and expenses of the gov- 
 ernment'' The Supreme Court of Tennessee decided 
 that their summary tax laws were constitutional, hold- 
 ing 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 government were necessitated to take the cau- 
 tious 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 
 extinction of the national faith, the basis of all regular 
 governments, must be the inevitable consequence."^ 
 In the case of The State v. Allenf the court, in com- 
 menting upon the lex terrcB of the Constitution, as 
 applied to these summary tax laws, say: "We think 
 that any legal process, which ivas originally founded 
 in necessity, has been consecrated by time, and approved 
 and acquiesced in by universal consent, must be an 
 exception to the right of trial by jury, and is em- 
 braced in the alternative, 'laiv of the land'" And in 
 Harris v. Wood} the Court of Appeals of Kentucky 
 remark, that "Taxes were always recoverable (before 
 
 1 9 Geo. E. 352. 
 
 '^McCarroll v. Weeks, 2 Tenn. R. 215. 
 
 8 2 McCord's E. 56. 
 
 * 6 Munroe E. 643. 
 
WHICH CONTEOL THE TAXING POWEB. 41 
 
 the adoption 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 princi- 
 ple 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 entitled — but 
 not before the ministerial ofl&cers of the law. They 
 act at their peril in selling the land of the person 
 assessed, 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 defense, in the judicial tribunals of the 
 country.^ 
 
 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 iiecessity begets miother necessity, that in the execu- 
 tion of such a power the law shall be strictly and 
 punctiliously 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 summary manner, under 
 
 ^ Doe Y. Devours, 11 Geo. R. 79; 6 Missouri R. 64; Bergen v. ClarJcson, 1 
 Halstead R. 352 ; Livingston t. Moore, 7 Pet. R. 669, Appendix. 
 2 Willard v. Wetherbee, i N, H. R. 118. 
 
42 OF THE rUNDAMBNTAL PRINCIPLES, ETC. 
 
 the "vague and indefinite pretense of taxation." 
 Taxation includes the power to collect, in a summary 
 mode, the amount levied, from the necessity 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 without recourse to the ordinary tribu- 
 nals. The Constitution protects the citizen from all 
 judgments against his person or property, otherwise 
 than by a regular jury trial, as heretofore accus- 
 tomed. Now the only difficulty in enforcing this 
 guarantee, 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, pen- 
 alties. Judge Richardson, in Burger v. Carter^ says : 
 " It is admitted that under this wise, protective pro- 
 vision, 'law of the land,' if the alleged tax shall 
 amoimt 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." 
 
 1 1 McMuUen Law E. 420. 
 
NATURE or THE POWEE TO SELL LAND, ETC. 43 
 
 CHAPTER II. 
 
 OF THE NATURE OF THE POWER TO SELL LAND FOE THE 
 NON-PAYMENT OF TAXES, AND OF THE STRICTNESS RE- 
 QUIRED IN SUCH SALES. 
 
 According to the strict rules of the common law, 
 the onli/ authority which a stranger could exercise 
 over an estate in land, was a power of selling, leas- 
 ing or incumbering it. The power was voluntarily 
 created by the owner. It was always a naked 
 power, and general or special according to the will 
 of the donor. Involuntary alienations were con- 
 trary to the policy of the feudal system, and con- 
 sequently no estate could be divested by mere 
 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 feoflfment and livery of seizin 
 — it is very certain that they did not admit of 
 the annexation to them, of powers of appoint- 
 ment 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 
 
44 NATURE OP THE POWER TO SELL LAND 
 
 livery. Such a transaction was not consistent with 
 that public notoriety, which was then deemed a 
 necessary circumstance in the alienation of prop- 
 erty.^ The only means which the feoffor had, of 
 retaining any authority over land, after its aliena- 
 tion, Avas by annexing a condition to the charter of 
 feoffment, 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 divested by the feoffment and 
 livery of seizin, 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 exacted.^ 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 agreeable to themselves.* On the 
 enactment of the statute of uses, powers of revoca- 
 tion and appointment grew into a system, 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 
 
 1 Sugden on Powers, Chap. 1, Sec. 1. 
 ^Powell on Powers, 1-2. 
 'Sugdon on Powers, Chap. 1, Sec. 1. 
 * Powell on Powers, 2. 
 
POK THE NON-PAYMENT 01" TAXES, ETC. 45 
 
 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 unrestrict- 
 ed 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 officer. In this manner a class of 
 powers, to which the common law was an utter 
 stranger, have sprang into existence; but which, 
 nevertheless, are controlled, in their execution, by 
 the principles of that law. To that law we are, 
 therefore, compelled to look for analogies in the 
 construction 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 should never be exer- 
 cised in doubtful cases.-^ It is a nalced jDower, which, 
 in this instance, may be defined to be a power op- 
 erating upon an estate, in which the officer who 
 executes it, has no manner of interest, and over 
 which he has no control 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 
 
 1 Beatty v. Knowler, 4 Pet. R. 152 ; Sharps t. Spier, 4 Hill E. 76. 
 
 2 Williams v. Peyton, 4 WTiea. R. 77 ; S. C, 4 Pet. Cond. E. 394 ; Varick t. 
 Tattman, 2 Barbour S. C. E. 113 ; Sharpe v. Spier, 4 Hill E. 86; 4 S. & M. E. 
 631; Waldron v. McComb, 1 Hill E. Ill; Clarh v. Courtney, 5 Pet. E. 319; 
 Taylor v. Galloway, 1 Hammond Ohio E. 232 ; Eodfje v. Wilson, 12 S. & M. E. 
 498; Allen v. Smith, 1 Leigh E. 231 ; Jesse v. Preston, 5 Grattan E. 120. 
 
46 NATURE OF THE POWEK TO SELL LAND 
 
 the agent to execute it, and prescribes the formahties 
 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 
 authority. The officer to Avhom it is delegated has 
 no general power to sell land for the taxes charged 
 against it, bu.t simply a special one, to sell in the 
 particular case mentioned in the statute creating the 
 power.^ 
 
 It will, therefore, be perceived, that the officer 
 entrusted with the power of sale exercises a naked, 
 siatutory and special authority, depending alone upon 
 the high prerogative of the state, and the letter of the 
 law, for its support. Thus much for the nature of 
 the power. 
 
 The validity of a tax sale depends upon the au- 
 thority of the officer to sell, and upon the fairness of 
 the transaction. It would be going too far to say, 
 that the officer, selhng land tvith or without authority, 
 coidd, hy his mere conveyance, transfer the title of the 
 rightfid 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."^ It is, therefore, held to be a condition precedent 
 to the passing of the title at such sales, that all of 
 
 .1 Doughty v. Hope, 3 Denio E. 595 ; Varich v. Tallman, 2 Barbour S. C. E. 
 113 ; Sharpe v. Spier, 4 Hill K. 86 ; 4 S. & M. E. 630-1 ; Hodge v. Wilson, 12 
 S. & M. E. 498. 
 
 2 Natchez v. Hfmor, 10 S. & M. E. 257. 
 
 3 Tri7//anis V. Pajton, 4 Wliea. E. 77 ; S. C, 4 Pet. Cond. E. 394 ; Varick v. 
 Tallman, 2 Barbour S. C. E. 115-16; Ronkendorff v. Taylor, 4 Pot. E. 349; 
 Powell V. Tuttle, 3 Comstock E. 401 ; Sherwood v. Reed, 7 Hill E. 431 ; Striker 
 V. Kelly, 2 Denio E. 330 ; James v. Gordon, 1 Wash. C. C. E. 335 ; 4 S. & M. 
 E. 627-8 ; Fitch v. Pinckard, 4 Scam. E. 69. 
 
 * Stead's Executor v. Course, 4 Crancb E. 403 ; S. C, 2 Pet. Cond. E. 151. 
 
^^ i ii iSOl 
 
 POE THE NON-PAYMENT OP TAXES, ETC. 47 
 
 LAW UBiiAiiv 
 the proceedings of the officers who have anything 
 to do with the hsting and valuation of the land, the 
 levy and collection of the tax, the advertisement 
 and sale of the property, the return, fihng or record 
 of the proceedings, whether the acts are to be per- 
 formed before or after the sale, must be in strict 
 compliance with the statute authorizing the sale.-" 
 
 1 Judevine v. Jackson, 18 Vermont E. 472 ; Early v. Doe, 16 Howard U. S. K. 
 610 ; Lyon v. Burt, 11 Ala. E. 295 ; Sumner T. Sherman, 13 Vermont E. 609 ; 
 Isaacs V. Wiley, 12 Vermont R. 677 ; DougUy v. Hope, 3 Denio E. 595 ; Shim- 
 min V. Inman, 26 Maine E. 233 ; Smith v. Bodfish, 27 Maine E. 295 ; Brown v. 
 Veazie, 25 Maine E. 362; Varick v. Tallman, 2 Barbour S. C. E., 113; Blake- 
 neyv. Ferguson, 3 English's Ark. R. 277; Young v. Martin, 2 Yeates E. 312; 
 S/iearer v. Woodbum, 10 Barr E. 511; Morton v. Reed, 6 Missouri R. 74-5; 
 Parker y. Rule, 9 Craneh E. 64 ; S. C, 3 Pet. Cond. R. 308 ; Ronkendorff v. 
 Taylor, 4 Pet. R. 349 ; Nolle t. Fenwick, 4 Randolph R. 585 ; Yancy v. Hopkins, 
 1 Munford E. 419 ; Farnam v. Buffum, 4 Cushing; E. 267 ; Lessee of Hughey y. 
 Horrell et. al., 2 Ham. E. 231 ; S. C, 1 Ohio Cond. E. 335 ; Holt t. Hemphill, 
 3 Hammond E. 232 ; S. C, 1 Ohio Cond. R. 551 ; Carlise v. Longworth, 5 
 Hammond E. 368 ; S. C, 5 Ohio E. 229 ; Lafferty v. Byers, 5 Hammond E. 
 457; Lessee of Dresback v. McArthur, 6 and 7 Ohio Cond. E, 307; Lessee of 
 Perkins v. Dribble, 16 Ohio R. 433; Fitch v. Casey, 2 G. Greene E. 300; Reed 
 V. Morton, 9 Missouri E. 128 ; O'Brien v. Coulters, 2 Blackford E. 421 ; Deniler v. 
 /State, 4 Blackford R. 258; Register v. ^ry™) 2 Hawks E. 17; Pope et. al. v. 
 Headen, 5 Ala. E. 433 ; Scales v. Avis, 12 Ala. R. 617 ; Tcm/ t. Blight, 3 Mun- 
 roe R. 270 ; Bishop v. Lovan, 4 B. Monroe E. 116 ; Allen v. /SmiWi, 1 Leigh E. 
 231 ; Wilson t. Bell, 7 Leigh E. 22 ; Jesse v. Preston and Keith v. Preston, 5 
 Grattan E. 120 ; Thames Manifacturing Co. y. Lathrop, 7 Conn. E. 550 ; Kecne 
 V. Houghton, 19 Maine E. 368 ; Gushing v. Longfellow, 26 Maine R. 306 ; floMs 
 Y. Clement, 32 Maine E. 67 ; Matthews v. Zz^yAi, Ibid. 305 ; ficown y. Smith, 7 
 N. H. R. 36 ; Brown v. Dinsmore, 3 Ibid. 103 ; Mason v. Pearson, 9 Howard U. 
 S. E. 248 ; ilfoore y. Brown, 4 McLean E. 211 ; Jackson v. £8^^, 7 Wendell R. 
 148; Culver y. Hayden, 1 Vermont E. 359; ITaZ/ y. Collins, 4 Ibid. 316; Rich- 
 ardson V. Dorr, 5 Ibid. 9 ; Spear v. Ditly, 8 Ibid. 46 ; Bellows Y. Elliott, 12 Ibid. 
 569 ; isaacs y. Shattuck, Ibid. 668 ; Brown y. TFnjAi, 1 7 Ibid. 97 ; Carpenter y. 
 Sawyer, Ibid. 121 ; Langdon y. Poor, 20 Ibid. 13 ; Chandler y. Spear, 22 Ibid. 388 ; 
 Taylor v. French, 19 Ibid. 49; Wister v. Kammerer, 2 Yates E. 100; Burch v. 
 Fisher, 13 S. & R. 208 ; Huston v. Foster, 1 Watts R. 478 ; Foust v. Ross, 1 W. 
 & S. E. 501 ; Porter y. Whitney, 1 Greenleaf R. 306 ; Ddogny y. Smith, 3 Lou- 
 isiana E. 418; Morris v. Crocker, 4 Ibid. 147; McDonoughy. Gravier, ^ IhM. 
 546 ; Carmichael y. Aihin, 13 Ibid. 205 ; Alvord y. Collin, 20 Pickering R. 418 
 Brooks y. Roaney, 11 Geo. R. 427; Boisgerard y. Johnson, 23 Miss. E. 122 
 Bussey y. Leavitt, 3 Fairf. R. 378 ; Garrett y. Wiggins, 1 Scammon R. 335 
 Graves y. Bruen et. al., 11 Illinois R. 437-8 ; Hill v. Leonard, 4 Scammon R. 
 140 : Fitch y. Pinckard, Ibid. 69 ; Williams y. Peyton, 4 Wheaton R. 77; Jack- 
 son y. Shepherd, 7 Cowen R. 88; Thatcher y. Powell, 6 Wheaton E. 119; 
 Irving y. Browndl, 11 Illinois R. 402. 
 
48 NATURE OF THE POWEK TO SELL LAND 
 
 In the language of Chief Justice Marshall : " That 
 no individual, or public officer, can sell, and convey 
 a good title to, the land of another, unless author- 
 ized to do so by express law, is one of those self 
 evident propositions to which the mind assents with- 
 out hesitation; and that the person invested with 
 such a power must pursue tvUh precision the course pre- 
 scribed hi/ law, or his act is invalid, is a principle 
 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 frima facie void?- The strictness required in 
 such cases has its origin in that great fountain of the 
 common law which regulates powers. A special au- 
 thority must be strictly pursued ; but more latitude 
 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, provid- 
 ed there is no unreasonable delay ; they may sell at 
 public or private vendue ; they may sell it all at 
 once, or at different times ; they may sell it en masse, 
 or in parcels, to suit the interest of the estate, 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 
 the 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 poAver is delegated to them; if, for 
 
 1 Thatcher v. Poivell, 6 Whea. 119; S. C, 5 Pet. Cond. R. 27. 
 
 M S. & M. R. 628. 
 
 8 The President, jj-c, of Natchez v. Siinor, 10 S. & M. R. 264. 
 
SOK THE NON-PAYMENT 01? TAXES, ETC. 49 
 
 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 conveyance ; 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 condi- 
 tions 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 gen- 
 eral power of attorney is given by one person 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 
 common law authorities.^ The same rules apply to 
 the execution of powers of appointment and revoca- 
 tion, 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 exer- 
 cised 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 intentwn to do this, is manifest upon the face of 
 the instrument, it is regarded as a valid execution.*^ 
 But there are cases where the power is s-pecial, in 
 
 1 Taylor v. Galloway, 1 Ham. Ohio R. 232; Loomis v. McClintock, 10 Watts 
 R. 274. 
 ^ Sugden on Powers, 1 . 
 ^ Sugden on Powers, Chap. 5, Sec. 2, 
 
 7 
 
50 NATURE OF THE POWER TO SELL LAND 
 
 ■which particular circumstances are required to at- 
 tend the execution of it. " These are generally, first, 
 a particular instrument ; secondly, a particular mode 
 of execution; and thirdly, conditions 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 io j^reserve the person to 
 wliom it is given, from a hasty and wiudviscd execution of 
 the potver. In each case, the circumstances must be 
 strictly comptUed 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 sec- 
 ond, to dispense tvith the solemnities and forms required to 
 attend the execution of the poiver, is to deprive a man of 
 the bridle which he has thought proper to impose on his 
 weakmss or fraiUy of mind, in order effectually to guard 
 himself agaimt 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 HatvJcins v. Kemp? There, 
 the terms of the power required that the revocation 
 should be by deed or other indrument in writing, execu- 
 ted in the presence of, and attested by, three credi- 
 ble witnesses, enrolled in one of his majesty's 
 courts of record at Westminster, and with the con- 
 sent and approbation of nine persons, named in the 
 instrument 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 
 
 1 Sugden on Powers, Chap. 5, Sec. 3. 
 
 2 3 East. K. 410. 
 
POR THE NON-PAYMENT OE TAXES, ETC. 51 
 
 Lord Chief Justice saying : " Every one of these re- 
 quired circumstances is in itself 'perfectly arhitrart/, and 
 (except only as it is in fact required,) unessential in 
 point of effect, to the legal validity of any instrument 
 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 presence of what 
 and how many witnesses; whether it should be 
 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, unenrolled and un- 
 sanctioned by any consent or approbation whatever. 
 If these circumstances be unessential and unimport- 
 ant, except as they are required by the creator of 
 the power, they can only le satisfied by a strictly literal 
 and precise performance. They are incapable of admit- 
 ting 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." 
 
 There is still another class of powers, more closely 
 resembling the power in question, which are created 
 by statute, and depend upon the statute for the 
 mode and manner of their execution, 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 
 
52 NATUBB OP THE POWER TO SELL LAND 
 
 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 mmmary. 
 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, quo ad hoc, as an inferior court 
 with special jurisdiction. The rule applicable to 
 such a power is thus laid down by Justice Caton in 
 reviewing a 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 undertakes 
 to exercise this extraordinary jurisdiction, which is 
 not in conformity with either, it must appear upon 
 the face of the record or proceedmg itself that the 
 contingency existed, or at least, was alleged, which 
 authorized it to proceed under the statute and make 
 the order."-' The language of C. J. Marshall is simi- 
 lar. He says: "In summary proceedings, where a 
 court exercises an extraordinary power under a spe- 
 cial statute prescribing its course, we think that course 
 ought to be exactly observed, and those facts espe- 
 cially, 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 ap- 
 pear upon the face of the record j they cannot be 
 
 1 Young Y. Lon-ain, 11 111. R. 636-7. 
 
 - Thatcher v. Powell, 6 Whea. R. 119 ; S. C, 5 Pet. Cond. R. 28. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 53 
 
 supplied by proof, or made out by intendment. The 
 authorities upon this point are uniform.^ 
 
 If, on the other hand, this special authority is con- 
 ferred upon an inferior tribunal of limited jurisdic- 
 tion, or upon commissioners, or upon any other 
 individuals who act quo ad 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, affeclr 
 ing the property of individuals against their will, 
 the cowse prescribed ly Mv must he strictly pursued, and 
 appear to he so upon the face of the proceedings, or the 
 potver is not well execvied? And it makes no difference 
 in the application of this principle, whether the 
 question comes before the superior courts by certiorari 
 or collaterally. If the law has not been strictly com- 
 plied 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 application of "the 
 Mayor, Aldermen and Commons of London, in com- 
 mon council assembled," and that notice in writing 
 should be given to the mortgagee in possession, &c. 
 The order of the Quarter Sessions recited an applica- 
 tion by the "Mayor, Commonalty and Citizens of 
 
 1 Zurcher v. Magee, 2 Ala. K. 253 ; Bates v. Branch Bank of Mobile, Ibid. 
 689 ; Brown t. Wheeler, 3 Ibid. 287. 
 
 2 Smith V. Mileman, 1 Scam. E. 323; Sharpe v. Spier, 4 Hill R. 86 ; Rex v. 
 Crake, 1 Cowper R. 26 ; Davidson v. Gill, 1 East. E. 64, 7 T. R. 363, 1 Burr. 
 E. 377, 4 Burr. R. 2244 ; Gilbert v. Columbia Turnpike Co., 3 John. Cas. 107 ; 
 State V. Scott, 3 Green Law R. (N. J.) 340; Lexy Court v. Gwynn, i Har. & 
 John. E. 227. 
 
 s 1 Cowper R. 26. 
 
54 NATDEE OF THE POWER TO SELL LAND 
 
 London," that proof of due notice had been given 
 to Croke, the defendant, and omitted to state wheth- 
 er Croke was a mortgagee in or out of possession. On 
 ceHiorari, 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 mortga- 
 gee in possession of the land condemned. Gilbert v. 
 Columbia Turnpike Co.} was a proceeding to condemn 
 land for the use of the Turnpike Co., 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 interested in said road, and the 
 judge or justice should appoint three commissioners, 
 freelwlders of the county, and not inhabitants of any of 
 the toimts through ivhich 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 dis- 
 agreement; the non-interest of the judge who ap- 
 pointed the commissioners; that the commissioners 
 Avere 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 will be seen that the question came directly 
 
 13 John. Cas. 107. 
 
FOK THE NON-PAYMENT OF TAXES, ETC. 55 
 
 before the court, on certiorari, to quash the order 
 itself. In Davidson v. Gill^ an order was made by 
 two justices of the peace under the 13 Geo. 3, C. 78, 
 Sec. 19, for stopping up an old foot-^vay, and setting out a 
 iietv one. A schedule was annexed to the statute, 
 giving the for7n of the order, and the statute de- 
 clared that the form set out in such schedule, " shall 
 be used on all occasions, with such additions and va- 
 riations onlg, 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 fool>way. The justices omitted to state 
 in their order, the length and breadth of the substi- 
 tuted way. The action was trespass, q. c. /., for 
 breaking and entering the close of the plaintiff. The 
 defendant justified upon the ground that the locus in 
 quo was part and parcel of a public foot-way. The 
 validity of the foregoing order of the justices thus 
 came up, the close being parcel of the old footrway 
 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 heyond the hounds of 
 latv. The justices have a limited poiver given them 
 under the act of parliament, and it must appear that 
 this order was made hy virtue of that poiver, &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, mi certain con- 
 ditions, a right which the public before enjoyed, and 
 this is to be done in a certain prescribed form, &c. 
 Now here is a material variance in the order, from 
 
 2 1 East. E. 64. 
 
56 NATURE OF THE POWER TO SELL LAND 
 
 the form prescribed, for it does not set forth the 
 length and breadth of the new path set out in heu 
 of the old one." Smith v. Hileman} was an eject- 
 ment to recover a parcel of land, which the defend- 
 ant claimed under a sale made by an administrator 
 to pay debts, in pursuance of the order of the Cir- 
 cuit Court. The statute under which this proceed- 
 ing took place, required the administrator to set 
 forth in his deed of conveyance, 'Hhe order of the 
 Court at large." The deed, in this case, omitted to 
 set forth the order at large, hut 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 hberty to inquire 
 into, nor what the supposed necessity may have 
 been, in the opinion of the legislature, for its adop- 
 tion. It is sufficient to perceive that the recital of the 
 substance of the order, is not a compliance with, or an ob- 
 servance of the act. A special power granted by stat- 
 ute, affecting the rights of individuals, and which 
 divests the title to real estate, ought to be strictly 
 pursued, and should appear to be so on the face of 
 the proceedings." The last cases cited arose colM- 
 erallij, and the proceedings, in each case, were treated 
 as nullities. 
 
 It will thus be seen that the common law rule 
 which distinguishes 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 regarded as com- 
 mon law authorities, those deriving their effect from 
 the statute of uses, or statutory poivers. It has al- 
 ready been shown that the collector, or other officer, 
 
 1 1 Scam. R. 323. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 57 
 
 has no geiieral authority to sell land for the non-pay- 
 ment 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 has 
 imposed upon its 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 proceed- 
 ing. It divests the owner of his title without his 
 consent, and very often for a trifling consideration ; and 
 the legislature have usually shown a cautious solici- 
 tude 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 appUes to 
 ministerial officers, charged by statute with the exe- 
 cution of a special authority to be exercised over 
 the estates of individuals, than in those cases where 
 one citizen delegates a special power to another; 
 because those officers are agents, appointed under 
 the authority of the general 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 an- 
 other, whom he might esteem more worthy of confi- 
 dence, but must abide the act of the agent of the 
 law.^ Besides, in this class of powers, the govern- 
 
 1 Ante, p. 46. 
 
 '^ Tollman v . White, 2 Comstock E. 70 ; Hugliey v. Horrdl, 2 Hammond R. 
 231 ; Farnam v. Buffum, i Gushing R. 267. 
 
 5 Schmidt v. Gatewood, 2 Richardson Equity E. 170 ; Dudley v. Little, 2 Ham. 
 R. 504. 
 
58 NATURE OF THE POWBE TO SELL LAND 
 
 ment, by its agents, acts in hostility 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 noth- 
 ing by silence, stands upon all of his rights, and is 
 permitted to insist upon a strict compliance with aU 
 of those conditions which the law has imposed upon 
 its own agents, for their guide in the execution 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 naJted 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. Popef well remarks, 
 that " this vigilance of the law upon nahed poivers, is 
 a mlditute for that vigilance which interest always 
 prompts in those who execute a foiver coupled with an 
 Merest'' 
 
 Again, proceedings of this kind partake somewhat 
 of & judicial character, yet, in point of fact, they are 
 usually ex parte, always summary, and the notice to 
 the owner is merely constructive. The course of the 
 common law in judicial proceedings is thus departed 
 from — that fundamental principle of natural justice 
 which requires actual notice, and an opportunity of 
 a hearing before condemnation, is violated in spirit, 
 
 1 Varick v. Tallman, 2 Barbour S. C. R. 113. 
 
 2 Vide authorities cited ante, p. 45. 
 8 1 Gilman R. 141. 
 
EOE THE NON-PAYMENT OE TAXES, ETC. 59 
 
 and the owner of the land, under pretense of delin- 
 quency, "is disseized of his freehold without the 
 judgment of his peers or the law of the land." It is 
 conceded that the collection of taxes cannot, in gen- 
 eral, be made by ordinary suits, and that the proceed- 
 ings, 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 all of 
 its requisitions.-^ This rule is applied to all siimmary 
 proceedings prescribed by statute, where the accus- 
 tomed 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. 
 A just interpretation is ever controlled by that law.^ 
 It is said to be the best construction of a statute to 
 ex]30und it as near to the rule and reason of the 
 common law as ]30ssible, 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 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 
 
 1 Morton V. Eeed, 6 Missouri E. 64. 
 
 2 Levert y. P. ^ M. Bank, 8 Porter E. 104; Logwood t. P. ^ M. Bank, 1 
 Minor Ala. R. 23 ; Yancy t. Hopkins, Ibid. 171 ; Crawford ¥. State, Ibid. 143 ; 
 Bates T. P. Si- M. Bank, 8 Porter B. 99 ; Judson v. State, 1 Minor E. 153 ; Zur- 
 chei- T. Magee, 2 Ala. E. 253 ; Bates v. Branch Bank of Mobile, 2 Ibid. 689 ; 
 Brown T. Wheeler, 3 Ibid. 287. 
 
 8 10 John. E. 586. 
 
 ■'Dwarris on Statutes, 695; 1 P. Wms. 252; 1 Saund. E. 240; 10 John. E. 
 579 ; Doug. E. 27 ; 1 Burr E. 445 ; 1 Kent, 464 ; 6 Bac. Abr. 383 ; Co. Litt. 
 272,6; Stowell v. .ZbucA, Plowden, 365 ; Beydm's Case, 3 Co. E. 7; Vernon's 
 Case, 4 Co. E. 4. 
 
60 NATURE or TUE POWER TO SELL LANB 
 
 upon the common law, as the perfection of reason, 
 and the birthright and noblest inheritance of the 
 subject, we cannot be surprised at the great sanction 
 given to this rule of construction."^ The Chancellor, 
 after stating that "we cannot be surprised at the 
 great sanction given to this rule," because it was re- 
 garded " as the birthright and noblest inheritance of 
 the subject," might have added, that the rule was 
 not only venerable and patriotic, but that it was 
 founded in the common sense of expositors. In 
 construing a new law, we insbindively 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 mean- 
 ing at common law, it is presumed that the legisla- 
 ture used it in that sense, and it should be so 
 received and expounded by the courts.^ When a 
 power is given by statute, but the means of its exe- 
 cution 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 agreeable to the rules of the common law 
 in cases of that nature ; for statutes are not pre- 
 sumed to make any alteration in the common law, 
 
 1 1 Kent's Com. 464. 
 
 2 6 Bac. Abr. 383 ; 6 Mod. E. 143 ; Mayo v. Wihon, 1 N. H. R. 555-6 ; Be- 
 dell V. Janney, 4 Gilman 111. R. 205-6 ; Adams v. Turrentim, 8 Iredell R. 147 ; 
 Dwarris on Statutes, 696. 
 
POR THE NON-PAYMENT OJ? TAXES, ETC. 61 
 
 further or otherwise, than the act expressli/ declares} 
 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, 
 until repealed hy legislative auilwrityr'^ Where a right 
 is given by statute, but no remedy to enforce 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 pow- 
 ers and summary proceedings, are peculiarly applica- 
 ble to those officers of the law who, under the au- 
 thority of general statutes, sell land for the non-pay- 
 ment of taxes. There are other reasons, equally, if 
 not more weighty, why those ofiicers should strictly 
 conform to the requirements of the law. The chief 
 purpose of government is the protection of life, lib- 
 erty 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 " acquidtimi, 
 possession and protection of property" is one of the 
 inalienable rights of every citizen. A speedy and com- 
 plete remedy, hy due course of law, for all invasions of 
 property, is guaranteed to him. He is protected in 
 the enjoyment of his property from the encroach- 
 ment of every department of the government, by 
 
 1 6 Bac. Abr., Title " Statute," 383-4. 
 
 2E. S. 1845, p. 337, Sec. 1. 
 
 3 16 John. E. 7 ; 2 Gilm. E. 184 and 429 ; 4 Bin. E. 116. 
 
(32 NATURE OF THE POWER TO SELL LAND 
 
 those limitations which have been imposed by the 
 Constitution upon the taxing power ; by that provi- 
 sion which prohibits the taking of private property 
 for pubHc uses, without due compensation, and by 
 the further declaration that he shall not be "dis- 
 seized of his freehold, or in any manner be deprived 
 of his property, without the judgment of his peers 
 or the laAV of the land." Not even a conviction for 
 the highest crime known to the law, can have the 
 effect of working a forfeittire 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 legisla- 
 ture have seen proper in their wisdom to prescribe, 
 with a view to prevent fraud, oppression and injus- 
 tice in the execution of the power, should be ob- 
 served by the officer in letter and spuit. 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 principles of our insti- 
 tutions. The former object is accomplished by the 
 sale of the delinquent's land; the latter by those condi- 
 tions and forms, with which the oflBicer is bridled and 
 restrained in the execution of the power of sale. A 
 double — a general and particular — intent is thus 
 
 1 1 Pet. Cond. E. 425 ; 8 John. E. 41. 
 
FOE THE NON-PAYMENT OS TAXES, ETC. 63 
 
 manifested in all such laws, both of which should be 
 sacredly respected, and carried out by the courts in 
 construing them; the true principle applicable in 
 all such cases, being that the private interest of the 
 citizen is never to be sacrificed to a greater extent 
 than is necessary to secure a public object of ade- 
 quate 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 pay- 
 ment 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 willful 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 entrusted 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 entrusted 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 de- 
 
 1 Broom's Maxims, Second London Edition, 1848, pp. 3-t. 
 ^ Mason v. Fearson, 9 Howard U. S. E. 248; Counsel Arguendo in Kemper 
 V. McClelland, 19 Oliio E. 324. 
 
64 NATUEB OF THE POWER TO SELL LAND 
 
 linquent who is not so in point of fact. These, and 
 many other cases, which will readily suggest them- 
 selves to every person at all conversant with these 
 tax sales, oftentimes happen, and the estates of inno- 
 cent persons are thus divested without their knowl- 
 edge. The bare 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 luorlc 
 injustice, nor so that an innocent man may be punished 
 or endangered, are maxims of the common law.-' 
 
 There is another principle of construction which 
 may be properly applied in this connection. It is 
 thus laid down by Lord Holt: "Ze/f a statute he ever so 
 CHARITABLE, if it give away the property of the subject, it 
 ought to be construed strictly."^ Let it be remem- 
 bered that the statute to which Holt applied this 
 rule of construction, was a statute discharging insolv- 
 ent debtors froin 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 
 give it away, and have not even the plea of cliarity as a 
 justification or excuse for your conduct. There is 
 still another rule of law which may be properly ap- 
 plied to powers of this character. Where a statute 
 creates a neiv potver, and at the same ' time provides 
 the means and mode of executing it, those to whom 
 the power is entrusted, can execute it only in the 
 
 1 Co. Litt. 360 a ; 7 John. E. 482 and 495-6. 
 - 6 Bac. Abr. 389 ; 12 Mod. R. 513. 
 312 John. R. 373. 
 
rOR THE NON-PAYMENT OF TAXES, ETC. 65 
 
 mode prescribed.-^ Tliis rule requires a rigid adhe- 
 rence to the directions and forms which the leg- 
 islature have seen proper to lay down for the 
 government of its agents. The power is purely arbi- 
 trary, and this furnishes a strong reason why it 
 should not be exercised 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 wiU alone. 
 This would be intolerable to a free people. No 
 court would venture to sanction a doctrine which 
 would operate to vest such an unbounded discretion 
 in any officer. 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 legisla- 
 tive power of the State to the collector, and thus 
 allow him to seU 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.^ Again, the estate of the purchaser is an 
 acquisition by operation 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 mvner. 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 jus- 
 
 1 6 Mass. R. 44 ; 14 Mass. E. 289 ; 1 Blackford B. 39 ; 1 Missouri R. 428 ; 
 State T. Cok, 2 McCord E. 117. 
 ^ Register v. Bryan, 2 Hawkes E. 17. 
 
 9 
 
gg NATURE OF THE POWER TO SELL LAND 
 
 tice without proving the existence of all those acts 
 which the law has prescribed as conditions precedent 
 to its vahdity. 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 po- 
 litical 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 disobey- 
 ing its mandate, and that however ambiguous it may 
 be, consequences arising from an erroneous con- 
 struction 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 construc- 
 tion, but he is bound to see that all of its substantial 
 requirements have been complied with. "A special 
 authority must be strictly pursued, and every pur- 
 chaser is to be presumed to know that special authority 
 in all cases where it is conferred and limited by 
 statute."-^ The law has a two-fold 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 
 non-payment of taxes." It was meant to put bid- 
 ders 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 
 
 1 Dunning v. Smith, 3 John Ch. E. 344. 
 
JOB THE NON-PAYMENT OF TAXES, ETC. 67 
 
 they know that the deeds given under such circum- 
 stances, 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, in- 
 stead of a writing upon parchment or foolscap, can 
 make no essential difference in the application of 
 the principle. 
 
 There is another rule equally well settled, that 
 every person claiming title to real estate, is charge- 
 able with notice of all defects apparent upon the 
 face of his muniments of title.^ In tax titles, the 
 constitutional provisions regulating the taxing pow- 
 er, 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 en- 
 trusted, are all essential links in the chain of title — 
 all of them are matters of record — and the purchaser 
 is bound to take notice of all omissions or irregulari- 
 ties, which have taken place in the proceedings un- 
 der 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. 
 
 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 seem to have but little con- 
 
 1 Moore v. Brown, 11 Howard U. S. E. 414. 
 
 2 1 J. J. Marshall E. 287. 
 
 2 Battemore v. White, 2 Gill. & John. E. 444. 
 
68 NATURE OP THE POWER TO SELL LAND 
 
 science. They calculate upon obtaining acres for 
 cents, and it stands them in hand to see that the 
 proceedings have been strictly regular."^ In Moore 
 V. Brownf Judge Pope says: "A strict construction 
 has always been given to tax titles. It is necessary 
 that, at least, the requisites of the law through 
 which an individual is divested of his title, should 
 be substantially complied with. We see the neces- 
 sity 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 Farnam v. Buffumf Judge 
 Wilde remarks : "In a sale like this, where a large 
 and valuable property has been sold for a mere trifle, 
 a compliance with aU the provisions of the statute 
 should be proved with great certainty in every particidar" 
 In Reed v. MoHon^ the Court, in speaking of the 
 neglect of the tax purchaser to record his certificate, 
 as required 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 per- 
 mitted to ask why he should be required to do this, 
 or to do that. It is an answer that 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 defend- 
 ant claims to hold the land in controversy, valued 
 
 ^Lessee of Hughey v. Horrdl et. al. 2 Ham. E. 231 ; S. C, 1-4 Ohio Cond. 
 R. 335. 
 2 4 McLean R. 21 1 . 49 Missouri E. 878. 
 
 ^4 CusiiingE. 267. "5 4 McLean R. 213. 
 
EOK THE NON-PAYMENT OP TAXES, ETOP*"^ 69 
 
 by an assessor at nine hundred and sixty dollars, by 
 virtue of a sale at which, he paid less than five dol- 
 lars 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 unequal bargain." Not 
 only willa court of equity refuse relief to the pur- 
 chaser, but even a court of law will not lend its aid. 
 There is a strong case in support of this position. 
 The New York Statute authorized the sale of a 
 leasehold interest in lands for the non-payment of 
 taxes assessed upon them, prescribed the course to 
 be pursued, and declared that the lease should be 
 conclusive evidence of the regularity of the proceedings. 
 Some defect occurred in the proceedings, and the 
 officer discovering it, refused to execute a lease, as 
 required by law, and the purchaser applied for a 
 mandamus. The court denied the application, say- 
 ing : " Should we compel the execution of the lease, 
 the purchaser's title might he protected; but we are iwt 
 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, mthout this statidory 
 support, cannot he sustained."^ Another reason assigned 
 for this strictness is, that the statutes under which 
 lands are sold for taxes, are highly petml in their 
 character ; so much so that a man may absolutely 
 lose his whole estate for a few days' neglect in the 
 payment of a tax, which never 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 implication or 
 intendment.^ That such statutes are strictly penal, 
 
 1 People T. Maijm; %-c., 10 Wendell E. 395. 
 ^ Yaruy v. Hopkins, 1 Munford E. 419, 437. 
 
70 NATURE OF THE POWER TO SELL LAND 
 
 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 eAd- 
 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 caution in permitting 
 strangers to exercise such acts of owuership over 
 their estates; and in almost every instrument or 
 statute conferring such power, restrictions are im- 
 posed upon the donee, as to the mode of executing 
 it. These restrictions 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 required by the 
 creators of the power, to attend the execution of it. 
 The conveyance must bear upon its face an acknowl- 
 edgment 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, 
 
 1 Smith's Commentaries, C. 18, Sec. 738, p. 854, and cases there cited. 
 
JOB THE NON-PAYMENT OE TAXES, ETC. 71 
 
 and a compliance with, all of its requisitions. This 
 rule pervades all classes of powers, and is universal 
 in its application. In this country especially, all 
 constitutional and statutory powers are limited, and 
 every act done by persons assuming to act in an 
 ofiicial capacity, are nullities, unless the power exists, 
 and the mode of exercising it has been adhered to 
 by the ofl&cer. 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, etc., and the mode of acquir- 
 ing 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 pre- 
 scribed 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 prescribed by the 
 Constitution and laws. The security to the citizen in 
 the observance of the forms prescribed by law, con- 
 sists 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 
 
 ' Spamjler v. Jacoby, 14 III. K. 297. 
 
72 NATURE OF THE POWER TO SELL LAND 
 
 his power, and the necessity of a strict comphance 
 with the terms of it. 
 
 Ao-ain, it may he laid down as a general principle, 
 subject to no exceptions, that the vahdity of every 
 involuntary alienation of land, depends upon a strict 
 compliance with all of the substantial requisitions of 
 the law by which they are authorized, such as the 
 taking of private property for pubhc use -^ the ex- 
 tending of an execution upon the land of a debtor, 
 in the New England States f the sale of land by a 
 guardian, under an order of court,^ and also sales 
 made by administrators, of the real estate of their 
 intestate* 
 
 The last and most convincing reason why every 
 requirement of the law should be strictly comphed 
 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 everything which serves to assist in fer- 
 reting out the intention of the maker, may be 
 resorted to. This is 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 sJmll he superfluous, void, or 
 
 1 Flatbush Avenue, 1 Barbour S. C. K. 286. 
 
 2 Wellington v. Gale, 13 Mass. E. 483 ; Metcalf v. Gillett, 5 Conn. E. 400 ; 
 Morton v. Edwin, 19 Vermont E. 77 ; Sergeant v. Pierce, 2 Metcalf E. 80. 
 
 3 Young v. Keogh, 11 III. E. 642. 
 
 * Smith V. Hileman, 1 Scam. E. 323; Atkins v. Kinman, 20 Wend. E. 241. 
 ^3 Scampon E. 161 ; 2 Peters E. 662; 3 A. K. Marshall E. 489; 1 Pick. 
 B. 45 and 250 ; 9 Porter E. 266. 
 
FOE THE NON-PAYMENT 01 TAXES, ETC. 73 
 
 iiisignifiemxt, if it can be prevented.^ These two rules, 
 that every word must have effect, and that where the 
 words are plain, there is nothing to construe, put an 
 end, in every case, to judicial discretion. The legisla- 
 ture commands, and the judges must obey. It is 
 astonishing 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 conduct, which is 
 never lawful in construing their acts.^ Judges are 
 not to presume the intention of the legislature, but 
 collect it from the words of the act, and they have 
 nothing to do with the poKcy of the law. This is 
 the true sense in which it is so often impressively 
 repeated, that judges are not to be encouraged to 
 direct their conduct " by the crooked cord of discretion, 
 but by the golden met^and 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 cor- 
 rectness.* The most enlightened and experienced 
 judges have, for some time, lamented the too fre- 
 
 1 6 Bac. Abr. 380. » 1 Pick. R. 482. 
 
 2 7 B. & C. 569; 6 B. & C. 712. ■> 2 Dwarris, 703. 
 
 10 
 
74 NAinRE OF THE POWER TO SELL LAND 
 
 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 safest 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 
 Ashurst, " 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 office, 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 pre- 
 scribed 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 fact, would be placing the judiciary above 
 
 llOB. &C. 527. 2 1T. K. 52. 8 1 Bibb R. 214. 
 
EOR THE NON-PAYMENT OF TAXES, ETC. 75 
 
 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, 
 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 coiart ? One set of 
 judges might think the former would be a sufficient 
 compUance 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 compliance, and a third set, adopt- 
 ing this course of reasoning, viz : that as the legisla- 
 ture was competent to command, it ought to be 
 obeyed, and having commanded 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 understand- 
 ing it ; but there have been so many subtle, refined 
 and artificial rules of construction devised by inge- 
 
76 NATUEB OF THE POWEE TO SELL LAND 
 
 nious lawyers, and adopted by supple courts, in 
 explaining 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 plainest statute. 
 There is not a lawyer but knows that the most ab- 
 struse and doubtful part of legal science has arisen 
 from the cause above-mentioned. Witness the va- 
 rious and irreconcilable decisions under the statute 
 of limitations, the statute of frauds and perjuries, 
 &c. 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 statute itself; and 
 thus have judicial decisions (the evidence of the 
 law,) been rendered uncertain and vibrating accord- 
 ing to the whim, caprice or judgment of different 
 men, who all had an equal right to judge. They 
 have made the legislature mean anything, every- 
 thing, and almost nothing, 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 im- 
 port, unembarrassed 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 
 
SOE THE NON-PAYMENT OP TAXES, ETC. 77 
 
 remedy those defects. In tlie 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 unjustifiable assumption of power. 
 Opposed to all this reasoning, is the very co7ivenient 
 and pliabk common law maxim, qui hceret in litera, 
 hceret in 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 occupy by 
 some judges in England, is not only intrinsicallt/ in- 
 correct, but of the most dangerous tendency, because it 
 renders perplexed the rides of decision, it enlarges an 
 arhitrary discretion in judges, and encroaches on legislative 
 authority. It is congenial enough to arbitrary gov- 
 ernments, 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 than to 
 decide to-day that such is the spirit of the law, such 
 was the intention of the legislature, such alone the 
 evil intended to be remedied; in a short time the 
 subject may present itself in a point of view a Httle 
 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 more natural, and 
 many times nothing is more just, than the apology, 
 'humanum est errare' But insomuch as the principle 
 is adapted to arbitrary governments, in just so much 
 it is uncongenial and dangerous to ours, and there- 
 fore it ought to be circumscribed within a very 
 narrow compass; to effect which, this court has 
 recently, in several instances, gone great lengths, and 
 
78 NATUEB OE TECB POWEK TO SELL LAND 
 
 probably may find it necessary to go still farther. 
 In the present case, the rule prescribed by the legis- 
 lature 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 neghgence, and supply the defect by adopt- 
 ing a perplexed and doubtful system of adjudication, 
 and interposing an illegitimate 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 supersede 
 it by a substitute. We, therefore, must say ' ita lex 
 scripta est,' and the defendant, in this motion, must be 
 bound by it." This reasoning is most convincing, 
 and deserves to be accompanied with the judicious 
 and sensible remarks of Judge Hebard : " I am not 
 very well satisfied with the simimary mode of getting 
 rid of a statutory provision, by calling it directory. 
 If one fositive 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 toler- 
 ated in remedial and, perhaps, some other statutes, 
 shoidd akvays be resorted to with great caution, and 
 never extended to penal statutes, or mere arlitrary 
 regidations of matters of public policy. The power of 
 extending the meaning of a statute 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''^ This doctrine is daily gaining 
 ground, and it is to be hoped that the day is not far 
 
 1 15 Vermont R. 72. 2 22 Pick. K. 387. 
 
FOK THK NON-PAYMENT OF TAXES, ETC. 79 
 
 distant, when our courts will adopt the maxim of the 
 Missouri Court : " Thus the law is ivritten, and ive do iwt 
 feel called upon to give reasons why it is so!'^ The prin- 
 ciple 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 particular 
 requirement of the revenue laws. It wUl thus be 
 seen that the nature of the power, the character of 
 the proceedings, the spirit of the Constitution, the 
 letter of the law, and the true principles of interpreta- 
 tion, 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 Potvell v. Tuttle ■? " It is a familiar rule of law 
 that a special authority must be strictly pursued. When 
 such authority is prescribed hy statute, and when in its 
 exercise it operates to divest the citizen of his property, 
 courts cannot he too sedulous in confining it ivithin the boun- 
 daries ivhich the legislature have thought fit to prescribe. 
 At this day, and in this country especially, the pro- 
 tection of private rights demands this safeguard ; and he 
 who wiU review the adjudications of our courts in- 
 volving this principle, wiU be interested 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 regu- 
 lar!'^ Another, that " a strict compliance with all the 
 
 1 Reeds t. Morton, 9 Missouri E. 878. 2 3 Comstock B. 401. 
 
 » Hughey v. Hon-ell, 2 Oliio R. 231. 
 
80 NATURE OE THE POWER TO SELL LAND 
 
 prerequisites of the statute is considered necessary."^ 
 Another, that " great strictness is required, and every 
 substantial requisite of the law must be shown to 
 have been complied with."^ Another, that " It must 
 appear that the provisions of law preparatory to, and 
 autlwrising such sale, have been punctiUously complied 
 with."^ Another, that "a minute conformity to every 
 particular of the several acts of the Assembly, is neces- 
 sary to pass the title."* Another, that without a 
 '■'■literal performance" of the requirements of the 
 law, the deed is " mere zvaste 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 ivhole proceeding zvill 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 requirements. 
 It has sometimes been said that a literal compliance 
 with the statute provisions, by all the officers con- 
 nected 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 ivhich, but for the statute, would 
 appear to be of no importancer'' Another, that the 
 person invested with the power to sell, "must pursue 
 with PRECISION tlie course prescribed by law, or his act is 
 invalid." Again, the course prescribed " ought to be 
 
 1 Isaacs V. Wilei/, 12 Vennont R. 677 ; Smith, v. Bodjisk, 27 Maine R. 295. 
 
 2 Blakcrmj v. Ferguson, 3 Eng. E. 277 ; Ronhendorff v. Tat/lor, 4 Pet. R. 349. 
 " Brown v. Veazie, 25 Maine R. 362. 
 
 * Young v. Martin, 2 Yates R. 312; Shearer v. Woodhum, 10 BarrE. 511. 
 "i Bush V. Davidson, 16 Wendell R. 554. 
 « Doughty v. Hope, 3 Denio E. 599. 
 ' Langdon v. Poor, 20 VeiTnont E. 15. 
 
rOR THE NON-PAYMENT OE TAXES, ETC. 81 
 
 EXACTLY observed."-^ Another, that " a tax deed can- 
 not be read in evidence, without proof that the sub- 
 stantial requirements of the law have been compHed 
 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."^ And another, 
 that every requirement of the law, "having the 
 SEMBLANCE OF BENEFIT to the Owner, must be strictly 
 complied Avith."* These quotations are extracted 
 from the general language of courts in giving their 
 opinions in particular 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 jeahusy the exer- 
 cise of such a poiver has been restricted to its own 
 specified limits."^ The principle fairly deducible from 
 the entire field of discussion upon this class of pow- 
 ers, is, that every requirement of the law, whether 
 substantial ov jnexelj formal in its character, and hav- 
 ing the semblance of benefit to the owner, which the 
 legislature have said shall attend the execution of 
 the power, ought to be strictly observed by the offi- 
 cers entrusted with its execution, or no title will pass 
 by the sale. In the language of Lord Ellenborough : 
 " If the circumstances be unessential and unimportant, 
 
 1 Thatcher v. Powell, 6 Wheaton E. 119. 
 
 2 Games v. Stiles, 14 Peters E. 322. 
 
 " Judeoine v. Jackson, 18 Vermont E. 472. 
 
 * Sharp T. Johnson, 4 Hill E. 99 ; Conein y. Merritt, 3 Barbour S. C. E. 343 ; 
 Atkins V. Kinman, 20 Wendell E. 249 ; McDonough v. Gravier, 9 Lou. E. 546. 
 5 Powell V. Tidtle, 3 Comst. E. 401. 
 
 11 
 
g2 NATURE 01' THE POWEK TO SELL LANB 
 
 except as they are required hy the creators of the power, 
 tliey can only he satisfied 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 otherwise satisfied ; incapable of 
 receiving any equivalent, because they are in them- 
 selves of no valuer^ Similar language is used by the 
 Supreme Court of Vermont, in reviewing the strict- 
 ness required in tax sales : " It is enough for us to 
 inquire what the legislature have said, supposing that 
 their inientiom were made hioivn by the terms they have 
 used, and not indulge in any fancifid conjectures as to 
 their meaning, or to sidistitute something else in lieu of 
 what they have eiiactecV^ In noticing an omission of the 
 officer, contrary to the literal import of the law, the 
 Supreme Court of Maine say : " This may not have 
 been productive of any inconvenience to those inter- 
 ested 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 dis- 
 cover neither the necessity nor use of this provision 
 of the law, it tvould not he for us to dispense luith it."* 
 In Isaacs v. Wiley,^ the collector failed to give a bond 
 as required by law, and for this defect in the pro- 
 ceedings, the sale was held void ; the court remark- 
 ing: "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 
 
 1 Hawkins v. Kempe, 3 East. R. 410. 
 
 2 Sumner v. Sherman, 13 Vermont E. 612. 
 5 Brown T. Veade, 25 Maine K. 359. 
 
 ♦ Little T. Thurston, 3 Mass. E. 432. ^ 12 Vermont E,. 677. 
 
FOE THE NON-PAYMENT OF TAXES, ETC. 83 
 
 the land-holders have any indirect interest even in 
 the security which it affords, hut because a strict com- 
 pliance with ALL the prerequisites of the statute is 
 considered necessary, in this class of cases, in order 
 to pass the title." Perhaps the very strongest illus- 
 tration of the strictness required in these cases, is to 
 be found in the case of Broivn v. Dinsnwre? 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 des- 
 cription was necessary. Thus much with regard to 
 the degree of strictness required in tax sales. 
 
 1 3 New Hampshiro R. 103. 
 
84 OP THE ONUS PKOBANDI. 
 
 CHAPTEE III. 
 
 OF THE ONUS PROBANDI. 
 
 In powers of this nature, a seiies 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 con- 
 summation 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, imust exist ; and if any material link 
 in the chain of title be wanting, the whole falls to 
 the ground for want of sufl&cient authority to sup- 
 port it.^ 
 
 The party claiming under the power, is chargeable 
 with notice of every irregularity in the proceedings 
 of the of&cers. He purchases at his peril, the 
 maxim, "caveat emptor," being rigidly applied to 
 him.^ The reasons are obvious. The law imputes 
 to every purchaser hiowledge of all facts appearing at 
 the time of his purchase, upon the muniments of 
 
 1 BlcJceney v. Ferguson, 3 English's Ark. B. 277 ; Brou-n v. Vcazie, 25 Maine 
 K. 362 ; Doughty v. Hope, 3 Denio R. 595 ; Varick v. Talbnan, 2 Barbour S. C. 
 K. 114-15 ; Fitch v. Casey, 2 G. Greene E. 300. 
 
 2 Lessee of Holt's Heirs t. Hemphill's Heirs, 3 Hammond K. 232 ; S. C, 1-4 
 Cond. Ohio R. 551 ; Dunning v. Smith, 3 John. C. R. 344 ; Stead's Executors 
 V. Course, 4 Cranch E. 403 ; S. C, 2 Pet. Cond. R. 151; Yancy v. Hopkins, 
 1 Mnnford R. 431 ; Games v. Stiles, 14 Peter R. 322 ; Wright's R. 53. 
 
or THE ONUS PEOBANDI. 85 
 
 title, which it was necessary for him to inspect in order 
 to ascertain 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, he is bound to 
 inquire and take notice whether that officer, and all 
 others whose agency is required by the law in the 
 conduct of the proceedings, have proceeded with 
 regularity in the discharge of their duty.^ If the 
 proceedings 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 bid- 
 ders at a tax sale upon inquiry, whether or not the 
 land was offered for sale according to law. If they 
 do not examine, and buy against the plain and 
 imperative 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 
 
 1 Battemore y. White, 2 Gil. & John. R. 444. 
 
 2 Ya-ncy v. HopJcins, 1 Munford E. 431. 
 ; V. Brown, 11 Howard TJ. S. E. 414. 
 
86 OP THE ONUS PROBANBI. 
 
 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 
 piu'chaser is Uameless who buys without seeing that 
 they have been so.^ "A special authority must be 
 strictly pursued, and every purchaser is presumed to 
 know tJiat special authority in all cases where it is 
 conferred and limited by statute."^ There is no great 
 hardship in this. Experience and observation render 
 it notorious, that the amount 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 cupidiijj the ruling passion, of the specu- 
 lators who attend tax sales. 
 
 Taxes ought to be paid, and that promptly. In the 
 language of Judge Scates : " The government must 
 have revenue, and it must be collected from all ; it 
 must be enforced from the unwilling and neghgent 
 by disposing of their pro]3erty to those who are 
 willing to advance the money."^ But it must be 
 remembered that all owners, whose names are 
 perpetuated upon the "list," are not wilfully or 
 perversely " delinquent." Oversight, accident and 
 luisfortune, the dishonesty of agents, the neglect of 
 the guardians of infants, and the husbands of women 
 owning separate estates, often interfere 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 
 
 1 4&n V. Snitt, 1 Leigh K. 231. 
 
 2 Chancellor Kent in Dunning v. Smith, 3 John. C. R. 344. 
 ^ Hinman v. Pope, 1 Gilman E. 141. 
 
OP THE ONUS PROBANDI. 87 
 
 under these circumstances ? Eeasonable judges will 
 answer the question affirmatively. How protected ? 
 Not by an immunity from his duty to the govern- 
 ment, but by requiring a rigid compliance 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 stran- 
 gers. 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 execu- 
 tion. 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 railroad, 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 pow- 
 er, unless the safeguards attached to its exercise are 
 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 have been negHgent in the 
 performance of my duty — a cause of forfeiture has 
 thereby arisen — but the officer has been equally 
 negligent ; you also, in not inquiring into the regu- 
 larity of the proceedings before purchasing; my 
 title has not been legaUy 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 
 
 1 Jadcsm v. Esly, 7 WendeU E. 148. 
 
or THE ONUS PROBANDI. 
 
 speculation, that there is very p-eat danger of injus- 
 tice, 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 valu- 
 able estate. The purchaser has his remedy. If the 
 land was not subject to taxation, or the taxes had 
 been paid before the sale, he must look to the State 
 for that relief which such a case may require.^ If 
 the officers have failed in the performance of any 
 duty enjoined upon them by law, they must respond 
 in damages to the purchaser who has sustained an 
 injury by their neglect.*^ 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 narrowly, and if they do not appear to be 
 strictly conformable to the law, to pass the merited cen- 
 sure 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 re- 
 quired in such cases, say: "The counsel for the 
 defendant in this case may, therefore, be excusable, if 
 not commendahle, for the astuteness and searchhtg manner 
 in which he has scrutinized the doings of these officers in 
 the instance before us."^ 
 
 1 Dunning v. Smith, 3 John. C. E. 344. 
 
 ^ Jackson t. Moore, 18 John. E. 442. 
 
 " Sumner y. Sherman, 13 Vermont E. 613. 
 
 * Wilson V. Bell, 7 Leigh E. 22; Cox v. Grant, 1 Yeates E. 164; Counsel 
 for the Plaintiff arguendo in Thames Manufacturing Company v. Lathrop, 7 
 Conn. E. 550. 
 
 "i Broiim V. Veasn'e, 25 Maine R. 362. In McMillan v. Bobbins, 5 Ham. E. 
 
OF THE ONUS PEOBANDI. 89 
 
 Upon whom shall the burden of proof rest under 
 such circumstances ? Shall the purchaser at the tax 
 
 28, Judge Hitchcock says : " I am aware that it is common to complain of tax 
 laws, and there is, perhaps, no part of legislation which is more difficult to 
 perform satisfactorily, 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 been 
 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 com- 
 munity, we cannot but regard. That it has a direct tendency to encourage 
 those who dislilce 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 
 Hinmanv. Pope, 1 Gilman K. 141-2, 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 tlie 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 time to time, 
 suggest. The grounds of objection are made plausible in these cases, by the 
 great disproportion between the consideration 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, 
 the State will be unable to collect her dues, as no one will advance where the 
 blunders of ignorance and negligence in the executive ofScers, 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 slioiHd allow all substantial departures from the law, as valid 
 
 OBJECTIONS." 
 
 In the case of Athins v. Sinman, 2 Gilman,' E. 452-3, the late Chief Justice 
 Treat, now Judge of the United States Court, in the Southern District of 
 Illinois, after overruling various objections taken to a tax title, thus alludes to 
 the subject of this digi-ession : " In dismissing the various objections taken to 
 these proceedings, 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 
 12 
 
9(1 OF THE ONUS PROBANDI. 
 
 sale, or those claiming under him, be required to 
 establish affirmativch/, that the officers acted strictly 
 
 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 title of the purchaser by interposing mere technical 
 objections. If allowed to do it, he is enabled to take adyantage 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 the 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 wiU 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 rnles, some assurance is given that the titles will be sustained, the 
 t axes 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 suffice." 
 
 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 
 evidence of several important facts, and prima facie evidence of all the 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 pennitted but four defenses to the tax 
 deed, to wit: 1. That the taxes for which the land was sold, had been paid; 
 2. That 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 western 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 
 
OF THE ONUS PROBANDI. 
 
 91 
 
 in conformity 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 prin- 
 ciple, 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 perform- 
 ance 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 officers 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 propei-ty 
 
 requiring an entire newspaper for its publication, has dwindled down until it 
 can be compressed into a single column ; indeed, it may bo 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, on account of the necessities of the government, and 
 the hostility of the settlers to non-resident proprietors — for decisions necessa- 
 rily 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 piivate property, and which the older States know 
 so well how to appreciate. 
 
 1 Williams V. Peyton's Lessee, 4 Whea. R. 77 ; S. C, 4 Pet. Cond. R. 394 ; 
 Pope et. al. v. Headen, 5 Ala. E. 433; Jackson v. Esty, 7 Wendell R. 148; 
 Brown v. Wright, 17 Vermont R. 97. 
 
92 OF THE ONUS PEOBANDI. 
 
 with, peculiar jealousy, an authority to divest the 
 title of another is to be strictly pursued, and as the 
 maxim, " omnia rite presumunter" is appropriate but to 
 judicial proceedings, 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 pur- 
 pose of upholding the acts of a special 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 autlmriti/ under 
 which he acted, and to tlie 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 validitg."^ Presumptions are seldom 
 founded upon state necessity or public policy. They 
 are the result of the general expenence 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 universal, as to render it expedient 
 that it should be absolutely and imperatively pre- 
 sumed to exist in every case, all evidence to the 
 contrary being rejected ; but yet so general, and so 
 nearly universal, that the laiv itself, without the aid of a 
 jury, infers the one fact from the proved existence of the 
 
 1 Huston V. Foster, 1 Watts R. 478 ; Hole v. Rittenhoiise, 18 Pa. State R. 305 ; 
 Hall T. Collins, 4 Vermont E. 316 ; Kinney v. Beverly, 2 Hen. & Munf. E. 341 ; 
 Waldron v. Tuttle, 3 N. H. R. 340; S. C, 4 Ibid. 371 ; Fiteli v. Casey, 2 G. 
 Greene, (Iowa,) E. 300; Jesse y. Preston, 5 Grattan E. 120; Alvord^. CoUins, 
 20 Pick. R. 418; Minor v. Natalies, 4 S. & M. E. 627 ; Pitman v. Brownlee, 
 2 A. K. Mar. R. 210. 
 
 2 Waldron v. Tuttle, 3 N. H. E. 340. 
 
OF THE ONUS PKOBANDI. 93 
 
 other, in the absence of all opposing evidence. Such is 
 the rule relative to disputahle -presumptions} the only 
 class which it is pretended should be indulged in for 
 the purpose of maintaining 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 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 afiftrm that tax titles have 
 not been found to be so ^'■generally, and nearly uni- 
 versally " vaHd, as to authorize the courts to presume 
 them so in all cases. There are a class of decisions, 
 however, which lay down the rule in support of a 
 long ]30ssession under a tax deed, that upon the pro- 
 duction of the deed, proof of the possession under 
 it, and of the performance of some of the acts re- 
 quired by law of the officers, the evidence may be 
 submitted to a jury, with instructions that if upon 
 the whole case, they are satisfied that it is a reason- 
 able 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." 
 
 The recitals in a tax deed are not evidence against 
 the owner of the property, but the facts recited must 
 be established by proof aliunde / nor is the convey- 
 ance itself, because of its solemnity, or upon any 
 
 1 1 Greenl. Ev. Sec. 33. 
 
 2 Keith T. Preston, 5 Grattan R. 120 ; Jackson t. Esty, 7 Wendell E. 148 ; 
 Jackson v. Shephard, 7 Cowen E. 88; Hall v. Collins, 4 Vermont E. 316; 
 Brown V. Wright, 17 Ibid. 97; Mussey v. White, 3 Greenleaf R. 302; Smith v. 
 Corcoran, 7 Louisiana E. 46. 
 
94 OF THE ONUS PEOBANDI. 
 
 conceivable principle, prima facie evidence that the 
 prerequisites of the law had been complied with 
 by the various officers of the law, who conducted 
 the proceedings.^ The fact that they were regular 
 must be proved, and the onus probandi rests, in all 
 cases, upon the purchaser, or those claiming under 
 him. He must show affirmatively, step hi/ step, that 
 everything has been done which the statute makes 
 essential to the due execution of the power conferred 
 upon the officers.^ 
 
 The rule that the onus is upon those who claim 
 under a tax sale, is confined to controversies between 
 
 1 Nolle T. Fenwick, 4 Randolph R. 585 ; Xancarrow v. Weathershee, 6 Martin's 
 Lou. R. 34:7 ; Christy v. Minor, 4 Munf. R. 431 ; Holt v. HempUU, 3 Ham. R. 
 232; Thompson v. Gotliam, 9 Ibid. 170; Latimer v. Lovett, 2 Doug. Mich. R. 
 204 ; Emery v. Harrison, 13 Pa. State R. 317 ; Westcott v. McDonald, 22 Maine 
 R. 402; Lessee of Dunn v. Games et. al., 1 McLean R. 319. In Kentucliy, a 
 tax deed is held prima facie evidence of title, and the onus lies upon the former 
 owner to show irregularity in the sale. Curry v. Fowler, 5 J. J. Mar. R. 145 ; 
 BligU V. Bants, 6 Munroe R. 206; Oldham v. Jones, 5 B. Monroe R. 458; 
 Bodley v. Hoard, 2 A. K. Marshall R. 244 ; Allen v. Robertson, 3 Bibb. R. 326. 
 
 - Jackson v. Shephard, 9 Cowon R. 88 ; Lafferty v. Byers, 5 Hammond R. 457 ; 
 Dresback v. McArthur, 6 and 7 Ohio R. 307; Scott v. Detroit Young Mei^ 
 Society, 1 Doug. Mich. R. 119; Latimer \. Lovett, 2 Ibid. 204; 0'Brieiiv\ 
 Coulter, 2 Blaclcf. R. 421; Love v. Gates, 4 Dev. & Bat. R. 363; P^pe v. 
 Headen, 5 Ala. R. 433 ; Watson t. Stucker, 5 Dana R. 581 ; Terry >'. Bleight, 
 
 3 Munroe R. 270 ; Bishop v. Lovan, 4 B. Mon. R. 116 ; Allen v. Smith, 1 Leigh 
 R. 231 ; Chapman v. Bennett, 2 Ibid. 329 ; Jesse v. Preston and Keith v. Preston, 
 5 Grattan 205 ; Mattliews v. Light, 32 Maine R. 305 ; Waldron v. Tnttle, 3 N. 
 H. E. 340 ; Lessee of Dunn v. Games et. al. 1 McLean R. 319 ; Minor v. McLean, 
 
 4 McLean R. 138; Mai/lmv v. Davis, Ibid. 213 ; Jadcson v. Esty, 7 Wend. R. 
 148 ; Beekman v. Brigham, 1 Selden, R. 366 ; Hall v. Collins, 4 Vermont R. 
 316; Richardson v. Dorr, 5 Ibid. 9; Bellows v. Elliott, 12 Ibid. 569; Brown y. 
 Wright, 17 Ibid. 97 ; Frost v. Ross, 1 Watts & Serg. R. 501 ; Dikeman v. Par- 
 ris/i, 6 Barr R. 210 ; Morris v. Crocker, 4 Lou. R. 147 ; Reeves v. Towles, 10 
 Ibid. 276 ; Baier v. Tbtofes, 11 Ibid. 432 ; Emery v. Harrison, 13 Pa. State K. 
 317; Ahord v. Collins, 20 Pick. R. 418; Howe \. Russell, 36 Maine R. 115; 
 Stevens v. McNamara, 36 Maine R. 176 ; Stead's Executors v. Course, 4 Cranch 
 R. 403 ; S. C, 2 Pet. Cond. R. 151 ; Williams v. Peyton, 4 Whea. R. 77 ; Eon- 
 kendorf v. Taylor, 4 Pet. R. 349; Games v. ;S</fcs, 14 Pet. R. 322; Early v. 
 Doe, 16 Howard U. S. R. 610; Lyon t. Burt, 11 Ala. R. 295; Garrett v. Wig- 
 gins, I Scam. R. 335 ; Hill v. Leonard, 4 Ibid. 140; Fitch v. Pinckard, Ibid. 69 ; 
 Hinman v. Pope, 1 Gilman R. 131 ; Irving v. Browndl, 11 Illinois R. 402. 
 
OF THE ONUS PKOBANDI. 
 
 95 
 
 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, or a 
 mere trespasser who cuts timber, or does any other 
 injury to the inheritance.^ It has also been held 
 that where the purchaser seeks to rescind his con- 
 tract of purchase, and recover back the amount of 
 his bid from the tax collector, the burden of proof 
 is cast upon him to prove that the sale tvas void, and 
 he could acquire no title to the land under it.^ Where 
 a vendee files a bill to rescind a contract for the pur- 
 chase of land lying in another State, upon the allega- 
 tion 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 
 priuciple which casts the onus proiandi 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 incumbent on him to show a 
 judgment rendered by a court of competent jurisdic- 
 tion, and a valid execution issued thereon, as well as 
 to produce the sheriff's deed ; for it is only in satis- 
 faction 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 
 
 1 Bellows y. Elliot, 12 Vermont E. 569 ; Huston v. Fostei; 1 Watts R. 478 
 Foster t. McDivit, 9 Watts R. 341 ; Foust v. Ross, 1 Watts & Serg. R. 501 
 Dikeman v. Parrish, 6 Ban- E. 210; Dejarnett v. Haynes, 23 Miss. R. 600 
 Smith T. Bodfish, 27 Maine R. 289 ; Eobinett r. Preston, 4 Grattan E. 141. 
 
 2 Treat v. Orono, 26 Maine R. 217. 
 ' Watson V. Stucker, 5 DanaR. 581. 
 » Hinman v. Pope, 1 Gilman E. 131 ; Dranguet v. Prudhomme, 3 Lou. R. 83 
 
 Costigaii v. Mohaiok Sf Hudson R. Co., 2 Denio R. 609. 
 
96 OP THE ONUS PBOBANDI. 
 
 judgment and execution, 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 justice never to be? lost sight of, that no per- 
 son should be deprived of his property or other 
 rights, without notice and an opportunity of defend- 
 ing them. Not to require the execution to be pro- 
 duced, 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 Avould be slight indeed, under the opera- 
 tion of such a principle. To afford this very pro- 
 tection 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 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 ple- 
 nary evidence to sustain his title, if he has one.-' So 
 a person claiming under a decree in chancery, must 
 
 1 Samilion v. Adams, 2 Murphy R. 162 ; JacJcson v. Roberts, 11 Wend. R. 
 425, 433, 440 ; Katclicz v. Urinoi; 4 S. & M. R. 602, 627, 631 ; S. C, 10 Ibid. 
 246 ; Smith v. Moreman, I Munroe R. 154 ; Dunn v. Merriioeatlier, 1 A. K. Mar. 
 R. 158; Terry v. Bleight, 3 Munroe R. 270; Stevens v. 2?oZ)crtson, Ibid. 97 ; 
 Weyand v. Tipton, 5 S. & R. R. 332 ; Bowen v. Bell, 20 John. R. 338 ; Hinman 
 V. Pope, 1 Gil. R. 131 ; Smith v. State, 13 S. & M. R. 140; Dafour v. Cam- 
 franc, 11 Martin Louis. R. 607; Wheaton v. Sexton, 4 Whea. R. 503; Warer. 
 Bradford, 2 Ak; R. 676 ; McEntyre v. Durham, 7 Iredell R. 151. 
 
OF THE ONUS PBOBANDI. 
 
 97 
 
 produce the decree, in order to establish his title.^ 
 Where an heir claims title in ejectment, he must 
 prove his pedigree, as well as the seizin of his ances- 
 tors, 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 un- 
 der 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 conveyance executed by an 
 attorney under a power, by an executor under a will, 
 by a sheriff under an execution, by a guardian or 
 administrator under an order of court, by a master 
 or commissioner under a decree of a court of chan- 
 cery, the power of attorney, the will, the judgment 
 and execution, the order or decree must be produced.^ 
 Indeed, all essential Units in every chain of title, tvhether 
 tlieij arc evidenced hy records or deeds, or rest merely in 
 parol, must he affirmatively proved hy the jjarty tvho sets up 
 the title. The rule imposed upon the tax purchaser is, 
 therefore, no departure from the general principles of 
 jurisprudence. It matters 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 prerequisites of the law are comphed with ad 
 unguem (to a nicety). They often buy large and val- 
 uable tracts of land for a mere trifle, and they ought 
 
 1 Bledsoe v. Doe, 4 Howard Miss. R. 13 ; Lt/erhj v. Wheeler, 11 Iredell R. 288 ; 
 Williamson v. Bradford, 10 Ibid. 198. 
 - Tillinghast's Adams on Eject., 281-2, fourth edition, 1854. 
 > Jackson v. Roberts, 11 Wend. R. 425 ; Tolman v. Emerson, 4 Pick. R. 160. 
 
98 OP THE ONUS PEOBANDI. 
 
 always to expect that the owner will attempt to re- 
 cover them. This is notice, intrinsic in the trans- 
 action, that they must be ready for defense, and 
 they ought, at once, to collect the proper evidences 
 of compliance with the law ; these documents, being 
 Avritten or printed, can be just as easily preserved as 
 their deed." No purchaser is hlameJess, 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 ofl&cers have neglected to insert in 
 their records or returns, and the purchaser appre- 
 hends the death of his witnesses, the law has pro- 
 vided 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, fail to return or 
 record the proceedings, if the records and files be- 
 come 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 estab- 
 lish it. Suppose the burden of proof reversed, and 
 the owner of the land recj[uired to prove the negative, 
 in the case put of a neglect of the officers to return 
 or record their proceedings, or of the loss or destruc- 
 tion of the records and files, he would occupy the 
 same hard position in which the law now places the 
 purchaser. 
 
 Titles acquired under tax sales, depend upon dif- 
 
 1 AlUn V. Smith, 1 Leigh R. 231 ; Williams v. Peyton's Lessee, 4 Whca. R. 77 ; 
 Varich V. Tallman, 2 Barbour S. C. E. 114-15. 
 
 2 Reeds v. Morton, 6 Missouri E. 77-8. 
 
OP THE ONUS PKOBANDI. 
 
 99 
 
 ferent principles from those which are derived under 
 government grants. The laws for the sale of the 
 public lands provide many guards to secure the regu- 
 larity of grants, to protect the incipient rights of indi- 
 viduals, 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 exis- 
 tence of the grant itself It would, therefore, be 
 extremely unreasonable to avoid a grant, in any 
 court, for irregularities in the conduct of those who 
 are ajjpointed by the government to supervise the 
 progressive course of a title from its commencement 
 to its consummation in a patent. Besides, the gov- 
 ernment 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 pre- 
 requisite. However, 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 an elder equity to the land in himself-' The 
 
 1 9 Cranch E. 87 ; 5 Whea. E. 293 ; 7 Whea. E. 122 ; 3 Pet. E. 320 and 
 340; n Whea. E. 380; 2 Pet. E. 227; 7 Pet. E. 222; 10 Pet. E. 662; 4 
 Cranch E. 421 ; 5 Cranch R. 191 ; 6 Cranch E. 148 ; 9 Ibid. 164 ; 7 Whea. E. 
 248; 6 Pet. E. 328; 13 Ibid. 436; 14 Ibid. 448; 15 Ibid. 93; 2 Howard U. 
 S. E. 284. 
 
100 OF THE ONUS PKOBANBI. 
 
 case is different with tax titles. The title is a deriva- 
 tive one. The government 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, but 
 depends upon a variety of acts in pais, the perform- 
 ance 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 
 execution, 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 essen- 
 tials, the of&cers have performed the duty enjoined 
 upon them by the law under which the proceeding 
 took place. It is now proposed to show liow far this 
 rule has been changed by legislative enactment in 
 the several States. That the legislature possesses 
 competent power to change the common law rules of 
 evidence, and declare that the tax deed itself shall 
 be received in all courts as prima facie evidence that 
 all of the prerequisites of the law have been complied 
 with, and thus shift the onus prohandi from the shoul- 
 ders of the purchaser to those of the owner, is 
 conceded.^ But that the legislature have the further 
 power to declare the deed conclusive evidence of title, 
 is denied. A. is the owner, and in possession of a 
 
 1 Boardman v. Lessee of Ford et. at, 6 Pet. B. 342; Varick v. Tollman, 2 Bar- 
 bour S. C. R. 115-16; HiiKch v. Scovil, 4 Gilm.R. 173-5. The Supreme Court 
 of Illinois had previously held that the registiy law did not apply to a tax deed, 
 because it was a patent. Graves v. Bnten, 1 Gilm. E. 172. 
 
 2 Pillmov. Roberts, 13 Howard XJ. S. E. 472; Garrett t. Wiggins, 1 Scam. 
 E. 335 ; Steadman v. Planters' Bank, 2 Eng. Ark. E. 424-8 ; Reed v. Morton, 6 
 Miss. R. 74 ; Dejarnett v. JSaynes, 23 Miss. E. 600 — in this case tlie right is 
 doubted ; Busseij v. Leavitt, 3 Fairfield E. 378. ' 
 
OF THE ONUS PBOBANDI. 101 
 
 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 defenses, which ordinarily are conceded 
 to be valid: 1. That the land was not subject to tax- 
 ation ; or, 2. That it was never listed, valued and 
 assessed; or, 3. That the defendant paid the taxes 
 before the sale. Here the legislature step in and 
 deprive him of his defense, by declaring that the tax 
 deed shall conclude him upon all of these points. Is 
 such a law valid? Is it true that the legislature 
 possesses such an arbitrary authority? Is it true 
 that the law-making power, under the pretense of 
 regulating remedies, can violate the obligation of 
 contracts, and divest the estate of the citizen ? May 
 the legislature do that indirectly, which they are for- 
 bidden to do by direct means ? Can it, under the 
 guise of taxation, or the appropriation of private 
 property to pubhc 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 collec- 
 tion 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 willfully or negligently omit 
 the payment of taxes to which they might be subject, 
 and which should be legally assessed upon their es- 
 
W2 OF THE ON0S PROBANDI. 
 
 tates, and not upon those Avho should promptly per- 
 form all of their constitutional obligations. The 
 obligation is reciprocal; if the citizen performs his 
 duties to the government, that government should 
 perform its duties to the citizen. Among the first of 
 these, is protection in his property — not only from 
 private force, cupidity and fraud, but from govern- 
 mental 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 tax- 
 ation 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 "monstrotis doc- 
 trine''^ Judge Caton, in Currt/ v. Hinmcm^ in con- 
 struing 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 defense to a void title, with- 
 out any fault or negligence on the part of the owner. 
 If he pays his taxes within the time prescribed by 
 law, he is as blameless 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 
 
 1 Rowlands. Doty et. al, 1 Harrington Ch. E. 3-11; Jackson v. Morse, 18 
 John. R. 441. 2 jj jn, jj 423.9, 
 
OS THE ONUS PROBANDI. 
 
 103 
 
 create a permanent disability, which the party, by no 
 possibility, could remove. That would be doing in- 
 directly, 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 equivalent 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 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 le(jislatu7'e cannot constitutionally do." 
 This is not the lex terrce meant by the Constitution.-^ 
 
 Whatever may be the decision upon the question 
 of power when it properly arises, the moral injus- 
 tice and impolicy of 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 zuords of the 
 statute? By the Act of February 19, 1827, the Illi- 
 nois 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 
 
 1 9 Geo. R. 354; 16 Mass. R. 330; 5 Paige R. 146-160; 2 Kent's Commen. 
 340 ; 2 Pet. R. 653 ; 3 Yerger R. 41 ; 11 Wend. R. 149-151 ; 19 Wend. R. 659 ; 
 5 Bavbour S. C. R. 483 ; 18 Wend. R. 56-57 ; 4 Hill R. 140 ; 1 Bay R. 252 ; 
 4 Barbour S. C. R. 71-75 ; 2 C. Greene, Iowa, R. 26-7 ; 2 Yerger R. 606. 
 
 2 Moulton V. Blakdell, 24 Maine R. 283. 
 
104 OF THE ONUS PROBANDI. 
 
 actually paid according to law, or that the land was 
 not legally subject to taxation." In Garrett v. Wig- 
 gins} the Supreme Court of that State, in giving a 
 construction to this statute, state the rule of the com- 
 mon law as to the burden of proof, and the strictness 
 required in this class of cases, concede the pow- 
 er of the legislature 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 fan: con- 
 struction, warrant the opinion that the auditor, seU- 
 ing land vjithoiit authority, could, by his conveyance, 
 transfer the title of the rightful owner." They say 
 that to consummate his authority, the law impera- 
 tively requires him to publish notice of the time and 
 place of sale, that the publication 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 purchaser. The Michigan Statute of 
 April 13, 1827, declares that the tax deed shall vest 
 in the purchaser " an ahsohte estate in fee simple," &c., 
 and be "conclusive evidence that the sale was regular 
 according to the provisions of this act" On the con- 
 struction of this statute the Supreme Court of that 
 State have twice held that the tax deed was only 
 conclusive evidence that the sale itself was made, at the 
 time and place, and was conducted by the person 
 and in the manner prescribed by law ; but that it 
 
 1 1 Scammon K. 335. 
 
OF THE ONUS PROBANDI. 
 
 105 
 
 was still inadmissible in evidence, unless accompanied 
 by proof that the taxes had been legally assessed and 
 returned, and that all of the proceedings anterior to 
 the sale, had been in strict conformity with the re- 
 quirements of the statute.-' One of the New York 
 statutes declares that the comptroller's deed shall be 
 " conclusive evidence of the regularity of the sale ;" but 
 the courts of that State hold this relates solely to the 
 atietion and notice of sale, and does not dispense with 
 proof 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? Another 
 statute of that State declared 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 authority of the officer to sell 
 has been established by proof, that all the require- 
 ments of that statute had been fully complied with.^ 
 The Tennessee statute of 1844, declared a deed made 
 in pursuance of a "public sale for taxes," prima 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 
 
 1 Scott V. Detroit Young Men's Society, 1 Doug. Mich. E. 121 ; Latimer v. 
 Lovett, 2 Ibid. 204 ; Rowland v. Doty, 1 Harrington C. E. 3. 
 
 - Doughty v. Hope, 3 Denio R. 595 ; Tollman v. White, 2 Comst. R. 69 ; 
 Striker v. Kelly, 2 Denio R. 329-331 ; Varick v. Tollman, 2 Barbour S. C. R. 
 117-U8; Bee/cman v. Brigham, 1 SeldenR. 366. 
 
 2 Jackson v. Morse, 18 John. R. 441 ; Tollman v. White, 2 Comst. E. 69 ; 
 Variek v. Tollman, 2 Barbour S. C. E. 118-119; Bowland v. Doty, 1 Harring- 
 ton C. E. 3. 
 
 14 
 
106 OS THE ONUS PKOBANDI. 
 
 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 purpose, subject to aU of 
 the rigid strictness of construction which existed in 
 the cases of sales for the collection of state and 
 county revenu.e, previous to its passage."^ The 
 Indiana statute of 1824, provides that the collector's 
 deed " shall be prima facie evidence of the regularittj of 
 the sale" and the Supreme Court of that State 
 decided, in construing this statute, that the deed 
 fiu-nished 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 was prima facie evidence of the regularity of 
 the proceedings, so far as the acts of the collector are 
 concerned, and not of the precedent acts necessary 
 to clothe him with authority to seU.^ 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 prima facie evi- 
 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 he 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 the grantee in 
 the deed was the purchaser; and 4. That the sale 
 was conducted m the manner required by law. The 
 same statute required the collector to demand the 
 
 1 Shoalwater v. Armstrong, 9 Humph. E. 217. 
 
 2 Parker v. Smith, 4 BlacK R. 70 ; Doe v. Eimelich, Ibid. 71, Note; S. C, 
 Ibid. 494. 
 
OF THE ONUS PEOBANDI. 107 
 
 tax of tlie 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 judg- 
 ment upon such appHcation, and the law then 
 required the clerk, within five days after the adjourn- 
 ment 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 here- 
 after 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 de- 
 cision will now be noticed in conflict with these 
 authorities, and unsupported by any fair rule of 
 construction. It is the case of Rhinehart v. Schuyler}" 
 which was an action of ejectment by the defendant 
 in error, claiming title under an auditor's deed, bear- 
 ing date November 8, 1833, and purporting to be 
 made in pursuance of a sale for taxes, under 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 oUain, 
 
 1 1 Gilm. R. 131. 2 2 Gilm. E. 473. 
 
108 OP THE ONUS PROBANDI. 
 
 keep, or produce any advertisemeni 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 priina facie evidence 
 that all of the prerequisites of the law had been 
 complied 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 Hinman v. Pope ; it is 
 repugnant to the principle fairly deducible from all 
 of the decisions herein-before referred to, inasmuch 
 as they all proceed upon the ground, that the com- 
 mon law rule must be adhered to, except so far as 
 the very ivords of the statute may have changed it ; 
 and this upon the principle that all statutes in derogar 
 tion of the common law, must be strictly construed. 
 The court, in that case, instead of adhering to this 
 maxim, extend, by implication, the words of the legis- 
 lature beyond the case actually provided for. The 
 provision is, that the deed shall be evidence of the 
 " regularity and legaHty 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 
 \fhat purpose? To establish the authority of the 
 
OF THE ONUS PROBANDI. 109 
 
 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 pro- 
 duce the advertisement of the sale, hut his deed 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 production 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 hy, whom it is made. The Ohio act of Maj-ch 2, 
 1846, Section 4, provides that where any lands have 
 been, or shall thereafter be sold for taxes, the pur- 
 chaser may recover possession by action oi forcihle 
 entry and detainer, and that the evidence of the title 
 of the purchaser, &c., shall not be set aside, or im- 
 peached by evidence of any irregularity or inform- 
 ality 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 stat- 
 ute has reference to proceedings in forcible entry arid 
 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 
 auditor's deed, and declared that such deeds should be 
 
 1 Bannel v. Smith, 15 Ohio E. 134. 
 
110 , OS THE ONUS PKOBANDI. 
 
 received in all courts as 23rima facie evidence of a 
 good and valid title to the purchaser. In Carlisle v. 
 LomjwortJh^ the form prescribed 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 legislative 
 immunity from the rigor of the common law. In the 
 case of The People v. The Mayor, &c.f 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 declared that the lease "should be conclusive 
 evidence of the regularity of all the proceedings, &c." 
 The relator had purchased at one of these sales, and 
 the time of redemption had expired. He apphed for 
 his lease, which was refused, the law not having been 
 compHed with. He thereupon moved the court for 
 a mandamus against the ofl&cer, 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 loe are not inclined to ex&'t this high poiver 
 of the court to give strength and validity to a title which 
 appears clearly defective on the merits, and which tvith- 
 oiit this statidory support, cannot he sustained." Thus the 
 current of authorities runs strongly in favor of the 
 reasonable principles of the common law, and where- 
 ever an innovation has been made by statute upon 
 those principles, the courts have discoimtenanced 
 them, 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 legis- 
 lature, as manifested by the language used, disre- 
 
 1 5 Ohio n. 229. 2 jo Wend. E. 398. 
 
OF THE ONUS PEOBANDI. HI 
 
 garding the spirit of the rule prescribed, by refusing, 
 in every instance, to give an equitable construction 
 to the statute. This strictness is commendable, and 
 sustained by reason and authority 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 pur- 
 chaser, &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 Supreme Court of that State, that under this 
 statute the deed raised a conclusive presumption that 
 all of the proceedings a'i%terior to its execution and 
 delivery, were in strict conformity with the require- 
 ments of the statute. The Arkansas statute of 1838, 
 provides that the "auditor's deed shall vest in the 
 purchaser all the right, title, interest and estate of the 
 former otvner 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 hy latv to malte a good 
 and valid sale, were done both by the collector and 
 auditor." In the case of Bteadman v. Planters^ Bank^ 
 which was an ejectment to recover land sold under 
 this statute for the non-payment of taxes, the plain- 
 tiff offered his tax deed in evidence. 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 
 
 1 1 8 Ohio K. 400. 2 2 EngUsh E. 424-8. 
 
112 OF TIIE ONUS PEOBANDI. 
 
 Circuit Court, holding that the statute under which 
 the deed was executed, changed the common law, 
 and made the deed conclusive evidence of the regu- 
 larity of all the proceedings of the collector and 
 auditor. The New York statute of April 10, 1850, 
 declares that the tax deed " shall be presumptive evi- 
 dence that the sale, and all proceedings prior thereto, 
 from and including the assessment of the land, and 
 all notices required by law to be given previous to 
 the expiration of the two years allowed to redeem, 
 ivere regular according to the provisions of this act, 
 and all laws directing or requiring the same, or in 
 any manner relating thereto." 
 
ELECTION AND QTJALIEIOATION OF OPMCERS, ETC. 
 
 113 
 
 CHAPTER IV. 
 
 OP THE ELECTION AND QUALIFICATION OP THE SEVERAL 
 OPPICERS WHO HAVE ANYTHING TO DO WITH THE EXE- 
 CUTION OP 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 pubhc 
 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 responsibility of the officer to the 
 government, the sanctity of his oath of office, and 
 his liability to those whose rights are violated by his 
 15 
 
114 OF THE ELECTION AND QUALIFICATION 
 
 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 hy the officers of 
 tlie Imv, and not simply by persons who assumed to act 
 in an official capacity. The citizen is entitled to all 
 of the protection against fraud, rapacity and abuse 
 of authority in the sale of his property, which 
 official responsibihty can secure.^ It, therefore, be- 
 comes an important question to ascertain who is an 
 officer, within the meaning of this rule. A resort to 
 general principles is necessary in order to determine 
 the question, especially as the authorities are con- 
 flicting. 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 f 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 frequently happens that one has 
 the title, while another is in possession of the office 
 under a claim of right. The distinction 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 dis- 
 tinctions, 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 
 
 1 Birch V. Fisher, 13 S. & E. 208 ; Payson v. Hall, 30 Maine E. 319. 
 
 2 United States v. Maurice, 2 Brock. E. 102 ; S. C, Marshall Dec. 470. 
 " Hildreth r. M'Intire, 1. J. J. Mar. E. 206. 
 
 ■• Boardman v. Holliday, 10 Paige E. 223. 
 
or THE SEVERAL OFl'ICEBS, ETC. 115 
 
 office, and receive the fees and emoluments apper- 
 taining 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 department of the govern- 
 ment.-' An officer de facto is one, who comes in by 
 the forms of an election or appointment, but in con- 
 sequence of some informality, omission, or want of 
 quaHfication, 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, 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. The mere claim to be a pubhc 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, imder an 
 election or appointment, or an exercise of official 
 functions, and an acquiescence on the part of the 
 public for a length of time, which would afford a 
 strong presumption of a colorable right.^ The defini- 
 tion of Lord BUenborough is probably more accurate 
 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 
 
 1 McGregor v. Balch, et al. 14 Vermont R. 29. 
 
 '^ McGregor v. Balch, et al. 14 Vermont K. 29; Aulanier v. The Governor, \ 
 Texas R. 653 ; Plymouth v. Painter, 17 Conn. R. 585 ; Tuchr v. Aikm, 7 N. 
 H. R. 131 ; Margate Pier v. Eannan, 3 B. & Aid. R. 266 ; S. C, 5 Eng. C. L. 
 R. 278 ; Wilcox v. Smith, 5 Wend. R. 234. 
 
 ^ The King v. The Corporation of Bedford Levd, 6 East. R. 368. 
 
116 or THE ELECTION AND QUALIFICATION 
 
 which is vacant, or ousts the incumbent, without 
 any color of title whatever, and assumes 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 dis- 
 tinction 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 awy where; wliile 
 the acts of an officer de facto are valid so far only 
 as the rights of the public or third persons, having 
 an interest in such acts, are concerned. Neither the 
 title of such an officer, nor the validity of his acts as 
 such, can be indirectly called in question in a pro- 
 ceeding 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 
 dejure. The interests of the community imperative- 
 ly 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 of 
 such officers, would lead to confusion and insecurity 
 in public as well as private affairs, and thus oppose 
 the true policy of every well-regulated State. 
 Besides, it would be unreasonable and oppressive to 
 compel those transacting business with a pubhc 
 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 compHed 
 with all the necessary forms of law. It would 
 constitute every citizen a judge of official titles. 
 
 1 Tucker v. AiUn, 7 N. H. E. 131. 
 
OF THE SETEEAL OPFICEES, ETC. 117 
 
 He must look to the constitution to see that the 
 officer was eUgible 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 discussion of the issue, 
 although the decision would as effectually decide 
 his title to the office, as if he were a party. This 
 would be judging a man unheard, contrary to the 
 principles 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, he will be ousted from the office, if it turn 
 out that he has been exercising official functions 
 without the warrant of law. Until then, he holds 
 the office by the sufferance of the State, and the 
 silence of the government is construed by the coiirts 
 as a ratification of his acts, which is equivalent to 
 a precedent authority. When the government ac- 
 quiesce 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 fado and de jure. 
 It is therefore an estabhshed principle in our system 
 of jurisprudence, that the acts of an officer thus 
 having color of title, in the exercise of the ordinary 
 and accustomed functions of his office, are valid in 
 
118 OF TUB ELECTION AND atlALIMCATION 
 
 respect to those persons who may be interested in 
 
 his acts; while as respects himself, those acts are 
 
 invalid.^ It will be observed that the authorities 
 
 do not proceed upon the ground that the claim of 
 
 an individual to be a pubHc of&cer, and his acting as 
 
 such, is merely prima facie evidence that he is an 
 
 of&cer de jure; but the principle they establish is 
 
 this ; that an individual coming into of&de by color 
 
 of an election or appointment, is an ofiicer 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 ofldcer de facto no immunities whatever, 
 
 confers upon him no rights, and shields him from no 
 
 responsibility. When sued for moneys received by 
 
 him colore officii, he cannot avoid liability by showing 
 
 that he was only an of&cer de facto? The same rule 
 
 applies where an action is brought against him for 
 
 malfeasance, misfeasance or non-feasance in of&ce.^ 
 
 On the other hand, when he attempts to enforce a 
 
 1 Phjrmuih v. Painter, 17 Conn. R. 585 ; Wilcox v. Smith, 5 Wond. E. 234 ; 
 McGregor v. Bakh, 14 Vermont E. 428 ; Schdencher v. Rislm/, 3 Scam. E. 483; 
 Parker v. Baker, 8 Paige C. E. 429 ; The People v. Collins, 7 John. E. 561 ; 
 M'lnstnj V. Tanner, 9 John. E. 135 ; Burke v. Elliot, 4 Iredell E. 355 ; Gilliam 
 V. Eeddick, 4 Iredell E. 368 ; Brush v. Cook, Brayt. E. 89 ; Gilmore v. Solt, 4 
 Pick. E. 257 ; M'Kim v. Somers, 1 Pennsyl. E. 297 ; Adams v. Jackson, 2 Aik. B. 
 145 ; Hoagland v. Culvert, 1 Spencer E. 387 ; Farmers' and Merchants' Bank v. 
 Chester, 6 Humph. E. 458 ; Foivler v. Behee, 9 Mass. E. 231 ; Douglass v. Wich- 
 wire, 19 Conn. R. 489; Prickett v. The People, 1 Gilm. E. 529. 
 
 •^ Wilcox V. Smith, 5 Wend. E. 234. 
 
 8 United States t. Maurice, 2 Brock. E. 96. 
 
 ' Fetterman v. Hopkins, 5 Watts E. 539. 
 
OF THE SEVERAL OFPICBKS, ETC. 119 
 
 legal right which appertains solely to official charac- 
 acter, for instance, the fees of office conferred by law, 
 his right as an officer de jure is put in issue, and he 
 cannot recover without proving a legal title to the 
 functions and emoluments of the office.^ And when 
 he justifies an act complained of, purporting to be 
 done in his official capacity, it is necessary for him to 
 aver and prove in his defense, not only that he was 
 an acting officer, but that he was an of&cer 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 ofl&cer, 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.^ Such then is the rule, the 
 exceptions, and the reasons upon which they are 
 founded. Is there anything 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 
 confided, 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 coroner sell- 
 ing land under execution. They act under a spe- 
 cial authority. Their right to sell depends upon the 
 existence of a judgment rendered by a court having 
 competent jurisdiction, the issuing of a valid execu- 
 
 1 Fetterman t. Hopkins, 5 Watts E. 539. 
 
 2 Schelencker v. Risla;, 3 Scam. K. 483 ; Blake v. Sturtevant, 12 N. H. E. 567 ; 
 Cummings v. Clark, 15 Vermont E. 653 ; Colburn v. Ellis, 5 Mass. E. 427. 
 
 * Commonwealth v. Fowler, 10 Mass. E. 301 ; People v. Collins, 7 John, E. 554. 
 
X20 OF THE ELECTION AND QUALiriOATION 
 
 tion thereon, and its direction to the proper official 
 personage to whom the law has entrusted the power 
 of sale. Yet, in this class of cases it has been repeat- 
 edly held that if the sale is made by an officer de 
 facto, it is vahd and effectual to divest the title of the 
 judgment debtor. Are not all 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 is nothing, then, in the 
 nature of the power, or in the legal 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 Buchiam v. Riiggles^ 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, limiting the rule to 
 the acts of such officers as might be styled pohtical, 
 and who exercised 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 public 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 per- 
 sons are interested in the act, yet many of the 
 authorities affirm that the great strictness uniformly 
 exacted in the divestiture of estates, under the tax- 
 ing power of the government, demands an exception 
 
 115 Mass. E. 180. 
 
OE THE SEVERAL OPUICERS, ETC. 
 
 121 
 
 to the rule, and reqiiires proof that those who pur- 
 port to act in an official capacity in the conduct of 
 these sales, were officers de jure ; in other words, that 
 a regular election or appointment, and a compliance 
 with all the conditions precedent, which must be 
 shown by the officer himself when his title is ques- 
 tioned in a quo warranto — such as the taking of the 
 oath of office, the execution of an official bond, etc., 
 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.^ 
 
 On the other hand the Supreme Court of New 
 Hampshire in Tucker v. Aihenf remark that "the gener- 
 al principle undoubtedly is, that the acts of an officer 
 de facto are valid, so far as the pubUc or the rights of 
 third persons are concerned; and that the title of 
 such an officer cannot be enquired into in any pro- 
 ceeding 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 ex- 
 pressly laid down, that in order to maintain a title to 
 land sold for taxes, or to justify a distress, every sub- 
 stantial 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 
 
 '^Birch V. Fisher, 13 S. & E. 208 ; Pike v. Hanson, 9 N. H. E. 491 ; Ainswmih 
 V. Dean, 1 Foster K. 400; Proprietors of Cardigan v. Page, 6 N. H. R. 182; 
 Payson v. Sail, 30 Maine R. 319; Coit v. Wdk, 2 Vermont R. 318; Isaacs v. 
 WUeij, 12 Ibid. 674 ; Akord v. Cdlin, 20 Pick. R. 418. 
 
 2 7N. H. E. 131. 
 
 16 
 
122 OP THE ELECTION AND QUALIMCATION 
 
 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 principle which -controls in all other 
 cases ; and the better opinion is, that where a tax is 
 assessed, and the proceedings are conducted by offi- 
 cers de facto, the sale wUl be maintained. But where 
 a mere usurper or intruder into an office, connected 
 with such proceedings, executes any part of the au- 
 thority given by laAV to officers de jure and de facto, 
 his acts are nullities, and no title can be acquired 
 under the sale. A minute examination of the ad- 
 judged cases will, doubtless, be more acceptable to 
 the profession than any general statements of reasons 
 and conclusions which may be deduced from them. 
 
 In Ronhendorff v. Taylor f where the sale was under 
 the charter and ordinances of a municipal corpora- 
 tion, 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. 
 
 ^SMdon V. Coates, 10 Ohio E. 278; Downer v. Wbodburi/, 19 Vermont E. 
 329; Hale v. Gushing, 2 Groenleaf E. 218; Spear v. Ditty, 8 Vei-mont E. 419 ; 
 Adams v. Jackson, 2 Aiken E. 145 ; Ronhendorff \ . Taylor, 4 Peter's E. 349. 
 
 - 4 Peter's E. 349. 
 
OP THE SEVERAL OFFICERS, ETC. 123 
 
 In Hale v. Gushing^ the validity of a tax sale under 
 the act of Congress was questioned. The act re- 
 quired the assistant assessor to be sworn, and a certifi- 
 cate of the fact returned and filed in the collector's 
 ofi&ce. 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 com- 
 petent 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 appeared 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 protection 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 possible against all abuse 
 of this discretion, and we cannot dispense with so 
 important a requisition." This doctrine was reaffirmed 
 in Aimworth v. Dean,^ and a sale of land for taxes held 
 void because there was no evidence that the assess- 
 ment was made under the sanction of an oath. And 
 in Btreh v. Fisher,^ the evidence showed only that the 
 persons who made the assessment were recognized 
 
 i2GreenleafR. 218. °9N. H. R. 491. « 1 Foster R. 400. *13S.&R. 208 
 
124 OF THE ELECTION AND QUALIFICATION 
 
 as oflficers by the county commissioners, and that they 
 acted as such. The sale was held void. By the 
 court: "Will it be pretended that such an assess- 
 ment would be valid, or that a sale under it would 
 confer any right ? An assessment by persons neither 
 elected, nor sworn, would be an assessment, not 
 by officers de facto, but by intruders, who came in 
 without eohr of autlwriti/. 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 ofl&cial 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 requirement 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 meeting 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 
 freeholders, was this certificate : " March 12, 1822, 
 kmfuUij posted a true copy of the within articles. 
 
 „ " ^ ' ^ Selectmen^ 
 
 S. Cole, j 
 
 The sale was held void. The court say that " when 
 
 meetings are warned by selectmen, they must make 
 
 a proper return of then doings. They stand in that 
 
 business in place of constables, and their return must 
 
 show, not simply that notice has been given, but that 
 
 1 Mnsioortli V. Dean, 1 Foster E. 400. 
 
Of THE SBVBEAL OPflCERS, ETC. 125 
 
 such notice as the statute directs, has been given. 
 They are pubhc 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 imper- 
 fect 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 de- 
 pend, in any case, upon the uncertain and fading 
 memory of mortal man. It is not the pohcy of this 
 State to do so. All conveyances, by one man to 
 another, must be in writings when an execution is 
 extended upon land, there must be a return in writ- 
 ing, otherwise it is without efiect; 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 law suit 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. Hallf that in order to 
 maintain title under a tax sale, it is not sufficient 
 to show that the person making the sale, had been 
 chosen collector, and acted in that capacity, but to 
 
 1 Proprietors of Cardigan v. Page, 6 N. H. R. 182. 
 
 2 30 Maine R. 319. 
 
126 OP THE ELECTION AND QUALIFICATION 
 
 render the sale valid, it is indispensable that he take 
 the oath of office prescribed by law. The reasoning 
 of the court was, that " One injured by the miscon- 
 duct of a collector of taxes, cannot be protected by 
 a resort to his official bond for redress, that being 
 given for the security of the town alone. He must 
 be permitted to avoid the acts of one, assuming 
 without lawful authority to be a collector, or be in 
 many cases without a remedy : if a person without 
 election or legal quahfication 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 ca- 
 pacity were to be considered as effectual 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 legis- 
 lature. The party is required to produce the colkct- 
 or'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, wherein the plantiff 
 claimed title under a tax deed made by a constable, 
 the appointment of the constable was shown, but 
 the proof was defective as to whether he took the 
 oath of office. The inferior court held the sale 
 invalid, but the judgment was reversed. In Coit v. 
 Wells^ which was an action of ejectment, the defend- 
 
 1 Proprietors of Cardigan v. Page, 6 N. H. R. 182. 
 
 '^ Tucker v. Aiken, 7 N. H. R. 131. 
 
 " 2 Aiken's E. 145. « 2 Vermont K. 318. 
 
OS THE SETEBAL OEFIOBES, ETC. 127 
 
 ant claiming under a collector's sale, for a special 
 road tax, levied by the commissioners of highways, 
 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, acknowledging that they had re- 
 ceived " such a hond as the law requires." The statute 
 required, that the collector before entering upon the 
 duties of his office, should give bond Avith security 
 to the commissioners, in at least double the amount 
 of the tax, conditioned that he would faithfully dis- 
 charge the duties of his office. Sale held void. By 
 the court : " The bond is to be the security, that the 
 money received shall be paid to the commissioners, 
 and go to subserve the 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 advertise- 
 ment 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 
 sajdng : " The argument 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, 
 
 1 12 Vermont E. 674. 
 
128 OF THE ELECTION AND QUALIFICATION 
 
 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 land holders, have 
 any indirect interest even in the security which it 
 affords, but because a strict compliance with all the 
 prerequisites of the statute is considered necessary, 
 in this class of cases, in order to pass the title." On 
 the other hand, it was objected in Spear v. Ditty} that 
 the collector's bond was insufficient, because the pen- 
 alty was not equal to double the amount of the tax 
 originally laid. By the coiirt: "It is difficult to 
 perceive how this irregularity, if it be such, can have 
 any reasonable bearing upon the right of the plaiat- 
 iff! 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 accountabUity for the 
 tax after it is collected. It is not one of those safe- 
 guards, interposed between the tax gatherer and the 
 tax payer, but has reference to the public interest, in 
 due accountability 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. Woodhurf 
 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. dishing^ which 
 
 1 8 Vermont R. 419. 2 19 Vermont E. 329. a 2 Grccnif. E. 218. 
 
OF THE SEVEKAL OITICERS, ETC. 129 
 
 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 
 appointment had been made of a collector, by the 
 county commissioners, although not within the time 
 prescribed, 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." 
 
 1 10 Ohio K. 278. 2 5 Qhio E. 136 ; 10 Ibid. 51. 
 
 17 
 
130 OP THE LISTING AND VALUATION OF THE LAND. 
 
 CHAPTEE V. 
 
 or THE LISTING AND VALUATION OF 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. This is a 
 prerequisite which cannot, 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 pro- 
 ceedings 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 estate. A 
 periodical listing and valuation of all the property 
 within the jurisdiction of the taxing power, is there- 
 fore absolutely necessary, in order to carry into prac- 
 tical 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 coun- 
 
OS THE LISTING AND VALUATION OP THE LAND. 131 
 
 ty, 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 jurisdictions are limited in 
 their power of taxation. The purpose for which the 
 tax is raised is specified in the law, and the maxi- 
 mum 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 valua- 
 tion may be 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 charg- 
 ing the tax thus 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 author- 
 ized to levy 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 valuation of 
 one million of dollars. The produce of such tax, 
 taking the maximum rate, would be five thousand 
 dollars. In each case the citizen is bound to contrib- 
 ute according to the valuation 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 
 
132 OF THE LISTING AND VALUATION OF THE LAND. 
 
 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 secvirity against an unequal tax. 
 Again, in most of the States, a duplicate of this list 
 is delivered to the collector, and this constitutes his 
 authority to demand the tax, distrain the goods and 
 sell the land of the delinquent. Besides, the collect- 
 or is charged with the tax according to the list, and 
 the list is the basis of his settlement with the State 
 and county. Thus the listing and valuation consti- 
 tute the security of the citizen, the foundation of the 
 assessment and all the subsequent proceedings, the 
 authority of the of&cer to collect the tax, and the 
 basis upon which the settlements of the collecting 
 officers are made.-' 
 
 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 uniformity in the levy of 
 taxes. It is variously called tax list, rate hill, assess- 
 ment roll, according to the laws and usages of the 
 respective States. In Homer v. Cilleyf a novel state 
 of facts existed, to which this definition was applied. 
 The New Hampshire statute required the collector, 
 on or before a particular day, to make out and deliv- 
 
 ^ Graves y. Brum, 11 Illinois E. 431 ; Tibbetts v. Job, Ibid. 453; Schuyler v. 
 Hull, Ibid. 462 ; Job v. Tibbetts, 5 Gilm. E. 376 ; Nolle v. Femmck, 4 Eandolph 
 E. 591 ; Kinney v. Beverly, 2 Hen. & Munf. E. 318 ; Lessee of Holt's heirs v. 
 Hemphill's heirs, 3 Hammond E. 232; S. C, 1-4 Ohio Cond. E. 551 ; Lessee of 
 DresbacJc T. McArthur, 6 & 7 Ohio E. 307 ; Thurston v. Little, 3 Mass. E. 429 ; 
 Games v. Stiles, 14 Peter E. 322 ; Adam v. Litchfield, 10 Conn. E. 127 ; Whit- 
 tlesey V. Clinton, 14 Ibid. 72. 
 
 ==14 1^. H. E.271. 
 
OF THE LISTING AND VALUATION OB TUB LAND. 133 
 
 er to the deputy secretary of State, a copy of his tax 
 list ; the deputy was required to retain the list and 
 receive taxes for a limited 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 par- 
 cel of land, in an unincorporated place, called "Dame's 
 Gore," the owner of which, was a non-resident of the 
 State, the only character of delinquents to whom the 
 above recited statute applied. It was insisted that 
 the list ought to be produced to show the authority 
 of the collector to sell the land ; but it was contend- 
 ed by the counsel who maintained the validity of 
 the sale, that inasmuch as the tax was against a sin- 
 gle parcel of land, and not against divers persons and 
 tracts, the collector had no list, 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 ordinarily 
 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 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 p'o- 
 handi has been changed by law, to produce the orig- 
 inal, or in case of its loss or destruction, a duplicate 
 or counterpart ; if there should be no duplicate, then 
 
134 OP THE LISTING AND VALUATION OP THE LAND. 
 
 an examined or sworn copy ; and if there is no du- 
 plicate or examined copy, then parol evidence may 
 be given of its contents.^ 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 record of the proceedings to be made and 
 preserved, for the protection 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 improbability 
 of any one connected with, or cognizant of the pro- 
 ceedings, being able to recollect the distinct facts con- 
 nected 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 most every State, duplicates of the list are 
 required to be filed, or the original recorded in some 
 public office ; the original or a copy is usually retained 
 by the assessors, and another duplicate is invariably 
 placed in the hands of the collector for the time 
 being ; and it would therefore seem impossible, unless 
 in 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 list, that a necessity should ever arise for the 
 introduction of such evidence. However, in support 
 of a long possession, such evidence might very prop- 
 erly be submitted to a jury. 
 
 '^ Nolle V. FenimcJc, 4 Band. R. 591 ; Doe ex. dem. Kelletj v. Craig, 5 Iredell 
 E. 129 ; McCall v. Lorimer, 4 Watts R. 351. 
 
OF THE LISTING AND VALUATION 01" THE LAND. 135 
 
 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, Avhether 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 dis- 
 trict 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 gain- 
 sayed. When made by an usurper, or intruder into 
 the office, it is equally certain that it is unofficial and 
 void to aU intents and purposes.^ But when made 
 by an officer de facto, especially one who is so re- 
 garded, 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 proceedings. It is 
 not only the substratum of the whole series of acts 
 to be performed — the incipient step in the divesti- 
 ture 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 conceded that the au- 
 thorities are in conflict upon this point, and the 
 subject may be dismissed by a reference to the pre- 
 ceding chapter, which relates exclusively to the 
 election and qualification 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 
 
 1 Birch v. Fisher, 13 S. & E. 208. 
 
136 01? THE LISTING AND VALUATION OF THE LAND. 
 
 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 ma- 
 jority will be binding. This is in accordance with 
 the general principles of law. Where a private au- 
 thority is delegated to several persons^ all must join 
 in its execution ; while in matters of public concern 
 the act of the majority is conclusive. In matters 
 purely ministerial, such as the listing of the land, 
 there is no difficulty in procuring the concurrence of 
 all, because there is nothing concerning which they 
 can differ ; but where the judgment is to be exer- 
 cised, as in the valuation of the lands upon the hst, 
 the inconvenience 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 list will be held invalid.^ In Middle- 
 town V. Berlin^ 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 
 
 1 Doughty v. Hope, 3 Denio R. 594 ; Ex parte Baltimore Turnpike Co., 5 Binney 
 E. 481 ; Kinney v . Doe ex. dem. Laman et al, 8 Blackf. E. 350 ; Middletown v. 
 Berlin, 18 Conn. E. 189 ; Powell v. Tttttle, 3 Comst. E. 396. 
 
 - 18 Conn. E. 189. 
 
OF THE LISTING AND VALUATION OS THE LAND. 137 
 
 evidence showing that the assessment had ever been 
 seen, heard of, or sanctioned by the board. It fur- 
 ther appeared that the town was divided into districts, 
 and that it was the usage of the town for each as- 
 sessor to act independently of the others. The 
 statute required the hoard of assessors to act in 
 making the assessment. This evidence was excluded 
 by the court below, and a verdict rendered accord- 
 ingly — 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 per- 
 sons, 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 be found, which will justify the performance of 
 a duty required of an aggregate body, by one only, 
 as has been attempted here. Assessors are the officers 
 of the laiv, and must ohey the law ; and no direction of the 
 toivn, or long continued usage, can justify a departure from 
 the law'.' In Kinney v. Doe ex. dem. Laman d al.} 
 which was an action of ejectment to recover a town 
 lot, the defendant relied upon a tax title acquired 
 under a sale for county taxes, due upon the lot in 
 question, for the year 1822 ; and in attempting to 
 
 1 8 Blackford R. 350. 
 18 
 
138 OP THE LISTING AND VALUATION OF THE LAND. 
 
 prove the regularity of the proceedings, offered in 
 evidence tlie assessment roll of county taxes for that 
 year, signed by the lister, miUiout proving tJiai tlic valua- 
 tion had heen made hj the lister and two householders, as 
 required by the act of 1820. This evidence was 
 rejected by the Circuit Court, and an exception taken 
 to the ruling. The judgment was affirmed. Black- 
 ford, 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 house- 
 holders appointed by him.-'- The assessment roU, 
 therefore, was inadmissible, &c., without proof that 
 the lots had been valued by the lister and two house- 
 holders." 
 
 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 identifica- 
 tion 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 the person making 
 it is established, and the document apjiears upon its 
 face to be an official act, attested by the signature of 
 the proper officer. The reasons and illustrations of 
 this rule will more fully appear hereafter.^ In Joliih 
 son V. Goodridcjcf wdiere the law directed the selection 
 of three assessors, and required them to '■'■mahe perfect 
 lists midcr their hands" the facts were, that a list of 
 lands belonging to resident and non-resident proprie- 
 tors, was made by two of the assessors. It contained 
 several pages, the first and second of which, em- 
 braced the lands of non-residents ; the residue of the 
 
 1 Acts 1820, p. 150, - Chapter 18. 3 15 Maine E. 29. 
 
OF THE LISTING AND VALUATION OF THE LAND. 139 
 
 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 highways, for 1832, assessed on the estates of 
 nnn-rcsidenis, by 
 
 Wentwokth Tuttle, 1 Assessors of 
 ISiVAC Holt, j Canaunr 
 
 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 assessors, evi- 
 denced 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 signatm^e 
 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 bear- 
 ing the assessments upon non-residents, are so authen- 
 ticated. 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 8ibley v. Smith} where the 
 statute required the 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, Avith a warrant under their hands and seals, 
 
 1 2 Mich. E. (Gibbs,) 498. 
 
140 or TUE LISTING AND VALUATION 01' THE LAND. 
 
 &c." In two cases the lists were not so signed, but 
 the warrants in the same paper boolc tvere ; and the 
 court held that a signing of the list was an essential 
 requisite, that it must bear upon its face evidence of 
 its of&cial sanction, and until thus signed was an 
 incomplete and void act — " an unfinished proceed- 
 ing."-^ In an action upon the collector's bond, where 
 the lists were in his possession, the court presumed 
 that they had been duly authenticated by the official 
 signatures of the assessors.^ And under an act of the 
 Pennsylvania 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 
 ivhere the assessor had neglected to sign the roll.^ 
 
 The power of the assessor is limited and special. 
 It is confined to estates lying within his district. It 
 follows, therefore, that if he list and value lands not 
 within his town or county, his jurisdiction is ex- 
 ceeded, and the proceeding, to that extent, is void.^ 
 The Ohio statute,'' made it the duty of 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, 
 ivhich shall be divided ly county lines, so as to leave parts 
 of said 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 faUure of the owner to furnish a list, to enter the 
 
 1 Colhy V. Russdl, 3 Greenlf. R. 227 ; Foxcmft v. Nevins, 4 Ibid. 72. 
 
 2 Kellar v. Savage, 20 Maine R. 199. 
 
 s Townsen v. WUson, 9 Pa. State K. 270. 
 
 * Thurston v. Martin, 3 Sumner E. 497. 
 
 s 1820, Sec. 9. Sec. 13. 
 
or THE LISTING AND VALUATION OF THE LAND. 141 
 
 land from the best information in his power. In the 
 case of the Lessee of Hughey v. Horrell d 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 part of the 
 land which lay in Pickaway. The county auditor of 
 Madison entered the land upon 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 Picka- 
 way, the auditor of Madison ims not authorized to enter 
 it on Us 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 authorized by law to make the 
 sale." The New York statute enacted, that " where 
 the line between two towns divides any occupied lot 
 or farm, the same shall be taxed in the town where 
 the occupant lives, provided he or she live on the 
 lot." In Saunders v. Springsteen^ it appeared that the 
 defendant in error was the owner and occupant 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 divi- 
 sion line of the towns being also the dividing line 
 between said lots. The dwelling-house of the de- 
 fendant in error was upon the part of the farm in 
 
 1 2 Ham. E. 231 ; 1-4 Ohio Cond. R. 335. 2 4 Wend. E. 429. 
 
142 OF THE LISTING AND VALUATION Ol' THE LAND. 
 
 Cambria, his barn was in the town of Lewiston. 
 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 Avhere lands were listed for taxation in the wronsr 
 county, the sale was nevertheless valid.-^ This decis- 
 ion does not appear to give a fair construction to the 
 act, the language of which xfas, " that no irrer/idai'if// 
 in the assessment shall be construed to affect the title 
 of the purchaser." The evident intention of the Leg- 
 islature, as manifested by the Avords they used, and 
 the spirit of the provision, was to cure a defective 
 assessment, where the assessor had jurisdiction, but 
 proceeded irregulaxiy in the exercise of it, and not 
 to declare that to be an assessment which was a md- 
 libj for want of authority to make it. Suppose a mere 
 usvrpcr 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 
 delinquents upon such a list. Cordd 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 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 cle jure, make one, and by 
 
 ^Montgomery v. Ma-edith, 17 Pa. State R. 42. 
 
OE THE LISTING AND VALUATION OS THE LAND. 143 
 
 judicial legislation pronounce it legal. The same 
 may be said of the case where land is listed which 
 does not lie within the territorial jurisdiction of the 
 assessor. The assessment is said to be in the nature 
 of a judgment and execution against the delinquent 
 tax payer, and constitutes the warrant of the collect- 
 or to sell. Yet, in the Pennsylvania case, the court 
 give to a fretended assessment a validity which the 
 judgment of the highest court of the land does not 
 possess. Where a superior court of general jurisdic- 
 tion has not authority in the particular case, its 
 judgments are simply nullities. 
 
 The Illinois statute of 1827 required that all lands 
 belonging 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 audi- 
 tor of State, a list of all 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 decisions of the Supreme Court, 
 made the auditor's ?^q%^ prima facie evidence, amongst 
 other things, that the land was regularly listed for 
 taxation. In Messenger 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 
 
 11 Gilm. R. 631. 
 
144 OF TUB LISTING AND VALUATION OF THE LAND. 
 
 in Jo Daviess county, Illinois. Upon this state of facts, 
 the court held,/rs;!, 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 resided in St. Clair, 
 furnished no legal presumption that he resided there 
 when the list of non-resident lands was transmitted 
 by the clerk to the auditor. 
 
 In many of the States the law reqtdres 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 correct- 
 ing upon appeal, motion or otherwise, any errors in 
 the listing and valuation which have taken place to 
 his prejudice. It has been repeatedly held that a fail- 
 ure on the part of the listers to perform this duty, ren- 
 ders the list and all of the proceedings founded there- 
 on void. Thus in Kinney v. BeverJij} where the law 
 required a listing and assessment of the land for tax- 
 ation, and a return of the Hst to the auditors, and this 
 requirement was not complied with, the assessment 
 and sale founded thereon was held to pass no title to 
 the purchaser. 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 inspection 
 of every person liable to pay taxes, the abstract thus 
 required to be returned. A board of relief was con- 
 stituted to hear appeals from the doings of the 
 
 12 Hen. & Munf. R. 318-344. 
 
OF THE LISTING AND VALUATION OF THE LAND. 145 
 
 assessors, and having given ten days' notice, the board 
 were required to meet on or before the first Monday 
 in January, to determine the appeals 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 December in any year, etc., such assessment lists 
 shall not, for such causes, be considered or adjudged 
 void ; but all taxes which have been heretofore, or shall 
 be hereafter, laid and imposed according to such assess- 
 ment lists, may, notwithstanding, be levied and col- 
 lected." The case of the Thames Manufacturing Co. v. 
 Lathrop et. al.} which was an action of trespass de bonis 
 asportatis against the selectmen of Boziah, to test the 
 validity of a town tax, was pending and undetermined 
 at the time of the passage of the last named statute. 
 In justification, the defendants proved that the town 
 of Boziah had voted a tax upon the list of 1827. The 
 Ust 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 plaintiffs repeatedly called at the clerk's office 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 up- 
 on 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 
 
 1 7 Conn. R. 550. 
 
 19 
 
146 OF THE LISTING AND VALUATION OF THE LAND. 
 
 seized and sold in satisfaction of the tax. Upon this 
 evidence the inferior court charged in favor of the 
 plaintiffs, who had a verdict, and the defendants 
 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 abstract to be lodged with the town 
 clerk by the first day of December, was an impera- 
 tive and not a directory requirement ; 2. That the act 
 of 1829 should be confined to the levy and collection 
 of taxes which had been previously laid upon defec- 
 tive 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 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 to those which were 
 executed and closed. 
 
 Chief Justice Hosmer, in delivering his opinion, 
 remarks upon the first point as follows: "This di- 
 rection 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 December 
 the first is valid, unless they assume the character of 
 law makers. The reason of this legislative provision 
 is apparent. 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 roAdew. That a time for the return 
 of the lists should be limited, the general convenience 
 demands ; and that it should be sufficiently early, for 
 
OF THE LISTING AND VALUATION OF THE LAND. 147 
 
 universal inspection, and preparation for a future 
 hearing before the board of review, is perfectly obvi- 
 ous. On this principle the legislature fixed the first 
 of December as the ultimate period of return. That 
 the return should be punctually made, is indispensa- 
 ble. A different principle would nullify the law, and 
 produce the general inconvenience arising from an 
 unUmited return. No person, in such case, could 
 laiow when he might inspect his list ; and if the re- 
 turn was late, no time, either for reflection or prep- 
 aration for a review, could be had. If the legislature, 
 in a charter of incorporation, had authorized the lay- 
 ing 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 analagous 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 authority to tax, 
 except what is conferred by the law, it must be strict- 
 ly observed. An illegal and void assessment is no 
 assessment 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 of Illinois in the 
 case of Marsh v. Chesnut? The revenue law required 
 the assessor to complete his assessment, and return 
 the same to the clerk of the county commissioners' 
 court, on or before the first day of May ; and it au- 
 thorized parties interested to apply, at the ensuing 
 June term of that court, for the purpose of having 
 the valuation of their property reduced. The list 
 was not returned until June 3, which was the day of 
 
 1 2 Cra. 127 ; 3 E. & A. 1 ; 5 Taunt. 792 ; 5 Conn. E. 560. 
 2 14 Illinois K. 223. 
 
148 OP THE LISTING AND VALUATION OF THE LAND. 
 
 the sitting of the court. Treat, Ch. J. : " The object 
 of this provision is manifest. It is, that the owner 
 shall have ample time and opportunity to ascertain 
 the valuation 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 in- 
 tention 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 direct- 
 ory merely. Such a decision would virtually deprive 
 a party of the protection which the legislature de- 
 signed 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 assessment, for the statute expressly pro- 
 vides 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 
 county commissioners' court to commence its session 
 on the first Monday of June ; and the first Monday 
 of 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 LISTING AND VALUATION OF THE LAND. 149 
 
 of the court had commenced. The defendant had, 
 therefore, no previous opportunity to inspect the re- 
 turn 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 
 assessment invalid as against the owner of the land. 
 The proceedings 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 property without any act- 
 ual knowledge by him of the proceedings against it. 
 It is a sound and inflexible rule of law, that when 
 special proceedings are authorized by statute, by 
 which the estate of one man may be divested and 
 transferred to another, every material provision of 
 the statute must be complied 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 prin- 
 ciple 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 sub- 
 sequent proceedings necessarily fall for the want of 
 a basis upon which to rest. The case of the Thames 
 Manufacturing Company v. Lathrop, 7 Conn. 550, is 
 directly in point." 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 
 
150 or THE LISTING AND VALUATION OF THE LAND. 
 
 time required by law, be, and the same are hereby 
 declared to be as good, valid and effectual, as if they 
 had been made and returned in strict conformity 
 to law." 2. The Act of February 15, 1851, which 
 declared that when any assessor had theretofore or 
 should thereafter fail "to complete or finish 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 by law." It was insisted that 
 these Acts cured the defect 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 hke the present, and, at the same time, 
 full effect be given to their provisions. We think it 
 was the intention of the legislature to legalize assess- 
 ments that had not been perfected within the time 
 prescribed, and upon which further proceedings were 
 to be had ; and not to interfere with assessments 
 where nothing remained to be done imder them. 
 This was the full scope and design of these statutes." 
 The case of Billings v. Deiteti}- arose upon the con- 
 struction of the 21st section of the Act of March 3, 
 1845, which required the assessment to be completed 
 and returned by the first Monday 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 after- 
 wards. The assessment in question was for the year 
 1845, and was not returned until October 30. The 
 defense relied upon the same curative Acts above 
 
 1 15 Illinois E. 218. 
 
OF THE LISTING AND VALUATION OP THE LAND. 151 
 
 recited, and the special Act of February 5, 1849, 
 which 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 ina- 
 bility 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 judg- 
 ment against the tax title. 
 
 An accurate and a pertinent description of the 
 land embraced in the list is essential to its validity. 
 The object of this requirement, is to enable the 
 owner to ascertain from the list itself, that the tax 
 charged against him has been assessed upon his land, 
 and not upon that of a stranger. Besides, the list is 
 the foundation of all of the subsequent proceedings. 
 Each document, wherein the land is designated 
 must necessarily depend upon the list for the accu- 
 racy of its description. A false or mistaken descrip- 
 tion 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 defective list- 
 ing 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 con- 
 veying 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 purchaser at the 
 
152 OP THE LISTING AND VALUATION OF THE LAND. 
 
 tax sale find and locate the land after his purchase.^ 
 In the case last cited, the court say : "In an assess- 
 ment 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 knowl- 
 edge of their being assessed ; otherwise it is impossi- 
 ble that they can or ought to be considered as 
 knowing, and therefore delinquent, on account of the 
 non-payment of taxes; since they have no means 
 aflforded 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 
 description sufficiently certain to convey land be- 
 tween 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 
 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. If a latent ambiguity exists in the descrip- 
 tion, 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 
 intended to be conveyed, is sufficiently described in 
 the deed or other writing, the addition of a circum- 
 
 1 Brown v. Dinsmore, 3 N. H. E. 103 ; TaUman v. White, 2 Comstock E. 66 ; 
 Douglass y. Dangerfield, 10 Ohio E. 152 ; Tumey v. Yeoman, 16 Ibid. 24; Cur- 
 rier V. Fowler, 5 J. J. Mai'. 145 ; Dunn v. Italyea, 6 W. & S. 475. 
 
OF THE LISTING AND VALUATION OP THE LAND. 
 
 153 
 
 stance, false or mistaken, will be rejected as surplus- 
 age in order to carry that intention into effect. But 
 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 who undertake to list for him 
 lands lying in one place, for those which lie in an- 
 other, or have no existence at all, they intend to do 
 what the law under which they profess to act, does 
 not permit.-' The rule is laid down that a listing is 
 
 1 Tollman v. White, 2 Comst. K. 66; Lessee of Perkins v. -Dribble, 10 Ohio 
 R. 433. The opposite doctrine was asserted in Blakely v. Bestor, 13 Illinois R. 
 708. The list described the loom in quo as " 20 feet on Main street, by 72 feet 
 deep, commencing 40 feet from the alley, undivided ^ lot 6, block 7, Peoria." 
 The following plat will show the precise location of the land, according to the 
 decision : 
 
 N. 
 
 ^ 
 
 
 
 HABKISON STREET. 
 
 
 
 
 1. 
 
 
 10. 
 
 
 
 2. 
 
 
 
 
 9. 
 
 
 « 
 
 
 
 
 
 
 B 
 
 
 
 
 
 H 
 
 
 
 
 
 
 a 
 
 
 3. 
 
 
 tH 
 
 
 8. 
 
 n 
 o 
 
 CO 
 
 
 
 ^ 
 
 
 
 !2i 
 
 
 
 
 < 
 
 
 
 
 Q 
 
 
 
 
 
 
 a 
 
 
 
 
 
 
 
 
 
 
 
 m 
 
 
 4. 
 
 
 
 
 7. 
 
 « 
 
 
 
 
 
 o 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 5. 
 
 
 
 
 3 
 
 6. 
 
 
 
 MAIl 
 
 r ST 
 
 REET. 
 
 
 s. 
 
 All of the subsequent proceedings omitted the depth of the lot, viz : " by 72 
 20 
 
154 OF THE LISTING AND VALUATION OP THE LAND. 
 
 fatally defective and void, if it contain such a falsity 
 in the designation or description of the land listed, 
 as might frobahly mislead the owner, and prevent him from 
 ascertainiiu/ hy 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 question : "All that certain piece of land 
 situated in the county of Onondago, &c., being what 
 was taxed and returned to the comptroller's office 
 from the town of Salina, as that part of block twen- 
 ty-nine, in the village of Lodi, which is bounded west 
 by David S. Colvin's, thence north to lands of Philo 
 D. Mickles & Co., east by lands of Levi Chapman, 
 and south by Foot street." This was a true descrip- 
 tion 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 vil- 
 lage, and in fact, annexed 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 
 
 feet deep." The sale was held valid. The court saying : "It is the diity 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 whole distance of the lot, be the same more or less. The 
 construction must be the same in a tax deed. The doctrine of strict constmc- 
 tion, as applied to the execution of naked statutory powers, has no apphcation 
 to a question like this." This decision does not appear to be supported by any 
 authority, no reasons are assigned for it, and it is directly in conflict with the 
 cases relied upon in the text. 
 I Tcdlman v. White, 2 Comst. E. 66. 
 
OF THE LISTING AND VALUATION OP THE LAND. 
 
 155 
 
 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, there- 
 fore, 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 comptroller's office, in- 
 quiring 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 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 misdescrip- 
 tion would prohahli/ mislead, and it is, therefore, fatal 
 to the validity of the assessment." In Lafferty's 
 Lessee v. Byers} the land was thus listed : 
 
 Name. 
 
 No. of Entry. 
 
 Original 
 Propraetor. 
 
 Original 
 Quantity. 
 
 Waterconrse 
 
 Acres. 
 
 Bate. 
 
 Tax. 
 
 Haines, John 
 
 4401 
 
 Hainea, Jno. 
 
 170 
 
 Mad Eiyer. 
 
 73 
 
 2 
 
 39.22 
 
 The court instructed the jury that the description 
 contained in the list was so imperfect, that no valid 
 sale of the land in question, could be made under it. 
 On a 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, per- 
 
 i 5 Ham. R. 457 ; S. C, 5 Ohio R. 290. 
 
156 OE THE LISTING AND VALUATION OF THE LAND. 
 
 haps, was sufi&ciently described by its number and 
 watercourse ; but ninety-seven acres had been trans- 
 ferred to another name, leaAdng seventy-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 ques- 
 tions materially aflFect the price. Without them no 
 such information is communicated to the public as is 
 calculated to produce a fair competition, and no pru- 
 dent man will offer its value in his bid. The descrip- 
 tion, therefore, is not adapted to promote a fair sale, 
 and it must be holden insufficient." 
 
 In the Lessee of Massie's Heirs v. Lonff et al} the 
 defendant 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 hst, was on the north quar- 
 ter, where Long resided. The evidence was rejected. 
 The Supreme Court held : 1. That the description 
 was too vague and uncertain; and 2. That parol 
 evidence was inadmissible to locate the land. 
 
 In Tr eon's Lessee v. Emerkhf 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 Douglass v. Dangerfieldf the facts were that 
 Theodoric Bland entered 13331 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 : 
 
 1 2 Ham. R. 287 ; S. C, 1-4 Ohio Cond. R. 364. 
 
 2 6 and? Ohio R. 161. 3 iq Ohio R. 152. 
 
OF THE LISTING AND VALUATION OF THE LAND. 
 
 157 
 
 Present 
 Owner. 
 
 No. of 
 Entry. 
 
 Original 
 Proprietor 
 
 Origi- 
 nal 
 Quan- 
 tity. 
 
 Watercourse 
 
 No. of 
 Acres. 
 
 Talue 
 inclu- 
 ding 
 houses 
 
 Tax, in't 
 & peu'ty 
 1828, & 
 tax 1829. 
 
 Kemarks on 
 
 the day of 
 
 sale by the 
 
 Auditor. 
 
 Bland, Theo. 
 Dangerfleld.W. 
 
 1122 
 1122 
 
 Bland, T. 
 Same. 
 
 1333K 
 
 Eattlesnake. 
 Same. 
 
 485 
 846 
 
 «285 
 S613 
 
 D. 0. M. 
 
 6 28 6 
 1125 
 
 Sold to 
 R. Douglass 
 
 Same. 
 
 On the duplicate between these two entries, there 
 were numerous other names. It would seem that after 
 the entry 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 13331 acres. Of this 
 survey, 485 acres were charged on the duplicate with 
 taxes as the property of Theodoric Bland, and was so 
 advertised 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 alto- 
 gether 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 difficulty about the location. If, how- 
 ever, there was error in the duplicate and advertise- 
 ment, that cannot be cured by a subsequent sale and 
 purchase. The two parcels must have been sold sep- 
 arately, 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 authority of that case we hold this sale 
 to be void." 
 
 In Perkins v. Dihlle} the land was thus listed : 
 
 1 10 Ohio R. 433. 
 
158 
 
 OF THE LISTING AND VALUATION OF THE LAND. 
 
 Owners. 
 
 Kange. 
 
 Town. 
 
 Section. 
 
 Lot. 
 
 Acres. 
 
 Tax. 
 
 Jos. Yeomana 
 
 8 
 
 13 
 
 1 
 
 8 and 9, 
 north part. 
 
 100 
 
 DOM 
 
 3485 
 
 The map in the county auditor's office showed how 
 the land described in the list was located, and was 
 admitted 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 con- 
 veyed by a similar description in a deed, proceed to 
 say : " But although this description might be sufii- 
 ciently 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 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, etc., 
 and for that purpose it was made his duty to visit 
 each house in the county, etc. ; 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 sub- 
 division thereof, the range, township, section, quarter 
 section, tract, lot or part thereof, or the number of 
 the entry, location, survey or watercourse, as the na- 
 ture 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 con- 
 troversy was not in conformity to the law, and pro- 
 nounced judgment accordingly, saying : " The great 
 
OF THE LISTING AND VALUATION OV THE LAND. 159 
 
 object here is to have the hsts so made out as to des- 
 ignate and identify the land, and the diflferent modes 
 of division in the different parts of the State referred 
 to, whatever that division may be, whether into en- 
 tries and surveys, or into townships, sections, quarter 
 sections, tracts or lots ; the number of acres in each 
 division or sub-division must be separately and par- 
 ticularly set forth. If the owner of the land does 
 not furnish a list, it is made the duty 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 audit- 
 or. 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 hst and in the 
 duplicate, the precise number of acres in each partic- 
 ular tract, or lot, or part thereof, must be particularly 
 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 re- 
 spect in conformity with the law. 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 pursuance thereof conveyed no title." 
 
 In Turney v. Yeoman} which was a bUl in chancery 
 for a partition, the facts were that survey numbered 
 988, calling for one thousand acres, was patented 
 
 1 16 Ohio E. 24. 
 
160 Off THE LISTING AND VALUATION 01' THE LAND. 
 
 by the United States to Hector McNeal and Joseph 
 and Eobert Wilkins, as tenants in common. The 
 plantiff 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 prima 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 sufficiently described 
 in the listing for taxation, to pass the title under 
 the sale, &c. It is sought to cure the defective 
 description in the listing, by the description and 
 recitals in the deed, &c. If the description and re- 
 citals 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 support them, by virtue of the statute which 
 declares they shall be prima facie evidence of title, 
 does not prevent said sale from being questioned 
 and set aside, by showing that the requisition of the 
 statute authorizuig and prescribing the mode of tax 
 sales, had not been complied with. It merely changes 
 the omis of proof If the description in the listing, 
 then, be not sufficient, it may be shown to destroy 
 
OB THE LISTING AND VALUATION OP THE LAND. 161 
 
 the deed; nor can such defect be cured by the 
 description and recitals in the deed, or other proof. 
 The land listed for taxation must be described with 
 sufficient certainty to point out loliat particular lands, 
 and the description in the deed is limited to the de- 
 scription 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 permitted 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 freqiiently asserted to be 
 disturbed, except by legislative interference, which 
 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 pre- 
 cisely 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 certain ; and numerous 
 decisions support the same principle, and it never 
 has been otherwise decided. We hold, therefore, 
 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 Chesnut 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 
 
 1 5 Ham. K. 457. 2 15 Qhio E. 134. 
 
 21 
 
162 OF THE LISTING AND VALUATION OF THE LAND. 
 
 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 gener- 
 ally 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 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 30 feet front, or 30 feet square. And 
 if 30 feet front, it is not stated upon what street it 
 fronts. There is in fact, nothing in the description 
 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 Hst de- 
 scribed 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 Curiie 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 mention the water-course upon which the laad 
 
 1 5 Blackford R. 51. 2 5 j. j_ Marshall K. 145. 
 
OF THE LISTING AND VALUATION OF THE LAND. 163 
 
 was situated. The land in question was entered as 
 lying upon the water* of " Big Boone," while the list 
 described it as lying iipon the borders of " Bank 
 Lick." The court held the sale void. "The design 
 of the law in requiring the owners of the land to 
 state the water-course upon which it was situated, 
 in his list of taxable property, was two-fold : 1. To 
 identify the tract, and to enable the sheriff in his 
 advertisement to describe it accurately, if it became 
 necessary to sell it. 2. To enable those who might 
 be disposed to purchase, to find it by the description, 
 ascertain its value, and regulate their bids accord- 
 ingly. The sheriff advertised and sold 5,000 acres 
 on Bank Lick, and gave his certificate accordingly. 
 When the surveyor, thereafter surveyed "Big Boone," 
 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 prece- 
 dent for getting over a variance in the water-course, 
 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 in 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 land for sale, as being 
 land lying on Big Boone, persons might for anything 
 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 pur- 
 suance of the auditor's transcript, and to sell accord- 
 ingly ; the error consists in going to a dijQferent 
 quarter of the country afterwards, to hunt the land." 
 
164 OF THE LISTING AND VALUATION OF THE LAND. 
 
 In Bj'oimi V. Dimmore} the statute provided " that 
 the selectmen, etc., shall make out in writing under 
 their hands, and dehver the same to the several col- 
 lectors, etc., 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 in- 
 serted in said list, shall be a sufficient description of 
 said land." The land in controversy lay in Chester, 
 the former owner resided in Londonderry, and was 
 inserted in the list as a non-resident proprietor, but 
 his land was not described in the list. It was con- 
 tended by those who argued against the validity of 
 the tax sale, that where the owner is* known, the 
 statute requires no description 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 de- 
 scription 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 in- 
 serted, 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 
 
 13 N. H. K. 103. 
 
OF TnE LISTING AND VALUATION OF THE LAND. 165 
 
 statute that it may he 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 was not set forth. 
 
 In Mnsivorth 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 de- 
 livered 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, fart of the Governor's 
 right! This description is altogether too indefinite. 
 The 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. Mersereaii} there was a sale 
 of 800 acres of land, to be laid out in a square form, 
 as nearly as might be, in the northwest corner of 
 2401 acres, in township one, assessed to John Garret1> 
 son, and described in the assessment list as " bounded 
 on the south by Joshua Mersereau and 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 calculated to inform the 
 owner that his land has been assessed, will be regarded 
 
 1 1 Poster K. 400. ^ 3 Barbour C. E. 528. 
 
166 OE THE LISTING AND VALUATION OF THE LAND. 
 
 as sufficient.-' And in Williston v. Colkctt^ 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 warrantee, 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 described it as containing 
 200 acres, and Mann recognized this listing by pay- 
 ing taxes upon his portion for two years ; and the 
 court held, that as he had neglected to list the land, 
 and had taken advantage of the mistake in the quan- 
 tity for two years, the defect must be regarded as 
 cured by the statute. Where in the description, in- 
 itial letters, abbreviations and figures were used, thus: 
 " E. h S. "W. i, section 24, town 3, south of range 7 
 west, 80 acres, etc.," 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 person or goods of 
 the owner. It may be 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 proceeding will be held illegal 
 and void. 
 
 ^Strunch v. Shoemaker, 1 Watts & Serg. E. 175; Michew v. McCoy, 7 Ibid. 
 390 ; Dunden v. Snodgrass, 18 Pa. State R. 151. 
 
 ^ 9 Barr R. 38. 8 Sibley v. Smith, 2 Gibbs Mich. R. 503. 
 
OP THE LISTING AND VALUATION OV THE LAND. 167 
 
 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. 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 notice of the fact 
 that the land is occupied, and purchases at his peril.^ 
 The policy of this system of taxation is thus ex- 
 plained in Burd v. Ramsay} "The selling of lands 
 for the trifling amount of taxes usually due upon 
 them, is always attended with inconvenience 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, 'a"nd not the amount to be paid, has been the 
 cause of the repugnance constantly evinced to acts 
 of Congress laying a land tax, which have always 
 contained a provision for the sale of the land itself. 
 
 1 Ymng v. Martin, 2 Yeates Ti. 312; Owens v. Vanhook, 3 Watts R. 260 
 Patterson T. Blackmore, 9 Watts E. 104; Commissioners v. Smith, 10 Ibid. 391 
 McKee v. Lamberton, 2 Watts & Serg. E. 107 ; Hochenbury v. Snyder, Ibid. 240 
 Cranmer v. Bull, 4 Watts & Serg. E. 36 ; Larimer v. McCall, Ibid. 133; Smith 
 V. McGrew, Ibid. 338. = 9 S. & E. 109. 
 
168 OP THE LISTING ANP VALUATION OF THE LAND. 
 
 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, sufiicient 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 mth 
 the moment of entry for the purpose of clearing the 
 land.-' As soon as a person enters upon an unseated 
 tract of land, whether under title, claim of title, as a 
 tenant of the owner, or an intruder, and becomes a 
 resident upon it, or without becoming a resident, 
 improves and occupies 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 of&cers 
 need not inquire, nor are they bound to know, by 
 what authority he has entered upon and taken pos- 
 session of the land.^ Residence without cultivation, 
 or cultivation without residence, or both combined, 
 will constitute a seating of the land f and where the 
 land is actually possessed by residence thereon, it 
 cannot be sold for taxes, whether the occupier has 
 personalty sufl&cient to pay the tax or not* One in 
 possession of a portion of a tract of land, having 
 
 1 Wallace v. Scott, 7 Watts E. 248 ; Millikm v. Benedict, 8 Barr K. 169. 
 
 2 Campbell v. Wilson, 1 Watts E. 503 ; Larimer v. McCall, 4 Watts & Serg. 
 R. 133; S. C, Ibid. 351. 
 
 3 Kennedy v. Daily, 6 Watts E. 269 ; Wilson v. Watterson, 4 Ban- E. 214. 
 * Campiell v. Wilson, 1 Watts E. 503. 
 
OP THE LISTING AND VALUATION Or THE LAND. 169 
 
 title, or claiming 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 quantity occupied is immaterial, so that the 
 intent is manifest to take and hold possession of the 
 entire tract.^ But where one, with or without color 
 of title, takes possession of unseated lands belonging 
 to another, and designates the extent of his claim, or 
 the portion he means to occupy, by lines marked 
 upon the ground, and confines himself within such 
 lines, his possession will not be taken to extend be- 
 yond such lines, so as to give the character of seated 
 to the rest of the tract.^ An accidental or temporary 
 suspension of the actual occupancy of land, does not 
 authorize a sale of it as unseated. The occupant may 
 abandon his claim, and thus discharge his person and 
 personal property from liability for the tax. But it 
 must be evinced by acts which leave no doubt of his 
 intention ; in other words, it must be an entire and 
 total abandonment of his claim, and not a mere sus- 
 pension 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 un- 
 seated, and authorize its transfer to that list, there 
 
 1 Campbell V. Wilson, 1 Watts E. 503; Larimer r. McCall, i Watts & Serg. 
 E. 133, 351 ; Ellis v. Hall, 18 Pa. State R. 292 ; 3IitcIieU v. Braltm, 5 Watts 
 & Serg. E. 451. 
 
 2 Ellis V. Hall, 18 Pa. State E. 292. 
 
 8 Mitchell V. Braiton, 5 Watts & Serg. E. 451. 
 
 * Harheson v. Jack, 2 Watts E. 124 ; McKibbin v. Charlton, 14 Pa. State E. 
 128; Sheaffer v. M'Kabe, 2 Watts E. 421 ; Fish v. Broum, 5 Ibid. 441 ; MUli- 
 ken V. Bennett, 8 Barr E. 169 ; Keating v. Williams, 5 Watts E. 382 ; Kennedy 
 V. Z)a%, 6, Ibid. 269. 
 
 22 
 
170 OP THE LISTING AND VALUATION OE THE LAND. 
 
 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 aban- 
 dons the actual possession, the constructive 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, exclusively within the province of a jury, under 
 the direction of the court as in other cases.^ The 
 cases are uniform as to the consequences of an aban- 
 donment. It discharges the owner and his personalty 
 from liability, renders the land imseated, creates a 
 lien upon it for the tax, which can only be enforced 
 by a sale of the land itself^ Where 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 intention of 
 the intruder ; if he entered upon the adjoining tract 
 
 1 Patterson v. Blachmore, 9 Watts R. 104. 
 
 2 Wilson V. Watterson, 4 Ban- E. 214 ; Gibson v. Robhins, 9 Watts K. 156 ; 
 Forster t. M'Divit, 5 W. & S. 359. 
 
 3 Harbeson r. Jack, 2 Watts R. 124 ; McKibbin v. Charlton, 14 Pa. State E. 
 128 ; Sluaffer v. M'Kabe, 2 Watts R. 421 ; Fish v. Brown, 5 Ibid. 441 ; Gibson 
 V. Bobbins, 9 Watts R. 156 ; Forster v. M'Divit, 5 Watts & Serg. R. 359 ; Wil- 
 son V. Watterson, 4 Barr R. 221 ; Kennedy v. Daily, 6 Watts R. 273. 
 
 * Fish V. Brown, 5 Watts R. 441 ; Campbell v. Wilson, 1 Watts R. 503. 
 
OF TUE LISTING AND TALUATION OF TUB LAND. 171 
 
 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 ^e 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 ti-act 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 occu- 
 pancy did not extend, the portion sold loses its 
 character of seated land.* But where an unseated 
 tract descends 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 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 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 cannot be assessed as unseated, though 
 
 1 See Fosta- v. M'Dimt, 5 W. & S. 359. 
 
 ■'= EUis V. Hall, 18 Pa. State R. 292. « EiUs v. Hall, 18 Pa. State E. 292. 
 
 » Campbell v. Wilson, 1 Watts R. 503. "^ Enoin v. Helm, 13 S. & E. 151. 
 
 " Rosenba-ger T. Schull, 7 Watts E. 390. 
 
 ' Robinson v. Williams, 6 Watts E. 281 ; Murray v. Guilford, 8 Ibid. 548. 
 
 ' Milliken v. Bennedict, 8 Barr E. 169. 
 
172 05 THE LISTING AND VALUATION OF THE LAND. 
 
 the owner does not reside on it. And the assessor is 
 not authorized to return it as such, if there he marks 
 of cultivation without residence, which puts him 
 upon inquiry ; without the clearest signs of ahandon- 
 ment.-' 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 commis- 
 sioners 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 with the knowledge and consent of 
 the owner, and the commissioners 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 to the 
 unseated list without reasonable notice to the owner, 
 and if he do so, a sale of it for taxes wUl be void.' 
 The same rule of strictness, in relation to the list- 
 ing 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. Hesseltinef where the law required "unimproved 
 lands of non-resident proprietors" to be assessed 
 accordingly, and the land in question was listed as the 
 property of " a non-resident proprietor unlcnoivn" but 
 in point of fact, belonged to a resident of the town 
 where the property was situate, and the deed under 
 which he claimed title was duly recorded before the 
 assessment was made ; the court held the listing and 
 
 1 Wilson V. Watterson, 4 Barr E. 214. 
 
 2 Milliken v. Bennedict, 8 Barr R. 169. « 27 Maine R. 354. 
 
OF THE LISTING AND VALUATION OP THE LAND. 
 
 m 
 
 sale void. Other cases in the same court reiterate 
 the principle.-^ The same doctrine is conceded by 
 the Supreme Court of Illinois in the construction of 
 the statute of 1829, which subjected the land of non- 
 residents onl//, to assessment and sale ; holding that 
 where the land listed belonged to residents of 
 the State, all of the 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 Massachusetts.* 
 In many of the States, the statutes require the land 
 to be listed in the name of the owner or occupant of 
 the land ; in others, the law only directs the name of 
 the owner to be inserted, ivhen 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 presum- 
 ing that every sane person will remember his name, 
 if he is unable to distinguish his land by the descrip- 
 tion contained in the list. In Louisiana, where the 
 statute required the name of the owner to be insert- 
 ed, and the list stated that he was " unknown" it was 
 held defective and void.^ 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 com- 
 pliance. 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 
 
 1 9 Shepley K. 402 ; 11 Ibid. 283, 386. 
 ^ Messenger v. Germain, 1 Gilm. E. 631. 
 8 Lunt V. Wormell, 19 Maine R. 100. 
 » Rising v. Granger, 1 Mass. E. 48. 
 ^ Carmichael v. Aiken, 13 Lou. E, 205. 
 
174 OP THE LISTING AND VALUATION OF THE LAND. 
 
 the name of that individual should be inserted in the 
 list.-*- In Coinhs v. Warren^ which was a writ of entry, 
 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 pos- 
 sessor." The land in question was listed in the name 
 of the demandant, a mortgagee of the premises, who 
 never was in possession. The coiurt held that the 
 mortgagor was the owner, and that as the property 
 was not listed in his name, the proceedings were 
 void. The Virginia statute required the commis- 
 sioners of taxes to " take an account, in writing, of 
 the quantity of land belonging to all persons within 
 their counties, and abo the name of the propietor or 
 proprietors thereof, 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 Massachiisetts directed an assessment in the name 
 of the " occupant or tenant," and it was listed in 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 pos- 
 session under a parol contract, instead of the rightful 
 proprietor, was void.^ In Alvord v. Colling under the 
 peculiar phraseology of the statute, it was held that 
 a listing of unimproved lands, belonging to a non- 
 resident proprietor, .in which he was wrongly 
 designated, was valid, whereas, in the listing of 
 improved lands belonging to residents, the defect 
 
 1 Wheeler t. Anthony, 10 Wend. R. 346. 2 34 Maine R. 89. 
 
 8 Yancey v. Hopkins, 1 Munf. R. 419. 
 
 * Martin v. Mansfield, 3 Mass. R. 419. 
 
 ^ Johnson V. M'Intire, 1 Bibb R. 295. « 20 Pick. R. 418. 
 
OF THE LISTING AND VALUATION OJ THE LAND. 175 
 
 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 ; that if they 
 omit the name in the list, or state that the owner is 
 unknown, the presimaption is that the officer did his 
 duty, and that the owner was in point of fact un- 
 known ; 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 statutes expressly declare 
 that the name of the owner shall be inserted when 
 it can be done.-^ 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. Bhhef it appeared 
 that one Treat, in the 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 1836 
 the title of Taylor, by mesne conveyance, became 
 vested in Barker ; the whole lot was assessed to Bar- 
 ker, and the assessment was held void. By the court : 
 " It is quite clear that the assessors had no right to 
 
 1 The Proprietors of Cardigan v. Page, 6 N. H. R. 1 82 ; Nelson v. Pierce, Ibid. 
 194 ; Ainsworth t. Dean, 1 Poster R. 400 ; Brown v. Veazie, 25 Maine E. 359 ; 
 Merritt t. Thompson, 13 Illinois R. 716 ; Shimin v. Inman, 26 Maine R. 228. 
 
 2 36 Maine R. 433. 
 
176 
 
 or THE LISTING AND VALUATION OF THE LAND. 
 
 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." 
 
 Where one owns several tracts or parcels of land, 
 they must be listed and valued separately, else the 
 proceedings will be void. Thus in Shimin v. Imimn} 
 the statute required the 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. 
 
 Range or 
 Division. 
 
 State & County 
 lax. 
 
 Town 
 Tax. 
 
 8 c, 
 61 
 
 3 22 
 
 Wm. Shimin, 
 
 16 
 17 
 18 
 
 On Penob- 
 scot 
 River. 
 
 240 
 
 The court held the list illegal, saying : " A fair con- 
 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 WiV 
 ley V. Scoville's Lessee^ the land was thus listed, taxed, 
 advertised and sold : 
 
 
 CLEVELAND TEN ACRE LOTS 
 
 
 
 Owner's Name. 
 
 Range. 
 
 Town. 
 
 Lots. 
 
 Acres and Rate. 
 
 Tax. 
 
 Unknown 
 heirs. 
 
 12 
 
 7 
 
 (32 34 35 
 J38 39 40 
 (41 42 43 
 
 Second Kate. 
 90 
 
 $ c m 
 4 83 6 
 
 1 26 Maine E. 228. 
 
 2 9 Ohio R. 43. 
 
OS THE LISTING AND VALUATION 01? THE LAND. 177 
 
 Grimke, J. " The proceedings in this case show a 
 defect which is very common in tax sales. Lot 32 
 (the one in controversy,) was listed and advertised 
 for sale, with eight others of the same ten acre lots, 
 by the following description; the first and second col- 
 umns 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 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 adver- 
 tised 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 apportionment of the tax. 
 Now it is evident that the 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 assess- 
 ment of the tax in the advertisement as one aggre- 
 gate 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 evidence." 
 
 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 sub- 
 divided into the smallest legal subdivisions of which 
 23 
 
178 OF THE LISTING AND VALUATION OF THE LAND. 
 
 it is susceptible, but simply that two or more tracts 
 disconnected from each other, so as not to be em- 
 braced within the same general description, shall not 
 be assessed together. Thus " the S. i Sec. 5, T. 3 K, 
 E. 4 W.,"i and " S. W. and S. E. Sec. 9, T. 8 N., E. 8 
 E.,"^ were held respectively to be a comphance with 
 the statute. 
 
 Lastly, to make a complete and perfect Ust, 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 hster to join 
 with him two householders in making 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 will be void.^ The constitution of Elinois 
 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 purpose are hereby divided into classes, val- 
 ued and taxed as follows : Lands of the first quality 
 shall compose 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 dollars, 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 
 
 ^Atkins V. JSinman, 2 Gilm. R. 443. 
 ^ SpeUman v. Curtenius, 12 III. K. 410. 
 ^Kinney v. Doe, 8 Blackford E. 350. 
 '^ Fitch V. Pinclcard, 4 Scam. R. 69. 
 
OF THE LISTING ANP VALUATION Of THE LANp. 179 
 
 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 office, 
 accompanied by an affidavit that the list contained a 
 true classification ; one listing only was required, and 
 the auditor was authorized to charge the tax annu- 
 ally upon such classification, till the owner furnished 
 a new list. K 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 constitutionality of this law was maintained by 
 the Supreme Court of Illinois upon the ground of 
 necessity, expediency, and cotemporaneous construc- 
 tion, all of which were doubtful and dangerous reasons 
 to assign in favor of the validity of a legislative val- 
 uation 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 pow- 
 er under our constitutions, except so far as represen- 
 tative responsibility may secure them.^ The law which 
 
 1 RhmeJiai-t v. Schuyler, 2 Gilm. E. 473 ; Bruce v. Schuyler, 4 Ibid. 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 taxfible 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 ac- 
 cording 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 
 jurisdiction, and had such evidence before them as guided their judgment in 
 that particular. ( Waters v. State, 1 Gill. K. 302.) The constitution of Plorida 
 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 through- 
 
180 
 
 or THE LISTING AND VALUATION Of THE LAND. 
 
 authorized this classification and the amendments 
 thereto, made the deed prima fade evidence of title, 
 or at least the courts so held.-' Upon the strength 
 of these cases, affirming the constitutionality of the 
 law of 1827, and that the deed was frima facie 
 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 confonnity with 
 the legislative classification or valuation. The first 
 attempt was made in Graves v. Bruen? The defend- 
 ant in error relied upon a tax deed made in pur- 
 suance 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 to individuals, 
 for their military services, and taxed by the State of 
 Illinois." 
 
 < 
 
 Patentees. 
 
 Present 
 Owners. 
 
 - 
 
 1' 
 
 Sec. Town. 
 KttBge. 
 
 
 
 i 
 
 s 
 
 
 i 
 
 r-l 
 
 i 
 
 < 
 
 r-I 
 
 J 
 
 R.L.J. Austin 
 
 M. Bruen. 
 
 N. E. 
 
 131S.7W. 
 
 The auditor deposed that the land in question was 
 listed in the manner shown in the diagram, for the 
 
 out 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 la-w-was held constitutional. (Levy v. Smith,4 Fla. E. 154.) 
 ''■Maxi/Tf. Clabaugh,\ Gilm. E. 26; Vance Y. Sclimjler,Voi&. 160; Graves v. 
 Buen, Ibid. 167; Messenger v. Germain, Ihii. 631 ; Thompsons. Schuyler, 2 Ibid. 
 271 ; Minehart v. Schuyler, Ibid. 473 ; Bruce v. Schuyler, 4 Ibid. 221 ; M v. 
 Tebbetts, 5 Ibid. 376; Irving v. Browndl, 11 111. E. 402. 
 -1 Gilm. E. 167. 
 
OF THE LISTING AND VALUATION OF THE LAND. 181 
 
 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 hsted by the owner or 
 auditor ; that there was no distinction made in the 
 diagram between the lands of residents and non-resi- 
 dents ; 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 of the diagram, on the 
 page from which he copied it ; that he was not cer- 
 tain that there was none at the commencement of 
 the book, but thought there was not. It will be per- 
 ceived, on examination of the diagram, that the 
 quantity, quality, or class of the land, does not 
 appear, and that the rate of taxation is not uniform, 
 so that the valuation is nowhere ascertained by in- 
 spection of the list, even by inference. This evi- 
 dence 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 
 
182 OF THE LISTING ANp VALUATION OS THE LAND. 
 
 the first entry, and the loose and indefinite proof 
 offered, being calculated to mislead the jury, was 
 properly rejected by the court." A more successful 
 attempt was made to overthrow the deed in Job v. 
 Tibhetts} 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 back to the first page, and the 
 class, quantity, or value, nowhere appeared. The 
 Supreme Court reversed the judgment, holding that 
 the deposition was competent. Treat, C. J. " Wheth- 
 er it (the deposition,) estabhshed 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. Briien, although 
 an extreme case, is not in point. There the deposi- 
 tion was partial and incomplete in its statement 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 deposi- 
 tion, or in the case, to show that anything material 
 is withheld. If it does not, in fact, furnish all the 
 evidence in the ofiice, the deficiency can be supplied 
 in another deposition, or by transcripts of the record." 
 In Graves v. Bruenf which came before the court 
 a second time upon additional evidence, which ex- 
 plained the fifth column, 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 
 
 1 5 Gilm. R. 376. 2 n m. R. 431. 
 
01' THE LISTING AND VALUATION OF THE LAND. 183 
 
 auditor's office, the court held : 1. That the Usting 
 and valuation was a prerequisite which must exist. 
 2. That the evidence showed no classification of the 
 land, and is sufficient to rebut ^q prima facie character 
 of the deed. The same principles, upon a similar 
 state of facts, were reaffirmed by the court in Schuy- 
 ler V. Hull?- and the case of Job v. TiUbettsf having 
 been remanded for a new trial, upon similar evi- 
 dence, and the jury having found against the tax 
 title, Tibbetts prosecuted an appeal, but the Supreme 
 Court sustained the verdict.^ These decisions made 
 void every tax title in Hhnois, 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 valuation being essential, the statute must be 
 strictly pursued in making and returning it, or the 
 proceedings based upon it will be illegal and void.* 
 Usage can 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 unauthorized 
 and void.® 
 
 1 11 111. E. 462. 2 5 Gilm. E. 376. « 11 III. E. 453. 
 
 * Thurston v. Little, 3 Mass. E. 429; Thayer v. Steams et at, 1 Pick. E. 482. 
 5 Thurston t. Little, 3 Mass. E. 429. 
 ^ Granger v. Parsons, 2 Pick. E. 392. 
 
184 OF THE LEVY OF THE TAX. 
 
 CHAPTEE VI, 
 
 OP THE LEVY OF 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 essential link in the chain of 
 a tax title, without which the purchaser acquires no 
 rights whatever. By this assessment the amount 
 which every citizen is bound to pay for the pubHc 
 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 prop- 
 erty. 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 up- 
 on a judgment. 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, and in the time 
 
OF TUB LEVY OF THE TAX, 
 
 185 
 
 and manner prescribed by law. When sucb evidence 
 is produced, the presumption is that the tax thus 
 levied is unpaid, upon the same principle that a 
 promissory note is evidence of a continuing debt, 
 until its extinguishment by payment is established.'^ 
 
 The onus prohandi is upon the party claiming under 
 the sale.^ Nor is there any dif&culty in making proof 
 of this fact, if it ever existed. The state tax is fixed 
 by a public statute ; the hst will show the valuation 
 of the land, and by computing the per centage 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 required 
 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 persons 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 
 
 iPentland v. Stewart, 4 Dev. & Bat. E. 386 ; Beeves T. Towles, 10 Louisiana 
 R. 276 ; Baker v. Towles, 11 Ibid. 432 ; Carmichaelv. Ailcen, 13 Ibid. 205 ; Nan- 
 carrow v. Weatherslee, 6 Martin's Lou. K. 347 ; Winchester v. Cain, 1 Robinson's 
 Lou. E. 421 ; Nalle v. Fenwick, 4 Eandolph E. 591-4 ; Lessee of Holt's hdrs v. 
 Hemphill, S^Hammond E. 232 ; S. C, 1-4 Ohio Cond. E. 551 ; Lessee of Dres- 
 baclc T. McArthur, 6 and 7 Ohio E. 307 ; Garrett v. White, 3 Iredell Eq. E. 131 ; 
 Smith V. Corcoran, 7 Lou. E. 46 ; Bratton v. Mitchell, 1 Watts & Serg. E. 310 ; 
 Conrad v. Darden, 4 Yerger E. 307. 
 
 2 Mason v. Roe ex. dem. Woods, 5 Blackford E. 98 ; Nolle v. Fenwick, 4 Eand. 
 E. 594 ; Pentland v. Stewart, 4 Dev. &. Bat. E. 386 ; Mayhem v. Davis, 4 Mc- 
 Lean E. 213 ; Mix y. Wkitlock, 1 Tyler E. 30. 
 
 ^ Nolle V. Fenwick, 4 Eand. E. 594 ; Den ex. dem. Weedy. McQuilken, 8 Blackf. 
 E. 335 ; The Proprietors of Cardigan v. Pajre, 6 N. H. E. 182 ; Spear v. Ditty, 
 8 Vei-montE. 419. 
 
 24 
 
18G or THE LEVY OF THE TAX. 
 
 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.^ 
 
 The exercise of the power to levy taxes, by the 
 fiscal agents or officers of a county, city, town, &c., 
 is not a judicial, but a municipal act, and is discre- 
 tionary within the limits prescribed by law, and the 
 order of the tribunal levying the tax, cannot ordina- 
 rily 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 tres- 
 passer, and the purchaser acquires no title at the sale.^ 
 
 The Illinois statute of February 26, 1839, author- 
 izes and empowers the county commissioners' court 
 to levy a tax for county purposes, not to exceed one- 
 half per cent, upon every one hundred dollars' worth 
 of real or personal property, and then provides, 
 " which tax shall be levied by said county commis- 
 sioners at their June term, in each and every year."* 
 In several instances the county commissioners failed 
 to levy the tax untU the December term following. 
 In such cases is the tax legal ? This will depend up- 
 on the question, whether this provision is imperative 
 — a limitation, in point of time, upon the power of 
 
 1 The Proprietors of Cardigan v. Page, 6 N. H. E. 182 ; Nekon v. Pierce, Ibid. 
 194; Lisbon Y. Bath, 1 Foster E. 319. 
 
 2 State V. Mclntocli, 7 Iredell E. 68. 
 
 '■ Marr v. Enloiv, 1 Yerger E. 452 ; County Court of Obion v. Maw, 8 Humph. 
 R. 634. ■* Laws, 1838-9, p. 11, sec. 20. 
 
OF THE LEVY OF THE TAX. 
 
 187 
 
 the commissioners — or merely directory. Under a 
 directory statute, a duty should be performed at the 
 time specified, for the sake of uniformity, and be- 
 cause the legislature have so ordered it, but it may 
 be valid if performed afterwards ; while under a per- 
 emptory law, the act must be done at the precise 
 time specified, or it is void.^ The general rule un- 
 doubtedly 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 
 restraining 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 specified, need not exist 
 in words ; it may arise by implication, from a view 
 of all the provisions of the statute, manifesting an 
 intent, on the part of the legislature, to restrain and 
 limit the execution of the power, or the performance 
 of the duty, in point of time.^ Look at the provi- 
 sions of the act in question. At the March term of 
 the court, the commissioners were required to ap- 
 point assessors and collectors for the ensuing fiscal 
 year.* The assessment was to be completed 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 hi.s 
 county, immediately after the June term of his 
 court annually, and hy the first day of July} On the 
 
 1 WAslery. French, 12 111. E. 302. 
 
 2 Pond T. Negus, 3 Mass. K. 230 ; 6 Wend. B. 486 ; St. Louis Counti/ v. 
 Sparks, 10 Missouri E. 117 ; WaUcer v. Chapman, 17 Ala. E. 126. 
 
 3 Marsh v. Chesnut, U 111. E. 223 ; Billings v. Detton, 15 Ibid. 218 ; Thames 
 Manufacturing Co. v. Lathrop, 7 Conn. E. 550. 
 
 * See's 5 and 12. i^ Sec. 11. " Sec. 12. ' Sec. 13. 
 
188 01? THE LEVY OF THE TAX. 
 
 second Monday of August, annually, or as soon 
 thereafter as tlie 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 " hnger 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.* K the first dis- 
 tress was insufS.cient, a second seizure and sale was 
 authorized, upon giving Hke notice.^ The state and 
 county taxes were directed to be collected together.^ 
 At the end of each month, the collector was required 
 to pay over to the county treasurer, all taxes collect- 
 ed 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 efibrts.^ The law re- 
 quired final settlements to be made with the auditor 
 and county commissioners' court, in March, annually.^ 
 And the collector was required to report the delin- 
 quent 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 
 
 1 Sec. 14. 
 
 2 See. 16. 
 
 8 Sec. 16. 
 
 * Sec. 17. 
 
 li Sec. 17. 
 
 <= Sec. 20. 
 
 ' Sec. 21. 
 
 8 Sec. 24. 
 
 » See's 21, 22, 23. 
 
 i» Sec. 25. 
 
 
 
OF THE LEVY OP THE TAX. 
 
 189 
 
 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 collector 
 to enforce the payment of the taxes upon his list, 
 against delinquents, than was contemplated by the 
 legislature, and yet he would be held responsible 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 insufl&cient, the 
 State would, nevertheless, lose her lien upon the 
 goods and chattels of the delinquent. 3. The county 
 would be deprived of its monthly resources, by rea- 
 son 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 dehvered to the collector, which would be con- 
 trary to the requirements of the statute. 5. There 
 would be no uniformity in the revenue system, and 
 embarrassment to all concerned would be the conse- 
 quence. 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 is held to be 
 imperative,-' no reason can exist for delaying the levy 
 after the June term. 
 
 1 Marsh V. Chesmt, 14 111. K. 223 ; BiUings v. Detton, 15 Ibid. 218. 
 
190 OP THE LEVY OF TUB TAX. 
 
 The power to levy the tax is a limited one, and if 
 the limits prescribed by the law are transcended, the 
 levy is void.-* In Kemper v. Mc CleUand^ which was 
 an ejectment by the defendant in error against the 
 plaintiff" in error, the latter claimed title under a tax 
 sale. The land in controversy lay in Hardin Coimty ; 
 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 ceixtum which they might levy, and made the 
 amount depend upon the aggregate value of all the 
 property listed for taxation. Thus, when the aggre- 
 gate 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 aggregate value should be five hundred 
 thousand or more, and less than one milhon, the 
 county tax should not exceed three mills on the dol- 
 lar ; and when less than five hxmdred thousand, such 
 tax shall not exceed five miUs upon the dollar. 
 Avery, J. " When the power of the commissioner is 
 so limited, a tax of any greater amount is unauthor- 
 ized and void. In every case, where an individual 
 tax is upon trial shown to be greater than the amount 
 aidhorized, a sale of the land for the paymeixt 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 com- 
 missioners show that a tax of four and a half miUs 
 was imposed for county purposes ; the certificate of 
 
 1 West School District of Canton v. Merritts, 12 Conn. R. 437. 
 
 2 19 Ohio R. 324. 
 
OF THE LEVY OF THE TAX. 191 
 
 the auditor of Logan County shows that the valua- 
 tion for the two counties for the year 1830 was up- 
 wards 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, there- 
 fore, 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." 
 
 Where the inhabitants of a school .district voted to 
 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. Boe, 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 assessment 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 
 
 1 Joyner v. Third School District in Egremont, 3 Cnsliing E. 567. 
 
 2 5 Blackford R. 98. 
 
192 OP THE LEVY OF THE TAX. 
 
 Doc ex. dem. Weed et al. v. Mc QidTken} 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 $4,48, 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-pajTnent of divers 
 taxes, one of which is illegal, and the residue legal, 
 the sale is void : the land must be liable for all the 
 taxes for which it was sold. In such cases aU 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 Elwell V. Shaiv, it appeared that there were five 
 distinct taxes assessed, and committed to the collector 
 in separate bUls, for the non-payment of all which, 
 the land in controversy was sold. The only objec- 
 tion made to the validity of the sale was, that in one 
 of these assessments the overlayings 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 authority of Coleman v. Anderson^ but the assess- 
 ment there objected to, was made prior to the statute 
 limiting the overlayings to five per cent. Anterior 
 to this statute a practice had arisen, which had been 
 universally acquiesced in, to exceed, in the aggregate 
 
 1 8 Blackford R. 335. 
 
 ^ Ehodl V. Shaw, 1 Greenlf. R. 335; Tomy f. Millburi/, 21 Pick. E. 70; 
 Bangs v. Snow, 1 Mass. E. 188-9 ; Drew v. Davis, 10 Vermont R. 506; Thurs- 
 ton V. Little, 3 Mass. R. 429, 433 ; Dillingham v. Snow, 5 Ibid. 144 ; Stetson v. 
 Hempion, 13 Ibid. 283 ; Libbij v. Burnham., 15 Ibid. 144 ; Doe v. M'Quilken, 8 
 Blackf. R. 335 ; S. C, Ibid. 581 ; Hayden v. Foster, 13 Pick. R. 492 ; Alvord v. 
 Collin, 20 Pick. R. 418; Kemper v. McClelland, 19 Ohio R. 324. 
 
 8 10 Mass. R. 115. 
 
OP THE LEVY OF THE TAX. 
 
 193 
 
 6f the assessment, the entire amount authorized; 
 partly to obviate the perplexity to which assessors 
 were subjected, in consequence of the fractions in 
 the assessment 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 fuJly adequate, to enable them to discharge 
 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 mani- 
 fest provisions of the statute." 
 
 A still stronger case in support of the rule laid 
 down, is that of Huse v. Merriam} There the assess- 
 ment was, - - ... |226 62 
 The levy was, - - |215 00 
 Overlayings, 5 per cent. - 1075 22675 
 
 Excess, - - - - $ 87 
 It was insisted that the proceeding was void be- 
 cause the assessor had exceeded the levy and over- 
 layings authorized by statute, eighty-seven cents. The 
 answer was " de minimus 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 within the range of the maxim, ' de minimus, 
 &c.,' but if not, that still this small excess does not 
 vitiate the assessment. The maxim is so vague in 
 itself, as to form a very uncertain ground of proceed- 
 
 1 2 Greenlf. R. 375. 
 
 25 
 
194 OF THE LEVY OF THE TAX. 
 
 ing or judging ; and it may be almost as difficult to 
 apply it as a rvile 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, unau- 
 thorized and void. If the line which the legislature 
 has established, be once passed, we know of no 
 bomidary 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 maintained, as the error does not preju- 
 dice the owner in any respect. In the Lessee of Hol- 
 lister V. Bennett} it was objected that too much tax 
 was charged. The court made an estimate, and it 
 ajjpeared that the tax really due was 81 i 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 sujoposed by counsel, was charged with 
 too little." 
 
 If a tax is levied for an illegal purpose, it cannot 
 be sustained. The power of taxation is one of the 
 highest attributes of sovereignty. It cannot be en- 
 forced 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 mi- 
 nority, is limited by law to such cases as are clearly 
 provided for, and defined by the statute which con- 
 fers the taxing power. Hence, whenever money is 
 raised by taxation, the purpose for which it was 
 
 1 9 Ohio E. 83. 
 
OP THE LEVY OP THE TAX. 
 
 195 
 
 levied ought to appear upon the face of the proceed- 
 ing, and if that purpose was illegal, there can be no 
 authority to collect the tax, the officer who attempts 
 to enforce it will be liable in trespass, and the pur- 
 chaser can acquire no title to the property seized 
 and sold to satisfy it. Thus the levy of a tax for the 
 supjDort of a ministry, or to defend the town against a 
 public enemy, is not warranted by a law conferring 
 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 
 authority, and for a lawful purpose, while 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 appropriate tribunal. This cannot 
 be done where the different taxes are confounded to- 
 gether, 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 reason of the neglect of the 
 officers entrusted with the duty of assessing it, the 
 land was omitted in the list of a particular year. 
 " Back taxes," as they are called, may therefore be 
 
 '^Lisbon \.Bath, 1 Foster E. 319; Bussey v. Gilmore, 3 Greenlf. E. 191; 
 Stetson T. Kempton, 13 Mass. K. 272. 
 
 ^Staler. Falldnhinge, 3 Green Law E. 320; Camden S,- Amboy R. R, Co. v. 
 Sillegar, 3 Harrison R. 11. 
 
196 OF THE LEVY OE THE TAX. 
 
 jissessed and collected with the taxes of the current 
 year, although the land upon which they are charge- 
 able has passed into the hands of a bona fide pur- 
 chaser. This power grows out of the necessities of 
 the government and the nature of a tax lien, which 
 admit no property in the citizen while a tax remains 
 unpaid, and regard the land as a pledge — perpetual 
 in its character — to pay the debts and current ex- 
 penses 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 
 limiting 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 munic- 
 ipal corporations and other local tribunals or bodies, 
 authority to levy and collect taxes for specified pur- 
 poses, and to determine the extent of territory which 
 shall constitute a tax district.^ While this doctrine 
 is imquestionable, a municipal corporation or other 
 inferior organization possesses no power to levy taxes 
 
 ''■Parham v. Decatur Co., 9 Geo. E. 352 ; Swan v. Knoxville, 11 Humph. E. 
 130 ; State v. Pemberton, Dudley E. 15 ; Paden v. AiJcen, 7 Watts & Serg. K. 
 456 ; Ciirri/ v. Fowler, 3 A. K. Mar. E. 504 ; Edward v. Beard, Breese R. 41 ; 
 Madison Co. t, Bartlett, 1 Scam. E. 70-71 ; Hayden v. Foster, 13 Pick. R. 492. 
 
 2 Sliaio T. Dennis, 5 Gilm. E. 405 ; Fitch v. Pinckard, 4 Scam. E. 69 ; Thom- 
 as v. Leland, 24 Wend. E. 65; Norwich v. Co. Commissioners, etc., 13 Pick. E. 
 60 ; Sawyer t. City of Alton, 3 Scam. E. 127 ; Vanderbilt v. Adams, 7 Cowcn 
 R. 349 ; Trustees of Paris v. Berry, 2 J. J. Marshall E. 483 ; Hope v. Deadrick, 
 8 Humphrey E. 1 . 
 
OF THE LEYY OP THE TAX. 
 
 197 
 
 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 Icav^' the general law in force 
 at the time of the assessment and collection 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 ex- 
 cluded from a participation in the improvements of 
 the 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 pay- 
 ment is not voluntary, but compulsive, and an action 
 will lie against the collector to recover it back, unless 
 he has paid it over to his superiors, in Avhich event 
 the action must be brought against the corporation.* 
 But the fact that a tax is unconstitutional, or other- 
 wise illegal, is no defense to a collector who refuses 
 to pay over the tax after he has collected 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 
 
 ^Asheville v. Means, 7 Iredell E. 406. 
 
 2 Hope V. Deadrick, 8 Humphrey's E. 1 . 
 
 8 Ontario Banhy. Bunnell, 10 Wend. E. 186. 
 
 ' Sumner v. Dorchester, i Pick. E. 361 ; Joyner v. Third School District of Eg- 
 remont, 3 Cashing E. 567. 
 
 ^ Waters v. State, 1 Gill.E. 302; Moorey. Alleghany City, 18 Pa. State E. 55. 
 
 ^ Martin v. Tax Collector, 1 Speer's Law E. 343 ; Bleight v. Auditor, 2 Mun- 
 roe E. 27 ; Burger v. Carter, 1 McMuUen E. 421. 
 
198 OF THE LEVY 01' THE TAX. 
 
 down that statutes imposing taxes or burdens upon 
 the citizen, must be strictly construed, and the sub- 
 jects of taxation, and the amount of the tax, must 
 clearly appear. And in Dwarris,^ it is said to be 
 a well settled rule of law, " that any charge upon the 
 subject must be imposed 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 legisla- 
 ture must be explicitly and distinctly shown." This 
 would seem to be the safer rule to adopt. Upon this 
 point Chief Justice Eufi&n remarks : " I do not think 
 that a strained construction is allowable of an act 
 which levies money from the citizen. The amount 
 of the levy, the subject of it, and the method of rais- 
 ing it, ought to be so plainly pointed out as to avoid 
 aU danger of oppression by an erroneous interpreta- 
 tion- and where there is a fair doubt, the 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 tax- 
 ation, unless it is clearly authorized by the words of 
 the law.^ 
 
 1 Dwarris on Stat. 749 ; Butler arguendo in Ontario Bank v. Bunnell, 10 Wend. 
 E. 186 ; Sewcll v. Jones, 9 Pick. K. 414 ; Savannah v. Hartridge, 8 Geo. K. 30. 
 
 2 State V. Bank of Newheni, 1 Dev. & Bat. Eq. E. 218. 
 2 Bank of Georgia v. Savannah, Dudley E. 132. 
 
OF THE AUTUOKITY TO COLLECT THE TAX. 199 
 
 CHAPTER VII. 
 
 OF 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. 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 the body or no 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, up)on which the taxes remain due and tin- 
 paid. This authority is variously denominated- the 
 " list," " duplicate," " invoice," or " warrant to collect," 
 according to the ]3eculiar legislation or usage of each 
 State. It has already been shown that the listing, 
 valuation, and levy of the tax, which usually appear 
 
200 or THE AUTHOEITI TO COLLECT THE TAX. 
 
 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 collect, is analogous to an execution, and 
 constitutes the only authority of the of&cer to pro- 
 ceed 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 document of this 
 nature, delivered by the officer of the law designated 
 for that purpose, the collector has no authority to 
 proceed to enforce payment of the taxes. His de- 
 mand, 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 sale of the 
 land, by the officer entrusted by law with those du- 
 ties.^ 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 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 be- 
 
 1 See also Aldrich v. Aldrich, 8 Metcalf E. 102. 
 
 " Pentlandy. Stewart, 4 Dev. & Bat. E. 386. 
 
 3 Hannd v. Smith, 15 Ohio E. 134 ; Holt's Heirs v. Hemphill, 3 Ham. E. 232 ; 
 State V. Woodside, 8 Iredell E. 104; Barnard v. Graves, 13 Metcalf R. 85 ; 
 Homer v. CUleij, 14 N. H. E. 85; Chandler v. Spear, 22 Vermont E. 388; Den- 
 nis V. Shaw, 5 Gilm. E. 405 ; Allen v. Scott, 13 Vi. E. 80 ; Bassett v. Porter, 4 
 Cashing E. 487 ; Chase v. Sparhuwk, 2 Foster E. 134 ; Moore v. Allegliany City, 
 
 18 Pa. State E. 55 ; Abbott v. Yost, 2 Benio E. 86 ; Dunninc/ v. Roberts, 21 Ver- 
 mont E. 441 ; Sheldon v. Van Buskerk, 2 Comst. E. 473 ; Doumer v. Woodburtl, 
 
 19 Vermont E. 329 ; Brackett v. Whidden, 3 N. H. E. 19 ; Dillingham v. Snow, 
 5 Mass. E. 558 ; Wheeler v. Anthony, 10 Wend. E. 346 ; Hathaway v. GoodriA, 
 5 Vermont E. 65 ; King v. Whitcomb, I Metcalf E. 328 ; Upton r. EoMen, 5 
 Ibid. 360. 
 
 * Vide Cliapter 4. Burgess v. Pue, 2 Gill E. 11 ; Hartley v. State, 3 Kelly 
 E. 233. 
 
OF THE AUTHORITY TO COLLECT THE TAX. 201 
 
 come 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.^ Not only must the authority to 
 collect, be made by, and delivered to the proper legal 
 officer, but the copy, invoice, or abstract of the as- 
 sessment roll, or the warrant to collect, must be duly 
 authenticated, with a view to their legal identity as 
 official documents.^ The statute of North Carohna 
 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 returns, in 
 alphabetical order, designating, in such copy, the 
 separate amount of taxes accruing from each species 
 of property, and extending the aggregate due from 
 each individual. In Doe ex dem. Kelly v. Craigf the 
 plaintiff 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 defendant objected, because it was not 
 authenticated as a copy of the tax list, by a certifi- 
 cate 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 
 furnished 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 
 
 1 Commonwealth v. Brown, 1 S. & R. 382 ; Blake v. Sturtecant, 12 N. H. K. 
 567 ; ScJielenck v. Rislei/, 3 Scam. E. 4S3. 
 
 2 Vide Chap. 18. Chase t. Sparhawk, 2 Foster R. 134. ^ 5 ii-djeU jj, 129. 
 
 26 
 
202 OF THE AUTHOEIir TO COLLECT THE TAX. 
 
 liable to double tax. The plaintiff then, to prove the 
 amount of the double tax, offered the sheriff to prove 
 that in 1837 he saw, either in the clerk's of&ce, the 
 original tax list, or in the hands of his own prede- 
 cessor, a paper purporting to be a copy of that tax 
 list, made out by the clerk, in which the lot in ques- 
 tion was listed by the owner, 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 im- 
 material whether the list was the original, or the 
 record thereof by the clerk, or an ofl&cial copy, as 
 either was sufficient. A verdict was found for the 
 plaintiff, and a judgment rendered thereon, from 
 which the defendant 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 authen- 
 ticated by the official certificate of the clerk, as a 
 true copy of the original list, filed and recorded in 
 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 citi- 
 zens, to be official evidence of their hability. It 
 would seem of necessity that a mere copy of the Ust, 
 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 
 
OF THE AUTHOEITY TO COLLECT THE TAX. 203 
 
 not sufl&cient 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 
 that 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 confers no authority upon the officer to 
 proceed and collect the taxes.^ So, where a day is 
 fixed for the delivery, and it is delivered before the 
 time arrives, the collector has no authority, 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 collector being special, it does not attach until 
 such time as the law fixes for its commencement. A 
 statute of New Hampshire required a copy of the 
 invoice from which the assessment 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 war- 
 rant was held void.^ 
 
 Such are the adjudications upon the question of au- 
 thority to. collect, treated as a distinct fad in the series 
 of acts which are regarded as essential to the vahdity 
 of the proceedings. In the chapter relating to the 
 authority of the officer to sell the land as dehnquent, 
 
 1 The Proprietors of Cardigan v. Page, 6 N. H. B. 182. 
 
 2 The Proprietors of Cardigan t. Page, 6 N. H. E. 182. 
 ' Brownv. Wright, 17 Vermont R. 97. 
 
204 or THE AUTHOKITY TO COLLECT THE TAX. 
 
 the subject will be renewed, and more fully explained 
 and illustrated by the authorities. This chapter 
 might be regarded as useless, but for the fact, that in 
 some of the States, the power to sell the land is Tesi> 
 ed in the hands of a diflferent officer from the col- 
 lector. In all such cases it is apparent that the 
 power to collect, and the power to sell, are distiact 
 acts, each of which must exist, or the entire pro- 
 ceedings must fall to the ground. 
 
or THE DEMAND OP THE TAX. 205 
 
 CHAPTER VIII. 
 
 OF THE DEMAND OF THE TAX. 
 
 The mere assessment of a tax upon land does not 
 create a deU against the owner. It cannot be gar- 
 nislieed, attached or seized in execution at the suit 
 of a creditor of a municixjal corporation.^ Nor is it 
 a "judgment or contract" which may be set oflf 
 against the claim of a creditor of a city, within the 
 meaning of the Massachusetts statute.^ It may be 
 laid down as an 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 made. 
 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 collector.^ In Thompson v. Gard- 
 ner^ 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 to prove that he had ever demanded it of the 
 
 ^Egerton v. Third Municipality, 1 La. Ann. E. 435. 
 
 ^Pierce v. City of Boston, 3 Metcalf R, 520. 
 
 " Bott v. Pearly, 11 Mass. E. 169. * 10 John. E. 404. 
 
206 OV THE DEMAND OP THE TAX. 
 
 defendant. The court gave judgment for the defend- 
 ant, saying : " a 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 roU, 
 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 
 personal 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 extraordi- 
 nary powers, with which the collector is armed, are 
 resorted to. He cannot be in default until he is no- 
 tified of the tax, and has an opportunity of paying 
 it. If, after a notification 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 in- 
 tended that the summary 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 Ives V. Lynn} it was objected to a tax sale, that 
 personal notice, or other reasonable and sufficient 
 warning of the assessment of the tax had not been 
 given, and that no demand of payment was made. 
 The statute required the collector to appoint a time 
 and place for receiving taxes ; and in case of failure, 
 
 1 7 Conn. E. 505. 
 
OP THE DEMAND 01 THE TAX. 207 
 
 to distrain the goods of the dehnquent. The cotem- 
 poraneous 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 court maintained the sale. 
 
 The principles to be extracted from all of the decis- 
 ions iipon this subject, may be thus stated: 1. Where 
 the statute, under which the proceeding takes place, 
 expressly requires a notification and demand, the 
 requisition must be complied with. 2. Where the 
 statute is silent upon the question of notice and de- 
 mand, it must be construed according to the principles 
 of natural justice, which enjoins a personal demand be- 
 fore the person assessed can be regarded as in default. 
 3. Where the statute does not expressly require a de- 
 mand 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 evi- 
 dence of a demand, and authorizes the rendition of a 
 
 1 Johnson v. Mclntire, 1 Bibb E. 295 ; Thompson v. Rogers, i Lou. E. 9 ; Par- 
 ker V. Rule's Lessee, 9 Cranch. E. 64 ; Jackson v. Shephard, 7 Cowen R. 88 ; 
 Burd V. Rumsay, 9 S. & E. 109 ; Thompson v. Gardner, 10 John. E. 404 ; Ives v. 
 Lynn, 7 Conn. E. 505 ; Mayhew t. Davis, 4 McLean R. 213. 
 
 ^Ante, p. 38. 
 
208 OP THE DEMAND OF THE TAX. 
 
 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 
 demand.^ The contrary was held by Judge Pope, 
 District Judge of the United States Court in Dlinois, 
 upon the construction of the same statute.^ 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 sup- 
 posed that the judgment would conclude the former 
 owner. 
 
 1 Tmjhr V. People, 2 Gilm. E. 349 ; Job et al. v. Tibbetts, 5 Ibid. 382. 
 ^jslayheu) v. Davis, 4 McLean E. 213. 
 
OP THE SEIZUEB OE THE BODY OR GOODS, ETC. 209 
 
 CHAPTBE IX. 
 
 OF THE SEIZURE OF THE BODY, OE 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 compel a resort to coercive 
 means. In some States the law requires the body of 
 the delinquent to be arrested, and imprisoned in sat- 
 isfaction of the tax.^ In the case last cited, under a 
 statute which required the body of a resident pro- 
 prietor 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 collector, 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 
 
 1 Bassett v. Porter, 4 Gushing E. 487 ; Daggett t. Everett, 19 Maine E. 373 ; 
 Rising v. Granger, 1 Mass. E. 48. 
 
 27 
 
210 OF THE SEIZUBE OF THE BODY, 
 
 can be found to satisfy it.^ In South Carolina, the 
 statute thus marshals the remedies : 1. A distress of 
 the personal estate of the dehnquent. 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 the act of the 
 oflficer illegal. It is the policy of the law to resort to 
 the land itself, only when all other remedies fail to 
 enforce a satisfaction of the tax. The person or per- 
 sonal estate of the dehnquent is regarded as the 
 frimari), 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 remedies pre- 
 scribed, and the order in which they are directed to 
 be enforced, are prerequisites, and must be as strictly 
 complied with as any other requirement of the law, 
 from the beginning to the end of the proceedmgs. 
 The law admits of no substitution or change in the 
 order 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 sale 
 of the land under such circumstances, is illegal and 
 void.^ The strongest case upon this point, is that of 
 
 1 Vide cases cited sup-a, Note 3. 
 
 ^ Kingman v. Glover, 3 Eicliardson Law E. 27. 
 
 ^ Yanci/ V. Hopkins, 1 Munf. E. 419, 437 ; Jackson v. Shephard, 7 Cowen K. 
 91 ; Parker t. Smith, 4 Blackf. E. 70 ; Scaks v. Avis, 12 Ala. E. 617 ; Baltimore 
 V. Chase, 1 Gill & John. E. 376 ; Dallam v. Oliver, 3 Gill E. 445 ; Burd v. 
 Rumseij, 9 S. & E. 109; Cox v. Grant, 1 Yeates E. 164; Francis r.Rtssdi,i 
 Haywood E. 294 ; Hamilton y. Btiram, 3 Yerger E. 355 ; Doe ex dem. GUney 
 >. Devours, 11 Geo. E. 79; Governair y. New York, 2 Paige E. 434; Steais 
 
OR GOODS, TO SATISEY THE TAX. 211 
 
 Scales V. Avis} The statute of Alabama provided, 
 that " where the dehnquent has no goods and chat- 
 tels 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 collector to sell lands, is limited to those 
 cases where the delinquent has no goods and chattels 
 within the county. There is no provision made for 
 cases where the collector is unable to find, or the de- 
 linquent is unwilhng to surrender goods. The power 
 exists only where there are no goods ; and conform- 
 ing to the principle of the many cases on this subject, 
 we are constrained to decide, that as there was per- 
 sonal property of the delinquent within the county, 
 the collector had no discretion to sell 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 collector, 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 land taxed, it was 
 held that unless the fact affirmatively appeared upon 
 
 Executors v. Course, 4 Cranch E. 403; S. C, 2 Pet. Cond. E. 151 ; Parker v. 
 Rule, 9 Cranch E. 64 ; S. C, 3 Pet. Cond. E. 271 ; Thatcher v. Powell, 6 Whea. 
 E. 119 ; S. C, 5 Pet. Cond. E. 28. 
 1 12 Alabama E. 617. 
 
212 
 
 OP THE SEIZURE OF THE BODT, 
 
 the face of the record, that the owner had no goods 
 and chattels, the court had no jurisdiction to render a 
 judgment against the land, and that a sale, under 
 such circumstances, 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 thereon, and the collectors shall 
 be unable to find any personal property of such per- 
 son 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 
 
 Count!/ of , and State of Illinois, on which taxes 
 
 remain due and unpaid, for the pear herein setforthr 
 
 o P 
 
 a 
 
 o 
 
 
 
 J 
 
 
 
 
 
 il 
 
 
 
 n 
 
 
 
 
 &£ 
 
 5 
 
 
 w Cl 
 
 m 
 
 
 -r 
 
 3 
 
 ft 
 
 2£ 
 
 o 
 
 
 tS.2 
 
 
 •R 
 
 ■5 rt 
 
 
 ^ 
 
 m ■A 
 
 rs 
 
 
 M 
 
 
 1 
 
 
 $■ 
 
 A 
 
 
 
 
 
 
 
 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 publi- 
 cation in a newspaper, &c., and he was also directed 
 to file a copy of said advertisement, together with a 
 certificate of the printer, showing the due publication 
 of the same. It was then made the duty of the court 
 
 1 Franas t. Russell, 5 Haywood E. 294, 394 ; Hamilton v. Buram, 3 Yerger 
 R. 355 ; Thatcher v. Powdl, 6 Whea. E. 119 ; S. C, 5 Pet. Cond. E. 28. 
 
OK GOODS, TO SATISFY THE TAX. 213 
 
 to hear and determine the application, in a summary 
 way, without pleadings, and unless some valid objec- 
 tion was interposed by those interested in the list, to 
 render judgment against said lands. Upon this judg- 
 ment, the clerk was directed to issue and deliver to the 
 collector, a precept, commanding him to sell the lands 
 against which judgment had been obtained as afore- 
 said. Upon the construction of this statute, it has 
 been held by the Supreme Court of Illinois, in two 
 cases, 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 pre- 
 scribed by the statute, it will be presumed that the 
 delinquents reported, had no personal property ; that 
 this presumption may be rebutted by proof, upon ob- 
 jection taken to the rendition of the judgment ; but 
 if the owner makes no defense, and suffers a judg- 
 ment 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 judgment where the record does not affirmatively 
 show that the owner had goods.-^ The contrary prin- 
 ciple was maintained by Judge Pope, in the United 
 States Court for the district of Illinois.^ 
 
 1 Taylwr v. People, 2 Gilm. E. 349 ; Job v. Tebbetts, 5 Ibid. 376. 
 
 2 Mayliew t. Davis, i McLean R. 213. 
 
214 OF THE KETUEN OF THE DELINQUENT LIST. 
 
 CHAPTEE X. 
 
 OF THE RETURN OF THE DELfflQUENT LIST. 
 
 In several of the States, as heretofore remarked, 
 the power 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 de- 
 linquents to his superior, in a certain prescribed form, 
 authenticated or verified in a particular manner, and 
 within a limited time. When such is the require- 
 ment, it is regarded as imperative, and not directory, 
 and an exact compliance is demanded. This return 
 is the only evidence of delinquency — of the fact that 
 a demand was made, by the collector, upon the per- 
 son 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 delinquent 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. If the officer to whom 
 the return is made, is the person to whom the power 
 
 ^Ante Chapter 7. 
 
OF THE EETUEN OP THE DELINQUENT LIST. 215 
 
 of sale is entrusted, the return constitutes his author- 
 ity 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- 
 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 
 attested by the oath of the collector. In the Lessee 
 of Harmon v. Stochwellf the return was sworn to before 
 the county auditor, and it was contended that the 
 auditor had no authority to administer the oath, and 
 therefore 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 
 authority. If the auditor at that time possessed no 
 such power, 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 possess it." 
 The court then proceed to examine the statutes of 
 Ohio, relative to the powers and duties of county 
 auditors, and thus conclude : " We therefore find no 
 authority in any of the statutes enabling the auditor 
 to administer oaths, except in certain specified cases, 
 
 1 Eev. Laws Illinois, 1833, p. 524, Sec. 3, and p. 528, Sec. 1 ; Messenger v. 
 Germain, 1 Gilm. R. 631 ; Harmon v. Stockwell, 9 Ohio E. 93 ; Ilannely. Smith, 
 15 Ibid. 134; Doe v. Whidock, 1 Tyler E. 305; Winder v. Sterling, 7 Ham- 
 mond E. 190 (Part 2) ; Jackson v. Morse, 18 John. E. 442 ; Tollman v. White, 
 2 Comstock E. 66 ; Homer v. Cilley, 14 N. H. E. 85. 
 
 2 9 Ohio E, 93. 
 
216 OP THE RETURN OV THE DELINQUENT LIST. 
 
 and the instance before us is not one of them. The 
 grant of authority in those specified cases sufiiciently 
 implies that he possessed it in no others. The return 
 of the collector, therefore, was not made under the 
 securities and sandioiis which the law required ; and 
 this omission is fatal to a title held imder 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 delin- 
 quents to the county auditor, and to sign and testify 
 to its correctness under oath or affirmation, to be 
 administered by the county auditor. The county 
 auditor was required to make a complete record of 
 this return. In Minor v. McLean} the record offered 
 in evidence did not show affirmatively that the oath 
 had been taken by the treasurer, but a traiiscript 
 of the record did. The sale in question was held 
 void, becatxse the oath was essential to the vaHdity of 
 the return, 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 list to the circuit court, constitutes the 
 authority of that court to enter judgment against the 
 delinquent list.^ So in Tennessee^ and Ohio.* 
 
 1 4 McLean E. 138. ^ SpeUman v. Curtenius, 12 111. K. 409. 
 
 8 Thatcher v. Powell, 6 Whea. E. 119. 
 * Wilkins V. Huse, 9 Ohio K. 154. 
 
JUDICIAL CONDEMNATION. 
 
 217 
 
 CHAPTER XI. 
 
 OF 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 dehnquency of the 
 owner has been judicially ascertained.-' The charac- 
 ter, requisites and effect of these proceedings, 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 land- 
 marks, and uniformly adhered to. It is a familiar 
 principle, that a judgment is conclusive upon parties 
 and privies, where the court had jurisdiction to ren- 
 der it. Unless such jurisdiction exists, the judgment 
 is a nullity, and may be impeached collaterally. 
 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 ques- 
 tioned in a collateral action, for want of jurisdiction 
 over the parties f but this doctrine seems to be at 
 war with the fundamental principles of our institu- 
 
 1 Ante, p. 38. " 2 Am. Lead. Ca. 737. 
 
 28 
 
218 OF THE PKOOEEDINGS WHEBE A 
 
 tions. 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 legis- 
 lature itself, is limited by the Constitution. Judicial 
 power can rest upon no broader foundation. No man 
 shall be condemned without notice and an opportu- 
 nity of being heard. Such is the mandate of the 
 Constitution. If courts may disregard this provision, 
 it is impossible to perceive what plausible reason can 
 be urged against the validity of an act of the legis- 
 lature, 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 legis- 
 lature ? 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 con- 
 clusive, is, that an end may be put to litigation. 
 Public policy demands repose under such circum- 
 stances ; but there is neither justice or sound policy 
 in closing the courts against one who has never liti- 
 gated his rights, or had an opportunity of doing so. 
 An estoppel is regarded as odioiis, because it shuts 
 out the truth ; but it would be the essence of injus- 
 tice to maintain an estoppel against one who has been 
 passive, without knowledge 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 
 
JUDICIAL CONDEMNATION IS EBQUIRED. 
 
 219 
 
 done to the party complaining. Therefore, to con- 
 stitute 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 con- 
 troversy between the parties ; and it has jurisdiction 
 over the person of the defendant, when he volunta- 
 rily appears to the action, or has been actually served 
 with process, or has had constructive notice of the 
 pendency 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 is not necessary that the facts and 
 circumstances which justify its action, should appear 
 affirmatively upon the face of its record, it will be 
 presumed that they existed, whether the validity of 
 the judgment is questioned collaterally, 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 recital.^ When it is shown 
 
 '■ Grignon's Lessee v. Astor, 2 Howard IT. S. R. 319; Dm ex, dem. Obert t. 
 Hammel, 3 Harrison N. J. E. 319 ; Kempe v. Kennedy, 2 U. S. Cond. E. 223 ; 
 Raymond V. Bell, IS Conn. Ti. 81-9; Propst y. Meadows, IS JB.. 1^.168-9 ; Kenny 
 T. Greer, Ibid. 433 ; Foot t. Stevens, 17 Wend. E. 483 ; Peacock v. Bell, 1 Saund. 
 E. 73 ; HaH v. Seixas, 21 Wend. E. 40; Voorhees v. U. S. Bank, 10 Pet. E. 
 449; Young v. Lorrain, 11 HI. E. 636-9; Wyman v. Campbell, 6 Porter E. 236, 
 243 ; Doe v. Wise, 5 Blackf. E. 402 ; M'llroy v. Speed, 4 Bibb E. 85 ; Fridge r. 
 State, 3 GUI & John. E. 103 ; Van Warmer v. Mayor of Albany, 15 Wend. E. 
 262 ; Paine v. Moreland, 15 Ohio E. 444-5. 
 
 2 Vide Cases cited ante, pp. 52-3. 
 
 8 Rex T. Croke, Cowper E. 26. 
 
220 OF THE PROCEEDINGS WHERE A 
 
 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 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 judgments in tax proceedings. In Thatcher v. 
 Poioellf Chief Justice Marshall says: "In summaiy 
 proceedings, where a court exercises an extraordinary 
 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 
 judicer And it makes no difference whether this pow- 
 er 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 jurisdic- 
 tion.^ 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 com- 
 plete record of all the tax proceedings anterior to 
 
 ^ Williamson et al. v. Berry, 8 Howard U, S. R, 540-1 ; Glass etal. v. Sloop 
 Betsy, 3 Dallas B. 7 ; iJose v. Bimdy, 4, Cranch R. 241 ; Elliot v. Piersol, 1 Pet. 
 E. 328 ; Wilcox v. Jackson, 13 Pet. R. 499 ; Shriver t. Lynn, 2 Howard U. S. 
 R. 59 ; Hickey v. Stewart, 3 Ibid. 750 ; Rogers v. DM, 6 Hill N. Y. R. 415 ; La- 
 tham V. Edgerton, 9 Cowen R. 227 ; Homer et ux. v. Doe, Smith Ind. R. 10; S. 
 C, 1 Carter R. 130 ; 2 Am. Lead. Ca. 733-6. 
 
 2 6 Whea. R. 119. 
 
 8 Young v. Lorrain, 11 Illinois R. 636-7. 
 
JUDICIAL CONDEMNATION IS REQUIEED. 221 
 
 the judgment must be made and preserved.-^ This is 
 in accordance with the general principles applicable 
 to summary proceedings.^ But it must be remem- 
 bered that all of these cases were decided upon writs 
 of error, and did not arise collaterally. The true rule 
 undoubtedly is, that if the jurisdiction appears by 
 recital or otherwise upon the record, the judgment 
 wiU be sustained, although the evidence upon which 
 they acted is not spread vipon the record.^ The effect 
 thus given to this class of judgments, where their ju- 
 risdiction 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 judg- 
 ment was in full force ; and the judgment itself, so 
 long as it remains in force, cannot be impeached 
 collaterally, unless it be absolutely void.* The Ten- 
 nessee 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 chat- 
 tels, the collector was required to report a list of the 
 delinquents to the county court; the court was 
 directed to cause an advertisement to be published in 
 a newspaper, stating that application was made for a 
 
 ^Dentler v. State, i Blackf. E. 258; Smithy. State, 5 Ibid. 65; Williams v. 
 State, 6 Ibid. 36. 
 
 2 Judson V. State, 1 Minor E. 53 ; Yancy v. Hopkins, Ibid. 171; Bates v. Plant- 
 ers' and Merchants' Bank, 8 Porter E. 99 ; Crawford v. State, 1 Minor E. 143 ; 
 
 1 Chandler's E. 29 ; Harryman v. Titus, 3 Missouri E. 302 ; Zurchee v. Magee, 
 
 2 Ala. E. 253 ; Bates v. Branch Bank of Mobile, Ibid. 689 ; Brown v. Wheeler, 
 
 3 Ibid. 287 ; Bettis v. Taylor, 8 Porter E. 564. 
 
 s Chesnut v. Marsh, 12 111. E. 173; Rogers v. Park, 4 Humph. E. 480; Mc- 
 Carroll v. Weeks, 4 Haywood E. 246 ; Taylor -v. People, 2 Gilm. E. 349. 
 
 ^Lessee of Wilkins' heirs v. Huse et al., 9 Ohio E. 154; Chesnut v. Marsh, 12 
 111. E. 173 ; Spellman v. Curtenius, Ibid. 409. 
 
222 OF THE PBOCEEDINGS WHEKB 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 hst. In the construction of this 
 statute, it has been decided that the following juris- 
 dictional facts must appear in the record, or the judg- 
 ments 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 
 to deliver to the school commissioners a description 
 of the lands upon which taxes were due and unpaid, 
 and in case the owners faUed to redeem the same 
 within three years from the time of the delivery of 
 said lists, the law provided that they might be sold in 
 such manner as the legislature might thereafter pre- 
 scribe, 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 re- 
 quired, among other things, that a list of the lands 
 should be advertised, and that the notice should ex- 
 press 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, etc. In one case 
 it did not appear that the notice of the motion con- 
 templated had been given, but the record recited that 
 
 1 Thatcher v. Pmodl, 6 Whea. R. 119 ; McClung v. Ross, 5 Wliea. E. 116 ; S. 
 C, 5 U. S. Cond. E. 602 ; Francis v. Russell, 5 Haywood R. 294 ; McCarroll v. 
 Weeks, 4 Ibid. 246 ; Campbell v. Mclrwin, Ibid. 60 ; Anderson y. Patten, 1 Humph. 
 E. 369; Rogers v. Park, 4 Ibid. 480 ; Hamilton v. Burum, 3 Yerger E. 155; 
 McCarroUv. Weeks, 2 Tenn. R. 219. 
 
JUDICIAL CONDEMNATION IS REQUIKED. 223 
 
 " the court was satisfied that all the proceedings re- 
 quired by law had taken place, etc." The court held 
 that this recital amounted to nothing. The record 
 must show what those proceedings were, in order that 
 the appellate court may have an opportunity to de- 
 termine whether they were all that the statute 
 required to give the circuit court jurisdiction.^ And 
 in another case, the court held that the proceedings 
 required by law to take place anterior to the collects 
 or's return, must also appear upon the record, as well 
 as the notice of the motion.^ The Ohio statute of 
 January 30, 1822, authorized the rendition of a judg- 
 ment, 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 proceedings, and that the title thereby conveyed 
 should not be " invalidated or affected by the rever- 
 sal of such judgment, or any error therein, or by any 
 error in the proceedings previous to the rendition of 
 any such judgment, relating to the charging or col- 
 lecting 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 pro- 
 nounced, should be certified 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 be 
 executed and delivered to the purchaser. In the 
 construction of this statute, it has been held that the 
 
 1 Ventler v. Sme, 4 Blackf. E. 258 ; S. P. Smith v. State, 5 Ibid. 65. 
 
 2 Williams v. State, 6 Blackf. E. 36. 
 
224 OF THE PEOCEBDINGS WHEEB A 
 
 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 con- 
 cerned ; no informality, no irregularity, no errors in 
 any of the previous proceedings, can vitiate it. A 
 misdescription of the land in the assessment roll can- 
 not 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, con- 
 tains 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 names of all persons own- 
 ing taxable property within his district, arranged and 
 written in alphabetical order ; the original list shall 
 be filed and preserved by the clerk, and a copy shall 
 be delivered over to the collector of taxes, as herein- 
 after provided." ^ 
 
 " On the second Monday of August annually, or so 
 
 1 Hennick et al. v. Wallace, 8 Ohio E. 540 ; Lessee of Wilkins' heirs v. Huse et 
 aZ., 9 Ibid. 154. sgec. n. 
 
JUDICIAL CONDEMNATION IS KEQUIKED. 
 
 225 
 
 soon thereafter as collectors shall have been sworn 
 into office, the clerks of the county commissioners' 
 courts shall deliver to the collectors of their respect- 
 ive counties, the alphabetical lists of taxable property 
 returned to them by the assessors, and take duplicate 
 receipts for 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." ^ 
 
 "The collectors of the several counties shall, so soon 
 as the lists of taxable property are dehvered to them, 
 proceed to collect 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 thereof; and each 
 and every person shall be charged with and required 
 to pay to the collector twenty cents on every hundred 
 dollars' worth of property listed for taxatiim ; 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 col- 
 lector ; 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 whosesoever hands or possession the same may be 
 found, and sold to satisfy such taxes, and all cost and 
 charges attending the collection of the same : Pro- 
 vided, The lien aforesaid shall not continue to exist 
 
 1 Sec. 14. 
 
226 OF THE PEOCEEDINGS WHERE A 
 
 longer tlian 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 resi- 
 dence of every such person, stating the amount of 
 taxes due from such person, and requiring him or 
 her to make 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 considered as a demand for 
 the taxes within the meaning of this act." -^ 
 
 " If any person shall fail to pay his or her taxes 
 when demanded 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 neighbor- 
 hood 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 collectors shall be unable to find any per- 
 
 1 Sec. 16. 2 Sec. 17. 
 
JUDICIAL CONDEMNATION IS EBQUIEED. 
 
 227 
 
 sonal 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 : 
 lAst of lands and other real estate, situated in the 
 
 Comity of , and State of Illinois, on ivhich taxes 
 
 remain due and unpaid, for the year herein set forthr^ 
 
 
 
 <Q 
 
 
 
 A 
 
 
 
 
 g 
 
 ?! 
 
 i-d 
 
 
 .g 
 
 a» 
 
 
 § 
 
 
 h u 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 S5 
 
 
 It 
 
 ' 
 
 1 
 
 
 c3 
 
 1 
 
 1 
 
 
 
 
 
 
 
 
 
 
 " Before making the application to the circuit court 
 provided for in the preceding section, the collector 
 shall publish 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 adver- 
 tisement 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 
 delinquent 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 
 
 1 Sec. 25. 
 
228 or THE PROCEEDINGS -VTHEKB A 
 
 taxes, interest and costsi, 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 
 advertisement ptiblished according to the provisions 
 of this section, shall be deemed and taken to be suf- 
 ficient and legal notice, both of the aforesaid intend- 
 ed 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 ad- 
 vertisement, 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, togeth- 
 er with the said report provided for in the twenty- 
 fifth section of this act." ^ 
 
 " The clerk of the circuit court, upon the filing of 
 such report and certificate of publication by the col- 
 lector, shall 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 ofiice ; and the 
 said clerk shall place the said report and certificate 
 of said collector at the head of the common law 
 
 1 Sec. 26. 2 Sec. 27. 
 
JUDICIAL CONDEMNATION IS BEQUIEBD. 229 
 
 docket for said term, in the |bllowing form, to wit : 
 
 State of Illinois, \ 
 
 vs. y Suit for taxes." ^ 
 
 John Doe and others. J 
 
 " It shall be the duty of said court, upon calling the 
 common law docket of said term, if any defense be 
 offered by any of the owners of said lands so repori> 
 ed, or by any person having a claim or interest 
 therein, to hear and determine the same in a sum- 
 mary way, without pleadings; and if no defense 
 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 fol- 
 lowing form, to wit : 
 State of Illinois, |^ , 
 
 county, 
 
 Whereas, A. B., collector of said county, returned 
 
 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 col- 
 lector's return, and that the respective owner or 
 owners have no goods and chattels within his county 
 on which the said collector can levy for the taxes, 
 interest and costs due and unpaid on the following 
 described lands, to wit : \_irere follows the fe^.] 
 
 And whereas, due notice has been given of the 
 intended application for a judgment against said 
 lands, and no owner hath appeared to make defense 
 or show cause why judgment should not be entered 
 
 1 Sec. 28. 
 
230 or THE PKOCBEBINGS WHERE A 
 
 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 said several tracts of land, or so much 
 thereof as shall be sufficient of each of them to 
 satisfy the amount of taxes, interest and costs annexed 
 to them severally, be sold, as the law directs." ^ 
 
 " That the form as herein before 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 shaU be sold for taxes, and deliver the same 
 to the sheriffs 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, and make return thereof to the 
 said clerk within twenty days after the day of sale."^ 
 
 "Any person or persons owning or claiming lands, 
 advertised 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 
 
 1 Sec. 29. 2 Sec. 30. "gee. 31. * Sec. 32. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 
 
 231 
 
 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 youngest one of them shall arrive 
 at the age of twenty-one years; and any person 
 claiming the right to redeem land under the provi- 
 sions 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 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 pToposed 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, hoiv- 
 ever, 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 
 
 1 Sec. 39. 
 
232 or THE PBOCEEDINGS WHEEE A 
 
 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 certifi- 
 cate of purchase. Deeds executed by sheriffs shall 
 be in the following form : 
 
 Know all men by these presents, that whereas, at 
 
 term, 18 — , of the circuit coiu?t of 
 
 county, a judgment was obtained in said court, in 
 favor of the State of Illinois, 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 comity afore- 
 said, by virtue of a precept 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 statute 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 afore- 
 said, for and in consideration 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. 
 
JUDICIAL CONDEMNATION IS EEQITIKED. 233 
 
 have granted, bargained and sold, and by these pres- 
 ents do grant, bargain and sell, unto the said C. D., 
 
 his heirs and assigns, the . \_J3ere follows the 
 
 description.'] To have and to hold, unto him, the said 
 C. D., his heirs and assigns, forever ; subject, however, 
 to all the rights of redemption jorovided by law. In 
 witness whereof, I, A. B., sheriff as aforesaid, by 
 virtue of the authority aforesaid, have hereunto 
 
 subscribed my name, and afl&xed my seal, this 
 
 day of 18 — . 
 
 , Sheriff." 1 
 
 "Deeds executed by the sheriff, as aforesaid, shall 
 he prima facie evidence, in all controversies and suits 
 in relation to the right of the purchaser, his heirs or 
 assigns, to the land thereby conveyed, of the follow- 
 ing 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 re- 
 quired 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. 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 re- 
 quired by law ; and in controversies and suits involv- 
 ing the title to land claimed and held under and by 
 
 1 Sec. 42. ~~ 
 
 30 
 
234 OP THE PROCEEDINGS WHERE A 
 
 virtue of a deed executed by the sheriff as aforesaid, 
 the person claiming title adverse to the title conveyed 
 by such deed, shall be required to prove, m 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 assessed for taxation, or that the same 
 had been redeemed according 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 ac- 
 quired by a sheriff's deed, without first showing that 
 he or she, or the person u.nder 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." ■* 
 
 " 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, cer- 
 tified 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 advertising the same, and all other costs 
 which may have accrued on said land under the pro- 
 visions of this act, up to the time of such payment." ^ 
 
 i Sec. 43. 2 Sec. 44. " Sec. 46. 
 
JUDICIAL CONDEMNATION IS KEQUIEED. 
 
 235 
 
 In construing this statute, the Supreme Court have 
 arrived at the following conclusions : 
 
 First. That in order to confer jurisdiction upon the 
 court, 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 iu section twenty-six. 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 list/ 
 
 Second. The report of the collector must substan- 
 tially 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. Thus, in 
 Pickett V. HartsocTif a report in the following form 
 was held void : " State of Illinois, Greene County, col- 
 lector'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 
 judgment on the following lands and town lots, situ- 
 ated in said county, for the year 1842 : J. Valentine, 
 80 acres, E. J S. E. i 33, 11, 10, valuation |320; tax 
 $1,44, 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 no 
 where stated for what year the taxes were assessed. 
 The court therefore held it insufl&cient " to invest the 
 circuit court with jurisdiction." However, formal 
 defects in the report will not afiect the jurisdiction 
 of the court. In Spellman v. Cnrteniiisf the concluding 
 words of the caption, viz : " for the year herein set 
 
 1 AtUns T. Hinman, 2 Gilm. K. 437 ; Chesnut v. Marsh, 12 Dl. E. 173 ; SpiU- 
 man v. Curtenius, Ibid. 409 ; Pitkin v. Yaw, 13 Ibid. 251 ; Manly v. Gibson, 14 
 Ibid. 136. ^ 15 lU. K. 279. 3 12 111. E. 414. 
 
236 or THE PEOCEEDINGS WHERE A 
 
 forth," were omitted, and in lieu thereof, the words "for 
 the year 1843," were inserted ; 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- 
 ment was held valid. By the court: "When the 
 court has before it a collector's report properly 
 headed, giving a description 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 
 objected 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 judgment. It might be cause 
 for reversing a judgment on a direct proceeding, by 
 appeal, or writ of error, but cannot be made a ques- 
 tion 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 collector to make his report at least 
 five days before the term of the court at which he 
 applied for judgment. Where the judgment is sUent 
 as to the day when the report was made, it will be 
 presumed to have been made in conformity with the 
 statute, and where the requirement has been disre- 
 garded, it has been held directory. The jurisdiction 
 of the court does not depend upon a literal compli- 
 ance with this provision; it is sufficient if made 
 before the sitting of the court, or on the day of the 
 commencement of the term.^ The report need not 
 
 1 Sec. 4. 
 
 ^ Atkins V. Hinman, 2 Gilm. K. 450 ; Jackson v. Cummings, 15 111. E. 449. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 237 
 
 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 pre- 
 sumed.^ 
 
 Third. It will be perceived that section forty-three 
 does not make the deed conclusive (or even frima 
 fade,) 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 of the intended appHcation for 
 judgment," is prima facie evidence of this jurisdictional 
 fact. This was the evidence of jurisdiction in Chesnut 
 V. Marshf although the report of the case is imper- 
 fect in this respect. Of course it may be impeached, 
 and this was attempted in Jaclcson v. Cummings.^ The 
 question there made, was as to the sufficiency of the 
 certificate of publication required by section twenty- 
 seven. The advertisement consisted of the usual 
 caption, the Ust 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 \hQ foregoing was duly published on the 
 15th January, 1845, in the ' Peoria Democratic Press,' 
 published in Peoria county, Illinois, and that the 
 number of transcripts so published, corresponds with 
 
 1 Tayhr v. People, 2 Gilm. K. 349 ; Job v. Tebbetts, 5 Ibid. 382. 
 
 2 Sec. 29. » 12 111. R. 173. * 15 HI. E. 449. 
 
238 OP THE PROCEEDINGS WHEEE A 
 
 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 netvspaper, that it might be a book, a monthly peri- 
 odical, or a handbill. 2. That the words, " number of 
 transcripts so published," might refer to other adver- 
 tisements of copies, and not to the tax list. To 
 which the court reply : " We may read the advertise- 
 ment and certificate so, as critical scholars, but 
 knowing the statute under which such publications 
 are made, every one, lettered or unlearned, would 
 understand its proper connections, meaning 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 : "|," 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 quar- 
 ter section, and " pt." for part, &c. 
 
 Fourth. The form of the judgment is prescribed in 
 section twenty-nine. Where it has been departed 
 from, the courts have sustained the judgment, upon 
 the prmciple, that when it has been rendered by a 
 tribunal of competent jurisdiction, it must be re- 
 garded as valid in all collateral actions, however 
 erroneous it may be ; that no irregularity or infor- 
 mality can justify a court in pronouncing it void.^ 
 Perhaps the strongest case illustrative of this rule, is 
 that of Chesnut v. Marsh? The judgment in that case 
 
 1 Goodale v. Harrison, 2 Missouri K. 124 ; Long v. Lonff, 2 Blackf. E. 293 ; 18 
 Vermont K. 293 ; Atkins v. Hinman, 2 Gilm. K. 444 ; Blahmey v. Bestor, 13 
 111. E. 714; Eev. Stat. 111. 1845, p. 446, sec. 62. 
 
 2 Chesnut v. Marsh, 12 El. E. 173; Atkins v. Hinman, 2 Gilm. E. 437 ; Mer- 
 ritt V. Thompson, 13 111. E. 71'6. s 12 111. E. 173. 
 
JITDICIAL CONDEMNATION IS REQUIRED. 
 
 239 
 
 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, described in the 
 report and Hst 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 in- 
 terest and costs due thereon, and the costs of this 
 proceeding ; and it is further considered and adjudged 
 that each of said Ms of land described in the list afore- 
 said, 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 oivner of each lot of land described in the 
 report and list, and the latid itself, for the taxes, in- 
 terest and costs due upon the same." This was a 
 gross departure from the form prescribed by the 
 statute, 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 personxim, and to that extent 
 at least, was conceded to be void. Three questions 
 arose upon these facts. 1. Is the judgment rendered 
 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 nega- 
 tive, and the latter in the affirmative, by a majority 
 of the court. Judge Trumbull dissenting. The rea- 
 soning of the court was, that a judgment could not 
 
 1 Okott V. State, 5 Gilm. R. 481. 
 
240 or THE PEOCEEDINQS WHERE A 
 
 be impeached collaterally, however informal or irreg- 
 ular; 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 AtJdns v. Hinman} the judgment did 
 not recite the day of the date of the collector's re- 
 turn, and omitted the words "and that the taxes 
 thereon remained due and impaid, 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 judg- 
 ment, and thus became a part of it. The judgment 
 was sustained upon two grounds. 1. That inasmuch 
 as the jurisdictional facts appeared upon the face of 
 the record, the omissions and variations 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 
 appeared in the collector's report, which was a part 
 of the judgment record, and this was equivalent to 
 a direct recital. 
 
 The judgment cannot be attacked and impeached 
 collaterally, 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 
 
 1 2 Gilm. E. 437. 
 
 2 Spdlman v. Curtenius, 12 111. E. 414; Merritt v. Thompsm, 13 Ibid. 723. 
 
JUDICIAL CONDEMNATION IS EEQUIBBD. 241 
 
 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 patentee, or present owner, 
 the valuation of the land, the county where it is 
 situated, or the year for which the tax is due, conse- 
 quently their omission is immaterial.^ 
 
 On the other hand, it was held in Pickett v. Hart- 
 sock,^ 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 col- 
 lector would apply for judgment, on the first Monday 
 of April, which was the seventh day of that month. 
 The judgment was rendered AprO. 4. Treat, C. J. 
 "The tax judgment of April 4, 1845, 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 juris- 
 diction 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 prepara- 
 tion to resist the application for judgment." 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. Thampson^ 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 was entered 
 up, but showed that it was rendered for the unpaid 
 
 ^Merritt v. Thompson, 13 El. E. 723-5. ^MerrittTr. Thompson, Ibid. 
 
 ^ Spdlman v. Curtenius, 12 111. R. 412. 
 
 * 15 m. R. 279. 6 U lU. R. 380. 
 
 31 
 
242 OF THE PKOCEEDINGS WHEKB A 
 
 taxes of 1847 ; the book in which judgments against 
 delinquent lands were recorded, showed on inspec- 
 tion, 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 ren- 
 dition; 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 judgment, and was no 
 part of the record authorized by the statute. The 
 judgment to be valid, must have been rendered at 
 the May term, 1848. 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 defi- 
 cient or imperfect, it cannot be aided by evidence 
 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 the want of a foundation upon 
 which to rest." 
 
 The description of the land contained in the judg- 
 ment must be so certain that a definite locality can 
 be given to it, or it will be void.^ But words, figures 
 and abbreviations may be used for the purpose of 
 
 1 Com. Dig. Tit. Record, B. and E. ; CrosweU y. Byrnes, 9 John. E. 287 ; 
 EUiot r. Piersol, 1 Peters' E. 328 ; Lessee of James v. Stookey, 1 Wash. C. C. 
 E. 330. 2 ofcoft y. gtate, 5 Gilm. E. 481. 
 
JUDICIAL CONDEMNATION IS EEQUIEED. 
 
 243 
 
 designation.^ Examples of this rule will be found in 
 the cases cited in the margin.^ To authorize a judg- 
 ment against several distinct parcels of land, 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 will be treated as a nullity. In addi- 
 tion to section thirty-one, as herein before 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 
 collector's report to the sheriff, be, and the same is 
 hereby repealed."^ 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 judg- 
 ment in the form prescribed was read in evidence, 
 without objection. A precept was then offered and 
 rejected, which was in this form, viz : 
 
 "List of lands and other real estate, situated in the 
 County of Brown, and State of Illinois, on which taxes 
 remain due and unpaid for the years herein set forth. 
 
 
 1 
 
 
 
 S 
 
 
 
 
 Names o 
 Patent 
 
 i 
 1 
 
 >i5 
 
 Deacription. 
 
 1 
 
 Tax 
 
 Cost. 
 
 County. 
 
 Gideon Brunk, 
 
 
 1839 
 
 160,N.E. 22,lS.,iW. 
 
 $1120 
 
 560 
 
 16 
 
 Brown. 
 
 Andrew Gerald, 
 
 
 1840 
 
 160, N. B. 30, 1 N., 2 W. 
 
 $640 
 
 448 
 
 16 
 
 do. 
 
 1 Okottv. State, 5 Gilm. E. 481. 
 
 ^Hinman t. Pope, I Gilm. E. 133; Atkins v. Hinman, 2 Ibid. 443; SpeUman 
 T. Curtenius, 12 HI. E. 410. 
 
 ^Pitkin T. Yaw, 13 111. E. 251 ; SpeUman v. Curtenius, 12 Ibid. 409 ; Atkins v. 
 Hinman, 2 Gilm. E. 437. 
 
 * Laws 1840, p. 5. ^ Laws 1842-3, p. 237, sec. 28. ^ 1 Gilm. E. 131. 
 
244 OP THE PEOCEEDINQS WHEEE A 
 
 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. Brockman, Collector 
 of Brown County, Illinois. 
 State of Hhnois, ) 
 
 r SS 
 
 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 
 foregoing tracts of land as shall be sufficient to 
 satisfy the tax, interest and costs on each lot, set 
 opposite said lot, in the foregoing list, and make due 
 returns of your doings, according to law. 
 
 In testimony whereof, I have hereunto set my 
 hand, and afl&xed the seal of the Brown 
 [l. s.] Circuit Court, at Mt. Sterling, this 20th 
 day of April, A. D., 1841. 
 
 James Brockmajst, Cleric." 
 
 It will be perceived, on a comparison of this docu- 
 ment with the thirty-first section of the act of 1839, 
 that it does not conform to the requirements of that 
 section, which requires 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 sheriflF, &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. An execution, 
 to be valid, must show on its face that such a judg- 
 ment has been rendered by a competent court, as 
 will justify its emanation. It was contended that 
 the repealing clause in the act of February 9, 1840, 
 
JUDICIAL CONDEMNATION IS KEQDIEED. 
 
 245 
 
 made the precept in this case, valid, but the court 
 held that the only effect of this clause, was to dis- 
 pense 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 pre- 
 cept did not purport to be such copy, either in form 
 or substance. 
 
 In the case of Job v. Tebletts} the validity of the 
 precept depended upon the construction of the 
 thirty-first section 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 delivered it 
 to the sheriff, but omitted the list and description of 
 the lands against which the judgment was pro- 
 nounced. It was insisted by the counsel opposing 
 the title derived under this precept, that the judg- 
 ment, according to the form prescribed in section 
 twenty-nine, contained the list of lands, and that a 
 copy of the judgment order would necessarily con- 
 tain it also, and that the ninth section of the act of 
 February 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 the 
 lands against which judgment was pronounced, would 
 be required, one of which would be utterly use- 
 less, and be attended with much expense. The court 
 however held, that although the question was not 
 free from difficulty, the construction contended for 
 
 1 5 Gilm. E. 380. 
 
246 OF THE PEOOEBDINGS WHEEJE A 
 
 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 consequently the precept 
 should not recite the lands embraced in the report 
 and judgment, but consist simply 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 collector'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, 
 becaiise 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 pre- 
 cept void.^ And it has also been decided that the 
 precept is iiot a " writ or process," within the mean- 
 ing of the constitution, which requires all process, 
 &c., to run in the name of the " People of the State 
 
 1 Job T. Tehbetts, 5 Gilm. E. 382. 
 
 2 2 Gilm. E. 444-5. = 14 111. E. 137. 
 
 * Chesnut v. Marsh, 12 111. E. 173 ; AtEns v. Einman, 2 Gilm. E. 451. 
 6 Chesnut v. Marsh, 12 HI. E. 173. 
 
JUDICIAL CONDEMNATION IS EEQUIEED. 247 
 
 of Ulinois."-'^ A material variance between the pre- 
 cept and judgment upon which it is based, is fatal to 
 its validity. Thus in Piildn v. Yaw^ where the judg- 
 ment was for 99 cents, and the precept recited a 
 judgment for $1,25, it was held to be a material, 
 and therefore fatal, variance. The precept described 
 a judgment more than one-fourth larger than the 
 one actually rendered. 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 bur- 
 den of proving their existence rests upon the pur- 
 chaser, or those claiming under him ; the court 
 holding the analogy between these and ordinary 
 sherifi''s sales, complete in this respect.^ 
 
 SeveA. The deed must substantially conform to 
 the requisitions 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 " prima facie evi- 
 dence of some, and conclusive evidence of other facts, 
 •paHiciilarly enumerated in section forty-three. It surely 
 was never intended to give to the deed a conclusive 
 effect against the rights of a third person, when the 
 
 1 Curry v. Hinman, 11 III. R. 420; Scarritt v. Chapman, Ibid. 443. 
 
 2 13 111. K. 251. 
 
 s Hinman v. Pope, 1 GUm. E. 131 ; AiHns y. Hinman, 2 Ibid. 437 ; Spdlman 
 r. Curtenius, 12 HI. E. 409; Pitkin v. Yaw, 13 Ibid. 251. 
 
248 OF THE PROCEEDINGS WHERE A 
 
 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, and the deed recited a judgment 
 against and a sale of two only, the variance was held 
 fatal, and the deed inadmissible in evidence. 
 
 Eighth. The party claiming title under the tax 
 sale, makes out a prima facie 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 pre- 
 sumption then arises, that all of the requisitions of 
 the law have been complied with, by all of the 
 officers who had anything to do with the proceedings, 
 and the onus probandi is thrown upon the party con- 
 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 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 taxes due upon the 
 land have been paid by such person, or the person 
 under whom he claims title as aforesaid." In con- 
 struing this section, it has been decided substantially, 
 1. That any one may attack the validity of the judg- 
 ment, precept and deed, without putting himself " in 
 position," as it is called. 2. But if, after the person 
 claiming under the tax title, has made out a, prima facie 
 
 1 13 111. K. 251. 
 
 ^ Manlaj v. Gibson, 14 111. E. 136 ; Lush t. Harher, 3 Gilm. E. 158 ; Hinman 
 V. Pope, 1 Ibid. 131 ; Atkins v. Hinman, 2 Ibid. 437. 
 
JUDICIAL CONDEMNATION IS EEQUIKED. 249 
 
 case by showing a valid judgment, precept and deed, 
 the adverse party desires to question the prima 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 con- 
 testing 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 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 vaUdity 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 defenses : 1. 
 That the land was not subject to taxation at the date of 
 the sale ;* 2. That the taxes, for which the land was 
 sold, had been paid;^ 3. That the land was not listed 
 and assessed 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 f 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 
 
 1 JSinman v. Pope, 1 Gilm. E. 138; Bestor v. Powell, 2 Ibid. 119 ; Atkins v. 
 Hinman, Ibid. 453-4; Imsk v. Harber, 3 Ibid. 158; Curry y. Hinman, 11 111. K. 
 420; Spdlman t. Curtenius, 12 Ibid. 409; Hope v. Sawyer, 14 Ibid. 254. 
 
 2 Lusk V. Harber, 3 Gilm. K. 158; Curry v. Hinman, 11 111. E. 420. 
 2 Cun-y V. Hinman, 1 1 111. E. 420 ; Hope v. Sawyer, 14 Ibid. 254. 
 
 * Sec. 43. 5 Sec. 43; Curry t. Hinman, U lU.B,. A20. 
 
 « Chesnut t. Marsh, 14 111. E. 223 ; Billings v. Detton, 15 Ibid. 218. 
 
 ' Sec. 43 ; Ghapin v. Curtenius, 15 111. E. 432. 
 
 8 Hope V. Sawyer, 14 HI. E. 224 ; Polk v. Hal, 1 5 Ibid. 130. 
 
 ^Lusk v. Harber, 3 Gilm. E. 161-2. 
 
 32 
 
250 JUDICIAL CONDEMNATION. 
 
 defenses 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 construction is gov- 
 erned by the same principles laid down in this 
 chapter. 
 
ADVEETISEMENT OF THE TIME AND PLACE OF SALE. 251 
 
 CHAPTER XII. 
 
 OP THE ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 
 
 The maxim is famUiar, "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 reg- 
 ularly 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 no- 
 
 1 1 Buir E. 447 ; 3 Denio E. 595. 
 
252 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 tice is given to the party in interest.^ Where the 
 proceeding is before a special tribunal, exercising a 
 summary authority, contrary to the course of pro- 
 ceeding in the common law courts, the evidence that 
 due notice was given must indisputably 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 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 pow- 
 er, where the act is not only summari/, but the notice 
 merely constructive ; where the proceeding is in the 
 nature of a judgment, and terminates in the divesti- 
 ture of the title to real estate. 
 
 The law in relation to sheriffs' sales would seem 
 to be an exception to this principle. An advertise- 
 ment of the time and place of sale is usually re- 
 quired, but in this respect the statute is regarded as 
 merely directory to the officer. Without doubt, it is 
 his duty to comply with its directions; and for a 
 breach of his duty, he would be responsible to the 
 injured party, but such a breach of duty is not in 
 itself, sufficient to avoid the sale. In such cases, the 
 sheriff derives his authority 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- 
 
 1 Chase T. Hathaway, 14 Mass. R. 222 ; Eddy v. People, 15 IH. E. 386 ; HoUi- 
 day V. Swailes, 1 Scam. E. 515 ; Shumway v. Shumway, 2 Vermont E. 339 ; 
 Smith V. Burlingame, 4 Mason E. 121 ; Corliss v. Corliss, 8 Vermont E. 389; 
 Kinderhook v. Claw, 15 John. E. 537 ; Brown v. Wheeler,^ Ala. E. 287 ; State 
 Bank v. Marsh, 2 Eng. E. 390 ; Owners t. Mayor of Albany, 15 Wend. E. 374. 
 
 2 Sex V. Croke, 1 Cowper E. 26 ; Cheatham v. Howell, 6 Yerger E. 311 ; Gwin 
 V. Van Zant, 7 Ibid. 143. 
 
ADVERTISEMENT OE THE TIME AND PLACE OF SALE. 253 
 
 larly in reference to the execution, which, to use the 
 language of Lord Coke, is the "hfe of the law."^ 
 But even in this case, if the purchaser is aware of 
 the fact that the ofl&cer has failed to advertise the 
 sale, in conformity with the requirements of the law, 
 the sale may be avoided. This would amount to a 
 constructive fraud. It is only hona fide purchasers 
 who are protected in this class of cases, and not 
 those who have actual notice of a substantial irregu- 
 larity.^ 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 an universal principle in the legislation of this 
 country relative to compulsory taxation, that a 
 notice of the time and place of selling the land of a 
 delinquent, shall be given by publication in one or 
 more newspapers of the State or county in which 
 the proceeding takes place, by recording the list, or 
 posting notifications in some public place. 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 news- 
 papers 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 validity of a tax title. The 
 officer derives his power of sale, in part, from the 
 advertisement of it. Power is conferred upon him 
 
 1 Minor V. Natchez, 4 S. and M. 602 ; S. C, 10 Ibid. 246; 2 Bibb R. 401 ; 
 3 OhioE. 187; 9 Ibid. 19. 
 
 2 Eayden y. Dmlap, 3 Bibb R. 216 ; Webber t. Cox, 6 Munroe E. 110. 
 
254 ADTEETISEMENT OF THE TIME AND PLACE OF SALE. 
 
 to be exercised on certain contingencies, and these 
 contingencies must have happened, and the condi- 
 tions on which he can act, must have been per- 
 formed, before his act can be vahd. His power does 
 not attach until every prerequisite of the law has 
 been complied with. One object of advertising tax 
 sales is to give full notice to the proprietor, and fur- 
 nish him with every facihty for the voluntary pay- 
 ment of the tax, before a resort is had to coercive 
 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 com- 
 pared with its real value, when the sale of a less 
 quantity might have been made, if a spirited comj^e- 
 tition had existed. The longer the notice is pub- 
 lished, the wider the circulation of the paper, and 
 the more full the information conveyed in the adver- 
 tisement, so much greater will be the competition at 
 the biddings. 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.^ 
 
 1 Parker v. Rule's Lessee, 9 Cranch E. 64 ; Williams v. Peyton, i Whea. E. 77 ; 
 Garrett v. Wiggins, 1 Scam. E. 335 ; Fitch t. Pindcard, 4 Ibid. 69; Ronkendorff 
 v. TaxjUr, 4 Pet. E. 349; Pope v. Headen, 5 Ala. E. 433; Hughei/v. Soirell, 
 2 Ham. E. 232; Moulton v. Blaisdell, 24 Maine E. 283; Brown -v. Veazie, 25 
 Ibid. 359 ; Famam v. Buffum, 4 Cashing E. 260 ; Nalle v. Fenuncle, 4 Eandolph 
 E. 594-5; Kinney v. Beverly, 2 Hen. & Munf. E. 318, 344; Lessee of Holt v . 
 Hemphill, 3 Ham. E. 232 ; S. C, 1-4 Ohio Cond. E. 551 ; Allen v. Smith, 1 Leigh 
 E. 231 ; Wister v. Kammerer, 2 Yates E. 100; Luffboroiigh v. Parker, 16 S. & 
 E. 351 ; Delogmj et al. v. Smith et al., 3 Lou. E. 418 ; Early v. Doe, 16 Howard 
 TJ. S. E. 610; Games v. Stiles, 14 Pet. E. 322; Minor v. Natchez, 4 S. & 
 M. 602; S. C, 10 Ibid. 246; Washington v. Piatt, 8 Whea. E. 681 ; Lojfer- 
 ty's Heirs v. Byers, 5 Ham. E. 457; Thompson v. Gotham, 9 Ohio E. 170; 
 Lessee of Wilkins' Heirs v. Huse and Swindler, 10 Ibid. 139. 
 
 A diiiferent rale prevailed in North Carolina at one time. Their statute 
 required notice of the sale to be published in the State Gazette, and by posting 
 
ADVERTISEMENT OB THE TIME AND PLACE OF SALE. 255 
 
 A particular examination of the cases, in which 
 these principles have been applied, will show how 
 
 a copy at the door of the court house, in the county where the land lay. In 
 Stanley v. Smith, (1 Car. Law Repository, 511, Bat. Ed. 124,) where the ques- 
 tion 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 adyertise ; 
 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 deterred from bidding, ^nd 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. Lucey, (1 Murphy 
 R. 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 1796, 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 for sale in the North Carolina Journal, 
 the State Gazette, and Fayetteville 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 adver- 
 tised 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 
 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 purchaser, 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 execu- 
 tion, which are analogous in principle, to cases of sales for the non-payment of 
 taxes, &c. To require proof of the advertisement would so embarrass sales of 
 this kind, and throw so many difficulties in the way of persons wilhng 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 be made the subject of controversy. The 
 consequences would be, that not only the difficulty of collecting the public 
 revenue would be increased, but the land would become a subject of specula- 
 tion merely, to those who would, by purchasing at very reduced prices, be 
 
256 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 rigid the courts are in requiring a strict compliance 
 with the requirements of the statute in this par- 
 ticular. 
 
 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 sig- 
 nature. It has been shown in a subsequent chapter 
 that the act of an officer de facto is valid. This rule 
 will undoubtedly apply to the publication of the de- 
 linquent list, though it has been held that where an 
 advertisement bore date June 7, and it appeared that 
 the collector, who caused its publication, was not sworn 
 until three days thereafter, the sale was void.-' It 
 must appear on the publication, by what power, and 
 in what capacity the person acts ; and where the offi- 
 cial character of the person was omitted, and the 
 advertisement did not purport upon its face in any 
 other manner to be an official act, the court held the 
 
 willing to encounter the inconTeniences and risks of purchases under these 
 embarrassing circumstances." The argument of M'Bryde, counsel for the 
 defendant, will throw some light upon the temper of the times in which these 
 decisions were made, and the history of the tax laws of North Carolina. In 
 commenting upon the two statutes above referred to, he remarks : " These 
 acts were intended for salutary purposes, and should receive a liberal construc- 
 tion. After every precaution has 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 for 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 foreigners. Those persons had no personal property in the coun- 
 ties where the 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, (me million aiid seventy-four thousand acres of land 
 were sold, in a body, to satisfy the tax. (Love v. Wilbowne, 5 Iredell E. 344.) 
 ^Langdon v. Poor, 20 Vennont R. 13. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 257 
 
 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 landholders 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 undertook to exercise. It is not true that ever^ 
 man is presumed to be clothed with and to be exer- 
 cising an official authority, because it seems to be 
 needed for what he is attempting. Such a principle 
 would sweep away all official signatures and desig- 
 nations. Every known public officer must add his 
 official signature to every official document. Be- 
 sides, 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 
 publication 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 regard- 
 ed as immaterial. Thus, in Isaacs v. Wileyf where 
 the name of the collector appointed was Luther H. 
 Brown, and the name attached to the advertisement 
 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 creduHty to admit the construction 
 that one man was appointed to this office, and that 
 another intruded himself into his place, and assumed 
 the burden of his duties. We think it more rational 
 
 1 Sfear v. THtty, 9 Vermont E. 282. 
 
 2 12 Vermont E. 674. 
 
 33 
 
258 ADVERTISEMENT OF THE TIME AND PLACE OE SALE. 
 
 to treat the name as Iseing the same, but capriciously 
 varied to suit the taste or whim of the individual." 
 This decision is in accordance with the general rule 
 that the law recognizes but one christian 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 advertisement must be so published, 
 or it is a nuUity. 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 Bussy v. Leavett? The law required a notice 
 to be published, three months prior to the day of sale, 
 by three successive weekly insertions in the newspa- 
 per of the public printer of the State. Two publica- 
 tions were inserted in the " Portland Advertiser and 
 Gazette," which was the newspaper of the public 
 printer; but before the third insertion, the legislature, 
 by a resolve, declared it to be iio 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 by 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 
 
 1 FranMin v. TaUmadge, .5 John. R. 84. 23 Fairfield E. 378. 
 
ADTERTISEMENT 01? THE TIME AND PLACE OF SALE. 
 
 259 
 
 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 concerned. The name of each is 
 used for the purpose of designation only, and if the 
 ide7iMy can be estabhshed, it is certain enough, though 
 a variance may exist. It very often happens that a 
 newspaper, after being pubhshed for a long series of 
 years by the same proprietor, at the same place, and 
 under the same name, is transferred to a stranger, 
 the name changed, but its pubUcation is continued, 
 and the paper is still taken by the patrons of its pre- 
 decessor. Now, if the legislature were to direct the 
 pubhcation of the tax list in the paper by its origin- 
 al name, and it was so published for several years 
 after the passage of the law, and the name was then 
 changed, under the circumstances above indicated, 
 would there be any doubt of the legahty of continu- 
 ing the pubhcation of the tax hst in such paper ? 
 The spirit of the law would be complied with, and a 
 failure of justice would take place if the right so to 
 pubUsh was denied. 
 
 3. It is also well settled that if the statute requires 
 the advertisement to be inserted in several news- 
 papers, published at different places, the notice is 
 illegal unless inserted in all of the papers thus desig- 
 nated. Thus, the statute of Ohio required the county 
 auditor to publish the delinquent list in some news- 
 paper printed at the capitol 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 
 
 ^Isaacs V. Shattuck, 12 Vermont K. 668. 
 
260 ADVERTISEMENT OP THE TIME AND PLACE OE SALE. 
 
 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, hut 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 published 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 
 sufficiency 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 general circulation 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 law was designed to extend the 
 notice as generally as possible, for the information of 
 owners, and for the purpose of increasing competi- 
 tion at the sale. This requisition of the law is sub- 
 stantial and useful, and cannot 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 regular." ^ 
 
 4. The statute usually requires a warrant to col- 
 
 1 Lessee of Hugliey v. Horrdl et al. 2 Hammond E. 231 ; S. C. 1-4 Ohio 
 Cond. B. 335. 
 
ADVERTISEMENT OF THE TIME AND PLACE OiP SALE. 261 
 
 lect, or the delinquent list to be delivered to the 
 collector, which constitutes his authority to proceed ; 
 and after the warrant or list comes to his hands, but 
 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 
 delinquent, and a time is usually limited within 
 which the demand, 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 dehnquent does not attach, until the 
 time thus hmited for the exercise of these collateral 
 remedies has expired ; and if he proceed to adver- 
 tise before the time fixed, the act is Ulegal, 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 un- 
 availing, and this cannot be certainly known until 
 the time has expired within which they may be pur- 
 sued. Besides, the ofiicer has no right to increase 
 the burden of the dehnquent by the costs of an ad- 
 vertisement until the law arms him with the power. 
 The statute of New Hampshire required the collector 
 on or before a particular day to make out and de- 
 liver 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 
 
262 ADVERTISEMENT OP THE TIME AND PLACE OV SALE. 
 
 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 attested by his seal of 
 ofl&ce.^ And under the present revenue law of Illi- 
 nois, the authority of the collector to advertise the 
 list depends upon his inability to find personal pro- 
 perty belonging to the delinquent of value sufiicient 
 to satisfy the taxes. ^ 
 
 The act of Congress, relating to the taxing power 
 of the City of Washington, provided " that real pro- 
 perty, whether improved or unimproved, &c., on 
 which two or more years' taxes shall have' been due 
 and unpaid, or on which any special tax, imposed by 
 virtue of the authority of the provisions of this act, 
 shall have remained impaid for two or more years 
 after ike same shall have become due, may be sold, &c." 
 In Ronhendorff 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' notice 
 prior to the sale. The advertisement was first in- 
 serted in a newspaper, December 6, 1822. The sale 
 took place March 10, 1823. The court held the ad- 
 vertisement and sale illegal, upon the ground that 
 the law made a clear distinction between general 
 
 1 Cambridge v. Chandler, 6 N. H. E. 271 ; Homer v. CiUeij, 14 N. H. E. 85. 
 
 2 Hannd r. Smith, 15 Ohio E. 134. 
 
 8 R. S. 1845, p. 444, Sees. 46 and 47. * 4 Peters K. 364. 
 
ADVERTISEMENT OF THE TIME AND PLACE Ot SALE. 263 
 
 and special taxes ; that property might be sold to 
 pay the general tax as soon as two years' taxes lecavie 
 due ; but in the case of special taxes it could not be 
 sold uiiiil the expiration of two years after the tax be- 
 came due ; that the first notice was given nearly one 
 month before the lot was liable to be sold ; that the 
 whole period should have elapsed, which was neces- 
 sary to render the lot liable to be sold for the special 
 tax, before the advertisement was pubhshed ; that 
 the owner of the lot, by paying the tax at any time 
 before January 1, 1823, would save it from the lia- 
 bility of being sold ; and that until this habUity had 
 attached, he could not be chargeable with the ex- 
 pense of notice, nor could it be legally given. 
 
 5. Next, as to the /or«^ of the advertisement. 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 manner of 
 doing anything, such thing must be done, and in the 
 form, time and manner prescribed, or the title is in- 
 valid ; 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 statute 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 certain- 
 ty, 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 rela- 
 
 1 Clmndkr v. Spear, 22 Vermont E. 388; Brown v. Hutchinson, 11 Vermont 
 K. 569. 
 
264 ADVEETISEMENT OP THE TIME AND PLACE OE SALE. 
 
 tive to the form of the advertisement. Where the 
 form is prescribed by the statute, that form must be 
 strictly and literally followed; the court will not ad- 
 mit the substitution of a different one. Thus the stat- 
 ute of Vermont directed the name of 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, viz.: "Whereas 
 
 the legislature of Vermont, at their session, at , 
 
 in the year , assessed a tax, &c." ; and the stat- 
 ute enacted that "the blanks in the form of the 
 advertisement, herein before directed, slmU be filled 
 with the place of the session of the legislature ivliere 
 the tax was assessed." The collector omitted to com- 
 ply 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 collector 
 made out his advertisement, the legislature had, by 
 law, permanently located the capitol 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, say- 
 ing : " 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 requirements of the statute ; and a compli- 
 ance with these requisitions must be regarded as a 
 condition precedent to the conveyance of a good title, 
 by the vendue deed. Where property is afiected, or 
 
ADVERTISEMENT OE THE TIME AND PLACE OP SALE. 265 
 
 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 opera- 
 tion of the special statute was to divest the defend- 
 ant of his property, on his failure to perform a duty 
 created by the statute, and on the performance of 
 certain acts prescribed to the ofl&cers required to col- 
 lect the tax, and record the proceedings. The per- 
 formance of these acts is the condition on which the 
 property was divested, and it is not for the court to 
 inquire whether the provisions of the statute were 
 reasonable, whether a compliance with them might 
 not be dispensed with, without injury to the defend- 
 ant — but whether they have been made ; and if so, 
 they must be literally pursued."'^ 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 adver- 
 tisement shall be, each fact required by the statute 
 must appear in the advertisement, or it wUl be void; 
 thus, the time and place of sale, a description of the 
 lands to be sold, the amount of tax due, the name of 
 the owner, his dehnquency, that no goods of his 
 could be found out of which to satisfy the tax, the 
 year for which the tax was due, a recital of the pur- 
 pose 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 
 
 1 Culver y. Hayden, 1 Vermont E, 359. 
 
 2 Spear v. Ditty, 9 Vermont R, 282. 
 
 34 
 
266 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 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 
 rtotice, it Avas held void. The court saying : " The 
 manifest purpose of this requirement was not only 
 to let the party charged with the tax know that there 
 was such a tax against him, and unpaid, 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 legisla- 
 ture have provided, that he is exposed to the costs 
 which will arise from an attempt to obtain the tax 
 from the land itself"^ 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 insuf- 
 ficient.^ 
 
 In describing the land, the collector in his adver- 
 tisement must give a particular and certain descrip- 
 tion, so that the owner may know that it is his land, 
 and bidders may ascertain its locality with a view to 
 
 1 Hohh T. Clements, 32 Maine E. 67. 
 
 2 Langdon v. Poor, 20 Vermont K. 13. 
 
ABVEETISEMENT OF THE TIME AND PLACE OF SALE. 
 
 267 
 
 the regulation of their bids.^ The statute of Massa- 
 chusetts required the advertisement, among other 
 things, to state the names of the owners, if known, 
 and when unknown, to give " a substantially accurate 
 description 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 alto- 
 gether insufficient. The owner's name not appearirt'g 
 in the notice, a full and clear description of the pro- 
 perty to be sold should be given." ^ In another case, 
 where the plaintiff claimed under , a tax sale, the ad- 
 vertisement contained the following description, viz. : 
 
 Nome. 
 
 No. of Entry. 
 
 Original 
 Proprietor. 
 
 Original 
 Quantity. 
 
 ■Watercourse 
 
 Acres. 
 
 Eate. 
 
 Tax. 
 
 Haines, John 
 
 4401 
 
 Haines, Jno. 
 
 lYO 
 
 Mad Riyer. 
 
 73 
 
 2 
 
 3.92.2 
 
 The circuit court instructed the jury that the de- 
 scription was so imperfect that no valid sale for taxes 
 could be made under it. On error, the court say : 
 "The law in requiring an advertisement of the sale, 
 has this double object in view, to apprise the owner 
 that the tax is unpaid, and to invite the attention of 
 purchasers in such 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 un- 
 paid, and that purchasers may learn the precise tract 
 intended, and 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 
 
 1 Brown v. Veazie, 25 Maine E. 359 ; Tollman v. White, 2 Comstock R. 66 ; 
 Carmichael v. Aikin, 13 Loii. K. 204 ; Famum v. Biiffum, i Gushing E. 260. 
 
 2 Famum v. Buffum, 4 Gushing E. 260. 
 
268 ADTEKTISBMENT OE THE TIME AND PLACE Off SALE. 
 
 described by its number and watercourse ; 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 sepa- 
 rate, in what part of the lot does it lie ? The answers 
 to these questions materially alFect the price. With- 
 out them no such information 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, " E. 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 de- 
 scription in the duplicate and advertisement is too 
 vague and uncertain. ' Sixty acres, part of the N. i.of 
 section 13.' Which 60 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."^ 
 
 In Douglass v. Dangerfield^ the advertisement fol- 
 lowed the description in the list, (which has already 
 been given,^) and it was held void. Where the water- 
 course, upon which the land was situate, was misde- 
 scribed, 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 T In Gardner v. Brown] the land 
 was thus described : " Caleb Cross's heirs, 640 a.. No. 
 1328, lying in 12th district, in the first range, 9th 
 section." The land did not in fact belong to Cross's 
 
 1 Lafferty' s Lessee v. Byers, 5 Ham. R. 457. 
 
 2 5 Ohio E. 458. » Xreon v. Emerick, 6 & 7 Ohio R. 161. 
 * 10 Ohio E. 152. ^Ante, 156-7. 
 
 '^ Ciirrie v. Fowler, 5 J. J. Marshall R. 145. ' 1 Humph. E. 354. 
 
ADVEETISEMENT OE THE TIME AND PLACE OF SALE. 269 
 
 heirs, but was granted in 1827 to Jesse Brown, un- 
 der 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 advertise- 
 ment. 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 referred to ; 
 and not that in case of granted land, a reference may 
 be made by the officer, at his election, to the num- 
 ber, either of the grant or entry." In Jacques v. Gop- 
 man} this description was held void, viz. : " A lot of 
 ground in Faugbourg Livandras, Parish of Jefferson, 
 designated by the number 8, square 45." 
 
 In Ronltendorff v. Tayhrf the description and other 
 particulars in the advertisement were as follows : 
 
 To whom, assessed. 
 
 No. of square. 
 
 No. of lot. 
 
 Amount. 
 
 James N. Taylor, 
 
 Paying tax int., 10 per ct., 
 
 Henry Toland'a heirs. 
 
 491 
 
 m. 
 
 Kof4. 
 Mof4. 
 
 3516,80 
 23,46 
 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 de- 
 scription of the property selected for sale to be stated 
 in the advertisement." The circuit court instructed 
 the jury " that the advertisement did not sufficiently 
 designate ivliat half of the said lot was charged with 
 the said taxes, and was to be sold for the same, and 
 
 1 6 Lou. Ann. E. 542. 2 4 Peters' R. 349. 
 
270 ADVEETISEMENT OB" THE TIME AND PLACE OE SALE. 
 
 did not purport to be an advertisement of an undividr 
 ed moietyr This ruling was sustained by the Supreme 
 Court of the United States. McLean, J.: "Con- 
 gress had two objects in view in requiring this notice 
 to be given ; 1. To apprise the owner of the prop- 
 erty ; 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 proceeding 
 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 definitely described that no purchaser could 
 be at a loss to estimate its value. It is not sufficient 
 that such a description should be given in the adver- 
 tisement as would enable the person desirous of pur- 
 chasing, to ascertain the situation of the property by 
 inquiry. Nor, 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 commu- 
 nicated to the public in the notice. Its defects, if 
 any exist in the description of the property to be 
 sold, cannot be cured by any communication made to 
 bidders on the day of sale by the 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 
 
ADVERTISEMENT OP THE TIME AND PLACE OE SALE. 271 
 
 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, 
 depends upon its situation. If one of the half lots 
 front two streets, in a populous part of the city, it is of 
 much higher value than the other half And this dif- 
 ference in value may be still greater, if the lot be situ- 
 ated 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 pur- 
 chase, 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 importance 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 midivided moiety ? In all cities, half 
 lots are as common as whole ones ; and when a half 
 lot is spoken of, we imderstand it to be a piece of 
 ground half the size of an entire lot, and of as defi- 
 nite 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 undivided 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. Under such a description, no one could be at a 
 loss as to its situation and value. The instructions of 
 the circuit court on this point are not erroneous." 
 
272 ADVERTISEMENT OF THE TIME AND PLACE OE SALE. 
 
 Where the statute requires the amount of the tax 
 due upon the land to be stated in the advertisement, 
 an omission of this fact, or a variance between the 
 amount due and the sum named in the advertise- 
 ment, will be fatal. Thus, in the Corporation of Wash- 
 ington 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 lots 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. Johnson, J. : " The question is 
 whether it be necessary that 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 
 sufl&cient 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 ivhat have ive to do with such 
 inquiries in cases of positive enactment ? The law must 
 be pursued whatever be the previous steps required. 
 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 Avould also support 
 the sufficiency of a publication exhibiting nothing 
 
 18 WheatonE. 681. 
 
ADVERTISEMENT OT THE TIME AND PLACE OF SALE. 273 
 
 more than the amount of taxes upon the whole hst 
 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 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, therefore, think that the 
 taxes of each lot ought to be severally exhibited. 
 The operation of such a provision must he the test of its 
 own folicy. The duty is easily complied with, and the per- 
 formance of it may not le destitute of practical utility y But 
 in Ronkendorff v. Taylor} where two years' taxes were 
 due upon the land, viz., 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 mjo to the year 1821." The 
 circuit court instructed the jury that the advertise- 
 ment was defective, as it " does not purport to adver- 
 tise 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 proper- 
 ty was liable to be sold for them, it can be of no im- 
 portance 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 interesir 
 ed 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 
 
 1 4 Peters E. 349. 
 
 35 
 
274 ADTEETISESIENT Or THE TIME AND PLACE OS SALE. 
 
 interest in the question. 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 remembered that the act of Congress only 
 permitted a sale of land " on which ttvo or more years' 
 taxes shall have remained 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 publica- 
 tion. 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 War- 
 ren," but omitted the words " Trumbull County," it 
 was held sufficient ; the court taking judicial notice 
 of the fact that at the date of the advertisement 
 there was no town of Warren in Ohio, except that 
 in Trumbull County.^ 
 
 Where the statute is silent as to the form and con- 
 
 1 Wentioorth v. Allen, 1 Tyler R. 226. ^ WiUd^ y. JBuse, 10 Ohio K. 139. 
 " Shddon V. Coates, 10 Ohio R. 278. 
 
ADVERTISEMENT OE THE TIME AND PLACE OE SALE. 275 
 
 tents 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. 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 and contained in the 
 lists thus transmitted to him, to be published 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, pubhshed, was 
 in this form, viz. : " Notice is hereby given that the 
 subscriber has received lists of the direct tax of 1816, 
 remaining due upon property in the following coun- 
 ties in the State of New Hampshire, 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 notifi- 
 cation 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 
 
276 ADVERTISEMENT OF THE TIME AND PLACE OE SALE. 
 
 object 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 in- 
 serted in the notification. But what is a notification 
 of a tax ? Can anybody suppose that a mere pub- 
 lishment of the figures that express the sum assessed 
 would be a notification of the tax, within the mean- 
 ing 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 oivner 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, 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 wUl be exacted from 
 the collector 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 land.^ The evident object 
 of the statute is to give to 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 requii'ing 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. 
 
 1 Eastman y. Little, 5 N. H. R. 290; Michie v. Mullen, 5 Haywood R. 90. 
 ^ Shimin t. Inman, 26 Maine E. 228 ; Corporation of Washington v. Piatt, 8 
 Whea. R. 681. 
 ' Famum v. Bvffum, i Gushing E. 260-6. 
 * Alvord V. Collin, 20 Pick. E. 418. 
 
ADVEKTISBMENT 01? THE TIME AND PLACE OP SALE. 277 
 
 The notice must be published the full length of 
 time required 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 prerequisites of the 
 sale, as these are fixed by law. Any assumption by 
 the officers 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 hoiia fide bid has been made."-^ Thus, 
 where the notice was required to be published " once 
 a week for at least twelve successive weeks," 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 inter- 
 vening.^ So, where the law required four weeks' 
 notice, and the proof was a publication eleven days 
 prior to the sale, it was held illegal.^ So, where the 
 law required " ninety days' notice," and the adver- 
 tisement was dated November 1, and on that day 
 
 1 Early v. Doe, 16 Howard U. S. R. 610. 
 
 2 S. C, 16 Howard R. 610. 
 
 ^ Nolle V. Fenwick, 4 Rand. R. 594-5. 
 
278 ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 
 
 handed to the pubHsher of the newspaper, and was 
 inserted therein weekly, from November 6 mitil the 
 29th day of January following, and the sale took 
 place on the third 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 newspa- 
 per. In Scales v. Avis^ it appeared that the collector 
 advertised, on January 4, that a sale of the resident 
 lands would take place on February 1 ensuing ; dis- 
 covering the error, he changed the time of sale to 
 April I, altered his advertisement after it had been 
 published one month, and gave notice to the delin- 
 quent, who consented to the irregularity ; 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 re- 
 
 ^Pope ct al. V. Headen, 5 Ala. R. 433. 
 M2Ala. E. 617. 
 
 ^Fmrar v. Eastman, 1 Tairfield E. 191; S. C, 5 Greenl. R. 345, and 9 
 Ibid. 191 
 
ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 279 
 
 quired three months' notice of the sale by several inser- 
 tions in a newspaper, but was silent as to whether 
 the notice should be published three months immediate- 
 ly 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 no- 
 tice ; but it was declared void, the court holding that 
 the statute evidently meant that the notice should be 
 inserted during the three months immediately pre- 
 ceding the day of 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 Buset/ v. Leavittf where the statute required 
 " three successive publications in a newspaper three 
 months prior to the sale," the court held that the last 
 insertion 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, be- 
 fore the day of sale (which was fixed on the last 
 Monday in December,) mentioned in such notice, re- 
 cord in a book to be provided for that purpose, such 
 delinquent list and notice, copying the same 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 Ust and notice were 
 published therein." In Kellogg v. McLaughlin^ the 
 plaintiif, in support of his tax deed, offered in evi- 
 dence the record of the hst and notice, with the 
 
 1 Dehgny v. Smith, 3 Lou. R. 418. 23 FaMeld R. 378. 
 
 3 8 OhioR. 114. 
 
280 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 certificate of the auditor attached thereto, which 
 latter stated that the list and notice had been pub- 
 lished "four weeks between the first Mondays of 
 October and December." He also offered parol evi- 
 dence to show that the advertisement was published 
 between the iirst days of those months. But the 
 court held, 1. That the record was insufficient 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 of the authorities, that an advertisement in 
 this class of cases, must be valid upon its face, and 
 that if otherwise, extrinsic evidence cannot be ad- 
 mitted to explain or help it.^ "The object of giving 
 notice," remarks Judge Scates, in the last named 
 case, " I think would be completely defeated, if such 
 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 ap- 
 prised of the mistake, and did attend the sale, so as 
 to ensure fair 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,^ obtain acres for cents with- 
 out competition, the tax payer have his land sacri- 
 ficed for a trifle, and yet the purchaser 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. 
 
 '^Alvm-d \. Collin, 20 Pick. E. 418 ; Fitch v. Pinckard, 4 Scam, R. 69. 
 2 2 OhioE. 233. 
 
ADVEETISEMENT OF THE TIME AND PLACE OF SALE. 281 
 
 The object is to secure competition, for the benefit of 
 all concerned ; and if the notice is so defective, as 
 not to give the proper information, the sale will be 
 void. This secret information or intent of the pub- 
 lication cannot aid it." 
 
 The statute of Indiana provided that the " 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 pub- 
 lished 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 
 in public places in each township in his county ;" and 
 the law further required the sale to take place on the 
 first Monday in January. In Doe v. Flagler^ the facts 
 were that the publication was not made until No- 
 vember 20 ; a mistake was then discovered, and an 
 amended notice inserted November 27, and this last 
 list was published in the Evansville Journal, on No- 
 vember 27, and on December 4, 11 and 17. It was 
 contended by the counsel for the tax purchaser that 
 inasmuch as four weeks' notice of the sale was given, 
 there was a substantial compliance with the law, but 
 the court held the proceedings void ; that the term 
 " immediately," meant a publication as soon after Oc- 
 tober 1, as the same could be reasonably effected; 
 that in this case there was a delay of fifty days on the 
 part of the auditor, and no reason shown for it. 
 
 The statute of Illinois gave to dehnquents until 
 October 1, to pay their taxes, and directed the State 
 auditor to advertise the dehnquent list three weeks 
 successively, the last pubhcation to be at least sixty 
 days before the day of sale. Where the sale was 
 
 1 1 Carter E. 542. 
 
 36 
 
282 ADVEETISEMENT Or THE TIME AND PLACE OF SALE. 
 
 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 advertisement 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 da}^ 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 inter- 
 val of eight, ten and eleven days, respectively. It 
 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 of the week succeeding the first in- 
 sertion for the second publication ; that the law did 
 not designate on what particular day in the heb- 
 domadal 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 purely arbitrary; that it was the period of 
 seven days, which the law regarded as the space of 
 a week ; and in this case, as there was no period of 
 
 1 Moore V. Brown, 4 McLean R. 211 ; S. C, 11 Howard U. S. E. 414. 
 ^ Moore V. Brown, 11 Howard U. S. R. 414 ; Farrar v. Eastman, 1 Fairfield 
 R. 191. s 4 Peters R. 349. 
 
ADVERTISEMENT OIT THE TIME AND PLACE OF SALE. 283 
 
 fourteen days in which, the notice of the sale was 
 omitted, the advertisement was regular. Judge Mc- 
 Lean, 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 publica- 
 tion until the Tuesday week succeeding ? The object 
 of the notice is as well answered by such a publica- 
 tion as if it had been made on the following Monday. 
 A week is a definite period of time, commencing on 
 Sunday and ending on Saturday. By this construc- 
 tion, the notice in the case must be held sufficient. 
 It was published Monday, January the 6th, and omit- 
 ted until Saturday, January the 18th, leaving an 
 interval of eleven days ; still the publication on Satur- 
 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 publish- 
 ed on any particular day of a week. If published 
 once a week, for three months, the law is complied 
 with, and its object effectuated." 
 
 Where the law requires the advertisement to be 
 published in several languages — for instance, in Eng- 
 lish and French, or English and German — the neg- 
 lect of the collector to comply with this requisition 
 will render the advertisement illegal, and the sale 
 founded thereon void.-^ 
 
 Sometimes the law requires the notice to be pub- 
 lished in a newspaper having the greatest circulation 
 in the county where the sale is to take place ; when 
 such is the case, a compliance with the requirement 
 
 1 Youncf V. Martin, 2 Yeates K. 312 ; Ddogny t. Smith, 3 Lou. E. 418. 
 
284 ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 
 
 is essential to the validity of the advertisement. 
 Thus, in the Lessee of Hugliey v. Horrell} the statute 
 of Ohio declared that the county auditor, on receiv- 
 ing the delinquent 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 aho, 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 appeared in evidence that the news- 
 papers of Chillicothe and Springfield had a partial 
 circulation in the county where the land lay, but that 
 the Columbus papers had the most general circula- 
 tion 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 circulation in 
 that county, it was not necessary to publish the no- 
 tice 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 
 
 1 2 Hammond R. 231 ; S. C, 1-4 Ohio Cond. E. 335. 
 
ADVERTISEMENT 01? THE TIME AND PLACE OF SALE. 285 
 
 dispensed with." In Doe v. SweeUer} the law re- 
 quired the county auditor to publish the notice four 
 weeks prior to the first Monday in January, the day 
 of the sale, in some newspaper having general circu- 
 lation in his county, if any 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 evi- 
 dence of the required 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 no- 
 tice ; that I put one of them on the court-house door, 
 and handed the other two to the sheriflf, requesting 
 him to put up one in each of the remaining commis- 
 sioners' districts, &c. I further certify, that said ad- 
 vertisements 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 exlra sheets, which are circulated 
 with the paper designated by law, is a legal notice ; 
 but where it appears that the extra sheets were not, 
 in fact, sent to all of the subscribers of the paper, the 
 advertisement will be regarded as void.^ Such was 
 the practice in Illinois from 1823 to 1830, but as the 
 notices were all illegal in other respects, this question 
 
 1 2 Carter E. 649. 
 
 2 Davis V. Simms, 4 Bibb R. 465. 
 
286 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 was never judicially determined. But there seems 
 to be no plausilale objection to a publication in extras, 
 if the circulation of them is as extensive as the news- 
 paper itself, in which the notice is required to be 
 published. The extra would have, under such cir- 
 cumstances, the same publicity as the regular sheet. 
 No one could be prejudiced by it ; and, for the pur- 
 poses 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 the sale, is very 
 strongly illustrated by the case of Porter v. WMtncu} 
 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 collect- 
 or of Brownfield, for the non-payment of taxes as- 
 sessed by that town, that the land demanded was for- 
 merly a part of the town of Porter, and was annexed 
 by law to Brownfield within three years next before 
 the time of advertising 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, ivithin three years 
 next preceding such advertisement, he (the collect- 
 or) shall express, not only the present name, hut the 
 name hy ivhich the same tvas last hioivn" The sale was 
 held illegal. MeUen, C. J. : " The object which the 
 legislature evidently had in view, in this enactment, 
 was to give effectual notice to all concerned, and pre- 
 vent any misconception by such an alteration in the 
 name of the place, as would essentially alter its de- 
 scription. We ought, therefore, to give such a con- 
 
 1 1 Greenl. E. 306. 
 
ADVEETISEMENT OP THE TIME AND PLACE OE SALE. 287 
 
 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 thai 
 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 N^w Hampshire required notices of 
 the sale to be posted in public places, for at least 
 eight weeks prior to the day of sale, and an af&davit 
 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 evidence of the posting of notices of 
 sale was a sworn certificate 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 certify 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. Kenny." The notice was 
 held not to be sufficiently proved. 1. Because it was 
 
 1 Hughaj T. Horrett, 2 Ham. E. 231 ; Allen v. Smith, 1 Leigh E. 231. 
 
 2 6 N. H. R. 194. 
 
288 ADVEETISEMENT OF THE TIME AND PLACE OF SALE. 
 
 doubtful whether the affidavit could be made by any 
 other person than the collector, 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 liotv 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-fost 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 post- 
 ed in a ^^PuUic Placer Where such is the requisition, 
 the 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.^ In 
 Cambridge v. Chandler, the town where the land lay 
 was unorganized and uninhabited, and the advertise- 
 ment 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 9th, 1820. The law required three successive 
 weeks' notice. The notice remained up for the requi- 
 
 1 Ives V. Lynn, 7 Conn. B. 505. 
 
 " Doe V. Sweetser, 2 Carter E. 649 ; Cambridge v. Chandler, 6 N. H. E. 271 ; 
 Tidd V.Smith, 3 IbiA. 178. 
 
ADTEETISBMENT OF THE TIME AND PLACE OF SALE. 
 
 289 
 
 site time. When first posted, the place where it was 
 put up was a pubhc place, viz., 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 consequently the sale 
 was illegal. In some of the States a personal notice to 
 the owner is required, before a sale of his land is au- 
 thorized ; where this requirement has not been com- 
 plied 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 preceding the day of the sale for taxes, return 
 a list of the land upon which the taxes are unpaid, 
 and which he purposes to sell for taxes, therein men- 
 tioning 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 le read aloud in open court, a copy recorded ly the 
 cleric upon the minutes of the court, and that a copy shall he 
 set up hy the clerk during the term in the court roomV In 
 Doe ex. dem. Kelley v. Oraig^ these requirements were 
 not complied with, and the sale held void. Kuffin, 
 C. J. : " It seems to us that this provision is Twt mere- 
 ly directory, but that it is to be observed 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 essential 
 
 1 Moulton v. Blaisdall, 24 Maine (11 Sliepley) E. 283 ; Brown t. Vmzie, 25 
 Maine (12 Shepley) E. 359; Williams t. Peyton, 4 Wheaton E. 77; 4 B. 
 Monroe E. 116. 
 
 2 1819. 8 5 Iredell E. 129. 
 
 37 
 
290 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 to his authority to sell the land. It was known 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 difficulty of a purchaser prov- 
 ing the advertisement at remote periods, and of the 
 necessity, nevertheless, of supporting fair purchases, 
 the courts had held^ that sales made without adver- 
 tisement, 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 no- 
 tice 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 investigation 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 hy private contract, or was not 
 made at the court-house, or on a wrong day of the week ; in 
 all ivhich cases, the tvrongfid conduct of the officer must he 
 Icnoimi 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 
 purchaser can as readily search for and find the one 
 of record as the other, and therefore there is as little 
 
 1 Ai-iie, pp. 254-6 
 
ADVEKTISEMENT Off THE TIME AND PLACE OF SALE. 
 
 291 
 
 reason to dispense with the one as the other. The 
 legislature meant to give the citizen an eflfectual pro- 
 tection 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, provided they 
 would take the reasonable and not inconvenient pre- 
 caution, 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 
 construction, but one who willfully keeps his eyes 
 shut against the light the law supplies to him. We 
 think the sale to the lessor of the plaintiff was there- 
 fore 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 Enghsh statute; and the fact that 
 the court reqmred a strict compliance with its pro- 
 visions, 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 
 principles which relate to the other prerequisites of 
 the law. The onus prohandi rests upon the purchaser 
 at the tax sale, or those claiming under him.^ The 
 deed is not prima facie evidence that the sale was 
 duly advertised.^ Where the law requires the adver- 
 tisement to be recorded, the record alone can be 
 resorted to for the purpose of determining its exist- 
 ence and sufiiciency. Parol evidence is inadmissible 
 
 1 Ante, Chapter 3. 
 
 '' Garrett v. Wiggins, 1 Scam. R. 335 ; Kinney r. Beverly, 2 Hen. & Munf. 
 E. 318. 
 
292 ADVERTISEMENT OF THE TIME AND PLACE OE SALE. 
 
 to supply any defect in the record, or to explain any 
 uncertainties that may exist in it. And the courts 
 are strict in requiring a rigid adherence to the requi- 
 sitions 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 evidence of the notice by matter of 
 record, for the common benefit of the purchaser and 
 former owner ; that the introduction of parol evi- 
 dence in aid of the record thus required to be made, 
 would defeat the policy of the law.-^ 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 question 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 authority, that such a requirement can 
 in no sense be regarded as merely directory to the 
 clerk ; but that it is one of those peremptory provis- 
 ions which cannot be dispensed with without invalid- 
 ating the entire proceedings — defeating the jurisdic- 
 
 1 Calver v. Hayden, 1 Vermont K. 359 ; Coit v. Wdls, 2 Ibid. 318; Clark T. 
 Tucker, 6 Ibid. 181 ; Spear v. Ditty, 9 Ibid. 282 ; Isaacs v. iShattuck, 12 Ibid. 
 668 ; Carpenter v. Sawyer, 17 Ibid. 121 ; Judevine t. Jackson, 18 Ibid. 470 ; Lang- 
 don V. Poor, 20 Ibid. 13 ; Taylor v. French, 19 Ibid. 49 ; Kellogg v. McLaughlin, 
 8 Ohio E. 114. 2 4n«e, p. 228, Sec. 27. 
 
ADVERTISEMENT OP THE TIME AND PLACE OE SALE. 293 
 
 tion of the court, and the power of the collector to 
 sell the land. Ordinarily, no presumption will he 
 indulged in, for the purpose of supplying the omis- 
 sion of proof in relation to the publication of the 
 advertisement.-' Though in support of an ancient 
 possession, it may he 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 presumption can be indulged in to supply a 
 defect which appears upon the face of the advertise- 
 ment.^ 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, can- 
 not confer authority upon the officer to proceed 
 with the sale. He derives his power from the law 
 — and not from the owner of the land — and he 
 must strictly conform to all its requisitions.^ The 
 date of the advertisement is prima 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 already 
 been given.® 
 
 1 Allen T. Smith, 1 Leigh R. 231. 
 
 2 Farrar y. Eastman, 1 TairfieldE. 191 ; Porter r. Whitney, 1 Greenl. E. 306. 
 
 3 Scales v. Avis, 12 Ala. E. 617. 
 
 * Langdon v. Poor, 20 Vei-mont E. 13. 
 
 5 4 Scam. E. 81. " jinJe. pp. 280-1. 
 
294 OF THE AUTHORITY OTS THE OrPICEK TO SELL. 
 
 CHAPTER XIII. 
 
 OF THE AUTHOEITY OF THE OFFICER TO SELL. 
 
 The power of sale does not attach until every pre- 
 requisite of the law has been complied with.^ The 
 regularity of the anterior proceedings is the basis 
 upon which it rests. Those proceedings must be 
 completed and perfected, before the authority of the 
 ofl&cer to sell the land of the delinquent, can be re- 
 garded as consummated. The land must have been 
 duly listed, valued and taxed — the assessment roll 
 placed in the hands of the proper officer, with au- 
 thority to collect the tax — the tax demanded — all 
 collateral remedies for the collection of the tax ex- 
 hausted — the delinquent list returned — a judgment 
 rendered where judicial proceedings intervene — the 
 necessary precept, warrant or other authority, de- 
 livered to the officer entrusted with the power of 
 sale — 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.^ 
 
 1 Mitior V. Natchez, 4 S. & M. E. 627-8. 
 
 ^ Lessee of Holt's heirs r. Hemphill's heirs, 3 Hammond E. 232 ; S. C, 1-4 Ohio 
 Cond. E. 551 ; Bishop Lovan, 4 B. Mon. E. 116 ; Garrettr. White, 3 Iredell's 
 Eq. E. 131. 
 
OF THE AUTHOBITY OF THE OITICEK TO SELL. 295 
 
 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 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 judgment is required, a precept or other 
 process is delivered to the officer, which constitutes 
 his authority to sell.^ In others, a simple copy of 
 the delinquent list, duly authenticated, is delivered 
 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 Hsted in the county of their locality, were re- 
 quired to be returned by the county clerk to the au- 
 ditor 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 
 auditor, 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 pre- 
 cinct ; if he neglected to do so, the justice was au- 
 
 1 McCoxj V. Tucl, 1 Penn. E. 499. 
 
 2 Hinman r. Pope, 1 Gilm. K. 131 ; Lessee of Wilhins v. Huse et al., 9 Ohio 
 E. 154. 
 
 3 E. L. 1833, p. 524, Sec. 3 ; Messenger v. Germain, 1 Gilm. E. 631. 
 *E. L. 1833, p. 528, Sec. 1. 
 
296 OP THE AUTHORITY OF THE OSFICER TO SELL. 
 
 thorized to appoint a freeholder 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 Avhole to the clerk of the county court. 
 In case of failure by the owner and justice, the sheriff 
 was required to list the land, and summon a free- 
 holder to value it, in which case the freeholder was 
 required to send a transcript of the list and valua- 
 tion 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 returned by 
 the justice ; the tax lists thus returned were directed 
 to be recorded by the clerk. In Pentland v. Bteioart} 
 the court say : " These 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, 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 warrajit of distress or execution 
 against the property of each individual, for the satis- 
 faction of the money due on them." The court, 
 therefore, held, that as " in ordinary cases, where a 
 party claims under a sheriff, he is compelled to pro- 
 duce 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 
 
 1 4 Dev. & Bat. R. 386. 
 
OF THE AUTHORITY OF THE OEFICEK TO SELL. 297 
 
 the lists in lieu of a judgment, and the copy of it 
 delivered to the sheriff as a substitute for an execu- 
 tion, otherwise the sheriff has no power to sell and 
 convey the land. 
 
 The statute of Ohio, of March 14, 1831, required 
 the auditor of State to transmit to the county auditor 
 a list of all lands which had been forfeited to the 
 State for the non-payment of taxes assessed thereon, 
 said list to be certified and signed by the auditor of 
 State, and to have thereto afl&xed 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 pro- 
 vided, 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 Hamiel v. Smith} the evidence offered, to 
 show that such list was transmitted to the county 
 auditor, was a letter dated June 5, 1843, signed " Jno. 
 Brough, auditor of State, by J. B. Thomas," stating 
 that a list was inclosed, and authorizing the county 
 auditor to proceed and sell. The court held the au- 
 thority insufficient and sale void upon three grounds : 
 1. The Ust was not certified to be correct. 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 by the court in 
 a certain cause, would authorize the sheriff to levy 
 
 1 15 Ohio K. 134. 
 
 38 
 
298 OF THE AUTHOEITY OJ THE OrFICEB TO SELL. 
 
 upon and sell the land of a judgment debtor. The 
 court, after reciting the statute, say : " It 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 execution, sell lands to 
 satisfy a judgment, as a county auditor imdertake to 
 sell without this list." 
 
 The statute of New. Hampshire required the assess- 
 ors to deliver the tax list to the collector, on or be- 
 fore the thirtieth day of May, annually; the collector 
 was directed to dehver a copy of the hst 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 imtil 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 collector 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 de- 
 linquent ; 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 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 
 
 1 Homer v. Cilia/, 14 N. H. R. 85 ; Iron Manufacturing Co. v. Barron, 
 3 Ibid. 36. 
 
OF THE AUTHORITY OF THE OrPICER TO SELL. 299. 
 
 all such persons to the State treasurer, and this re- 
 turn 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 list 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.^ 
 
 The statute of Maine provided, that when no per- 
 son shall appear to discharge the taxes duly assessed 
 on lands belonging to non-residents, "within nine 
 months from the date of the assessment, the collector 
 shall make a true copy of so much of the assess- 
 ment 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 treasurer. In Flint v. Sawyerf 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 own- 
 er of the land was entitled to the full term of nine 
 months, in which he could make his pajTuent without 
 costs. Besides, the taxes may have been paid on the 
 
 ' Thcmpson v. Rogers, 4 Lou. E. 9. 
 
 ^ Proprietors of Cardigan v. Page, 6 N. H. E. 182. 
 
 3 30 Maine E. 226. 
 
300 OF THE AUTHORITY OE THE OFFICBE TO SELL. 
 
 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 Usher v. Taft} the warrant was dated 
 July 25, 1838, 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 seizm-e 
 be made within two years from the date of the war- 
 rant, 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 lifetime of the execu- 
 tion, 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 ofi&cer to sell, by the oath of the 
 ofl&cer who is required to make it, no such oath is 
 necessary. The oath of of&ce and the liabihty of 
 the officer to parties injured by a false list, con- 
 stitutes the only security of the citizen in such cases.^ 
 The statute of Ohio required the county treasurer, 
 who was ex officio collector, to return a list of dehn- 
 quents, 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 pur- 
 pose. 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 
 
 1 33 Maine K. 199. 2 Hollister v. Bennett, 9 Ohio R. 83. 
 
OF THE AUTHORITY OE THE OFJICBB TO SELL. 
 
 301 
 
 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 sell, that this fact must ap- 
 pear of record, and that no secondary evidence was 
 admissible for the purpose of supplying the omission.^ 
 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 adminis- 
 tered. In Harmon v. Stockwell^ it appeared that the 
 oath was administered by the county auditor, and 
 the sale was held void. By the court : " As the pen- 
 alties of perjury were intended to be imposed for a 
 false return, it is clear that the oath must be admin- 
 istered 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 ofi&ce 
 except ih^ judicial. It must be conferred by statute, 
 either directly, or by implication, or ministerial of&cers 
 do not possess it." The court then examined 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 specified 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, 
 
 1 Minor V. McLean, 4 McLean E. 138. 
 
 2 9 Ohio E. 93. 
 
302 OS THE ATITHOEITY OE THE OFSICBR TO SELL. 
 
 and supersedes the necessity of looking further into 
 the case." The precept, warrant or list, must contain 
 an accurate description of the lands to be sold, or the 
 sale will be void.-^ 
 
 In Kingman v. Gloverf which was an action of tres- 
 pass to try title, the plaintiff having deduced upon 
 the trial a regular chain of title, the defendant claimed 
 a seven years' lease under a sale for taxes. The 
 substantial provisions of the law were, that every 
 person should make return of his property for taxa- 
 tion under oath, that if the taxes were not paid when 
 they became due, the collector was authorized to issue 
 a warrant under his hand and seal, directed to a con- 
 stable, requiring 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, etc. The form of the warrant, as pre- 
 scribed by the statute, was as follows : 
 
 " A. B., tax collector of, etc., to , constor 
 
 ble, etc. Whereas hath been assessed by 
 
 me, the subscriber, etc., in the sum of dollars 
 
 and cents, for defraying the charges of, etc., 
 
 which sum the said hath neglected to pay. 
 
 Therefore, you are commanded, etc." 
 
 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 in qil'^gtion recited an 
 assessment against " the estate of Mrs. Hammond^ This 
 was the only informality in the proceedings, and it 
 was insisted that the warrant ought to express upon 
 
 1 Stewart v. Graffies, 8 S. & E. 344 ; Spillerv. Baumgard, 4 Lou. B. 206. 
 
 2 3 Richardson's Law R. 27. 
 
OF THE AUTHORITY OF THE OFFICER TO SELL. 303 
 
 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 vig- 
 ilance 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 peciiliar qualifi- 
 cations, and the term of whose ofl&ce is so short and 
 precarious, that few derive a knowledge of its duties 
 from experience. If the process which the tax col- 
 lectors 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 
 disregarded." Judges Evans and Wardlaw dissented 
 from this opinion. The law of South Carolina, under 
 which the decision was made, seems to prescribe a 
 most rigorous and summary proceeding to enforce 
 the collection of the tax, authorizing even the im- 
 prisonment of the body of the delinquent ; 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. 
 Hammond belong to ? Did she die testate or intes- 
 tate ? If the former, who were the divisees ? It 
 
 1 Richardson, Frost and O'Neall. 
 
304 OF THE ATJTHOKITY OF THE OFFICEK TO SELL. 
 
 might be that she made a will and devised her prop- 
 erty to executors or trustees to sell, for the benefit 
 of some third person. In the warrant in question, 
 no one is designated as her legal representative. By 
 the very terms of the law and warrant, the tax is a 
 charge 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 person, under 
 such 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 strict- 
 ness, 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 require- 
 ments of the law, and converts every tax collector 
 into a petty legislator— arming him with a dispen- 
 sing power in cases where it is inconvenient for him 
 to follow the letter of the law. It will not be pre- 
 tended that even an ordinary execution against " the 
 estate of Mrs. Hammond" 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 rea- 
 sons 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 p'ohandi rests upon the party 
 alleging the existence of the authority.-^ 
 
 1 Chapters 2 and 3 ; vide also Doe ex. dem. Morris v. Simdick, 4 Blackf. R. 
 All, note; S. C, Ibid. 494. 
 
CONDITIONS PEECEDENT AND DIKECTORY EEQUIKEMENTS. 305 
 
 CHAPTEE XIV. 
 
 OF THE DISTINCTION BETWEEN CONDITIONS PKECEDENT AND 
 DIRECTORY REQUIREMENTS. 
 
 Courts do not sit for the purpose of granting 
 favors to parties, but to administer justice to them, 
 according to the law of the land. While this gen- 
 eral principle is universally conceded, it has been 
 held that many requirements of a law may be re- 
 garded as directory .-"^ Lord Mansfield remarks, " that 
 there is a Itwwn distinction between circumstances 
 which are of the essence of a thing required to be 
 done by an act of parliament, and clauses merely 
 directory r"^ 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, ex- 
 cept in relation to the time within which an act may 
 be done. In such cases, the general rule undoubtedly 
 
 1 Mmmj T. White,, 3. Greenl. E. 296 ; StaXe, Bank v. Budcmaster, Breese E. 133 ; 
 Vancev. Schuyler, 1 Gilman E. 160 ; Day v. Ghaham, Ibid. 435 ; Taijlor v. Brown, 
 5 Cranch K. 234; Craig y. Bradford, 3 Whea. E. 594 ; Stringer v. Young, 3 
 Pet. E. 320 ; United States v. KirkpatricJc, 9 Whea. E. 720 ; United States v. 
 Vamandt, H Ibid. 184 ; Striker r. Kelly, 1 Hill E. 9 ; Allen v. Parish, 3 Ohio 
 E. 187 ; Lawrence v. Speed, 2 Bibb E. 401 ; Hayden v. Dunlap, 3 Ibid. 216 ; 
 Bealls V. Guernsey, 8 John. E. 52 ; Wiggin y. Mayor of New York, 9 Paige C. E. 
 16; State V. Click, 2 Ala,. E. 26; Hooker v. Young, 5 Cowen E. 269; Merchant 
 Y. Langworthy, 6 Hill E. 646. 
 
 2 1 Burr. E. 447. 
 
 39 
 
306 CONDITIONS PBECEBENT AND DIRECTORY REQUIREMENTS. 
 
 is, that where a statute specifies the time within which 
 a pubHc officer is to perform an official act regarding 
 the rights and duties of others, it will be considered 
 as a directory requirement, unless the nature of the 
 act to be performed, or the language used by the 
 legislature show that the designation of the time was 
 intended as a limitation upon the power of the of&cer. 
 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 mentioned as a limit- 
 ation, 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 after- 
 wards ; 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 call- 
 ing it directory, is no,t only unsatisfactory, on account 
 of the vagueness of the rule itself, but it is the exer- 
 cise of a dispensing power by the courts, which ap- 
 proaches so near legislative discretion that it ought 
 to be resorted to with reluctance, and only in extra- 
 ordinary cases, where great public mischief will other- 
 wise ensue, or important private interests demand 
 the application of the rule. There is no more pro- 
 priety in dispensing with one positive requirement 
 than another ; a whole statute may be thus disposed 
 
 1 Peoph V. Allen, 6 Wend. E. 486 ; Pond v. Negus, 3 Mass. R. 230 ; St. Louis 
 County Y. Sparks, 10 Missouri K. 117 ; Walker y. Chapman, 17 Ala. K. 126; 
 Webster v. French, 12 111. B. 302 ; Marsh v. Chesnut, 14 Ibid. 223 ; Billings v. 
 Z>e«on, 15 Ibid. 218; Thames Manufacturing Co. v. Laihrop, 7 Conn. R. 550; 
 People V. Peck, 11 Wend. E. 604; Ex Parte Heath v. Rxime, 3 Hill E. 42; 
 People V. Holleij, 12 Wend. R. 480 ; Colt v. Eves, 12 Conn. E. 243-255 ; Gak v. 
 Mead, 2 Denio E. 232; Bex v. Sparrow, Strange E. 1123 ; Bex y. Leicester, 
 7B. &C. 6. 
 
CONDITIONS PKECBDBNT AND DIKBCTOEY BEQUIBBMENTS. 307 
 
 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 discre- 
 tionary 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 bridling this discretion.-^ It is dangerous to 
 attempt to be wiser than the law, and when its re- 
 quirements are plain and positive, the courts are not 
 called upon to give reasons why it was enacted.^ 
 The remarks of Judge Pope, in Mayhew v. Davis^ are 
 worthy of a place in this connection. In commenting 
 upon the requirements of one of the revenue laws of 
 Illinois, he proceeds to say : " But it is said that some 
 of the 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 imiformity. In that case, the judge 
 cannot interfere to defeat that object, however puerile 
 it may appear. It is admitted that 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' 
 possibility 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 
 
 1 Vide ante, 72-79. 
 
 2 Dillingham v. Snow, 5 Mass. E. 557 ; Reeds v. Morton, 9 Missouri E. 878. 
 8 4 McLean E. 213. 
 
308 CONDITIONS PKEOEDENT AND DIEECTOBY BEQTJIKEMENTS. 
 
 conditions precedent, and what may be treated as 
 directory, must depend upon a sound construction of 
 the nature and objects of each regulation.-^ No gen- 
 eral rule can be laid down for the government of 
 every possible case which may arise. The peculiar 
 phraseology of each statute, the course of legislation 
 upon the particular subject matter, the local pohcy 
 intended to be advanced, must all be duly considered.^ 
 The application of this doctrine to tax laws is denied 
 by many of the cases. It is said that to sustain a 
 tax sale where the officer has failed to conform to the 
 requirements of the statute, " is to transfer the legisla- 
 tive power to the sheriff, and so alhiv Mm to sell land for 
 taxes, not in the manner prescribed hj the ivritten km, hit 
 according to his private notions of wlmt is right, and ivould 
 place at his discretion tlie property of every citizen of the. 
 Stater^ In Ci«/yer v. iZay&?2,* the court say : "Where 
 property is affected, or the title to be divested, 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 divested; 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 dis- 
 pensed with without injury to the owner of the 
 estate, but whether they have been made, and if so, 
 they must be literally pursued." And in McDonoiigh 
 V. Gravier'^ the court say : " TouUier, in his commenta- 
 ries 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 
 
 1 Hayes v. Hanson, 12 N. H. R. 284. 
 
 2 Monk V. Jenldns, 2 Hill Ch. K. 12. 
 ^ Register v. Bryan, 2 Hawks R. 17. 
 
 « 1 Vermont R. 359. <> 9 Lou. R. 546. 
 
CONDITIONS PRECEDENT AND DIKECTOEY EEQUIKEMENTS. 309 
 
 formalities required by its provisions. This latter 
 branch is sub-divided into substantial and accidental 
 formalities. When the formality prescribed is found- 
 ed on natural equity, it is said to be substantial, and 
 its omission carries with it nulUty 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 Torrqj v. Millburyf endorsed by SiUey 
 V. Smith^, lays down the following rules, relative to 
 the construction of this class of statutes : " In con- 
 sidering the various statutes regulating the assess- 
 ment of taxes, and the measures preliminary thereto, 
 it is not always easy to distinguish which are condi- 
 tions 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 in- 
 tended for the security of the citizen, for insuring 
 an equality 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-compli- 
 ance with which does, in no respect, affect the rights 
 of tax paying citizens; these may be regarded as di- 
 
 1 Shar]} V. Johnson, 4 Hill R. 99 ; Corwin v. Mcnitt, 3 Barbour S. C. R. 343 ; 
 Aildns V. Kinman, 20 Wend. E. 249 ; Ante, pp. 79-83. 
 
 2 21 Pick. R. 64. 8 2 Gibbs Mi. R. 498-9. 
 
310 CONDITIONS PEECEDENT AND DIKBCTOIIY BEQUIEBMENIS. 
 
 rectory. Officers may be liable to legal animadver- 
 sion, perhaps to pimishment, for not observing them, 
 but yet their observance is not a condition prece- 
 dent to the validity of the tax." The Vermont rules 
 upon this subject are thus laid down in Cliandler v. 
 Spear :'^ "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. Where the 
 statute, under which the sale is made, directs a thing to 
 be done, or prescribes the form, time, and manner of 
 doing anything, such thing must he done, and in the form, 
 time and manner prescribed, or the title is invalid; and in 
 this respect the statute must be stiictly, if not literally, 
 complied with. 2. But in determining what is required 
 to he done, the statute must receive a reasonable con- 
 struction ; 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 Bpear 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, lit res nmj'is 
 p^reat quam valeat. They are said to be stridi juris — 
 a proceeding in invitum, &c. This is true. Still, some 
 degree of reason and sense is to be exercised in de- 
 termining what right is ; and although there may be 
 no equitable consideration to aid such title, still every 
 statute should have a rational interpretation, and a 
 reasonable effect. We ought not to discard those aids, 
 which guide us in other cases ; nor by an unreason- 
 
 1 22 Vermont R. 388. 
 
 2 8 Vermont E. 419. 
 
CONDITIONS PKBCKDENT AND DIRECTORY KEQUIRIMBNTS. 
 
 able and senseless nicety, defeat a solemn act 
 the legislature. It is, however, admitted, that in ii 
 terpreting these statutes, we should consider the title 
 to be acquired under tljem as stridi juris, and should 
 require a full and complete compliance with the 
 requisitions of the statute. Before the title of the 
 owner is divested by such a proceeding, we should 
 insist upon everything tending to the security of the 
 owner, which is either prescribed hy the terms of the act — 
 brought within it by a rational and strict construction — m- 
 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 unreason- 
 able difficulties; nor by over nice and unmeaning 
 technicality,^ without any rational purpose, to convert 
 the proceeding into an idle ceremony." This seems to be 
 the safer and most equitable rule to adopt ; a require- 
 ment 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 intrinsic 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 provi- 
 sion of a statute may, under any circumstances, be 
 regarded as directory. The application of that prin- 
 ciple to the facts of each particular case, are shown 
 in those parts of this work which treat of the differ- 
 ent requirements. The design of this chapter being 
 simply, to lay before the profession those general 
 rules, which seem to aid in the investigation of ques- 
 tions of this nature. 
 
312 OF THE SALE OF THE LAND. 
 
 CHAPTEE XV. 
 
 OP TIIE SALE OP THE LAND. 
 
 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 ofl&cer makes the sale 
 before his power attaches in point of time, or where 
 he exercises the power after it has become functus 
 officio, the sale is void.''- But there are important 
 details connected with the auction itself, and the 
 duties of the officer entrusted with the conduct of it, 
 which constitute the subject matter of this chapter. 
 
 1. The sale must be a jmUic, and not a imvatc one. 
 The object of the law is to secure a fair competition 
 at the biddings. If a secret sale could be sustained, 
 the policy of the legislature would be defeated in this 
 respect. No statute is remembered which does not, 
 either in express terms, or by necessary implication, 
 require the sale to be at public vendue. A sale made 
 
 1 Ante, Cliapter 2, p. 46 ; Chapter 3, p. 84 ; Chapter 13 ; Hugliey v. Horrdl, 
 2 Hammond R. 231 ; Thompson v. Eogers, 4 Lou. E. 9 ; Usher v. Tqft, 33 Maine 
 E. 199. 
 
OT THE SALE or THE LAND. 313 
 
 in violation of the letter or policy of the law, in this 
 particular, is void. In Keene v. HmigUon} the statute 
 required the collector to sell non-resident lands to 
 the highest bidder, at public auction, after giving due 
 notice, etc. The land in question was struck off to 
 Isaac Tyler, for the taxes and costs, he being the 
 highest bidder. Afterwards, and before the proceed- 
 ings 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 collector had no authority to 
 make the substitution. Keene, the collector, there- 
 upon sued Houghton for the purchase money, and 
 the 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 pro- 
 visions, or the proceedings will be ineffectual. The 
 person authorized cannot adopt a different mode of 
 proceeding, which he may judge would accomplish 
 the same object in a different manner, and be more 
 beneficial to those interested. The collector 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 con- 
 formity 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 
 
 119 Maine B. 368. 
 
 40 
 
314 OP THE SALE OP THE LAND. 
 
 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 defend- 
 ant 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 collect- 
 or, been substituted as the purchaser, the transaction 
 would have been a fraud upon the law, as its direct 
 tendency would have been to destroy competition at 
 the sale. 
 
 2. The sale must take place at the precise time fixed 
 by the law, or notice, otherwise it will be void.-^ The 
 twenty-sixth section of the revenue law of Illinois of 
 February 26, 1839,^ contemplates a notice of the ap- 
 plication for a judgment upon the delinquent list, and 
 of the sale, in the same advertisement, and fixes the 
 day of sale " on the second Monday next succeeding 
 the said teem of the said circuit court," at which the 
 application is made, and in which the judgment is 
 rendered; and the law further provides "that it shall 
 be the duty of the clerk, within five days after the 
 adjournmeiii 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 here- 
 after 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 ly 
 the collector, for the sale of the same, etc.;"^ and the stai> 
 ute further declares that the deed of the sheriff shall 
 
 1 Eonkendorffv. Taylor, 4 Peters E. 349 ; Conrad v. Darden, 4 Terger E. 307 ; 
 Moore y. Brown, 11 Howard U. S. E. 414. 
 ^Ante, pp. 227-8. ^ Ante, p. 228, See. 27. 
 
OB THE SALE OF THE LAND. 
 
 315 
 
 be conclusive evidence " that the sale was conducted 
 in the manner required by law." In the more popu- 
 lous 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 for only a few days. 
 
 The question necessarily arose upon the construc- 
 tion of this statute, whether the words " second 
 Monday next succeeding 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- 
 tainly known to aU 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 adjournment, 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 coun- 
 ties, the sale would be on the second Monday suc- 
 ceeding the commencement or end of the term — 
 (the term invariably commencing on Monday, or 
 some intermediate day of the 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 deliver the precept of sale to the sheriiF, tvUhinfive 
 days after the adjoiirnmeiii of the court, it seemed to 
 
316 OF THE SALE OS THE LAND. 
 
 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 
 Tuesday succeeding the commencement 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. 
 Potoell? This case came up 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 Avas in 
 session ; and the sales commenced on the 26th and 
 ended on the 29th day of April, so that 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 con- 
 stituted but one day, and that every act of the court 
 had relation to that day ; but that without resorting 
 to that fiction, the adjournment might be presumed 
 to follow immediately after the entering of the 
 judgment upon the tax list, as far as that proceed- 
 ing was concerned ; the court in the exercise of 
 this special and summary power, being regarded for 
 for the purposes of this question, quo ad hoc a special 
 
 4 K. S. 444, Sec. 47. ^ 2 Oilman R. 119. 
 
OF THE SALE OS THE LAND. 
 
 317 
 
 tribunal, the powers of which ceased upon the rendi- 
 tion of the judgment, except so far as it was necessary 
 for the issuing of the precept to enforce the judg- 
 ment and to enable the sheriff to make his return of 
 the sale. However, the court intimated an opinion 
 that a sale on the second Monday succeeding the 
 adjournment of the court would have been equally 
 valid ; but inasmuch 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. Saivyer,^ 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 sec- 
 ond 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 ex- 
 pressed, in the case of Bestor v. Poivell, that the for- 
 mer 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 interpreta- 
 tion of the statute. It was, however, intimated in 
 that case, that a sale made on the latter day would 
 be valid. We cannot assent to such a conclusion. 
 It was evidently the design of the legislature to pre- 
 scribe an uniform mode for the sale of land for taxes. 
 The time designated for the sale was to apply to all 
 
 1 14 IlUnois K. 254. 
 
318 OP THE SALE OP THE LAND. 
 
 cases. The sale was to be made on the second Mon- 
 day after the rendition of the judgment. The collect- 
 or 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 h,e might not sell on any other day. In 
 requiring the sale to take place on the second Mon- 
 day 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 would uniformly follow within two 
 weeks from the rendition of the judgments. A differ- 
 ent construction would leave the time of sale uncer- 
 tain, 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 uniformly 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 interests 
 of the owners of property ordered to be sold. The 
 
OP THE SALE 01? THE LAND. 319 
 
 direction to the clerk to issue the precept within five 
 days after the adjournment of the court, does not 
 necessarily indicate 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 proceedings on 
 these applications are entered and kept in a separate 
 record, without resorting to the fiction, the adjourn- 
 ment may be presumed to follow immediately upon 
 the entering this judgment, as to this proceeding.' 
 The revenue law imposed this new and peculiar juris- 
 diction 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 considered 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 re- 
 aflSirmed in Polk v. Hill,^ where the judgment was 
 entered May 13, and the sale took place on the third 
 day of June thereafter. The Ohio statute of Janu- 
 ary 30, 1820,^ provides, "that previous to the sale of 
 any land, &c., it shall be the duty of the auditor to 
 advertis^^ &c., which advertisement shall set forth the 
 time and place of sale, &c., and the auditor shall at- 
 tend at the time and place of sale, and proceed to 
 sell, &c., and if any person or persons to whom the 
 same may be struck ofi^, shall refuse to pay, &c., the 
 auditor shall proceed to offer the same from time to 
 
 ilsniinoisE. 130. 2 gee. 7. 
 
320 OP THE SALE or THE LAND. 
 
 time, for the space of three days in succession, unless 
 previously sold." In the Lessee of WilJdns' 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 in the return, Avhy it was 
 not sold on the day specified in the notice. The 
 circuit court charged the jury that the sale was 
 illegal ; a verdict was thereupon found for the plaint- 
 iff, 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 ille- 
 gal. Hitchcock J.: " The objection made in the pres- 
 ent case, is to a proceeding (under the law of Ohio, 
 requiring a judgment,) after judgment. 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 inten- 
 tion of this last clause. Is it to give the auditor 
 three days in which to sell all the lands against which 
 judgments are rendered, should so much time be neces- 
 sary ? 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 
 
 1 10 Ohio E. 139. 
 
0]? THE SALE OF THE LAND. 
 
 321 
 
 have not been paid ? I must confess tliat 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 tvith the laiv must he shown, ivhy it ivas 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 opportunity may be given for competi- 
 tion. The object is not attained if an officer may 
 advertise on one day, 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, 
 advertisement, 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 December 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 order of confirmation 
 
 1 11 Ohio E. 359. 
 
 41 
 
322 OF THE SALE OF THE LAND. 
 
 was dated December 12, 1824. The sale and order 
 of confirmation were held void. Lane, C. J. : " This 
 mistake in the description of the time of sale, ap- 
 pears to us a fatal defect in the defendant's title. 
 Although it is argued that no other sale was made, 
 except that on the 10th day of November, and the 
 time is probably misdescribed through the inadvertr 
 ence 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 be 
 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. It 
 is just as important that the owner should know 
 ivliere 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 ofiicer exercising the power 
 of sale, as it is that the time named in the advertise- 
 ment should be literally adhered to in the making of 
 the sale. There are no express adjudications upon 
 this question, but it is conceded by a respectable au- 
 thority,^ and indeed seems a self-evident proposition. 
 
 4. Where the ofl&cer 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, although the power is not ex- 
 pressly delegated to hiih, upon the principle that all 
 of the ministerial duties of an officer may be per- 
 formed by deputy.^ 
 
 iDoe ex. dem. Kelly v. Craig, 5 Iredell R. 129. 
 2 Chapman v. Bennett, 2 Leigh R. 329. 
 
or THE SALE OF THE LAND. 
 
 323 
 
 5. It is presumed that without express authority, 
 conferred by statute, to adjourn a sale from day to 
 day, the ofl&cer 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 unsold 
 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 implication-^ — 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 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- 
 ceedings, the effect of which is to divest the citizen 
 of his title to real estate, such statutes should be 
 construed strictly, although made for the public ben- 
 efit ; that their provisions cannot be enforced farther 
 
 1 Mitchell v. Maxwdt, 2 Ha. R. 594 ; Witherspoon t. Dunlap, 1 McCord R. 
 546 ; 12 Co. E. 130-1 ; 9 Bac. Abr. E. 220, ed. 1846; 10 Peters R. 161 ; 18 
 John. R. 418 ; 2 Cowen E. 199, 233-5 ; 1 Kent. R. 465, note; 2 Scam. E. 79, 83. 
 
 2 2 Michigan (Gibbs) R.490. 
 
324 OF THE SALE OF THE LAND. 
 
 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 princi- 
 ple is affirmed in other cases.-^ In Pennsylvania 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 be valid must be made to the 
 " highest bidder," which ordinarily means the person 
 who offers to pay to the collector, for the land put 
 up, the largest sum of money. 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 will pay the taxes, interest and costs 
 due upon the tract offered for sale, for the least quan- 
 tity of it. There is no way of securing competition 
 at a sale but by selling the entire parcel upon which 
 the tax is assessed, to the person who wiU pay the 
 highest amount of money for it, or pay the arrears 
 
 1 Doe T. Chunn, 1 Blackf. R. 336-8 ; Van Horn's Lessee v. Darrow, 2 Dallas R. 
 216; 4 Hill R. 99. 
 ^ Burns v. Lyon, 4 Watts R. 363. 
 ^ Supra, Chapter 17. 
 
OP THE SALE OF THE LAND. 
 
 325 
 
 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 ofl&cer who 
 conducted the sale^ to make out and return a com- 
 plete record of his proceedings. Where the of&cer 
 failed to state in his return that he sold the land " to 
 the highest bidder," the sale was held yoid.^ And 
 oral evidence would undoubtedly be inadmissible 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 afore- 
 said, A. B. offered to pay the aforesaid sum of money 
 for (the whole tract or a part thereof, as the case be,) 
 which was the least quantity Kdfor."^ The same recital 
 is substantially contained in all the forms prescribed 
 and used since that time.* Similar recitals are re- 
 quired 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 evidence, in those States where a deed exe- 
 cuted in the form prescribed is declared to be pnma 
 facie, or conclusive evidence 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 
 
 1 Proprietors of Cardigan v. Page, 6 N. H. K. 1 82. 
 
 2 Kellogg v. McLaughlin, 8 Ohio E. 114. 
 
 8 Laws 1826, pp. 78-9. * Ante, 232. 
 
 ^ Per Judge Tucker in Kinney v. Beverly, 2 Hen. & Munf. E. 341 ; Maxy v. 
 Clabaugh, 1 Gilm. E. 26. 
 
326 OF THE SALE 01? THE LAND. 
 
 reason ; under a statute which, required a sale to the 
 person who would pay the taxes for the least quan- 
 tity of the land upon which it was assessed, the 
 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 
 where the ivliole 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 
 lona 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 purchaser it is absolutely void. Thus, in Gushing 
 V. Longfellow^ where the proof was that the of&cer 
 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 ex- 
 press 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 au-. 
 thority to sell on credit, the title to any article pur- 
 chased of such agent will not vest in the vendee as 
 against the principal. Public agents can seldom, if 
 ever, derive authority from implication." The same 
 principle was applied in Illinois v. Delafield^ where 
 the State of Illinois authorized a loan, and appointed 
 
 1 Peters V. Eeasley, 10 Watts E. 208. 
 
 '^ Divinney v. Ber/nolds, 1 Watts & Serg. R. 328. 
 
 " 26 Maine E. 306. * 8 Paige C. E. 527 ; S. C, 2 Hill E. 159. 
 
OP THE SALE OF THE lAND. 327 
 
 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 
 installments. The sale was held void npon two 
 grounds. 1. The bonds did not bring their par 
 value. 2. They were sold upon credit. And in 
 Dickinson v. Gilleland} it was held that a sheriff, in per- 
 mitting a redemption by a judgment creditor, of land 
 sold imder execution, acts under a delegated and 
 special authority, and must strictly comply with the 
 law; that he cannot receive a less sum than the 
 law requires to redeem, nor can lie give credit for the 
 redemption money to the person who desires to redeem. 
 Even the power of a factor to sell upon credit de- 
 pends upon an express authority 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 purchase money. But where there is no agree- 
 ment, hefore the sale, between the ofl&cer and bidder, 
 that a credit shall be given for the whole or any por- 
 tion 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 payment of the 
 
 1 1 Cowen E. 498. 
 
 2 Forrestier V. Bordman, 1 Story E. 43 ; Van Alden r. Vanderpool, 6 John. 
 E. 69; McKinstry v. Pearsall, 3 Ibid. 319; Robertson v, Livingston, 5 Coweu 
 E. 473 ; Hapgood v. Batcheller, 4 Metcalf E. 573 ; Gredy v. Bartlett, 1 Greenl, 
 E. 172 ; Scott V. Surman, Wills E. 400 ; Goodenow v. Tyler, 7 Mass. E. 36 
 Burrill v. Phillips, 1 Gallison E. 360 ; Houghton v. Matthews, 3 B. & P. 489 
 Myers r. Entriken, 6 Watts & Serg. E. 44, 
 
328 OF THE SALE OF THE LAND. 
 
 residue at a future time, the sale will be maintained. 
 Such were the facts in Longfelloio 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 purchaser. Here the officer, as such, 
 was accountable for the whole sum for which the 
 land was sold, and the taking of the note for a por- 
 tion of the purchase money was a matter between 
 the purchaser and himself, in his private character." 
 The same principle would undoubtedly apply where 
 no portion of the purchase money is paid, but the 
 officer accepts the promise of the purchaser in satis- 
 faction of the bid. The officer in that case would 
 be liable to his superiors, and must seek his remedy 
 upon the promise ; and if no agreement to sell upon 
 credit appears to have been made before the sale, he 
 will be permitted to recover. 
 
 8. Where a part of the land sold is liable to sale, 
 and the residue is not, the sale is void in Mo. Thus, 
 in Moulton v. Blaisdall^ the law required the collector 
 to advertise and sell unimproved lands of non-resident 
 proprietors, and improved lands of resident proprie- 
 tors ; 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 iwtice, in writing, to the 
 owner of the land befoop making the sale. The facts 
 of the case were, that-^e 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 notice in writing to the owner. The whole 
 parcel of land was taxed and sold as one estate. By 
 
 1 29 Maine R. 190. ^ 24 Maine R. 283. 
 
OF THE SALE 0! THE LAND. 
 
 329 
 
 the court: "The whole, both improved and unim- 
 proved, being sold at auction for one integral sum, 
 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 addi- 
 tional notice mentioned in the statute ; that the fact 
 that a portion only of the tract in question was im- 
 proved, made no difference. The owner may have 
 been prejudiced by the sale, and the law wUl presume 
 that he was. The advertisement was simply a con- 
 striictive notice. K the actiml notice contemplated 
 had been given to the owner, he would probably have 
 paid the tax assessed upon the entire tract. He, at 
 least, would have had an opportunity of doing so. 
 The same principle was decided in Hay den v. Foster} 
 So, where divers taxes are assessed, some of which 
 are legal, and the residue illegal, the sale cannot be 
 upheld ^ro rata, but the entire sale falls to the ground.^ 
 The rule is, that where a grant, an instrument or act, 
 is void in part by the statute law, it is void for the 
 whole. It has been quaintly 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 that where the 
 fault is, and preserving the rest."^ But even the 
 common law rule, which puts such a construction 
 upon a transaction as to sustain the legal, and reject 
 
 1 13 Pick. E. 492. 2 ^„jg^ p igg. 
 
 "Dwarris Stat. 739; Hobarfc E. 14; 2, Wilson E. 351 ; 1 Saund. E. 66 a; 8 
 East. E. 231, 236; 11 Ibid. 165; 13 Ibid. 87; 15 Ibid. 440; 7 T. E. 201; 8 
 Ibid. 41 1 ; 5 Taunt. E. 727 ; 5 N. H. E. 196 ; 6 Ibid. 225 ; 1 John. C. E. 339 ; 
 8 John. E. 253 ; 14 Ibid. 458, 465 ; 5 Cowen E. 1 62, 548 ; 15 Mass. E. 159 ; 
 3 Bibb E. 500. 
 
 42 
 
330 or THE SALE OP THE LAND. 
 
 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 impossible 
 in the case of an illegal tax. The same principle was 
 applied in Wallingford v. Fislce} where several parcels 
 of land lying in one township were assessed 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 year's 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 pro- 
 ceedings, or it cannot be sustained. Especially must 
 it conform to the list, as that constitutes the basis of 
 all the subsequent proceedings. The course pursued 
 must be consistent with itself throughout the entire proceed- 
 ing. Any variance in this respect will be fatal to the 
 vaHdity of the sale. The reason is obvious; the 
 authority of the ofl&cer to sell is derived from the 
 existence and regularity of the anterior proceedings. 
 If those proceedings are irregular, he possesses no 
 authority at all ; if regular, 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, selling, 
 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. Willeg v. 8coville was a case where nine ten 
 acre lots were assessed en masse, instead of severally ; 
 
 1 24 Maine B. 386. 
 
 2 Pitkin V. Yaw, 13 HI. E. 253; WiUet/ v. Scoville, 9 Ohio R. 43. 
 
OF THE SALE OF THE LAND. 
 
 331 
 
 the sale, on the contrary, was a several one, for the 
 tax due upon each lot, and it was held void. In An- 
 dreivs v. Senter} it appeared that 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 MoHon v. Harris? And in WalUngford v. 
 Mske,^ which was a writ of entry, wherein the defend- 
 ant 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 $68,53, and the execution and deliv- 
 ery of a 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 advertising 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 the 
 disputes which would grow out of a claim for contri- 
 bution, 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 
 
 1 32 Maine E. 394. ^ 9 ^l^aXte. R. 319. ^ 24 Maine E. 386. 
 
 « 13 Pick. K. 492. 
 
332 OF THE SALE OF THE LAND. 
 
 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 which tends to create confusion in 
 the 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 common, and one of them pays the tax 
 on his imdivided 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 ofiicer to sell and convey a certain number of 
 acres, out of a tract, without designation by metes 
 and bounds, and thus make the purchaser at the tax 
 sale a tenant in common with the owner of the resi- 
 due ; and also, whether a sale of the undivided 
 moiety can be sustained.^ There would seem to be 
 no difficulty 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 coparcenary takes place; 
 and the only other mode of creating 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 inconsistent 
 
 1 Shimin T. Inman, 26 Maine R. 228. 
 
 2 Ronhmdorff t. Taylor, 4 Peters E. 362. 
 
 ' Currie v. Fowler, 5 J. J. Marsh. E. 145; Waldron t. Tidtle, 3 N. H. E. 340. 
 * 2 El. Com. 192-3. 
 
or THE SALE OE THE LAND. 333 
 
 with the general principles of law relative to the origin 
 of such rights, but because, as we have already seen, 
 the officers who execute 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 are so ambiguous as to pre- 
 sent such a question. The authority usually con- 
 ferred 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 
 hast quantity to be located on a particular side of the 
 tract, or in 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 indi- 
 cated. 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 col- 
 lector 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 
 
 1 19 Pick. R. 539. . 
 
334 OF THE SALE OF THE LAND. 
 
 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, hi/ metes and bounds, sufficient 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 surplus according to the requisition of the statute. 
 It is clear that where the estate was capable of divi- 
 sion, the officer had no authority to sell an undivided 
 part of it, but only so much as would be sufiicient to 
 pay the tax, &c., to be set off separately from the 
 rest." It is not in the power of any officer, acting 
 under a special statute, to thrust a cotenant 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 Hayden 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, derivative and dependant 
 interests in estates, which are liable to taxation to 
 one common owner having a general property, that 
 it would be attended with the utmost inconvenience, 
 and produce a great confusion of rights, if the whole 
 tax could be charged upon one estate." In Baskins v. 
 
 1 Hod(/e V. Wilson, 12 S. & M. E. 498. 
 
 2 13 Pick. R. 492. 
 
01 THE SALE OE THE LAND. 
 
 335 
 
 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 $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 belonging 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 pay 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 be sold by the 
 ofl&cer depends upon the phraseology of each par- 
 ticular statute. The statute of New Hampshire 
 required that so mucli of the delinquent's estate 
 should be sold, " as will be sufficient to pay the taxes 
 and incidental charges" upon it. In Aimworth v. Deanf 
 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 with, if indeed any reason could be con- 
 sidered as sufficient. The whole lot was advertised and 
 sold for the taxes and costs." But in Ives v. Lynnf 
 where it did not appear affirmatively in the deed, or 
 
 1 24 Miss. E. 431. = j j'oster E. 400. » 7 Conn. E. 505. 
 
336 OE THE SALE OP THE LAND. 
 
 return of sale, that no more land was sold than was 
 necessary to raise the amount of taxes due upon the 
 entire tract offered, the court held that it was a pre- 
 sumption of law that the collector performed his duty, 
 and conducted the auction fairly and properly ; and 
 in the absence of proof rebutting this presumption, 
 the sale was sustained as far as this point was con- 
 cerned. 
 
 The statute of Georgia provided that the collector 
 should sell the land of the defaulter, or " so much 
 thereof as will 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 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 unques- 
 thnahly exceeded his authority." And where the statute 
 was silent as to the quantity which might be offered 
 and sold to pay the taxes, the supreme court of Indi- 
 ana held that, upon general principles, a sale of a 
 greater quantity than was necessary to satisfy the 
 tax, where the land was susceptible of a division, or 
 a sale in smaller parcels, was illegal and void.^ The 
 court, after quoting the case of Stead v. Course, which 
 arose upon the construction of the Georgia statute, 
 and approving of the decision of Judge Marshall, say : 
 " The rule must be the same, without any positive law 
 
 1 4 Cranch E. 403. 
 
 2 O'Brien v. Coulter, 2 Blackf. E. 421. 
 
or THE SALE OF THE LAND. 337 
 
 for the purpose. It rests upon principles of obvious 
 policy, and universal justice." This is clearly the 
 correct rule of law. It was held, in Wordi/e v. Bailey} 
 that Avhere a sheriff, under an execution for five shil- 
 lings, seized and sold five oxen, each of the value of 
 five pounds, he became a trespasser ah initio. And 
 it has been repeatedly decided, in this country, that 
 an excessive levy and sale of personal property sub- 
 jects the ofl&cer to an action.^ So it has been adjudged 
 that where a sheriff sells more land than is necessary 
 to satisfy the execution, the land being susceptible of 
 advantageous division, the sale is illegal.^ If this prin- 
 ciple is applicable to sales made by an officer under 
 the authority of a judgment and execution, there 
 seems to be still stronger reasons for extending it to 
 sales made by officers under a special authority de- 
 rived from a statute, without the intervention of 
 judicial proceedings, and where the greatest possible 
 degree of strictness has always been regarded as 
 " wholesome discipline." 
 
 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 success- 
 ors 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 be 
 absolutely void ; not only as against the Governor, 
 bu.t also as against the former owner. The statute of 
 
 1 Noy E. 59. 2 8 John. E. 333 ; 18 Ibid. 362 ; 1 John. C. E. 502. 
 
 3 Isaacs V. Gearhart, 12 B. Mon. E. 231; Tisman v. Wilson, 6 John. C. E. 411. 
 *2HawkesE. 17. 
 
 43 
 
338 OF THE SALE OF THE LAND. 
 
 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 shall 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 hundred and sixty 
 acres, and the collector, in offering it for sale, asked': 
 " will any one pay 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 sustained 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, viz. : " 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 or parcel purchased. He is di- 
 rected 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." Chief 
 Justice Sharkey also held that " the collector must 
 sell in lots of an eighth of a section, and in no greater 
 quantities. K 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 
 
 1 12 S. & M. E. 498. 
 
OF THE SALE OF THE LAND. 
 
 339 
 
 until the amount of the tax is bid." And the con- 
 clusion at which Judge Clayton arrived on this ques- 
 tion was, that "when the first part is sufficiently 
 designated, and is not sold, then the part so ofiered 
 and refused may be added to the next, and so on, 
 until a sale is effected, or the sheriff may offer each 
 subdivision separately." The reasoning of the Chief 
 upon this debatable point was, that the statute " 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 subdivision of sections. It is founded in the 
 most obvious principle. Government is established 
 for the benefit of the people, and it should not be 
 permitted so to act, by its officers, as to produce in- 
 justice 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 exercise his discretion j but this law 
 prescribes a limit." In Boisgerard v. Johnson} the 
 principle established in Hodge v. Wilson was reaffirmed, 
 and on the debated point, the opinion of Thacher 
 was sustained.^ 
 
 The act of Congress of May 4, 1812, for the gov- 
 ernment of Washington City, provided " that unim- 
 proved 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. Prattf this 
 question was made upon the statute: "Whether, 
 
 1 23 Miss. E. 122. 
 
 ^ See farther upon this question, BasJcins v. Winston, 24 Miss. E. 431; Doe v. 
 Strong, 1 Tyler E. 1 91 . » 8 Whea. E. 686. 
 
340 OF THE SALE OF THE LAND. 
 
 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 stated, does not admit of a general answer. That 
 each lot stands encumbered with no more than its 
 own taxes, and the lien upon each is several and dis- 
 tinct, results, not less from the provisions of the 
 eighth section, which gives the right of redeeming 
 severally, than from the consideration that in case of 
 a partial sale by the proprietor of many lots, the pur- 
 chaser from him would not, by the act of transfer, 
 hold his purchase disencumbered of its own particu- 
 lar 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 pur- 
 chase 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 ' un- 
 improved 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 eiFect of the word ' much ' can only be to 
 authorize a sale of part of a lot, whenever circum- 
 
OP THE SALE 05 THE LAND. 341 
 
 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 individual, 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 conclusion to 
 which this opinion tends is, 1. That the lien upon 
 each lot, for the taxes, is several and distinct, and a 
 purchaser of one or more of the lots, less than the 
 whole number, subsequoti to the date of the assess- 
 ment, 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, relat- 
 ing to the same city, on May 15, 1820, providing 
 " that improved or unimproved property, or so much 
 thereof, 7iot less than one lot, as may be necessary to 
 pay the taxes, etc., may be sold, etc. ;" and still another 
 act, passed May 26, 1824, provided "that it shall 
 he Imvfiil for the said corporation, where there shall be 
 a number of lots assessed to the same person or per- 
 sons, to sell one or more of such lots for the taxes and 
 expenses due on the ivhole ; 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 corporation may 
 
342 01' THE SALE OE THE LAUD. 
 
 prescribe." In Mason v. Fearson^ which was an action 
 of ejectment, 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 
 1 64,94; they were all sold separately, the entire 
 proceeds of the sale were |705; and the lots firstly 
 and secondly offered brought |85, 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 Cor- 
 poration 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 
 imperative duty to do so. It was contended by the 
 counsel, in support 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 discre- 
 tion, 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 redeem- 
 ing 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 corpo- 
 ration or officer is empowered to do for others, and 
 
 1 9 Howard U. S. E. 248. 
 
OF THE SALE OF THE LAND. 343 
 
 it is benej&cial 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 argu- 
 ment, 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 pur- 
 chaser under 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 fur- 
 chaser setting up a new title in hostility to the former owner, 
 is not to he favored, and should have looked irdo it with care 
 before luying, and not expect to disturh or defeat old rights 
 of freehold, withoict 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 proceedings were mani- 
 festly irregular, viz. : that the " government must col- 
 lect her revenue," — "let the owner pay his taxes 
 promptly, or redeem from the sale." 
 
344 OP THE SALE OP THE LAND. 
 
 No one denies but 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 reme- 
 dies ; that the sale and conveyance of 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 gov- 
 ernment 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 selling the 
 lands of delinquents, and in such language as to make 
 a close adherence to the terms of the power, conditions 
 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 au- 
 thorities — have so held ; and the ignorance or negli- 
 gence 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 
 unmeaning forms and technicalities which encumber 
 the present system. Give to the officers who execute 
 the power, information, to enable them to perform 
 their duties ; and when a 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 
 
OF THE SALE OF THE LAND. 345 
 
 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 title cause, " this title 
 is of that kind almost •proverhially Jmoivn as a collector's 
 title, as exp'essing a case of doubt and difficulty"^ Then, 
 no court will declare a tax title prima fade void, and 
 become " astute" in searching for defects in them. 
 Then liberal principles will prevail in testing their 
 validity, and the ordinary presumptions made to sus- 
 tain them. And then, and not till then, will land 
 owners look to it at their peril that their taxes are 
 promptly paid, or (if by oversight they suifer the 
 day of sale to pass by) be vigilant in effecting a re- 
 demption. 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 exceed- 
 ing 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 discover- 
 ing defects in tax sales. 
 
 14. Where, after an assessment is made, the county 
 in which the proceeding was had is divided, the col- 
 lector of the old county has power to sell land lying in 
 the territory embraced in the newly created county.^ 
 
 1 10 Mass. E. 105. 
 
 2 Devor v. McCliniock, 9 W. & S. 80. 
 44 
 
346 or THE SALE OE THE LAND. 
 
 This is in conformity with the general principles of 
 law in analogous cases.-^ 
 
 The law relative to fraudulent sales and the loca- 
 tion of the land sold, will be examined in subsequent 
 chapters. 
 
 1 5 Watts E. 87 ; 16 Ohio E. 466 ; 17 Ibid. 135-143 ; 16 Mass. E. 86 ; 4 Ibid. 
 389 ; 6 J. J. Marsh. E. 147 ; 4 Halstead E. 357. 
 
or THE CERTIFICATE OF SALE. 
 
 347 
 
 CHAPTER XVI. 
 
 OP THE CERTIFICATE OF SALE. 
 
 When a sale is made, the officer usually executes 
 and delivers to the purchaser a certificate of the sale, 
 which constitutes 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. 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 pur- 
 chase 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.^ In 
 other States, the officer, immediately upon the receipt 
 of the purchase money, is authorized to execute and 
 
 1 Bice V. White, 8 Ohio R. 216; People ex. rd. Seaman v. Hammond, 1 Doug. 
 E. 276 ; Heed t. Morton, 9 Missouri R. 878 ; Bruce v. Schuyler, 4 Gilman E. 221 ; 
 Silliman v. Frye, 1 Ibid. 664. 
 
 2 Ives y. Lynn, 7 Conn. E. 505. 
 
OE THE CERTIFICATE OE SALE. 
 
 the purchaser a deed conveying the land 
 (rhich vests an absolute estate in the pur- 
 chaser~Oii conditmi that the owner does not redeem 
 the same within the time prescribed by law. In all 
 of these cases the piirchaser acquires only a contingent 
 interest in the estate purchased, liable to be defeated 
 in the event of a redemption, and if no redemption 
 is made, an absolute and indefeasible title becomes 
 vested in him. In the case of the People v. Hammond} 
 which was a proceeding by mandamus, the facts were 
 that the relator purchased a parcel of land, at a tax 
 sale held October 5, 1840, and received a certificate 
 therefor, which, under the law, 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 redeem- 
 ing 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 charge- 
 able thereon, which surplus was by law required to be 
 deposited with the State treasurer, " to the credit of 
 the proper oimier 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) whenever mention is made of the person Avho 
 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 
 
 1 1 Doug. K. 276. 
 
OE THE OEBTIMCATE OP SALE. 
 
 349 
 
 has only a lien upon the land for the repayment of 
 the amount of the tax paid, 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 sale, is the owner entitled under the statute to the 
 surplus moneys, if any there be." 
 
 When, however, the period allowed the owner to 
 redeem has expired, the purchaser acquires a vested 
 equitable interest 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} which was 
 an action of ejectment, the plaintiff claiming under 
 a tax title, it appeared in evidence, that the sale was 
 to William Wetmore, and that a certificate of pur- 
 chase was thereupon executed, and delivered to him 
 by the collector, in due form of law, that before the 
 execution of the deed, Wetmore died testate, and 
 his executors assigned the certificate to Edwin We1> 
 more, who assigned it to the lessor of the plaintiff, to 
 whom a tax deed was executed. 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 
 
 18 Ohio R. 216. 
 
350 01? THE CERTIFICATE OF SALE. 
 
 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 representa- 
 tives, all of the right and title of the original pur- 
 chaser. The words 4egal representatives,' used as 
 they are in connection with the certificate of pur- 
 chase, 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 certifi- 
 cate of' purchase, and, consequently, no legal title is 
 vested in the plaintiff's lessor by the deed, which is 
 predicated upon a void assignment." This decision 
 is undoubtedly correct 5 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, executed by the 
 sheriff, upon a sale of land under execution ; and it 
 has uniformly been held that iliey vest in the pur- 
 chaser an equitable interest in the land itself, and 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 Su- 
 preme Court of Ohio place upon the words "legal 
 representative," is in conformity 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 purchaser, repeal the 
 authority of the oflficer to execute and deliver a deed 
 
 1 Ddauny v. Burnett, 4 Gilm. E. 454; Grand Gulf Railroad ^ Banking Co. v. 
 Bryan, 8 S. & M. 234; 4 Missouri E. 333; 5 Ibid. 147; 9 Ibid. 714; 3 Ves. 
 Jr. 486 ; 1 Yeates E. 213 ; 2 Ibid. 585 ; 2 Dall. E. 205 ; 6 S. & E. 83. 
 
OF THE CERTIFICATE OF SALE. 351 
 
 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 ac- 
 cepted, and he pays the purchase money, and the 
 statute then in force constitutes the law of his con- 
 tract ; by it alone are his rights and duties to be de- 
 termined.^ The certificate vests such an interest in 
 the purchaser, that when the time fixed for redemp- 
 tion has expired, and the ofl&cer improperly refuses 
 to clothe the purchaser with the legal title, a vian- 
 da?7itis will be awarded at the instance of the pur- 
 chaser, to compel the execution of a deed.^ Where 
 the law requires the purchaser to record his certificate 
 or lodge his deed in a particular of&ce, with the evi- 
 dent design of giving notice of the sale to the former 
 owner, the requisition must be strictly complied 
 with.* In most of the States, the certificate of pur- 
 chase is made assignable in law, and the ofl&cer 
 authorized to convey, is directed to execute and 
 deliver the deed to the assignee. 
 
 The nature and extent of the interest of one who 
 purchases land at a tax sale, prior to the time limited for 
 a redemption, presents some highly important ques- 
 tions, and may be appropriately considered in this 
 connection. 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 happening or not happening 
 of some uncertain event, whereby the estate may com- 
 mence, be enlarged or defeated. Such an estate may 
 
 1 Bruce y. Schuyler^i Gilm. E. 274-8. 
 
 ' Dikeman v. Dikeman, 1 1 Paige C. E. 484. 
 
 ' Maxcy r. Clahaugh, 1 Gilm. R. 26. 
 
 * Beed v. Morton, 9 Missouri E. 878 ; Ives v. Lynn, 7 Conn. E. 505. 
 
352 OF THE CERTIFICATE OF SALE. 
 
 arise by implication of law, but is more commonly 
 created by express words in the instrument by 
 which the estate is conveyed. These conditions 
 are either precedent 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 which 
 an estate already vested Aay be defeated. The 
 usual practice on the making of the sale, is to de- 
 liver to the successful bidder a certificate of pur- 
 chase, 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 exe- 
 cuted and delivered to the purchaser, conveying to 
 him a present estate, with a redemption clause an- 
 nexed. And in all cases, the right of redemption is 
 preserved to married women, infants, lunatics, and 
 others laboring under special disabilities. In each of 
 these instances the estate may be said to be granted 
 inprcBsenti, but liable to be defeated upon a compliance 
 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 condi- 
 tion ; 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 de- 
 livery of the deed to him,) may be regarded as the 
 owner of the estate, at least so far as strangers 
 are concerned. He may maintain an action at law 
 for all injuries done to the inheritance by a wrong 
 doer; recover in ejectment against one who intrudes 
 himself into the possession of the estate ; and, gen- 
 
OF THE CEKTIFICATE OF SALE. 353 
 
 erally, do any act consistent with the nature of his 
 title. It is presumed, however, that he cannot him- 
 self commit waste, or do any act to the 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, 
 however, /or the complainant, in such a case, to bring 
 into court with his bill, the amount necessary to re- 
 deem the estate. On the other hand, the tax pur- 
 chaser 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 uncertain ; 
 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 main- 
 tain an action of trespass qucere dausum fregit against 
 the former owner for cutting timber upon the estate, 
 is, to say the least, a debatable point. Until the re- 
 demption 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 embarass- 
 ing. 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 wiU ; but he holds the possession in sub- 
 ordination to the title of the original proprietor, in 
 case a redemption is seasonably made. If the owner 
 does not redeem, the possession may be regarded as 
 45 
 
354 OF THE CEETinCATE OE SALE. 
 
 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 limited, is 
 the possessor under the tax title entitled to compensa- 
 tion in equity for his improvements, or is he to he 
 regarded as having made them at his perO. ? 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 redemption takes place, 
 can it have any retrospect, so as to make the tax pur- 
 chaser a trespasser under any circumstances, or does 
 it operate like the performance of any other condi- 
 tion subsequent annexed to an estate 1 These ques- 
 tions must necessarily arise in the investigation of 
 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 remarked that the analogy is com- 
 plete between an estate at common law, with a con- 
 dition 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 under disabilities, has expired ; and 
 it would seem that the same principles are applicable 
 to each. 
 
OF CONDITIONS SUBSEQUENT TO THE SAM. 
 
 355 
 
 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 defeated ; but of those acts which the 
 law requires to le performed after the sale has been made, 
 in order to vest the estate in the purchaser. In the lan- 
 guage 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 shewing 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. 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 
 
 1 Busk T. Davidson, 16 Wend. R. 554. 
 
356 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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 purchase, and the 
 giving of a notice to redeem, actual or constructive, to 
 the former owner. Of each of these in their order. 
 
 Where the law requires the officer who made the 
 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. 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 legisla- 
 tion is to perpetuate the facts attending the transac- 
 tion, to enable the owner to learn from the record the 
 fact that his land has been sold, and to guide the 
 ofiicer intrusted with the power, in the execution and 
 delivery 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 ofl&cer, 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 entrusted with the power of making the 
 conveyance, is enabled 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 analo- 
 gous to the return upon an execution, and stands 
 upon an entirely different footing. There the au- 
 thority of the officer is derived from the judgment 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 357 
 
 and execution, and no neglect in advertising, no 
 irregularity in the sale, or subsequent proceedings, 
 can defeat the title of the purchaser. The officer 
 may justify, and the purchaser acquire a title under 
 an execution, although it is never returned. If the 
 power once existed, it is immaterial what becomes of 
 the evidence of it. 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 pro- 
 ceeding 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 determin- 
 ing 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, ihat 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 stridi juris, and upon general principles, 
 the law gives an action against the ofl&cer for making 
 a false return, and unless that return is made, the 
 owner is remediless in the premises. Again, there 
 are no other means provided for giving to the owner 
 official information of the fact of sale, and the 
 
 i 4 Whea. K. 500; 2 Binney K. 401 ; 1 Cowper E. 18; 10 East R. 73; 
 8 John. E. 52. 
 
358 OF CONDITIONS SnBSEQTIBNT TO THE SALE. 
 
 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 IlUnois statute of Feb- 
 ruary 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 auc- 
 tioneer, 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 de- 
 scribed in the advertisement, &c., 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 re- 
 deem such land, the date of redemption, and the 
 amount of the redemption money,"^ and transmit to 
 the auditor of State a transcript of the same.^ And 
 under the act of February 26, 1839, where the sale 
 is made by the sheriff, aided by the clerk, similar 
 duties are imposed upon the latter relative 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 purchas- 
 er, and also to the officer who executes the deed, 
 and through whom a redemption 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, when 
 and where it was made, the quantity of his land sold, 
 and every other fact necessary to enable him to 
 
 1 Laws 1833 p. 530, Sec. 6. ^ Ibid. Sec. 7. 
 
 = Laws 1838-9 p. 15, Sec. 36. 
 
or CONDITIONS SUBSECIUENT TO THE SALE. 359 
 
 redeem or contest the regularity of the proceedings. 
 On inspection, the purchaser can see whether the sale 
 has been redeemed from, when and by whom it was 
 effected, and the amount of the redemption money 
 paid to the ofl&cer ; thus ascertaining the legality of 
 the transaction, and the extent 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 payment of the redemption money. And 
 under these statutes, the transcript of the sale, di- 
 rected to be returned to the auditor, was evidently 
 intended for the benefit of non-resident owners, by 
 giving to them additional means of informing them- 
 selves 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 becomes a substan- 
 tial prerequisite to the validity of the purchaser'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 this case the 
 return did not designate the land sold, and the court 
 held that even if made within 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 statr 
 ute of New Hampshire, it was held that the return 
 must show that the sale was made to the highest 
 bidder.^ 
 
 1 Andrews v. Senter, 32 Maine E. 394. "^ Ante, p. 325. 
 
360 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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 propri- 
 etors, within thirty days after the day of sale." In 
 SJiimin v. Inman} the return was in this manner : ^ 
 "HowLAND, February 6, ISs's. 
 
 Charles Davis bought of Daniel Wood, collector, 
 lots of land as follows, viz. : 
 
 Watercourse. 
 
 No. of the Lots. 
 
 Eange, 
 
 No. Acres. 
 
 Taxes and Charges. 
 
 On Penobscot River 
 
 16, 17, 18. 
 
 
 
 230 
 
 $5,52 
 
 Rowland, February 10, 1836. 
 
 Daniel Wood, 
 Collector of Hoivlandfor the year 1835." 
 
 This return was held void because the description 
 of the land was indefinite. By the court: "The sound- 
 ness of the argument cannot be admitted, that the 
 neglect of the collector 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 26 Maine E. 228. 
 
 2 The only authority opposed to tlie doctrine of the text is that of Hollister v. 
 Bennett (9 Ohio E. 83). The statute of Ohio provided that after making the 
 sale, the collector should, on or before the first Monday in January then next 
 following, transmit to the auditor of the county " a list of all lots or parts 
 thereof sold, also the purchaser's name, etc." A further 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 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 Jan- 
 uary next succeeding, it is sufficient. 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 Decem- 
 ber, the very day of sale, which, if the proceedings hitherto had been in con- 
 formity with law, vested a title in the grantee, and it would be rather extraor- 
 dinary to hold that the title could be divested by the failure of the collector to 
 do an act which he was subsequently bound to perform." 
 
OP CONDITIONS 8DBSEQUBNT TO THE SALE. 361 
 
 The Connecticut statute required the collector " to 
 give to the purchaser a deed of warranty thereof, to 
 be lodged in the office of the town clerJc, 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, etc., the purchase 
 money and twelve per cent, interest, such deed shall 
 be void, and shall be delivered up to the person pay- 
 ing or tendering the money, etc." In Ives v. Lynn} 
 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, otherwise the right of redemp- 
 tion 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 ofl&ce, 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 exe- 
 cuted until nearly four years after the sale of the land 
 by the collector. The validity of the deed depend- 
 ing in positive law not complied with, it is undoubt- 
 edly void." 
 
 The statute of Vermont provided that " every col- 
 lector shall, within thirty days after completing the 
 sale, etc., 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.^ So where 
 
 1 7 Conn. E. 505. 
 
 2 Richardson v. Dmr, 5 Vermont E. 9 ; Giddings v. Smith, 15 Ibid. 357. 
 46 
 
362 or CONDITIONS subsequent to the sale. 
 
 the sale was completed July 31, 1799, and the pro- 
 ceedings were not lodged until March 4, 1800.^ The 
 same doctrine was reaffirmed in Taylor v. French^ 
 where the facts were that all of 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 proceed- 
 ings were held void because the return was not made 
 within thirty days 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 re- 
 quired a strict compliance with the statute requisites. 
 The statute is that the return shall be made within 
 thirty days after completing the sales. To hold that 
 this means thirty days from the time the collector 
 shall see fit to adjourn the vendue, without 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 
 
 ^Mead t. Mallet, 1 D. Chipman E. 239. 2 19 Vei-mont E. 49. 
 
 ' 13 Vermont E. 609. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 863 
 
 days next after the ending of his vendue, lodge a 
 true and attested copy of his sales, together with 
 his warrant, tax biU and advertisement, with the town 
 clerk, whose duty it was made to record the same. 
 The collector failed to perform this duty, and the tax 
 sale was held void. Williams, C. J. : " This was calcu- 
 lated to protect the purchaser, as well as the owners, 
 whose lands were sold,, by preserving the 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 en- 
 acted, 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 sub- 
 sequent to the sale, or to 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 requiredtobe recorded 
 
364 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 " 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 proceed- 
 ings, the legislature in some of the States have re- 
 quired 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 neg- 
 lected, 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 Vermont directed the town clerk to record 
 the collector's advertisement, and certify 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 nec- 
 essary for the owner to redeem. The records must 
 contain full and plenary evidence in this particidar. 
 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 advertise- 
 ment has been published as required 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 de- 
 volved, the courts are inflexible in requiring a rigid 
 
 1 Isaacs V. Shattuck, 12 Vermont B. 668. ^ is Vermont R. 470. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 365 
 
 compliance with the requirements 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 ofl&ce for record- 
 ing deeds in his township ; and the town clerk was 
 directed to record the advertisements at length, to- 
 gether with the title, number, volume and date of the 
 newspaper in which they were inserted, and the place 
 whm'e such papers were printed. In Culver v. Hat/den^ 
 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 state- 
 ment 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 coiidition precedent to the convey- 
 ance of a good title by the vendue deed. Where 
 property is affected, or the title to it divested, by the 
 provisions of a special act of the legislature, the re- 
 quirements 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 
 of&cers required to collect the tax and record the 
 proceedings. The performance of these acts is the 
 condition on which the property was divested ; and it 
 is not for the court to inquire whether the provisions 
 of the statute were reasonable, whether a compliance 
 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 
 
 1 1 Vermont R. 359 ; reaffirmed in Clark v. Tucker, 6 Vermont E. 43. 
 
366 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 case the record omitted the date of the newspaper 
 and its place of pubhcation, 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 yfhioh. 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 re- 
 corded 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 ]3rescribed by law, but the clerk made 
 his record from copies furnished him from the collector's 
 hooks, instead of from the newspapers themselves, 
 which the collector was required 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 the 
 original, the greater is the liability to inaccuracy. 
 The objection would not be obviated though each 
 copy be examined and compared by the same indi- 
 vidual. In the present case the record is two removes 
 
 1 Coit T. Wells, 2 Vermont K. 318. 
 
 2 Spear V. Ditty, 9 Vermont E. 282. 
 
 ^ Isaacs V. Shattuck, 12 Vermont E. 668. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 367 
 
 from the original advertisements. The statute re- 
 quires the clerk to record the advertisements them- 
 selves. This is imperative."^ It may be remarked 
 that in this case, the town clerk was held a competent 
 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 official 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 intend- 
 ments 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 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."^ 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 Ver- 
 mont of that name. It was insisted that the phrase 
 "at Windsor" was equivocal, but the court held other- 
 wise. "We say at a town or village, but in a county or 
 State. From this record no sober or sane man could 
 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 
 
 1 Carpenter y. Sawyer, 17 Vermont K. 121. 
 
 2 Taylor y. French, 19 Vermont R. 49. 
 
 3 Spear y. Ditty, 8 Vermont E. 419. 
 
368 OE CONDITIONS SUBSEQUENT TO THE SALE. 
 
 dispense with no prerequisite which the statute fairly 
 indicates, we hope to escape the imputation of frivo- 
 lous and puerile criticism."^ Another objection taken 
 to the record in this case, and overruled, was that the 
 law required the advertisement to be published in 
 three different newspapers, and recorded at length, 
 whereas in this case, the clerk had copied one, and 
 referred to the others by name, date, number, vol- 
 ume, 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 re- 
 corded 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 office 
 for recording of deeds," which seemed to imply that 
 they should be recorded in the record books contain- 
 ing deeds. But the court held the record valid. In 
 Bellows V. Elliott^ it appeared from the record that 
 the three newspapers in which the collector's adver- 
 tisement appeared, were published at Danville, Eut- 
 land and Windsor, but the State was not named, and 
 the court presumed that these towns were in Ver- 
 mont. 
 
 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 ref- 
 erence to the effect of the non-performance of them, 
 with the exception of the filiiig of the surplus bond, 
 under the Pennsylvania system, which will be noticed 
 presently. It is now proposed to state the cases 
 arising 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. 
 
 1 Isaacs V. Shattuck, 12 Vermont E. 668. " 12 Vermont R. 569. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 369 
 
 The statute of Missouri authorized the officer 
 making the sale, to execute and deliver to the pur- 
 chaser a certificate of the sale, and required the 
 purchaser to caiise 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 Reed v. Morton^ the facts were, that the sale 
 took place June 18, 1832, the certificate bore date 
 June 20, 1832, but was not recorded until January 
 13, 1836, and the deed was executed and recorded 
 June 28,1834. The sale was held void. Scott, J.: 
 " If the certificate was not recorded before the exe- 
 cution of the deed, it could hardly have been of any 
 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 
 consequence 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 
 wpmi to give reasons why this thing should have heen done. 
 He who wishes to obtain an estate worth thousands, 
 for less than ten dollars, and under and by virtue of 
 
 1 9 Missouri R. 878. 
 
 47 
 
870 OE CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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 preten- 
 sions be judged. But this provision was designed as 
 one of the means of communicating to the owner 
 the fact that his land has been sold. The placing of 
 it on record after the time for redemption expired, 
 was a nugatory act ; it should have been seasonably 
 recorded, and the failure to do so renders it void, and 
 by consequence, 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 
 surplus, if any, to the owner of the land. The statute 
 is not at hand, and on account of the mode of report- 
 ing the cases which have arisen under these statutes, 
 it is impossible to state with accuracy the precise 
 terms of the law. The substance 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 prothono- 
 tary ; 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 pre- 
 sumed, from the language of the courts, and the nature 
 and object of the requirement, that the bond ought to 
 be executed simultaneously with the consummation 
 of the sale — that the execution and delivery of the 
 deed and bond are concurrent acts. The following 
 adjudications have been made in that State in the 
 construction of these statutes : 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 371 
 
 1. That the execution and delivery of this bond 
 by the purchaser to the treasurer, is a condition pre- 
 cedent to the vaUdity 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 execution 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 'forthvith! But the reason 
 of the thing is sufficient 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 everything he was bound to do; 
 and the same principle is applicable to cases of pur- 
 chase 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 belongs 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 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 pur- 
 chaser, at the peril of his title, to see that he has it. 
 He might otherwise encumber the land so as to 
 
 ^Sulton V. Ndstm, 10 S. & E. 238. 
 
372 OJ CONDITIONS SUBSEftUBNT TO THE SALE. 
 
 render a bond subsequently given, no security at all. 
 Besides, it would be unreasonable, and what the legis- 
 lature 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 should 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 considerable period, and 
 to claim the land after the original owner had en- 
 hanced its value by improvements. The law intended 
 that every transaction of this kind should be a real 
 one, the execution of the bond and deed being 
 simultaneous, whereas when the ofiicer parts with the 
 deed, without having obtained the bond, the pur- 
 chaser is to be considered as obtaining it surrepti- 
 tiously, because the officer transcends his power, and 
 under such circumstances the delivery is void." And 
 in McDonald v. Maiis^ 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 en- 
 tered. The judgment was reversed 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.^ Al- 
 though subsequent cases have somewhat limited this 
 
 1 8 Watts E. 364. ■■' Sutton v. Nelson, 10 S. & E. 238. 
 
or CONDITIONS SUBSEQUENT TO TUB SALE. 373 
 
 rule, so far as it regards the person whose duty it is 
 to fiU the bond, yet the execution and delivery of the 
 bond forms a part of the title, and whenever a person 
 relies upon a tax title, it is necessary for him to prove 
 affirmatively the filing of the bond, or at any rate its 
 execution and delivery. Without 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 pur- 
 chase money to the treasurer, cannot be taken as a 
 substitute for the surplus bond. 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 
 unofficial act.^ In White v. Willardf 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 reme- 
 dy against him for a breach of it ; and this shows 
 
 110 Pa. State E. 341. 
 
 2 Connelly v. Nedrom, 6 Watts E. 451. » 1 Watts E. 42. 
 
374 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 that the purchaser is not the party to suffer by the 
 officer's negligence. If, then, the purchaser has per- 
 formed 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, yet not being a trustee for any one, it was 
 not his business to interfere, which is still more con- 
 clusively shown by his total inability to control the 
 officer's actions." The same principle has been 
 affirmed in other cases.^ 
 
 2. To prove the execution and delivery of a sur- 
 plus bond, rests with the purchaser. And he must 
 show, by satisfactory proof, that the law, in this 
 respect, has been strictly complied with. Where dili- 
 gent 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 de- 
 livered, by the purchaser, the evidence must be clear 
 and satisfactory in its character, and not depend upon 
 the indistinct recollection, the vague impression or 
 doubtful surmise of the witness.^ 
 
 3. The receipt of the treasurer, for the surplus 
 bond, required of the purchaser by the act of Assem- 
 bly, Wi prima facie evidence of the execution and deliv- 
 ery of the bond by the purchaser, and of the fact that 
 it was duly filed by the treasurer;^ and, in the absence 
 of any rebutting proof, must, like all prima fade evi- 
 dence, be deemed conclusive^ So a recital in the tax 
 
 1 Burns V. Lyon, 4 Watts R. 363. 
 
 2 M'Donald v. Maus, 8 Watts K. 364. 
 s Fager v. Camphdl, 5 Watts E. 287. 
 
 * Sobinsm v. WiUiams, 6 Watts R. 281. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 375 
 
 deed, of the execution of a surplus bond, is held to 
 he prima facie evidence of that fact.-' 
 
 4. The bond must contain a specification or particu- 
 lar description 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 sur- 
 plus, upon the land purchased, and surely the bond 
 cannot create a specific lien against rights subsequent- 
 ly acquired, unless the land upon which it was in- 
 tended to operate is specifically described in it ; and 
 the indorsement of the description, by the treasurer, 
 upon the back of the bond, cannot aid it, as the offi- 
 cer's indorsement is no part of the instrument. The 
 indorsement is a simple memorandum for the con- 
 venience 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 treasurer is charged 
 with the business of preparing it, but 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 participation 
 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 misprision of the officer, and being immaterial, 
 the maxim " de minimus nan curat lex," applies. It is 
 presumed that it is not necessary to give a surplus 
 bond when the surplus does not exceed the cost of 
 its execution.^ 
 
 1 Divinney v. Ba/nolds, 1 W. & S. 328. 
 
 2 Bartholomew v. Leech, 7 Watts E. 472. 
 
 8 Frick V. Sterrett, 4 W. & S. 269 ; Divinnei/ v. Beynolds, 1 W. & S. 328. 
 
376 Off CONDIIIONS SUBSEQUENT TO THE SALE. 
 
 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 un- 
 necessary, that its execution would be presumed, from 
 the fact that it was found among the files of the pro- 
 thonotary's ofl&ce. 
 
 8. Secondary evidence of the existence and con- 
 tents 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 
 provision : " 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 same, or at any sale for taxes 
 or levies authorized by the laws of this State, shall 
 be entitled to a deed for the land or town lot so pur- 
 chased, 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 redemption will expire. In 
 like manner, he shall serve on the person or persons 
 
 1 Turner v. Waterson, 4 W. & S. 171. "4 Watts R. 363. 
 
 " Driesbach v. Berger, 6 W. & S. 564. * Art. IX., Sec. 4. 
 
or CONDITIONS SUBSEQUENT TO THE SALE. 377 
 
 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 ; 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 coun- 
 ty ; 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 land is sit- 
 uated ; 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 affidavit of having complied with 
 the conditions of this section, stating particularly the 
 facts rehed 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 re- 
 demption 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 prima 
 facie evidence that such notice has been given. 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 sec- 
 tion to publish a notice 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 redemption 
 48 
 
378 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 money, the printer's fee for publisliing such notice, 
 and the expense of swearing or affirming to the 
 affidavit, and fihng the same." 
 
 This is the first instance where the people in the 
 exercise of their inherent sovereignty have under- 
 taken 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 tvritten notice of his purchase, to every person in 
 possession of the land. 3. That he shall serve a simi- 
 lar notice upon the person in whose name the land 
 was listed for taxation, if such person 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 no- 
 tice is to be inserted in the nearest newspaper published 
 in the State, to the county in which the land is situa- 
 ted. 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 pub- 
 lication 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 ex- 
 pires. 9. That the notice, whether actual or construct- 
 ive, 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 com- 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 379 
 
 pliance with these requirements. 11. That such aflfi- 
 davit must state particularly the facts relied upon as 
 evidence of such compliance. 12. That the af&davit 
 thus required shall be delivered to the person author- 
 ized by law to execute the tax deed. 13. That the 
 deeding ofl&cer shall file it with the ofl&cer having the 
 custody of the records relating to tax sales and re- 
 demptions. 14. That the latter named o^cer shall 
 enter the affidavit upon the records of his office, and shall 
 carefully preserve the same among the files of his 
 ofi&ce. 15. That the af&davit, when made in compli- 
 ance with the requisitions of the constitution, shall 
 be deemed prima facie evidence that the redemption 
 notice has been duly given. 16. That perjury may 
 be assigned upon a false afl&davit made under this 
 section. And, lastly. When the owner, occupant or 
 other person in interest, applies to redeem, he or she 
 must pay the expenses attending 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 operative on the first day of April, 1848. 
 Some tax sales were made after that period, upon assess- 
 ments made during the preceding fiscal year, and the 
 question arose upon a mandamus to compel the ofl&cer 
 to make a deed to a purchaser, who had failed to com- 
 ply with the foregoing provisions, whether the consti- 
 tution 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 saks and redemptions 
 under the revenue laws, and that its words and spirit 
 
380 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 required the notice of the sale to be given, in all 
 instances where a sale took place after the coiistUvtion 
 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 pur- 
 chase, which was after the constitution became oper- 
 ative ; 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 mainte- 
 nance 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 doctrine of relation could 
 have no other effect than to shield him from legisla- 
 tive spoliation, and protect him against rights acquired 
 by third persons in the land purchased intermediate 
 the assessment and sale. The mandamus was re- 
 fused, and an appeal taken, but never prosecuted, so 
 that the question has not yet been decided by the 
 highest court of resort. 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 occupant and person, in whose 
 name the land was listed for taxation, should have 
 been given by the purchasers, at all sales made 
 throughout the State, after the adoption of the con- 
 stitution, although founded upon assessments for the 
 preceding year. The question assumes great import- 
 ance, inasmuch as it aflfects 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 retrospect- 
 
01? CONDITIONS SUBSEQUENT TO THE SALE. 381 
 
 ive operation of an ordinary law, cannot be urged 
 against a similar 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 pro- 
 vision 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 constitution. 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 Macoupin, the redemp- 
 tion notice was published in a newspaper called 
 the "Green County Banner," a paper published in 
 the town of CaroUton, the county seat of an adjoin- 
 ing county ; there was no newspaper then published 
 in the county where the land lay; it was proved upon 
 the trial, that at the time of the publication of the 
 several redemption notices, newspapers were regu- 
 larly published in HUlsboro, Jerseyville, EdwardsviUe 
 and Alton, towns situated in adjoining counties, each 
 of which were nearer to the boundary line of Macou- 
 pin than CaroUton. Alton ^as seven miles nearer. 
 The court held the notice insufficient. Chief Justice 
 Treat, after reciting the foregoing section of the con- 
 stitution, proceeds to say : " These constitutional pro- 
 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 secm^e this object, the purchaser is required to 
 
 1 15 Illinois R. 298. 
 
382 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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 months 
 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 newspaper to 
 the county. These requirements, being intended for 
 the protection of the owner, must be strictly com- 
 plied with in order to divest him of his title. They 
 are imperative, and cannot be disregarded. The 
 purchaser is not entitled to a deed until these pre- 
 cedent conditions are strictly performed ; and if he 
 succeeds in obtaining a deed without such perform- 
 ance, 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 newspaper of 
 an adjoining county may not be the nearest newspa- 
 per to the county in which the land is situated. And 
 the newspapers of the adjoining counties may not be 
 equally 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 pubUcation and 
 the county line. That is the only way of ascertain- 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 383 
 
 ing the paper in which to give the notice. In this 
 case there were four newspapers pubhshed nearer to 
 the county than the one in which the notice was 
 inserted. The notice should have appeared in the 
 Alton paper, its office of publication being several 
 miles nearer to the county that 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 question. The owner has 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 'prima 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 "whenever any land, sold for taxes by the comp- 
 troller, and conveyed as herein before provided, shall, 
 at the time of conveyance, be in the actual occupan- 
 cy 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 occu-. 
 pying such land, stating in substance the sale and 
 conveyance, the person to whom made, and the 
 amount of the consideration money mentioned in 
 the conveyance, with the addition of thirty-seven 
 and an half per cent, on such amount, and the fur- 
 ther addition of the sum paid for the comptroller's 
 deed ; and stating also, that unless such consideration 
 money and the said thirty-seven and an half per cent., 
 together with the sum paid for the comptroller's 
 
384 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 deed, shall be paid into the treasury forTthe benefit 
 of such grantee, within six months after the service 
 of such notice, that the conveyance of the comptrol- 
 ler will become absolute, and the occupant, and all 
 others interested in the land, be forever 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 consideration money, 
 with the addition of thirty-seven and an half per cent, 
 thereon, and the amount that shall have been paid 
 for the comptroller's deed ; and every such redemp- 
 tion shall be as effectual as if made before the con- 
 veyance of the land sold. In every such case of 
 actual occupancy, the 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 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 redemption of such land shall not have 
 been paid into the treasury, he shall . certify the fact, 
 and the conveyance before made by him shall there- 
 upon become absolute ; and the occupant, and all oth- 
 ers interested in the said lands, shall be forever barred 
 of all right and title thereto." This statute is very 
 similar to the provision in the constitution of Illinois, 
 herein before 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, 
 
OE CONDITIONS SUBSEQUENT TO THE SALE. 385 
 
 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 proven 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 pos- 
 session, or hetterments, by a conveyance to himself, and 
 one Day, but he made no claim or pretense 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 informed of the purchase 
 at the tax sale, by the lessors of the plaintiff, said 
 that he had no title to the land, and expressed a wish 
 to buy of them ; and also that the defendant pro- 
 posed to purchase the premises of Watson, but the 
 parties could not agree as to the price. This evi- 
 dence was offered by the plaintiff as equivalent to a 
 waiver of the notice required by the law, and which 
 had not been given. It was objected to, but re- 
 ceived 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 possessor. 
 The defendant excepted, and the jury found a ver- 
 dict for the plaintiff, which the defendant moved to 
 set aside, 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 
 
 1 7 Wend. E. 148. 
 
 49 
 
386 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 depends on an act in pais, the party claiming under 
 that deed is as much bound to prove the performance 
 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 sufficient; they 
 must be proved independent of the deed. Perhaps 
 a deed from the comptroller is an exception as to this 
 particular, for the statute declares that such convey- 
 ance 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 certificate 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 conveyance by the comptroller it has been 
 decided, that where there was no tax due, the comp- 
 troller'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 fur- 
 ther upon a condition subsequent, to be performed by 
 the purchaser. To complete 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 
 comptroller's deed, is shown, I can see no reason why 
 it is not as necessary to produce the comptroller's 
 certificate to prove a failure to redeem, as it is to 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 387 
 
 produce the comptroller'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 question 
 then arises, whether it is necessary that the occupar 
 tion must be by the ozvner, and whether the occupant 
 can, by his 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 legislature 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 provi- 
 ded, therefore, that the purchaser should ascertain 
 the fact at his peril, and give notice when necessary. 
 The jpurchaser must, therefore, do every act neces- 
 sary 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 admis- 
 sion 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 
 
388 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 original purchasers 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 com- 
 plied 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 prin- 
 ciple, that a man shall not be divested of his interest 
 in his property but by his own acts, or the operation 
 of law; and where proceedings are instituted to 
 change the title to real estate, by operation of law, the 
 requirements of the law imder which the proceedings 
 are had, must be strictly pursued. I am accordingly 
 of opinion, that the offer by the defendant to pur- 
 chase the lessors' title, proved nothing, and that 
 the plaintiff's title is imperfect, and will be, until he 
 gives notice, and procures the comptroller's certifi- 
 cate according to the statute." 
 
 The next case in chronological order, which arose 
 in New York, was that of Comstoclc et ux. v. Beardsley} 
 in which the defendant claimed under a deed from 
 the comptroller, bearing date June 27, 1828, in pur- 
 suance of a sale for taxes. In answer 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 a garden adjoining. The residue of the lot was 
 
 1 15 Wend. E. 348. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 389 
 
 occupied by two individuals, under a lease from Bean, 
 at thirty dollars per annum, who cultivated the im- 
 proved 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 directed the jury to find a verdict 
 for the plaintiffs for so much of the land as was actually 
 improved at the date of the comptroller'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 notice 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 con- 
 templation 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^ 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 inateria, and the term occupant 
 used to convey the same idea in both of them. 
 Though there was no person in occupation at the 
 
 1 7 Wend. K. 148. 2 l^ws of 1823, p. 390. 
 
390 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 time the assessment was made, and therefore the 
 land mvist be returned as non-resident, yet, if an 
 occupant 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 contemplated 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 posses- 
 sion 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 
 taken between 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 Avas an occupation and posses- 
 sion of the entire lot, within 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 convey- 
 ance for taxes, by the comptroller, of lands which, at 
 the time of the conveyance are in the actual possession and 
 occxipaticy of any person, a written notice shall be served 
 
OT CONDITIONS SUBSEQUENT TO THE SALE. 391 
 
 on him, or left at his dwelling house, stating in substance 
 the sale and conveyance, to whom made, and the 
 amount of consideration, after adding 37^ per cent., 
 and that unless the same shall be paid into the treas- 
 ury, for the benefit of the purchaser, within six 
 months, the deed to him will be absolute, and the 
 occupant, and all others interested in the land, will be 
 forever 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 pay- 
 ment, and for what land it was intended to redeem, 
 shall as effectually redeem it, notwithstanding 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 iipart was actually 
 occupied 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 redeem 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 
 residue. I cannot perceive how the purchaser can 
 escape giving the notice, by consenting to take the 
 
392 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 unoccupied part, since it is not distinguished from 
 that occupied, by the statute, when both are included 
 in one bid. If there is an occupant of part only, he 
 is entitled to notice before his possession can be dis- 
 turbed. Each notice calls for the whole purchase 
 money. On failure to comply with its requirements, 
 the whole title becomes absolute ; on compliance, the 
 whole is defeated. As the purchaser may compel the 
 occupant 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 com- 
 pound with the occupant, and take the residue of the 
 bid without notice." 
 
 In Bush V. Davison^ the plaintiff claimed to recover 
 thirty 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 Decem- 
 ber 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 defendant, and continued in posses- 
 sion until January 13, 1834, when he removed from 
 the premises. A question was made upon the trial, 
 whether the possession of Phillips did not construdmly 
 embrace fifty acres of unimproved land surrounding 
 the house, as well as the house itself, he having origin- 
 ally 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 unim- 
 
 1 16 Wend. E. 550. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 393 
 
 proved 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 limited 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 premises, except the dwelling- 
 house. The defendant moved for a new trial, which 
 was granted by the supreme court. The opinion 
 of the court was delivered by Cowen, J. : " K the 
 qiiestion 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 necessary 
 to the actual occupant of any part of an entire tract 
 sold to pay non-resident taxes, before the comptroller's 
 deed shall become absolute in respect to ant/ other part, 
 even though it be at the time vacant. The several 
 provisions of the statute under which the plaintiff 
 claims, are : [Here the judge recites the statute as 
 given ante, p. 383, and proceeds.] Looking at the 
 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 inoperar 
 tive as to that, according to the common understand- 
 ing of the act, until notice of the purchase and default 
 to pay the taxes; and such default proved and certified 
 50 
 
394 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 at the comptroller's office. This was held in Jackson 
 V. Edy, on a consideration of the various provisions now 
 consolidated in the revised statutes. A compliance 
 with all the terms prescribed 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 comptroller'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, accord- 
 ing to the provisions of the law, is yet standing alone, 
 a mere nullity in respect to the occupant. I collect 
 all this from the language of the late Chief Justice, 
 at page 150 of Jackson v. Esti/ ; and, indeed, no other 
 view of the conveyance would warrant 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 per 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 con- 
 tended, and the lessors tried to keep the comptroller's 
 deed out of view, and recover on Esty's admission 
 alone. But to prevent an ingenious evasion of the 
 decision at bar, by the plaintiff stopping after the 
 admission and disclaimer 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 
 
OB CONDITIONS SUBSEQUENT TO THE SALE. 395 
 
 deed caries a contingent title, depending on the notice, 
 etc., as a condition subsequent ; and so, indeed, it does 
 when the condition is looked to in its chronological 
 order; but for the purpose of gi,ving effect to the 
 deed, I think he would have added that it was a con- 
 dition precedeiii to all intents and purposes, and that 
 without showing affirmatively the literal performance 
 of it, the deed still remained mere wasl^ paper, of no 
 more effect than the sale under a mortgage power 
 without advertisement, or the sale for United States 
 taxes in Jackson v. Shephard^ to which the Chief Jus- 
 tice 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 in the novel form under which the con- 
 dition came to us. A deed from the State, authorized 
 by statute, and made conclusive of its own regularity, 
 purporting to transmute the title, and actually deliv- 
 ered out to the purchaser, is yet made a mere escrow, 
 to he 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 paying 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 limited to the actual 
 occupancy, and was intended for the benefit of the 
 owner. Jackson v. Esty had particular reference to 
 the rights of the owner, and would not allow the 
 actual occupant to waive the notice to his prejudice. 
 
 17 CowenR. 88. 
 
396 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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 
 Comstoch sf. Beardsley, which was ejectment by the 
 original owner for land in Clinton county, the defense 
 rested on the comptroller's deed of the premises, 
 which were partly in the actual occupancy of another 
 who claimed l^itle to the whole. No notice had been 
 given, and on the trial I restricted the defense to the 
 part actually occupied. That was some years ago. 
 A new trial was granted. This court declared 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, but the occupant's 
 claim of right; and he added, that whenever any 
 portion of the premises was actually used and im- 
 proved, 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 prem- 
 ises in question, and to prove the additional fact that 
 the occupant never claimed anything beyond. That 
 I overruled, and stopped the cause, on the distinct 
 expression of the Chief Justice, oUter perhaps, but 
 still a very explicit opinion, bearing the marks of 
 reflection. I must be understood to speak from rec- 
 ollection, 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 Jachson v. Esty, 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 397 
 
 the principle of which I had overlooked. The stat- 
 ute from which I have read all the provisions con- 
 nected with that case, declares that whenever any 
 land sold for taxes shall he in the actual occupancy 
 of any person, the grantee shall give notice, etc., con- 
 taining particular directions in respect to what must 
 be done, and that in default of payment, the convey- 
 ance of the comptroller will become absolute. Then 
 the occupant or any other person may redeem the land 
 conveyed. Then, to complete 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 conveyatwe thereupon becomes absolute. The con- 
 dition 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, etc. What kind of 
 condition? A condition precedent, 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 consid- 
 eration of Jackson v. Usty. If it were subsequent, 
 then, in common effect, ejectment would lie without 
 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 comptroller's certificate. 
 The statute was open to such a construction. That 
 would have been treating the owner as a kind of 
 mortgagor, holding an equity of redemption, the legal 
 
398 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 estate being in another. But both Jackson v. Esty, 
 and Cmnstock v. Beardsley, denied that there was any 
 legal title in the purchaser upon which he could 
 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 latter is taken away, and his mortgage 
 changed to a mere equitable lien, which cannot in 
 general become a legal estate, for any purpose, until 
 actual foreclosure. In Jackson v. Esty, the late Chief 
 Justice remarked : ' I can see no reason why it is not 
 as necessary to produce the comptroller's certificate 
 to prove a failure to redeem, as it is to produce the 
 comptroller's deed to prove the sale made by him.' 
 The notice, the default, the proof and certificate of the 
 comptroller, being a precedent condition imposed, as 
 we have seen, whenever there is occupied land cov- 
 ered 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 vari- 
 ous occupants in severalty, 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 in- 
 stances the case of a condition subsequent, but I can 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 399 
 
 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 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 comptroller's conveyance, the defendant, 
 although residing some distance 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 defend- 
 ant 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 occupied by the defendant, or any 
 other person, at the date of the comptroller's deed, 
 the defendant was entitled to a verdict, inasmuch 
 as the plaintiff had failed to show that the notice 
 required by the statute, had been given to such occu- 
 pant. The jury rendered a verdict for the defendant, 
 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 comp- 
 troller's deed.^ The privilege of a part claimant to 
 
 1 5 Hill R. 286. 
 
 2 Comstock y. Beardsley, 15 Wend. E. 348 ; Bush, v. Davison, 16 Ibid. 550. 
 
400 or CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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. Sawyer^ was an action of trespass 
 qucere clcmsum fregit. The plaintiff claimed under a tax 
 sale and deed. The defendant insisted that the land 
 was occupied 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 afl&rmed in the 
 supreme court, but the court of appeals reversed 
 the judgment. The facts upon which the objection 
 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 num- 
 ber 84, in Duer's patent, is bounded on the west by 
 lot number 57, and those two lots are bounded, ia 
 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 57, but the fence was crooked, and 
 near the south-west corner 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 posses- 
 sion of lot 4 of the gore, under a contract to purchase 
 the same from the plaintiff; and Baker, that season, 
 mowed the meadow on lot 4, including the nook, 
 which, on a subsequent survey, was found to be a 
 part of lot 84. Baker did not know at the time that 
 
 1 3 Barbour S. C. B. 360; S. C. 4 Comstock K. 577. 
 
or CONDITIONS SITBSEQUENT TO THE SALE. 401 
 
 the fence to which . he mowed inclosed 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 
 occupied 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 discovered the fact some time 
 after he took possession. The fact seems to be, that 
 the one who made the brush fence intended 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, 
 amounting 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 
 non-suited the plaintiff. In all of the cases where it 
 has been 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 comp- 
 troller, with an intention to enjoy the property, either 
 by right or by wrong; while here the enjoyment 
 seems to have been merely accidental, and without 
 an intention to occupy any part of lot 84. I think 
 there was no occupancy of the lot within the mean- 
 ing 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." 
 51 
 
402 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 The conclusions to be extracted from the New 
 York decisions, are 1. That the notice to redeem is a 
 condition precedent to the validity of the comptroll- 
 er's deed ; that, although the deed of the comptroller 
 is executed and delivered 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 its validity depended 
 has been strictly performed. 2. That the comp- 
 troller'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 occu- 
 pant 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 a person in possession of the land at the 
 date of the comptroller'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, iipon 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 by 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 land 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 
 
01? CONDITIONS SUBSEQUENT TO THE SALE. 
 
 403 
 
 chance occupation of a small portion of a tract, occa- 
 sioned by a confusion of boundaries, does not entitle 
 the occupant to notice — there must be an intention, on 
 the part of the occupant, to enter and take posses- 
 sion 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 construction. 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 a statute which makes no pro- 
 vision for a redemption notice. The reason is, that 
 in the one case the notice is actual, and in the other 
 constructive. Courts always construe notices of the 
 latter description more strictly than those of the 
 former. 
 
 In reviewing the decisions of the courts detailed 
 in this chapter, in relation to conditions subse- 
 quent to the tax sale, it will be observed that they 
 uniformly require every condition, the performance 
 of which is imposed upon the purchaser himself, to 
 be literally performed; while, on the other hand, 
 where the duty of performing the condition is cast 
 upon the of&cers 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 ofl&cer, 
 ought not to invalidate the title of the purchaser. 
 Such as has been shown is the rule in Ohio, in refer- 
 ence to the return of the sale; and in Pennsylvania, 
 
404 or CONDITIONS subsequent to the sale. 
 
 in relation to the filing of the surplus bond. It is 
 contended that there is a manifest 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 aban- 
 donment of his purchase. But the duty of filing the 
 bond, in the office of the prothonotary, being im- 
 posed upon the treasurer who made the sale, and 
 who was required to receive the bond and cause it to 
 be filed, the omission of this duty ought not to affect 
 the title of the purchaser. It is impossible to per- 
 ceive any just distinction between the performance 
 of a condition precedent, and one which is subse- 
 quent to the sale, in regard to their effect upon the 
 purchaser's title. He is bound, at his peril, to see 
 that all of the requirements have been faithfully com- 
 plied with, by the officers entrusted with the execu- 
 tion of the power prior to the sale, and hefore he has 
 acquired any rights whatever; and it would seem 
 that when his right has once attached — upon his bid 
 and the payment of the purchase money — that 
 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. 
 He may compel the specific execution of the duty 
 
or CONDITIONS SUBSEQUENT TO THE SALE. 405 
 
 by a mandamus, 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 complied with. The 
 condition, though subsequent in point of time, is, nev- 
 ertheless, regarded in judgment of law as precedent 
 to the acquisition of the title. The law authorizes a 
 sak AND conveyance, upon certain prescribed conditions ; 
 the officer acting under a special authority, the pur- 
 chaser being bound to see that he conforms to it, it 
 is difficult to discern, why the conditions upon which 
 the deed depends, should not be as faithfully per- 
 formed, as those conditions which are required to 
 precede the sale. In the last instance, the purchaser 
 is bound to see that the laAV 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 which 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 acknowledged 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 property is made under statutes, all 
 
406 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 formalities which have the semblance of benefit to the 
 owner, should be rigidly comphed with. This class of 
 sales cannot be likened to the sale of a sheriff, and 
 the effect of his neglect to file or record the certifi- 
 cate 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 
 oJQEicer, either in advertising or selling the land, or 
 in the performance of any duty, imposed upon him 
 subsequent to the sale, can affect the title of the pur- 
 chaser. But the power of the oflB.cer 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 
 consummation 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 suf&cient 
 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 of&cer 
 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 pm^chaser 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 Pennsylvania, 
 constituted a lien upon the land purchased, in favor 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 407 
 
 of the former owner of the estate. The filing of it 
 in the ofl&ce 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." 
 
408 AUTHENTICATION OF THE DirFEKENT DOCUMENTS. 
 
 CHAPTER XVIII. 
 
 OF THE AUTHENTICATION OF THE DIFFERENT DOCUJIENTS. 
 
 The rule is well settled, that every public document, 
 which is required by law, to be executed by a pubHc 
 officer, and preserved as a memorial of the facts 
 recited in it, must be verified ly the official signature of 
 the person wJio made it. The object of the rule is the 
 identification of the document as an ofi&cial act, exe- 
 cuted 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 state- 
 ment, unless he has authority to make such a statement, 
 either from the person to be affected, or the laws of 
 the land, by which all are bound. All written instru- 
 ments executed in pursuance of private authorities, 
 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 
 
AUTHENTICATION OF THE DIPPEEENT DOCUMENTS. 409 
 
 Stackpok V. Arnold^ says : " It miglit be sufl&cient for 
 the decision of this cause to state, that no person, in 
 making a contract, is to he 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 fre- 
 quently recognized ; 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, unless the signer professed to act by pro- 
 curation or authority, and stated the name of the 
 principal, on whose behalf he gave his signature. It 
 is also held, that whatever authority the signer may 
 have to bind another, if he does not sign as agent or 
 attorney, he hinds himself and no other person." An 
 additional reason why every act of an ofl&cer should 
 bear upon its face evidence of its official character, is, 
 that in this country every officer is responsible to the 
 government and parties interested in his acts, for all 
 injuries occasioned 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 con- 
 ferred 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 
 
 1 11 Mass. B. 27. 
 
 52 
 
410 AUTHENTICATION OF THE DirFEEENT DOCUMENTS. 
 
 his conduct. The authority 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 there- 
 fore he attempts to execute the j)ower, he must recog- 
 nize the source from whence he derives it, follow 
 the requirements of the law, and perform aU acts in 
 that character alone which the law recognizes, other- 
 wise the act is a nullity. The principle is uniformly 
 conformed to by 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 run in his official name, are 
 attested by his chief judicial officer, and authenti- 
 cated with the seal of the court. The presiding 
 officers of the two houses of parliament authenticate 
 the passage of all bills, and the legality of warrants, 
 by their official signatures. And in this country, 
 every officer, from the president down to an overseer 
 of 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 ad- 
 vertise the clehnquent list before selling the lands of 
 non-residents, to deposit with the town clerk the news- 
 papers 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 rehed upon a tax title, and offered in evi- 
 dence the record of the town clerk, headed " collectors' 
 advertisements." The record showed that the adver- 
 tisements were simply signed " E. Spaulding," without 
 
 1 9 Vermont E. 282. 
 
AUTHENTICATION OF TUB DIFEEEENT DOCUMENTS. 
 
 411 
 
 the addition of the word " Collector." In the form 
 of the advertisement prescribed by law, the ofl&cial 
 title was added. The court held the sale void for 
 the omission in the record of the town clerk. The 
 cdVirt remarked : '' It is not true that every man is 
 presumed to be clothed with and to be exercising an 
 of&cial capacity, because it seems to be needed for 
 what he was attempting. Such a principle would 
 sweep away all ofl&cial signatures and designations. 
 The statute form must be strictly followed. Even a 
 known public officer must so sign every official docu- 
 ment. It is difficult to see how any one can act 
 offidally 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' adver- 
 tisements.' The advertisement 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 advertisement 
 had any more right, than any other man, to give such 
 notice, nor that he had such power as he undertook to 
 exercise." In Isaacs v. ShaUuclc^ it appeared that the 
 person who made the sale, was both collector and 
 town clerk ; in the former capacity he was required 
 by law to sell and return the proceedings ; in the 
 latter he was to record 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 designation, it is 
 the same as if the signature had been omitted, so far 
 
 1 12 Vermont K. 668. 
 
412 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 
 ofi&ce 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 
 ofi&cers charged by law with the duty of making 
 it.-^ In Taylor v. Frenchf where the collector was 
 required to file copies of the advertisements 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 adver- 
 tisement 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 of these statements 
 were verified by any signature, private or ofiicial ; but 
 at the end of the record, the town clerk certified that 
 "he then (October 16,) received the above and fore- 
 going eighteen advertisements for record, and recorded 
 the same from pages 42 to 50," 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 advertisements, and cannot ex- 
 tend to the statements in regard to their publication. 
 It does not profess to extend any further. Neither 
 does the certificate of the town clerk state that he 
 
 1 AnU, p. 138 ; Johnson v. Goodridge, 15 Maine R. 29 ; Colbi/ v. RusseH, 3 
 Greonl. E. 227 ; Foxcraft \. Nevins, 4 Ibid. 72 ; Kellar v. Savage, 20 Maine K. 
 199 ; Sibley v. Smith, 2 Blich. K. (Gibbs) 498. ^ jg Vermont R. 49. 
 
AUTHENTICATION OP THE BIFPEKENT DOCUMENTS. 413 
 
 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 themselves. We think the title under the 
 vendue defective for these reasons." In Hannel v. 
 Smith^ where the auditor of State was required " to 
 transmit to the county auditor lists of land which 
 have been forfeited, etc., said lists to be certified and 
 signed by the auditor of State, and to have thereto 
 affixed his seal of ofl&ce," 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 
 of&ce 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 1 It is 
 replied, by the autht)rity which every public ofBLcer 
 has to act by deputy. I know that some public 
 ofl&cers may act by deputy, such as sheriffs' clerks, 
 etc., but I have yet to learn that the auditor of the 
 State of Ohio can act by any other authority than 
 the one prescribed by law ; that is, the chief clerk in 
 his ofiice. Thomas, however, does not sign as deputy, 
 nor as chief clerk. This instrument is not only with- 
 out the signature of the auditor, but it is not verified 
 by his official seal, nor is it therein certified that the 
 list to which it is attached is correct. It is defective, 
 and would no more authorize the county auditor to 
 sell the land contained in the list, than a letter written 
 by the clerk of a court, and directed to the sheriff, 
 
 1 15 Ohio R. 134. 
 
414 AtlTnENTIOATION OE THE DISEBEBNT DOCUMENTS. 
 
 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. Freiwh, it was the duty of the collector to 
 return his proceedings, verified by his ofiicial signa- 
 ture. The facts were, that two adjournments of the 
 sale had taken place, which was attested by his sig- 
 nature, but no other part of the proceedings were 
 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 objection is fatal to the 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 omis- 
 sions will not destroy its validity. Thus, in Isaacs v. 
 Wiley ^ where the record of the advertisement showed 
 the name of Luther W. Brown as collector, whereas 
 Luther H. was appointed to that office, it was held 
 sufficient. 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 construc- 
 tion that one person was appointed 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 ex officio 
 
 1 12 Vermont R. 674. 2 lo Ohio R. 278. 
 
ATJTHENTIOATION OF THE DirFEBENT DOCUMENTS. 415 
 
 collector of taxes. The certificate of 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 warrant 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 provisions of 
 the statute, so far as the signature of Hillman to the 
 certificate of sale is concerned, is by us perceived, 
 etc. Hillman, being by the act made collector, by 
 virtue of his of&ce as sheriff, it seems to us there can 
 be no objection 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 the same office, and 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 of&ce 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 num- 
 ber being delinquent, they sold his share, and after- 
 wards voted that " the collector be empowered to give 
 a deed." John Knox was the collector of the pro- 
 prietors, and made the deed in question. It was 
 held valid. By the court : " If a deed, vote, or other 
 
 1 5 Cowen R. 530. 2 ^„(g^ p. 4n . 
 
 8 5 Greenl. B. 345. 
 
416 AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 transaction, be susceptible of a construction consist- 
 ent witb law, and with a rightful authority in the 
 party or parties granting, voting or acting, that 
 construction should prevail. 'It is a general rule, 
 that whensoever 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 the proprietors to appoint the 
 same person to sell and convey, and a designation of 
 the person as a committee to convey by the name of 
 his olfice 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." 
 
 1 Co. Litt. 42, a. 
 
OE THE CONPIKMATION OF THE SALE. 
 
 417 
 
 CHAPTER XIX. 
 
 OF THE CONFIRMATION OF THE SALE. 
 
 In some of the States, the law requires the consent, 
 approbation or confirmation of the sale and convey- 
 ance, by some court of record. Where such is the 
 requisition, it must be complied with, or no title vests 
 in the purchaser. 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 condition, 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 
 
 1 Sugden on Powers, 263-5 ; Hawkins v. Kemp, 3 East E. 410 ; 10 Vesey 
 E. 308. 2 5 Wend. E. 532. 
 
 53 
 
418 OF THE CONMEMATION OP THE SALE. 
 
 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 Presi- 
 dent for his approval, until it satisfactorily appears 
 that the land brought its fair market value, and that 
 the consideration has been paid or sectu'ed.-' Where 
 an act of the legislature, or order of a court, requires 
 the approval or confirmation of the sale, it is void 
 without it.^ The same principle is more strongly 
 applicable to a tax sale and deed, when a confirma- 
 tion of them is required by law. The Ohio statute 
 of January 30, 1822, requires a confirmation and 
 approval of the sale, by the cou.rt 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 Norihrup v. Devore^ it 
 was held that an order of confirmation, which misre- 
 cited 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, 
 provided "that the purchaser, or his heirs or legal 
 representatives, may at any time after the expiration 
 of the term allowed for such redemption, publish a 
 notice six weeks in succession, in some newspaper 
 printed at the city of Little Rock, calling on all per- 
 sons who can set up any right to the land so purchased 
 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 
 
 19 Peters R. 711 ; Opinions of the Attorneys General, ed. 1852, vol. 2, pp. 
 465, 574, 631 ; vol. 3, pp. 209, 259 ; vol. 4, p. 529. 
 
 2 Williamson v. Berry, 8 Howard TI. S. E. 495-6 ; Young v. Keogh, 11 111. E. 
 642 ; Eea v. McEachron, 13 Wend. E. 465 ; Curtis v. Norton, 1 Ohio E. 336. 
 
 8 Willdns V. Hughes, 9 Ohio E. 154. *11 Ohio K. 359. 
 
 '• Barger v. Jackson, 9 Ohio R. 163. 
 
OF THE CONEIEMATION OF THE SALE. 419 
 
 notice, why the sale so made shovild not be con- 
 firmed." In Black v. PerdfieU} the defendant in error 
 filed his petition, setting fiarth a purchase at a tax 
 sale, and praying a confirmation. The plaintiff in 
 error filed her answer, setting forth that she was in 
 possession of the land, and pointing out irregularities 
 in the sale. The answer was held insufl&cient. By the 
 court : " In her plea, by way of answer, she does not 
 aver how, or in what manner she came by the posses- 
 sion, or under whom she holds, or whether her 
 possession is adverse to the petitioner or not. The 
 duty devolves upon her to show the kind and charac- 
 ter of the possession, and if she failed to do so, the 
 legal presumption is, that she either holds under 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 enti- 
 tled to the privilege of opposing the confirmation." 
 
 1 1 Ai-kansas R. 472. 
 
420 OP THE LOCATION OF THE LAND SOLD. 
 
 CHAPTER XX. 
 
 OF THE LOCATION OF 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 sold 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 provided that " the sheriff" shall proceed 
 to sell said property, or so much of it as shall bring 
 the amount of 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 
 
 1 Gale's Statutes, 566, Sees. 24 & 25. ^ ggc, 35, 
 
OF THE LOCATION 01 THE LAND SOLD. 421 
 
 aforesaid." In the States of North Carohna and 
 Kentucky, the law authorized a sale of the least num- 
 ber of acres without designation in terms, or author- 
 izing the ofl&cer selling to locate the part sold, but 
 directing the ofl&cer to execute a certificate of the 
 quantity sold, which constituted the authority of the 
 county surveyor, to make a location of the part sold 
 by actual survey ; and upon the return of the survey, 
 the ofl&cer who made the sale was required to convey 
 to the purchaser, according to the metes and bounds 
 of the survey thus made and returned.-^ 
 
 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 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 parcels; 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 
 
 1 Cmrk V. Fowler, 5 J. J. Mar. R. 145 ; Jones t. Gibson, Taylor, N. C. E. 41. 
 
 2 Erwin V. Hdm, 13 S. &R. 151 ; Haven v. Cram, 1 Adams N. H. E. 93 ; 
 Jackson v. Delancy, 11 John. E. 373; S. C, 13 Ibid. 551 ; Jackson v. Roosevelt, 
 13 Ibid. 97. The opposite doctrine is asserted in Coxe r. Blanden, 1 Watts R. 533 ; 
 but it is so utterly repugnant to the general principles of law, that it cannot be 
 sustained. ^ 12 Illinois E. 409. 
 
422 or THE LOCATION OF THE LAND SOLD. 
 
 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 spealdng, 
 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 sticldng in the 
 hark" But upon the same identical state of facts, 
 the tax deed was held void, in Ballance v. Forsythe} 
 McLean, J., in delivering the opinion of the court, 
 said : " In these two fractional sections, there appear 
 to have been about 150 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 
 proceedings 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 proceedings, will also establish the 
 invalidity of the deed. 
 
 1 13 Howard tJ. S. R. 18. 
 
OF THE AMENDMENT OF THE PKOCEEDINGS. 
 
 423 
 
 CHAPTER XXI. 
 
 OF THE AMENDMENT OP TIIE PROCEEDINGS. 
 
 It may be laid down as a general rule, that the 
 power to correct an error committed in the progress 
 of a proceeding, exclusively belongs to courts of 
 justice, and has no application whatever to the pro- 
 ceedings of ministerial officers. 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 pro- 
 ceedings while in paper; that is, until the judgment 
 is signed and perfected, by its record and that of the 
 anterior proceedings ; but no amendment was allow- 
 able, according to the strict rules of the common law, 
 after the ending of the term in which the judgment 
 was pronounced. Prior to that time, the proceedings 
 were regarded as in fieri only, and consequently sub- 
 ject to the control of the court. But by the English 
 and American statutes of amendment and jeofaiel,the 
 power of the court to amend the record of their 
 proceedings, has been greatly enlarged, and amend- 
 ments 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 
 
424 or THE AMENDMENT OF THE PROCEEDINGS. 
 
 amendment belongs to superior courts of record alone. 
 No inferior court possesses it. No ministerial ofi&cer is 
 permitted, according to the principles of the common 
 law, to exercise such a power, where the rights of 
 third persons are concerned, for the simple reason 
 that he possesses no legislative or judicial power. To 
 the latter dejiartments of government the power of 
 amendment alone attaches. The executive officers 
 of the law act at their peril in every instance, where 
 they are entrusted with a power over the rights of 
 the citizen, 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 proceedings alone. 
 The acts of ministerial officers are to be tested by 
 the law which authorized them. When the act is com- 
 pleted, 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 trans- 
 pired, 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. 
 
 Upon these principles, it is impossible to sustain a 
 power in the officer who sells land for the non-pay- 
 ment of taxes, or in any officer connected with 
 the proceedings, to amend the record of their acts 
 after they have once been made. In BUght v. Banh^ 
 the return of the register showed a sale of 1900 acres, 
 while the certificate of the sale called for 4900 acres; 
 
 1 6 Munroe E. 206. 
 
or THE AMENDMENT OE THE PEOCEEDINGS. 425 
 
 afterwards, the return which had been recorded in 
 the auditor's office, was altered by the auditor to cor- 
 respond with the certificate. The proceeding was 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 law, 
 and the certificate is kept by the purchaser, and oper- 
 ates as a mere memorandu^m directory to the survey- 
 or, and has no vahdity 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 auditor, to conform 
 to the certificate, yet this change was not authorized, 
 and we cannot deem the sale valid for more than 
 1900 acres." The same question was decided in 
 Blight V. Atwell} The whole doctrine of amendment 
 was discussed, and the power sustained, in Gibson v. 
 Bailey? The facts were, that the return of the post- 
 ing 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. 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 
 
 1 7 Munroe R. 268. ^ 9 jj. H_ jj Igg 
 
 54 
 
426 OP THE AMENDMENT OE THE PROCEEDINGS. 
 
 themselves, by erasures and interlineations. And we 
 are of the opinion that they should be made only 
 upon 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 Avhole matter will appear; and, in furnishing 
 copies, the original and amendment should both be 
 furnished. 
 
 But it is objected by the demandent, 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 j)resumed 
 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 deny- 
 ing 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 applica- 
 tion of the principle to cases where the land had been 
 actually conveyed ionafide. 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 as- 
 sured, from what he did find, that all that was neces- 
 sary 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, 
 
OF THE AMENDMENT OF THE PKOCEEDINGS. 427 
 
 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 
 anything set down, from which it is naturally to be 
 inferred that the fact existed, a bona 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 to cases when the law has, in 
 fact, been complied with by the ofiicers, 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 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 person's 
 rights ; that they brought no new matter into the 
 case, and gave no additional efl&cacy to the proceed- 
 ings, but simply put them in stricter conformity to 
 the provisions of the statute. And it must be 
 
 12 Gilm. E. 451. 
 
428 OJ? THE AMENDMENT OF THE PKOCEEDINGS. 
 
 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 amend- 
 ments were based. In PitJcin v. Yaw^ a motion 
 was made to amend the precept, 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 appli- 
 cation 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 
 embarassed by a motion to amend the record of 
 another proceeding, which is but collaterally in ques- 
 tion before it. Such an application might involve 
 the necessity of bringing other parties and different 
 interests before the court." It was intimated, in 
 Young v. Thompson^ that a judgment upon the delin- 
 quent 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 perfect.^ 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 
 
 1 13 Illinois B. 251. 2 14 Illinois E. 380. 
 
 2 Judeviney. Jackson, 18 Vermont E. 496; Langdonv. Poo?-, 20 Vermont 11.13. 
 
OP THE AMENDMENT OS TUB PKOCEEDINGS. 429 
 
 of error and bills of review. In Meam 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 allowed, except upon notice to the parties in 
 interest.^ 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.^ 
 
 1 7 Greenl. K. 147. 2 C Connor v. Mullen, 11 Illinois E. 57 & 116. 
 
 3 Lake v. Morse, 11 Illinois K. 587. 
 
430 OF THE TAX DEED. 
 
 CHAPTER XXII. 
 
 OF 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. It does not ipso facto transfer the title of the 
 owner, as in grants from the government, or in deeds 
 betwefen man and man. The operative character 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 offi- 
 cers of the law have performed every duty which the 
 law imposed upon them — every condition essential 
 in its character — then the deed becomes conclusive 
 evidence 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 
 prima facie evidence, either of all the facts recited in 
 
OF THE TAX DEED. 
 
 431 
 
 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 attempt- 
 ed to be conveyed.^ But the instant it is shown, by 
 the party claiming adversely to the deed, that any 
 substantial prerequisite of the law has not been com- 
 plied with, the prima facie character of the deed is 
 destroyed, all of 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 character, 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 ; and when this is done, the onus 
 frobandi is shifted to the party claiming under the 
 tax deed. The prima facie character 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, constitu- 
 tionally, declare a tax deed conclusive evidence of a 
 material fact, upon the existence of which, the power to 
 sell and convey depends^ though they may do so in 
 
 1 Ante, Chapter 3. 
 
 2 Sibley v. Smith, 2 Mich. (Gibbs) E. 486 ; Graves y. Bruen, 11 Illinois E. 431 ; 
 Tumey v. Yeoman, 16 Ohio E. 24 ; Fitch t. Casey, 2 G. Greene E. 300. 
 
 2 Graves v. Bruen, U Illinois E. 441 ; Sibley v. Smith, 2 Mich. (Gibbs) E. 486. 
 * 1 Greenl. Ev., Sec. 78 ; Colder v. Rutherford, 3 Broderip & Bing. E. 302. 
 ^ Ante, pp. 100-3. 
 
432 OP THE TAX DEED. 
 
 relation to formal requisitions. It is now proposed to 
 examine the law of tax deeds in detail. 1. The deed 
 must be written, or printed, on parchment or paper,-^ 
 or it may be partly written and partly printed. It 
 is said, however, that greater effect is to be given to 
 the toritten 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. The statutes 
 iisually require, in terms, the sealing of the deed. 
 This was a requisition in the statute of Illinois, of 
 January 26, 1826.^ But sometimes the statute simply 
 directs the officer to execute " a deed of conveyancer^ 
 This ex vi termini means an instrument in writing, 
 sealed and delivered, and whatever else is necessary 
 to constitute 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 ofl&cer 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 
 
 1 Co. Litt. 229 a. ; 2 Bl. Com. 297 ; 14 John. R. 491 ; 2 M. & S. 288. 
 
 2 3 Kent Com. 260 ; 4 East R. 136. 
 " Laws 1826, p. 78. 
 
 * R. S. Illinois, 184.5, p. 447, Sec. 71. 
 
 6 1 Bibb R. 333 ; 12 John. R. 197. 
 
 6 Jackson v. Wood, 12 John. E. 73 ; Same v. Wendell, Ibid. 355. 
 
 ' 2 Bibb E. 14. 
 
OF THE TAX DEED. 
 
 433 
 
 a purchase made from the register at his sales for 
 taxes, the 28th day of November, 1800, and obtained 
 a certificate of the purchase. On the 23d of October, 
 1805, he procured from the register, what (we pre- 
 sume) 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 regu- 
 lation must have operation upon all conveyances, 
 whether made by private individuals or public 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 Shortbridge v. Catlett} It is presumed, 
 however, that under those statutes which authorize 
 the sale and conveyance of a leasehold interest in 
 lands, as in New York and South Carolina, the lease 
 need not be imder seaP 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 auditor 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 ofiicer. And it 
 is presumed, that in all cases where the statute directs 
 the execution of a tax deed, and is silent as to the 
 manner of sealing it, the common law mode may be 
 
 1 1 A. K. Mar. R. 587. 
 
 2 Fry V. Philips, 5 Burr. E. 2887 ; HoUiday v. Marshall, 7 John. E. 2U. 
 
 55 
 
434 OF THE TAX DEED. 
 
 adopted, that is, the private seal of the person who 
 executes the deed. Such are the decisions in Penn- 
 sylvania, relative to deeds executed by the county 
 commissioners of the county, for lands sold at tax 
 sales ; and where they use the seal of the county to 
 authenticate the deed, it is held void.^ But it may 
 be read in evidence, as the basis of an adverse 
 possession.^ 
 
 3. It is essential to the validity of a tax deed, that 
 it should be delivered by the ofl&cer, 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 
 government, in order to vest a title in him, but it 
 becomes operative 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 government, and is under the 
 hand of the chief executive ofl&cer, and the great 
 seal of State; while a tax deed simply passes the 
 owner's title, and is executed by the proper ofl&cer, 
 under his own hand and private seal.^ 
 
 4. The deed must recite the power under which it 
 is made, otherwise it will be invalid. It does not 
 derive its validity from its capacity as an independ- 
 ent conveyance, to transfer the estate described in it, 
 but from the existence of the power, and a compli- 
 
 1 Watt V. Gilmore, 2 Yeates K. 330 ; Souston t. Foster, 1 Watts E. 478. 
 
 - McCoy T. Dickinson College, 5 S. & E. 254. 
 
 i* Hulick V. Scovil, 4 Oilman E. 159 ; Church v. Oilman, 15 Wend. E. 658. 
 
OF THE TAX DEED. 
 
 435 
 
 ance with the conditions prescribed by the creator of 
 it. The title is derived from the power, and the con- 
 veyance must bear upon its face an acknowledgment 
 of the power in pursuance of which it purports to 
 have been executed. This rule is applicable ahke to 
 all 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 only recites the power under which it 
 is executed, but usually recites a compliance with all 
 of the requisitions of the statute by which the power 
 was created. No instance can be found where a 
 tax deed, or any other deed executed in pursuance 
 of a pubhc power, has been made in the form ordina- 
 rily in use among individuals in conveying land, and 
 bearing no recognition upon its face of the power 
 under which the officer acted. 
 
 5. Where the form of the deed has not been pre- 
 scribed 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 transfer the title of the 
 former owner, and vest the estate in the purchaser, 
 is regarded as an operative mode of conveyance, pro- 
 vided it recites the power under which it was made, 
 and is accompanied by proof that the law was 
 strictly comphed with.^ But where the statute pre- 
 scribes 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 
 
 12 T. E. 241 ; Jackson v. Eoberts, 11 Wend. E. 425 ; Tolman v. Emerson 
 4 Pick. E. 160. ' 
 
 '^ Chandler v. Spear,22 Vermont E. 388; Brown v. Hutchinson, 11 Ibid. 569 ■ 
 Spear v. Ditty, 8 Ibid. 419 ; Bank of Utica v. Mersereau, 3 Barb. C. E. 528. 
 
436 or THE TAX DEED. 
 
 held void.-' In Maxcy v. Clahauglif where the statute 
 form of the deed required a recital of the year 
 for which the taxes were due, and the year was 
 misrecited in the deed, it was held void. On the 
 other hand, where the statute 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 cause, 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 
 
 1 Chandler v. Spear, 22 Vermont E. 388 ; Kinney v. Beverly, 2 Hen. & Munf. 
 E. 341 ; Smith v. Hileman, 1 Scam. E. 323 ; Atkins v. Kinman, 20 Wend. E. 
 249 ; Breese E. 4; 15 Vermont E. 72; 22 Pick. E. 387 ; II Mass. E. 281; 
 l.East E. 64 ; 1 Cowper E. 32 ; 5 Gilm. E. 96. 
 
 2 1 Gilm. E. 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; lijiow 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 interest, (if any,) and costs, chargeable on 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 quantity bid for ; and the said has paid the said sum of 
 
 into the treasury of the State. I have granted, bargained and sold, and 
 
 by these presents, 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, forever ; subject, however, to all the rights of 
 
 redemption provided for by law. In testimony of which, the said auditor has 
 
 hereunto 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. 232. 
 
 3 Bank of Utica v. Mersereau, 3 Barb. C. E. 528. 
 
or THE TAX DEED. 
 
 437 
 
 applicable 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 treasury of 
 the State, and the deed was executed by the comp- 
 troller of the State ; and no one could doubt, upon 
 an inspection of the deed, that it was the intention 
 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. 
 
 6. Where the date of a tax deed was left blank, 
 the court presumed that it was executed and deliv- 
 ered prior to the passage of a statute which, it was con- 
 tended, took away the power of the officer 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 accord- 
 ance 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 
 contradicted 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.^ 
 
 1 Thompson v. Schuyler, 2 Gilm. E. 271. 
 
 2 2 Ld. Eaym. 1076; Perkins 120; Touch. 55; 1 Cranch E. 239; 4 Com. 
 Dig. Tit. Fait. (B. 3,) ; 2 Bl. Com. 304 ; 2 John. E. 230 ; 4 Ibid. 230 ; 4 East 
 E. 477 ; 1 Bibb. E. 619 ; 9 Cowen E. 255; 6 Munf. E. 555; 5 John. R. 139. 
 
438 OF THE TAX DEED. 
 
 7. Where the statute is silent as to the acknowl- 
 edgment of the deed, it is not essential to its validity. 
 And where the statute expressly requires an acknowl- 
 edgment, it is presumed 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 wUl be as valid and effectual 
 as though it had been duly acknowledged. The 
 acknowledgment only dispenses with common law 
 proof of the execution of the deed.-^ 
 
 8. Whether the tax deed must be recorded as 
 against subsequent purchasers from the former owner, 
 is a question upon which the authorities are divided. 
 The affirmative is maintained in Vermont and Massa- 
 chusetts,^ 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 deriva- 
 tive 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."^ 
 
 1 Graves T. Bnien, 1 Gilm. E. 167 ; Thompson v. Schuyler, 2 Ibid. 271 ; 
 Kennedy v. Dailey, 6 Watta E. 269 ; Hogins v. Brashears, 8 Eng. E. 242. 
 ■■^ Allen V. Everts, 3 Vermont E. 10; Tilsony. Thompson, 10 Pick. E. 359. 
 ^ Graves v. Bruen, 1 Gilm. E. 167. * Post, Chapter 37. 
 
 5E. S. 1845, p. 447, Sec. 72. 
 
OP THE TAX DEED. 
 
 439 
 
 9. It may be laid down as a general rule, that the 
 ofi&cer 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. There are no authorities 
 upon this point; but 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 vitality from the fact, that 
 the owner of the estate failed to redeem. The of&cer 
 having no power to deliver the deed, nor the pur- 
 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 redehver the old one. The date 
 of the deed being immaterial, a redelivery of it, 
 when the power to convey attached, would undoubt- 
 edly be sanctioned by the courts, and the deed treated 
 as an operative conveyance. Where a married woman 
 executes a deed, without the joinder 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 provi- 
 sions of this act, the sheriff shall make out a deed for 
 
 1 Perkins 154; 1 Cowp. E. 201; 8 Cowen E. 277. 
 
440 OS THE TAX DEED. 
 
 each lot or parcel of land sold, and remaining unre- 
 deemed, and deliver the same to the purchaser upon 
 the return of the certificate of purchase."-^ 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 expira- 
 tion of two years from the date of the sale. 
 
 10. The power to convey, when it once attaches, is 
 a cordinidng one, and the exercise of it is not barred 
 by lapse of time, 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 effect 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 
 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 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. It has already been 
 shown, that the repeal of the law under which the 
 sale was made, does not divest the purchaser's right 
 to a deed, and that a mandamus is an appropriate 
 remedy to compel its execution and delivery. Under 
 some circumstances, where numerous parties are 
 interested in the question, and equity demands it, 
 
 1 Sess. Laws 1838-9 p. 17, Sec. 42. ^ j^j^, p, jg^ gee. 38. 
 
OE THE TAX DEED. 
 
 441 
 
 a bill in chancery will doubtless be a concurrent 
 remedy to compel the specific execution of the con- 
 tract of purchase. But no case is conceived of where 
 the latter remedy would be absolutely essential, to the 
 protection of the rights of the purchaser. The officer 
 delivers, and the purchaser accepts, the deed, without 
 prejudice to the rights of the former owner, except 
 where the proceedings have been strictly regular. 
 Whether the deed is executed voluntarily or com- 
 pulsorily, it binds no one but the parties to it, the 
 act being purely ministerial. For these reasons, it is 
 clear that no lapse of time will, as a general rule, 
 extinguish the power of the officer to execute and 
 deliver to the purchaser a deed for land purchased 
 at a tax sale. Nor are authorities wanting upon this 
 question. In Graves v. Brum} 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 of 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, reciting the said facts, and the last deed was 
 held valid.^ 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 did not comply with the statute in point 
 
 1 1 Gilm. E. 167. ^Maxcyv. CUbaugh,\G'im.'R.2&. = 3 Barb. C. E. 528. 
 56 
 
442 OP THE TAX DEED. 
 
 of form, the court intimated that the error might be 
 corrected by bill in chancery. 
 
 11. Another important question, in connection 
 with the deed, relates to the granting party. Where 
 the statute authorizes a particular officer — e. g., the 
 auditor, sheriff, collector, treasurer, or county com- 
 missioners — to execute the deed, there can be no 
 doubt of the validity of it, when executed 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 person who made the sale can execute a convey- 
 ance 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 satisfactorily 
 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 office at the time of the 
 sale ; besides, the record of the proceedings which 
 constitute the basis of the exercise of this power, is, 
 in legal contemplation, in the custody of the successor, 
 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 person in office at 
 the time of the sale, although his term has expired. 
 The power to sell and convey land for the non- 
 payment of taxes due upon it, is, in its nature, entire, 
 and is analogous to sales made by sheriffs under execu- 
 tion, in which case the officer who sold may convey 
 
 1 Bestor v. FouieB, 2 Gilm. R. 119; Maxa/ v. Chbaugh, 1 Ibid. 26. 
 
OS THE TAX DEED. 443 
 
 after his term of ofl&ce 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 excep- 
 tion to the general rule, which requires the deed to be 
 made by the person in office for the time being ; and 
 this exception depends upon two fictions of law for its 
 support, viz., the entirdy 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 the deed, is an 
 official and not a personal trust. In the one case, there 
 is official and personal responsibility to secure the due 
 execution of the power ; in the other, the only security 
 of the parties interested in the act, is in the integrity 
 4 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 performed 
 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. But the deputy must act in 
 the name of his principal. An acknowledgment of 
 the deed in his own name is invalid. Nor has he 
 
 1 Graves v. Hayden, 2 Litt. R. 64 ; Elkin v. The People, 3 Scam. R. 207 ; 
 4 Bibb R. 21. 
 
444 OE THE TAX DEED. 
 
 power to execute, acknowledge and deliver a deed in 
 pursuance of a sale made by the principal officer. It 
 would be 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 on and 
 complete it, except where a term of office has expired, 
 in which case, either the late or present incumbent 
 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, unless 
 the statute authorizes a transfer of the bid, or an 
 assignment of the certificate of sale. It has been 
 shown already, that the officer selling has no author- 
 ity 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 common law 
 principles, the certificate of sale is not assignable. 
 The right of the purchaser, prior to the execution of 
 the deed, is not only an equitable interest in the land, 
 but that interest depends upon a coixtingency which 
 may or may not happen ; in such cases the law does 
 not regard the interest as an assignable 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 
 
 1 Wilson V. Bell, 7 Leigh R. 22. ^ Ante, p. 326. 
 
OJ THE TAX DEED. 
 
 445 
 
 receive from the owner the redemption money. 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 redemption is eftected, no 
 statute requires a reconveyance of the interest of 
 the purchaser, to the owner. Upon the payment of 
 the purchase money, the land becomes ipso facto dis- 
 charged of the incumbrance. No interest in the 
 land itself becomes vested in the purchaser, until the 
 time for redeeming has expired. Until that period 
 arrives, 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 consid- 
 eration, 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 certificate is assignable. When 
 such is the case, the deed must be executed to the 
 assignee, upon proving, to the satisfaction of the con- 
 veying 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} the supreme court 
 decided that a tax deed, executed and delivered to 
 the assignee of the purchaser, and reciting the assign- 
 ment, -^^'S, prima facie evidence of a regular assignment. 
 
 1 1 Gilm. E. 302. 
 
446 OE THE TAX DEED. 
 
 The reason of this decision was, that whether the 
 ofi&cer conveyed to the purchaser or his assignee, did 
 not in the sHghtest 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 vahdity 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 prima facie evidence of the assignment, and 
 therefore the question ought to be determined accord- 
 ing to the principle of the common law, which 
 reqmred a party who asserted the existence of a fact 
 to prove it. The owner of the estate is directly in- 
 terested 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 redemp- 
 tion, and the execution of the tax deed. If the person 
 named in the deed as assignee, by fraud or otherwise, 
 obtains the possession of the certificate of sale, and 
 forges an assignment upon the back of it, and 
 the deed is held prima facie evidence of the assign- 
 ment, 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 nega- 
 tive, the consequence would be that a recovery of 
 the land itself must take place, and the owner sub- 
 jected 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 genuine. The 
 
or THE TAX DEED. 
 
 447 
 
 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 anything 
 contained in it. The same reason is equally applica- 
 ble to the effect of the recital as against the original 
 proprietor. He was no party to the deed. It was 
 made against his will, perhaps without his knowledge, 
 by a public ofl&cer 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 principle 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 imau- 
 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 used as evidence against him. It is 
 upon this principle 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 
 defense. Yet, according to the ruling in Wiley v. 
 
448 OF THE TAX BEED. 
 
 Bean, the judgment of a mere ministerial ofl&cer, 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 
 difiiculty of proAdng 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 with- 
 in the maxim, res inter alios acta, because it is not 
 evidence against the alleged assignor, and because it 
 may result injuriously to the original proprietor, it 
 may be safely afl&rmed 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 assign- 
 ees 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 ofiicer of the law 
 power to transfer it. It is very different with a tax 
 deed, as has been shown already. The fact of assign- 
 ment is easily proven. The deed is issued upon the 
 surrender of the certificate, and the latter is usually 
 preserved upon the files of some public ofiice. Sup- 
 pose a deed is made by persons styling themselves 
 heirs or devisees of a deceased land owner, would it 
 be pretended that this statement would dispense with 
 the production of the will, or proof of the pedigree 
 of the grantors ? There is no difference, in principle, 
 between the recitals of a tax deed, and those contained 
 
 '^BouMin V. Massie, 7 Whea. E. 122 ; Clarke v. Graham, 6 Ibid. 577. 
 2 2 Ohio E. 415. 
 
OP THE TAX DEED. 
 
 449 
 
 in instruments of conveyance executed by private 
 individuals. In concluding this subject, it is to be 
 hoped, that when a decision is made affirming the 
 doctrine in Wiley v. Bean, some satisfactory reason 
 may be assigned for it. This is an age in which the 
 courts, the bar and the people, demand why a rule is 
 established ; 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 proprie- 
 tor, nor under any authority derived from him, but 
 in the name of the State or the of&cer, in virtue of 
 the authority with which the latter is invested by 
 law. No principle is perceived 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 question, and a sale under 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 convey- 
 ance may be executed in pursuance of it, notwith- 
 standing the death of the defendant.^ 
 
 14. The Illinois statute^ declares, that " whenever 
 any person, 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 
 
 1 Curry v. Fowler, 3 A. K. Mar. R. 504. ^ l^ws 1842-3, p. 238, Sec. 3. 
 
 57 
 
450 OF THE TAX DEED. 
 
 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 Avhich originates in a common source. It 
 also dispenses with the unnecessary expense of the 
 sheriff and recorder, in the execution and recording."^ 
 
 15. A tax deed, which upon its face, bears evidence 
 of a non-compliance with a substantial requisition of 
 the law, is a nullity.^ 
 
 16. The deed must give a certain description of 
 the land conveyed, 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 heretofore cited, in 
 reference to the degree of certainty required in 
 describing the land in the list, advertisement, judg- 
 ment, precept, and other documents, are equally 
 applicable to the description contained in the deed. 
 It only remains to state the cases which have been 
 decided, relative to descriptions in the deed itself In 
 Talhnan 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, will vitiate 
 a tax deed. The facts of this case have been stated 
 already.* This description, viz. : " one hundred and 
 forty acres of land, in the Whitaker Reserve, in T. 5, 
 R. 15," a tract of land containing one thousand two 
 hundred and eighty acres, and known by the name 
 indicated, was held void.^ A grant by the owner of 
 
 1 Silliman v. Frye, 1 Gilm. R. 664. 
 
 2 Moore V. Brown, 4 McLean E. 211; S. C, 11 Howai-d U. S. E. 414 ; Farrar 
 V. Eastman, 1 Fairf. E. 191 ; Hogins v. Brashears, 8 Eng. E. 242. 
 
 3 2 Comst. E. 66. * Ante, 15i. ^ Burchard v. Hubbard, 11 Ohio B,. 3\6. 
 
OF THE TAX DEED. 451 
 
 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 
 given to it, consistently with the rules of law, and 
 that if uncertain or ambiguous, it must be construed 
 most strongly against the grantor. The most striking 
 illustration of this rule is to be found in the case of 
 Doe ex. dem. Webb v. Dixon} where a lease for " seven, 
 fourteen OR tiventy-one years" was held to be a lease for 
 the latter term. Upon this ground, if A. conveys to 
 B. fifty acres out of a particular tract, without de- 
 scribing 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 evi- 
 dence 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 election 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 of&cer 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 
 
 1 9 East R. 15. 
 
452 OF THE TAX DEED. 
 
 render the residue of no value to the owner, and 
 thus produce a sacrifice of the property. In most 
 statutes a power is conferred 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 ndiious to him.^ 
 
 17. Ordinarily, a tax deed takes effect and becomes 
 operative as a conveyance, at the time of its delivery 
 by the officer and acceptance by the grantee, and not 
 before.^ But the question, whether the doctrine of 
 relation can have any apphcation to such a title, is an 
 interesting one. The general rule of law is, " that, 
 where there are divers acts concurrent, to make a 
 conveyance, estate or thing, the original act shall be 
 preferred, and to this, the other acts shall have rela- 
 tion." 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 justice 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 subject 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 therefore extend to the injury of a party, 
 its proper operation being 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 wiU be injuriously affected by the applica- 
 tion of the doctrine, courts invariably refuse to be 
 
 1 Erwin v. Helm, 13 S. & E. 151. = Hulick v. Scovil, 4 GUm. E. 159. 
 
OF THE TAX DEED. 
 
 453 
 
 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 delivery.^ A deed made in pursuance of a power 
 relates to the date of the power.-"* The enrollment 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 seizin relates to the delivery of the deed of 
 feoffment.^^ A sheriff's deed relates to the time when 
 the right of redeeming the estate expired,-^* and to the 
 time when the judgment became a lien upon the land 
 for the purpose of protecting the rights of the pur- 
 chaser against intervening interests.-^^ A confirmation 
 by a board of land commissioners, organized under a 
 
 1 Broom's Legal Maxims, 90. 
 
 2 1 T. E. 279 ; 7 Ibid. 21 ; 3 Burr. E. 1596 ; 1 Wils. E. 39 ; 2 Gilm. E. 119. 
 2 Shdly's Case, cited 3 East E. 444. 
 
 * 2 Dana E. 32 ; 4 Cowen E. 329. 
 
 5 3 Caines E. 62 ; 2 John. E. 80 ; 12 Ibid. 140. 
 
 6 1 John. Ca. 81 ; 2 Caines Ca. 301 ; 2 Jolm. E. 510 ; 4 Ibid. 230, 534. 
 
 7 8 Ham. E. 87 ; 1 Cranch E. 239. 8 7 jjass. E. 381, 
 
 8 1 John. Ch. E. 288 ; 1 John. Ca. 81 ; 18 John. E. 544 ; 13 Ibid. 285. 
 10 20 John. E. 537. " Burr. E. 2787. ^ Ibid. w Ibid. 
 
 w 3 Gilm. E. 365 ; 9 Missouri E. 524 ; 12 Ibid. 146 ; 11 Ohio E. 235 ; 3 Caines 
 E. 262; 2 Wend. E. 507; 7 Cowen E. 540; 13 John. E. 340; 20 Ibid. 537 ; 
 1 Hill E. 107 ; 15 John. E. 309 ; 3 Cowen E. 75 ; 4 John. E. 234. 
 
 15 Fell V. Price, 3 Gilm. E. 190. 
 
454 or THE TAX DEED. 
 
 special act of Congress, 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 
 intermediate 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 prin- 
 ciple, or rather fiction, has any application to tax titles. 
 The only reason assigned why it has not, is, that this 
 class of titles being stricti 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 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. Indeed, the common law 
 is the only recourse where the statute is silent. There 
 is more necessity for resorting to the fiction 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 assess- 
 ment is the foundation, and every subsequent act, 
 particularly those in which the State and the purchaser 
 have an interest, must of necessity relate to the prin- 
 
 l 10 Howard R. 372. 
 
OF THE TAX DEED. 
 
 455 
 
 cipal act. 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 defense 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 prose- 
 cuted 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 evidence of title in Morton, at 
 the date of the sheriff's sale, because two years had 
 elapsed within which the former owner was entitled 
 to redeem, and that the deed of June 20, 1844, 
 related back to the period of time when that right of 
 
 1 3 Gilm. R. 358. 
 
456 OF THE TAX DEED. 
 
 redemption expired. The judgment was accordingly 
 reversed, and the cause remanded for further pro- 
 ceedings. This case, it will be perceived, decides 
 simply, that the interest of a purchaser at a tax sale, 
 after the period allowed for a redemption has expired, 
 and before the execution and delivery 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 con- 
 veyance, 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. c.f. to 
 recover treble damages under the statute of Missouri, 
 for cutting timber upon land claimed by the plaintiff 
 To support 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 the deed prima facie 
 evidence of title, upon proof by the party claiming 
 under it, that the requisitions of the law had been 
 
 1 19 Missouri E. 331. 
 
OF THE TAX DEED. 
 
 457 
 
 complied with. ; while the act of 1847 made the deed 
 evidence per se, and cast the ojzus prohandi upon the 
 former owner in order to defeat it. 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 the purchaser at a tax sale made under them, 
 remarked : " The two acts, while they differ, in putting 
 the onus upon different parties, do not, in the necessity 
 of a compliance 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 leen 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 contemplated 
 the passing of the title to the purchaser before the 
 time appointed for making the deed. If the law did 
 not propose 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 he applied to such deed,to give it an effect and operation 
 68 
 
458 OP THE TAX DEED. 
 
 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 legislature." 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 denies the operation 
 of the fiction altogether. The reasoning in Donalwe 
 V. Veal is not satisfactory. The fact that the statute 
 makes the deed, and not the certificate of sale, prima 
 facie evidence of title, cannot affect the question. 
 When the right of redemption expires, the title of 
 the owner is completely divested, and the purchaser 
 becomes seized 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 will 
 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 
 
OP THE TAX DEED. 
 
 459 
 
 that a party to an ejectment suit cannot read, as 
 evidence of title, a tax deed executed and delivered 
 after the demise 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 pur- 
 chaser. Ordinarily, a power of sale carries along with 
 it the authority to execute and deliver to the pur- 
 chaser 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 i\ie formal, part of the 
 transaction. In cases of private agency, it is difficult 
 to perceive why the agent cannot convey, as well as 
 sell, under 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 little discretion is necessary, compared 
 with that to be exercised 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 muni- 
 cipal 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, 
 
 1 Pitkin V. Yaw, 13 Illinois R. 251. 
 
 2 Farrar T. Eastman, 5 Greenl. E. 345 ; Bruce v. Schuyler, i GUm. E. 273-4. 
 
 3 Doe V. Chunn, 1 Blackf. E. 336-8 ; Sibletj v. Smith, 2 Micli. (Gibbs) E. 490. 
 
460 OP THE TAX DEED. 
 
 because the general laiu, authorizing proceedings 
 against dehnquents, treated the sale and conveyance 
 as separate 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 Siblei/ v. Smith, the power 
 of the auditor of 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 legislature 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 supplying such a defect, as they are 
 occasionally, in getting rid of the positive require- 
 ments of a statute, it is presumed they would be able 
 to sustain a conveyance made under such circumstan- 
 ces, by unanswerable arguments.-^ 
 
 1 The statute of Ai-kansas prescribed the form of the tax deed, which con- 
 tained many recitals, and among others, the day of sale and the peraon by 
 whom it was made, and declared the deed conclusive evidence of title in the 
 purchaser ; and it was held in Hogins v. Brashears, (8 English K. 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 oiBce, it was Toid 
 upon its face, and conveyed no title to the purchaser. 
 
VAKIANCES. 461 
 
 CHAPTER XXIII. 
 
 OF VARLVNCES 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 consum- 
 mation of the title, must not only be legal on its 
 &ce, but correspond with the preceding one upon 
 which it is based, in all essential particulars. The 
 proceedings 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 docu- 
 ment 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 acquisition 
 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 immediate antecedent, in every thing 
 which is essential to its legal identity. 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 
 
462 VAEIANCES. 
 
 of tlie document or record as a part of the entire 
 proceedings, may be disregarded.-^ This is the only 
 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 interruption, and 
 undistinguished by the artificial boundaries and defini- 
 tions of right and wrong prescribed by the law, it 
 is, in the nature of things, impossible that a transac- 
 tion, detailed in records and documents, can be 
 identical with the facts which actually transpired, 
 if the record or document relied upon as proof, vary 
 from the facts in the slightest particular, be the vari- 
 ance, 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 contradistinguished from a natural 
 identity, must be resorted to as the proper test of 
 variance between different parts of an entire transac- 
 tion.^ 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 defense, 
 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 instru- 
 ments, the rule is probably more strict. There, every 
 
 1 Pitkin V. Yaw, 13 111. E. 251. ^ Starkie's Ev. part 4, pp. 1526-7. 
 
VARIANCES. 
 
 463 
 
 descriptive averment must be strictly proven; but 
 this rule, too, is qualified by the doctrine of ide^n 
 sonans, surplusage, and immcderiality . The principle to 
 be extracted from the rules of pleading and evidence, 
 in relation to variances is, that the legal identity of the 
 instrument 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 docu- 
 ment or record, it furnishes a decisive objection to a 
 title derived under it. Many such variances have 
 been noticed in the preceding chapters. In Fitch v. 
 Casey} 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 vari- 
 ances we think sufficient 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 officer sold a part on which no tax 
 was levied, and therefore on it no tax incumbrance 
 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 
 
 1 2 G. Greene E. 300. 
 
464 VARIANCES. 
 
 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.-^ 
 
 In S^nith v. Bodfishf the deed recited the levy of a 
 tax of one cent and four mills per acre on a township 
 containing 23.414f aci-es, amounting to $923,00. The 
 record of the county commissioners showed a tax of 
 eight cents and two mills per acre, amounting to 
 f 1,920,00. In the absence of any explanation, the 
 sale was held void, because of the variance 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 piarty claiming 
 under the tax sale. Where the land was listed 
 and assessed in the name of AUan Gillespie mi 
 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 intimated an 
 opinion, that if the parcel of land was identified by 
 
 1 Smith v. StaU, 5 Blackf. E. 65. 2 27 Maine E. 289. 
 
 ^ Watt V. Gilmore, 2 Yeatos R. 330. 
 
VARIANCES. 
 
 465 
 
 oral evidence, the sale might be sustained.-' Where 
 the 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 accord- 
 ingly. The proceeding must have some consistency 
 about it. The same doctrine was maintained in Ohio, 
 where nine lots were assessed together, and each 
 were sold and conveyed separately.^ So where the 
 tax judgment is for ninety-nine cents, and the precept 
 recites a judgment for one dollar and twenty-five 
 cents, the variance is material and fatal.* 
 
 1 Hood T. Mathers, 2 A. K. Marshall R. 556. 
 
 2 PitUn V. Yaw, 13 Illinois R. 251. 
 * Wiley y. Scoville, 9 Ohio E. 43. 
 
 ' PitUn V. Yaw, 13 Illinois R. 251. 
 
 69 
 
466 rEAUDITLENT SALES. 
 
 CHAPTER XXIV. 
 
 OF SALES ACTUALLY AND CONSTRUCTIVELY FEAUDULENT. 
 
 It has been already remarked, that the validity of 
 a tax sale depends, not only upon the authority of 
 the ofl&cer to sell, but on the fairness of the transac- 
 tion. The maxim is, that fraud vitiates everything. 
 Contracts of vfhatsoever 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 
 niaxim. On the contrary, a more rigid scrutiny into 
 their fairness is demanded, because of the gross inad- 
 equacy of the price usually paid at such sales, and 
 the great inducements held out for the perpetration 
 of fraud in the conduct of them. Positive fraud 
 occasionally infects these sales. 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 in fact paid by 
 the owner. Also, where an agent entrusted with 
 funds to pay the taxes, violated his trust, and by a 
 similar arrangement with the purchaser, permitted a 
 
FEAUDXTLENT SALES. 467 
 
 sale. These, and positive frauds of a similar charac- 
 ter, of course render the sale void. 
 
 Though positive frauds sometimes occur, the most 
 numerous kind are those usually denominated construct- 
 ive ; 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 being contrary 
 to public policy. Such sales are void, not so 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 
 purchase 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 authority in support of this position. 
 The question arose upon a bUl 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 |33,73. The bill then charged that a fraud- 
 ulent 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 bid at the sale ; that the other partners in the 
 contract should advance their respective portions of 
 
 1 2 Hammond E. 504. 
 
468 FRAUDULENT SALES. 
 
 the piirchase moneys, and receive their share of the 
 profits; and that in pursuance of such fraudulent 
 contracts, the defendant purchased the complainants' 
 land, and obtained a deed therefor. The prayer of 
 the bill was to set aside the tax deed, etc. 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 combina- 
 tions 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 can- 
 not 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 of the value of the property. This 
 being the case, 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 
 
rRATJDULENT SALES. 469 
 
 that a partnership or combination cannot legally be 
 formed for the purpose of making such purchases." 
 Upon the same principle, any agreement or under- 
 standing between two or more bidders at such sales, 
 that one of them only shall bid upon a particular 
 tract of land, if carried into execution, is void, whether 
 the parties to the combination are to share the profits 
 or not ; because its direct effect is to diminish com- 
 petition. 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 com- 
 petition with another, who alleges that he has a claim 
 upon the land offered for sale. By claim is under- 
 stood 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 engage not to bid against each other 
 at judicial or statutory sales, are void. They are 
 unconscientious, against public policy, have a tenden- 
 cy to affect injuriously the character 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 under judgments, decrees and orders, to sales 
 made by persons acting under a power conferred by 
 a special statute, and to those made by public ofl&cers 
 under the authority delegated to them by the public 
 laws of the land.-* 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 
 
 1 1 Stoiy's Eq., Sec. 293. 
 
470 EEAUDtrLENT SALES. 
 
 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 prin- 
 ciples, to pay the taxes, and yet suffer the land to go 
 sale for the purpose of acquiring a title against the 
 owner, under whom they claim the possession, or to 
 whose title they are in some manner privy .^ The 
 adjudged cases 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 inures to the benefit of the mortgagee.^ 
 So where the mortgagor conveys the estate in pledge 
 by simple quit claim. Nor can the mortgagee acquire 
 any title at a tax sale, whereby the mortgagor may 
 become barred of his equity of redemption, whether 
 he is in or out of possession. The person in whose 
 name the land was listed and assessed for taxation, 
 can acquire no additional title by purchasing iti at 
 the sale.* So the purchaser at a tax sale, of land 
 in which he has an interest as heir, acquires no 
 additional title.^ One in possession of a tract of land 
 at the date of the assessment, may purchase at the 
 sale, unless it appears that he was bound to pay the 
 taxes, in which event he can acquire no title by his 
 purchase. 
 
 1 Story's Eq., Sec. 293. 
 
 2 Blake v. Eowe, 1 Aiken R. 306; Willard t. Strong, 14 Vennont E. 532. 
 
 3 Fuller V. Hogdon, 25 Maine E. 243 ; Gardiner t. Gerrish, 23 Ibid. 46 ; Fri/e 
 V. Bank of Illinois, 11 Illinois E. 367; Combs v. Warren, 34 Maine E. 89; 
 Williams v. Hilton, 35 Ibid. 547 ; Fame T. Winans, Hopkins E. 283. 
 
 ^Doitglasv. Dangerjidd, 10 Ohio E. 152; Ballance v. Forsyth, 13 Howard U. 
 S. R. 18 ; Voris v. Thomas, 12 Illinois E. 442 ; Glancy v. Elliott, 14 Illinois E. 
 4S6 ; Chambers v. Wilson, 2 Watts E. 495. 
 
 5 Piatt V. St. Clair's heirs, 6 Ohio E. 93 ; Chateau v. Jones, 1 1 Illinois E. 322. 
 
FRAUDULENT SALES. 471 
 
 In Blalceley 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 insisted that 
 the defendant is not in a position to avail himself of 
 an outstanding tax title, be it ever so regular, for the 
 reason that he is shown by the record to have been 
 in the possession 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 hound 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 agreement, they were listed 
 for taxation in the landlord's name. Supposing the 
 tax title to have been regular, the defendant has the 
 xi^t, prima 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 seeking to avail 
 himself of the tax title, should have an opportunity 
 to rebut or explain by other evidence." A vendee 
 cannot acquire a title adverse to his vendor, by the 
 
 1 13 IlUnois K. 708. 
 
472 FBAUDULENT SALES. 
 
 purchase of the land at a tax sale.-^ Nor can an agent, 
 whose duty it is to pay the taxes, become the pur- 
 chaser of his principal's land at such a sale.^ Nor can 
 one tenant in common in such case, acquire a title in 
 exclusion of the rights of his cotenants.^ But after 
 the tax title has matured in the hands of a stranger, 
 it is said that one tenant in common may purchase 
 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 himself, he 
 can acquire no right to the estate against the owner 
 in fee.^ But in Branson v. Yancey et al.^ which was a 
 bill in chancery by the purchaser at an execution sale, 
 against Yancey's heirs, to set aside a tax deed, exe- 
 cuted 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 hetween 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 
 
 - - 1 York V. Thomas, 12 Illinois K. 442 ; Ghncy v. Elliott, 14 Illiuois R. 456. 
 ■■^ Oldhams v. Jones, 5 B. Mon. R. 458 ; Matthews v. Light, 32 Maine R. 305 ; 
 Bartholomew v. Leech, 7 Watts R. 472. 
 5 Lewis V. Bobinson, 10 Watts R. 354 ; Williams v. Grat/, 3 Greenl. R. 207. 
 * Kirkpatrick v. Mathiot, 4 W. & S. 251. 
 "^ Varmj v. Stevens, 22 Maine R. 331. ^ 1 Dev. Eq. R. 77. 
 
FEAUDULBNT SALES. 473 
 
 creditors." Henderson, J., dissented, saying : " It was 
 the duty of the occupant to keep down incumbrances, 
 and any acquisition of title made by her, growing out 
 of her omission, is for the benefit of all concerned." 
 In Woodburn v. Farmeri and Mechanic^ Bank} where 
 one became the judgment creditor of another, and 
 after the judgment 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 
 judgment, 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 intrusted with the power of sale may pur- 
 chase the land. This 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 latv 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 
 
 15W. &S.447. 2i2lllijioisR. 173; 14lbid.223. ^ xj p^. State R. 206. 
 60 
 
474 FEAUDULENT SALEa. 
 
 Illinois; the sale was made to the clerk and sustained. 
 By the court : " The clerk to the commissioners is not 
 forbidden by law, to be a purchaser of land sold at pub- 
 lic 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 themselves, who are the vendors, 
 and cannot, therefore, both buy and sell. The clerlt 
 is merely the scrivener, or ministerial agent of the com- 
 missioners. 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 relation to them, must necessarily be in sub- 
 servience to the directions of the commissioners." 
 
 In Nolle V. Fenivick} 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 unobjec- 
 tionable. In Yancey v. Hofltinsf where the sheriff 
 who made the sale became the purchaser, the title 
 was held valid in his hands. But in this case, there 
 was 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 inhibition at that day, 
 in any statute, against the sheriff 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 were enabled to 
 
 MRaud. R. 591. 2 j jiunf. R. 419, 437. 
 
FKAUDULENT SALES. 
 
 475 
 
 purchase property oiFered for sale by themselves. 
 The inhibition, in those cases, seems to arise from 
 the confidence placed in, and the internal knowledge 
 acquired by, trustees, commissioners of bankruptcies, 
 auctioneers, etc., which would enable them, if per- 
 mitted to purchase, to avail themselves of facts 
 coming to their knowledge, in their several charac- 
 ters, 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 informa- 
 tion 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 particular circum- 
 stances attending all the tracts of land in his county. 
 This case, then, does not seem to fall within the 
 reason of the principle above mentioned ; and it 
 is not shown, by any adjudged case, that the inhibi- 
 tion 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 
 sheriflf "might be absolutely necessary to counteract 
 combinations to defeat the collection of the reveniie, 
 whether arising from the sympathy of the by-standers, 
 or other causes." A statute was afterwards passed 
 in Virginia, prohibiting the sheriflf and his deputies 
 from acquiring title to land, under tax sales. In 
 Taylor v. Stringer^ where the deputy was the pur- 
 chaser, the title was held void in the hands of a lona 
 fide purchaser, who claimed title under the deputy. 
 
 1 1 Grattan E. 158. 
 
476 EEAUDULENI SALES. 
 
 It must be confessed, that no difference in principle 
 exists between a purchase by a sheriff, 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 carefully considered, for the 
 decisions cited above may be regarded as innovating 
 upon principles which have heretofore been regarded 
 as landmarks. 
 
 1 Lazarus t. Bryson, 3 Binney K. 58. 
 
LANDS NOT SUBJECT TO TAXATION. 477 
 
 CHAPTEE XXV. 
 
 OF 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 land, or having once legally 
 attached, the land is exempted from the operation of 
 the taxing power, then it cannot be sold. A sale 
 under such circumstances is void to all intents and 
 purposes.^ In all cases, if the person taxed, or the 
 subject matter of taxation, be not within the jurisdic- 
 tion of the officer who makes the assessment, all 
 subsequent proceedings 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 
 officers, but may contest the validity of the sale 
 
 1 Dresback v. McArthur, 6 & 7 Ohio E. 307 ; Bucldey v. Oshurn, 8 Ohio E. 180 ; 
 Dyer v. Branch Bank of Mobile, 14 Ala. K. 622 ; Coney y. Ornnen, 6 Watts E. 
 435 ; Sandford v. DeCamp, 8 Watts E. 542 ; Bolt v. Pearly, 11 Mass. E. 144. 
 
 2 Nichols V. Walker, Cro. Car. 394 ; Perkins v. Proctor, 2 Wilson E. 382 ; 
 Thurstonv. Martin, 3 Sumner E. 497 ; Eouie v. Blakeslee, 11 Conn. E. 479. 
 
478 LANDS NOT SUBJECT TO TAXATION. 
 
 whenever the purchaser or his grantee attempts to 
 recover the possession, or estabhsh 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 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 class of land, or lands held or 
 to be held by particular persons, 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 
 taxation — indeed, to exempt any species of property 
 or class of persons from the operation of the taxing 
 power. The right to do so has been repeatedly 
 affirmed,* and the exemption treated as a contract, the 
 inviolability of which is guaranteed by the constitu- 
 tion of the United States.^ However, in Parker v. 
 Redfield^ 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 
 
 1 Dyer v. Branch Bank of Mobile, 14 Ala. E. 622. 
 
 2 Brewster Y. Hough, 10 N. H. E. 138; Hardy v. WOlianis, 7 Pick. E. 108. 
 ^ Ante, 11-12. 
 
 * Tax cases, 12 Gill. & Johu. E. 117, and cases there cited. 
 
 <> New Jersey y. Wilson, 7 Cranch. E. 164; Atwater y. Woodbridge, 6 Conn. 
 E. 223 ; Osbom v. Humphrey, 7 Conn. E. 335 ; Landon v. Litchfield, U Ibid. 251 ; 
 Gordon v. Tax Appeal Court, 3 Howard XT. S. E. 133 ; Teirett v. Taylor, 9 
 Cranch. E. 43 ; Fellows y. Finney, 13 Vermont E. 526; S. C, 15 Iliid. 26; 
 Backus V. Lebanon, 11 N. H. E. 20. 
 
 " 10 Conn. E. 490. 
 
LANDS NOT SUBJECT TO TAXATION. 479 
 
 whether a statute, exempting a particular species of 
 property from taxation, is in the nature of a contract 
 of perpetual obligation. But these decisions^ 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 poiver 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 Breivster v. Hoiighf the supreme court of New 
 Hampshire, without expressly deciding the 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 omitting it in the description of prop- 
 erty 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 prop- 
 erty from taxation. There is no express grant of 
 such power in the constitution. The power of taxa- 
 tion 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 directly from the people themselves. 
 The legislature may grant exclusive privileges, and 
 
 1 6 Conn. B. 223 ; 7 Ibid. 335. 
 , •■' Sajmaur v. Hartford, 21 Conn. E. 447. " 10 N. H. E. 138. 
 
480 LANDS NOT SUBJECT TO TAXATION. 
 
 make many other contracts, etc. But there is a 
 material difference between the right of a legislature 
 to grant lands or corporate powers, or money, 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 unnecessary to decide this point." The 
 reasoning against the power of exemption by special 
 contract, with particular individuals and corporations, 
 is overpowering ; it is simply, that every exemption, 
 from its very nature, withdraws the property exempt- 
 ed, 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 legis- 
 lature, 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 con- 
 sideration, 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 
 by extreme cases -^ but where great injustice may be 
 done, if a given power is once conceded to the legis- 
 lature, it furnishes a strong ai'gument 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 million of dollars in value, and 
 the necessities of the government require a revenue 
 of one hundred thousand dollars, but the legislature, 
 in the same law which levies the tax, exempts half of 
 
 1 8 John. R. 420-1 ; 12 Ibid. 483. ^ _^nte, pp. 12, 13. 
 
LANDS NOT SUBJECT TO TAXATION. 481 
 
 the entire value of taxable 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 
 prescribe 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 restrain 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 decisions upon this branch of 
 the doctrine are uniform, and admit of no exceptions 
 to the general rule.^ 
 
 In the language of the Supreme Court of New 
 Jersey : " A contract like this contended for, which is 
 to bind future legislatures, to the end of time, from 
 raising the necessary taxes for the support of the 
 government, and the exigencies of the country, on a 
 considerable district of the territory of the State, 
 ought at least to be clear and explicit, free from all 
 doubt and uncertainty, not depending on implication 
 
 '^Kendridc v. Farquar, 8 Ohio B. 197 ; Armstrong t. Treasurer of Athens Co., 
 10 Ibid. 235; Cincinnati College y. State, 19 Ibid. 110; Anderson Y. State, 23 
 Miss. E. 459 ; Stuart v. Davis, 2 Mnrphy E. 244 ; Chegaray v. Jenkins, 3 Sand. 
 S. C. E. 409 ; Providence Bank v. Billings, 4 Peters E. 514 ; Louisville Canal v. 
 Commonwealth, 7 B. Mon. E. 160 ; BrewsterY. Hough, 10 N. H. E. 138; HoweUy. 
 Man/land, 3 Gill E. 14; Piatt v. Rice, 10 Watts E. 352; Seymour v. Sartford, 
 21 Conn. E. 477. 
 
 61 
 
482 LANDS NOT SUBJECT TO TAXATION. 
 
 or construction."^ It is also held that this power of 
 exemption cannot be exercised by counties, towns, 
 and mimicipal 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 consti- 
 tution of Maine provided, that lands which belonged 
 to the commonwealth of Massachusetts "shall be 
 free from taxation, while the title to said lands remains 
 in the commonwealth." In one case it appeared 
 that Massachusetts had contracted to sell the land, 
 but the vendee had not fully 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 commonwealth, to which an indi- 
 vidual 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, there- 
 fore, of opinion, that the tax in 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, there- 
 fore, illegal.^ It is held in Ohio and Michigan, that 
 
 1 State T. Wihon, Pennington R. 218. = Mack v, Jones, 1 Foster R. 393. 
 
 8 State Bank v. People, 4 Scam. R. 303 ; 2 Harrison N. J. B. 80, and the 
 cases above cited. * Emerson v. County of Washington, 9 Greenl. R. 88. 
 
 5 Buckteyv. Osbom, 8 Ohio R. 180; Stewart t. Shoenfdt, 13 S. & R. 230. 
 
LANDS NOT SUBJECT TO TAXATION. 483 
 
 lands sold by 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 implication or express law.^ There 
 is a controversy as to the right which the purchaser 
 at the tax sale acquires under such circumstances, 
 and the remedies to be adopted to enforce it, which 
 will be discussed in a subsequent chapter. 
 
 1 Gvoynne v. Neiswanger, 15 Ohio E. 367 ; Astrom v. Hammond, 3 McLean K. 
 107 ; CatTol v. Perry, i Ibid. 25. 
 
484 PAYMENT OP THE TAX. 
 
 CHAPTER XXVI. 
 
 OF THE EFFECT OP 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. The authority 
 of the government only extends 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 
 constitute 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 negligent citizen alone. Legis- 
 lative 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. 
 
PAYMENT OF THE TAX. 
 
 485 
 
 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 conditioyi, 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 
 presumed to have a lodgment in the breast of every 
 man — 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 condition 
 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. The return of 
 the delinquent list will justify a sale by the officer, 
 unless the taxes were paid to him in person, or he 
 had knowledge of the fact of payment, 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 competent 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 
 consistent with the deed ; and if the deed is thereby 
 defeated, it arises upon the proof of a fact, upon 
 which, by law, the operation of the deed was made to 
 depend, at the very time of its execution. It would 
 be a monstrous doctrine to hold otherwise.-^ The same 
 
 1 Curry v. Hinman, 11 Illinois R. 420 ; Jackson v. Morse, 18 John. R. 441 ; 
 Blight V. Banks, 6 Munroe R. 206 ; Rowland v. Doti/, 1 Harrington C.R. 3-11 ; 
 Hunter v. Cochran, 3 Barr. R. 105 ; Dougherty v. Dickey, 4 W. & S. 146 ; Stanley 
 V. Smith, 1 Car. Law R. 511 ; S. C, Bat. Ed. 124. 
 
486 PAYMENT 01' THE TAX. 
 
 principle is applied to sheriff's sales under execution ; 
 there it is held that a sale, based upon a satisfied 
 judgment, is absolutely void,-^ though in one case it 
 was held that a sale to a lonafide 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, Avhere the 
 taxes were in fact paid prior to the sale, is most 
 strikingly illustrated by the cases of Rowland v. Doty, 
 JacJcson v. Morse, and Cwti/ v. Hinman, to which the 
 reader is referred — they are the leading cases upon 
 this point. 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 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 owner 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.^ 
 
 On the other hand, where the owner pays upon 
 the right tract, but the money thus paid to discharge 
 
 1 6 Ohio R. 430 ; 4 Wend. E. 474. 
 
 2 1 Coweii R. 622. 
 
 2 Jorifs V. Oihson, Taylor N. C. Term R. 41. 
 * Hunter v. Cochran, 3 Barr. R. 105. 
 5 Stephens v. Wells, 6 Watts R. 32,5. 
 
PAYMENT OJ TUB TAX. 
 
 487 
 
 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.^ 
 
 1 Douglterty v. Dickeij, 4 W. &. S. 146. The author is indebted to Judge 
 Lowrie, of Pennsylvania, for the following copy of a veiy able opinion recently 
 delivered by him, in the Supreme Court of that State, and which has not yet 
 been reported. A part of the opinion sustains the doctrine of the text, relative 
 to the misapplication of the payment of a tax, and the residue will be interest- 
 ing and useful to the bench and the bar. The case referred to is that of Laird 
 V. Heister. Lowrie, J. : " It is important to notice, that the laws to enforce the 
 payment of taxes on unseated lands, give no directions 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 valued and assessed 
 in the same manner as other property.' And though some directions are given 
 for advertising, yet, even in this, iiTcgularities are declared not to affect the 
 sales ; and then there is, besides, a general declaration, that no iiTcgularities in 
 the assessment, process, or otherwise, shall be allowed to affect the title of the 
 piu'chaser. Taking tMs thought with us in reading these laws, we readily 
 discover, the following, which are ruling principles in the present cause : 
 
 1 . The 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. This is merely an expression of the 
 principle that allows all sorts of public functionaries to adopt and direct their 
 own forms of fulfilling their duties, in cases wherein they are not fully and 
 adequately directed by law. It was overlooked, when it was attempted, (3 Watts 
 R. 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 appears to have been, and was in fact, assessed upon it by 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 taxation, 
 may have been led into the mistaken supposition that there was no tax charged 
 upon the land, but only against the owner, personally. (3 Watts E. 260 ; 4 W. 
 & S. 133 ; 8 Pa. State E. 169 ; 14 Id. 404.) 
 
 4. The 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 the 
 mode in which the tax accounts are kept ; and they are open to be con'ected or 
 proved eiToneous, when any interests depend upon the facts expressed by them. 
 
 5. Placing land taxes on the collectors' duplicates is not, of itself, a declara- 
 tion, by the taxing officers, 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 ■ 
 
488 PAYMENT OF THE TAX. 
 
 No instance is remembered, where the law does 
 not permit the owner to pay the tax and charges 
 
 though a departure from a well known usage, in this regard, has heen 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 laud for taxes, then, of course, the tax lists would 
 need to possess those qualities of certainty and completeness, that are appro- 
 priate 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 pur- 
 chasers, 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 pm-pose of an inquiry into the mode in wHch the tax books are kept, 
 in any county, is, generally, to show how they ought to be understood by the 
 court and jtuy ; and it is relevant to notice the usages of the office in keeping 
 them, prior and up to the time of the entry, that is to be interpreted ; 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 pui-pose is fulfilled when the duty is 
 performed. If a man has really, and in good faith, perfonned his duty herein, 
 to the satisfaction of the proper ofBcers, his land is safe. If it be sold after that, 
 it is through the eiTor of some officer, which cannot be visited on the o-\vner ; for 
 the State does not moan that the owners of unseated lands shall warrant the 
 fidelity or competency of its oflScers. The sale involves an assertion, by the 
 treasurer, that the taxes are unpaid, and the purchaser relies upon tliis, or on his 
 own investigations, and his title depends upon its truth. 
 
 8. When the commissioners purchase imseated 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, ana 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 commissionere' 
 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 W. & 
 S. 298; 10 Pa. State B.) 
 
 Without any further specification, the counsel will understand that these 
 principles affirm all the important ralings 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 
 
PAYMENT OP THE TAX. 
 
 489 
 
 upon his land, at any time beforfe a sale takes place. 
 " He may arrest the uplifted hammer of the auction- 
 eer, when the cry for sale is made, if it be done 
 before a lotm fide bid has been made."^ It is evident 
 that a payment after sale, can have no effect what- 
 ever.^ 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, or 
 produce the assessment roll, but the collector or other 
 officer to whom the payment was made, the agent 
 of the owner, or any person present at the time of 
 the payment, are competent witnesses to prove the 
 fact.3 
 
 incompetent evidence admitted, or any questions of fact submitted to tlie jury 
 without evidence, or any improper instructions given to tliem.'' 
 
 1 Early v. Doe, 16 Howard U. S. E. 617-618. 
 
 2 CoUins V. Barclay, 7 Barr R. 67. 
 
 ^ Dennett v. Crocker, 8 Greenl. E. 239. 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 Espanassee, 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. 
 
 62 
 
490 KEDBMPTION FROM THE SALE. 
 
 CHAPTER XXVII. 
 
 OP THE EFFECT OP THE SALE AND DEED WHERE A REDEMP- 
 TION FROM THE SALE HAS BEEN MADE. 
 
 The purchaser, whether he acquires an equitable 
 title to the land 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 
 proceedings conducted, in strict conformity Avith the 
 law, and yet a redemptiou 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 redeem- 
 ing upon the owner. That law is the source of his 
 title, and by it his rights must be determined. If no 
 redemption is efiected, the estate becomes absolute 
 in him.-^ On the other hand, if the owner redeems, 
 within the time and in the manner prescribed, the 
 interest acquired by the sale is i2)So facto gone forever." 
 Where a right of redemption is given to owners who 
 labor under no disability whatever, the usual course 
 
 1 Cooper V. Broclcwatj, 8 Watts R. 163. 
 
 '^Blight V. Banks, 6 Monroe R. 206; Taylor v. Steele, 1 A. K. Mar. R. 316. 
 
KEDEMPTION FEOM THE SALE. 491 
 
 is to deliver to the purchaser a certificate of the sale, 
 which entitles him to a deed unless the redemption 
 is seasonably made. But, sometimes a deed is exe- 
 cuted and delivered 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 is made 
 after the expiration of the ordinary period of redemp- 
 tion allowed to those who are not legally incapacitated 
 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, contains 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 disabili- 
 ties are removed. Thus the Illinois statute of Jan- 
 uary 26, 1826, prescribes the form of the deed to be 
 executed,^ which form, after granting the land to the 
 purchaser or his assigns, contains this clause, viz. : 
 " siibject, hoivever, to all the rights of redemption provided 
 for hy laiv." 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-redemption from the sale by those in 
 whose favor the right is reserved.^ 
 
 1 Ante, Chap. 16, pp. 347-8 '^Ante, p. 436. 
 
 3 The Illinois Statutes, being more familiar, are here inser-ted, as illustrations 
 of the jenera/ 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-residents 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, whenever thereto required, and of the receipts of which they shall 
 
492 REDEMPTION TEOM TUB SALE. 
 
 The question — who may redeem ? — is probably 
 more important than any other connected with this 
 
 keep 11 record in their respective offices, which at all times shall he evidence 
 sufficient 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 
 addition, viz.: "Provided, always, That when any property, sold for taxes by 
 virtue of this act, shall belong to heirs, any of whom are not of la\vful age, th 
 same lands may be redeemed as aforesaid, at any time witlun one year after the 
 youngest hen- becomes of age." (Laws 1819, p. 317, sec. 11.) 
 
 3. By the act of Eebmary 19, 1827, it was enacted that "Any lands which 
 shall be 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, may 
 bo 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 the 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 o^raer of 
 said tract of land ; and that said fonner owner died before the day on which 
 said land was sold for taxes ; and also certifying the real age of the youngest of 
 said hell's. In eases 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 of redemption as above provided. Such certfficate shall bear 
 the signature of the clerk of the court, the genuineness of whose authentication 
 shall be certified by the judge, and the official 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 aforesaid, the written evidence on which his right to redeem 
 the same is founded, shall be delivered to the auditor, and by him filed in his 
 office." 
 
 4. The act of February 27, 1833, thus provided : " Any lands which may bo 
 sold at any time as aforesaid, for taxes, interest, and costs due thereon and 
 unp.aid, may be redeemed at any time 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 
 
REDEMPTION TEOM THE SALE. 
 
 493 
 
 subject. The terms of the statutes are, that "the 
 owner," " the party in interest," or " any person," 
 
 taxes, interest and costs for which the same may hare 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 the youngest of said heirs shall become of full and lawful age ; but no 
 person shall be permitted to redeem any lands sold for taxes, interest and costs, 
 as aforesaid, unless he shall at the same time pay to said clerk, all taxes which 
 may hare become due subsequent to each sale, together with interest thereon, at 
 the rate of six per centum per annum, from the time they become due ; and if 
 any purchaser of lands sold for taxes, shall 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. When any person or persons shall apply to the clerk as aforesaid, to 
 redeem any lands sold for taxes tinder the provisions of this act, relative to 
 minor heirs, it shall be incumbent on the person or persons so applying, to pro- 
 duce to said clerk a certificate of the judge, clerk, or other proper ofiicer of the 
 proper court, having -jm-isdiction 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 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 com-t to which such jurisdiction appertains, such heir or heirs shall go before 
 some court of record, and exhibit proof of Iiis, her or their heirship, minority 
 and age ; and on producing the certificate of the clerk of such cotirt to the 
 above facts, such heir or heu-s shall be entitled to all the rights of redemption as 
 are herein before 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 certifi- 
 cate shall be made without this State, the official character of such judge shall 
 be ceitified by the Secretaiy of State or territory in which such proof shall be 
 exhibited, with the seal of the State or tenitory thereto afiixed, and the certifi- 
 cate 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, p. 531-2, Sections 10 and 11.) 
 
 5. The statute February 26, 1839, made this provision relative to a redemp- 
 tion, viz. : " 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 coimty 
 commissioners' court of the proper county, double the amount for which the 
 same was sold, and all taxes accruing after such sale, together vrith the interest 
 on the amount of each year's tax, at the 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 
 
494 BEDEMPTION FROM THE SALE. 
 
 may redeem. The term otvner is less extensive in its 
 signification than either of the other expressions. 
 
 taxation, and the heirs or assigns of such person, shall be considered as restored 
 to all the rights which 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, _/cnies covert, or lunatics, may be redeemed iipon 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 own- 
 ing 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 ffom 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 oivned the 
 same at the time of the sale thereof, and if the oivner Avas a feme covert at the 
 time of sale, stating that fact ; or if there wore 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 provisions of this section, 
 or any other law of the State, he shall file the aiEdavit 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 then- heu-s 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 redemp- 
 tion money was paid. Affidavits jDresented to the clerks of the county 
 commissioners' court of the several counties in this State, to enable persons 
 to redeem lands sold for taxes, may be taken before any judge or clerk of a 
 court of record in tliis State, and certified under the hand and seal of such 
 judge or clerk ; or they may be taken before any judge or clerk of u court 
 of record without the State, and certified as aforesaid." (Laws 1838-9, pp. 
 16-17, Sections 38-40.) 
 
 6. The statute of March 3, 1845, thus provided, that " Eeal estate, sold under 
 the provisions of this chapter, may he redeemed at any time before the cxpu-a- 
 tion of two years from the date of sale, by the payment, in specie, to the clerk of 
 the county commissioners' court of the proper county, of double the amount for 
 which the same was sold, and all taxes accruing after such sale, unless such 
 subsequent taxes have been paid to the collector, as may be shown by the col- 
 lector'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 he redeemed at any time within one year after such disability be 
 removed, upon the terms specified in this section." (R. S. 1845, p. 447, Sec. 69.) 
 
 7. And by the act of Tebraary 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. 
 
KEDEMPTION SROM THE SALE. 495 
 
 Ordinarily, ownership means the right by which a 
 thing belongs to some one in particular, to the exclu- 
 sion 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 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 fo 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 relative to the representation of ownership 
 by the assured.^ But 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, etc., 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 otvner 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 
 
 interest thereon, from the day of sale, unless such subsequent tax has been paid 
 by the person for whose benefit the redemption is made ; which fact may be shown 
 by the collector's receipt ; Provided, that if the real property of any minor heir, 
 feme 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 redemption 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. 
 
 ' Wright v. Bennett, 3 Scam. K. 258 ; Wliiteside v. Divers, 4 Ibid. 336 ; Jairot 
 V. Vaughn, 2 Gilm. E. 132. 
 
 2 Illinois Mutval Fire Insurance Co. v. The Marseilles Manufacturing Co., 1 Gilm. 
 E. 266. 
 
 8 Davenport Y. Farrar, I Scam. E. 315. 
 
496 REDEMPTION EKOM THE SALE. 
 
 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, 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 possession may be 
 ripening into a right. Each is an dWner according 
 to the extent of his interest or claim, and each has 
 a right to protect his interest by a redemption from 
 the tax sale. No one can complain of this — the 
 government collects her tax, and the purchase-money 
 is refunded to him who claims under the tax sale. 
 Take the case of the judgment creditor : the debtor 
 by collusion with the purchaser might divest himself 
 of title so as to defraud the creditor, unless 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 iipon it constitutes 
 the person claiming it, an owner, so far as it is necessary 
 to give him the right to redeem. No judicial proceed- 
 ings 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 
 ministerial 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, or divest 
 that of the tax purchaser. It would seem then, that 
 
REDEMPTION FROM THE SALE. 
 
 497 
 
 the doctrine is, that any person claiming an interest 
 in the land has a right frima facie to redeem. But if 
 it turns out that he had no such ownership as to 
 authorize the redemption, 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 contemplated that rights should be affected 
 without an opportunity of being heard. The authori- 
 ties fuUy sustain the principles contended for. Thus, 
 in. Dvhois v. Heplurne} 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 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 demand ; and if it shall be 
 
 110 Peters K. 1. 
 
 63 
 
498 KBDEMPTION FROM THE SALE. 
 
 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 
 recover 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 decision are important, 
 as the court lay down these rules as applicable to the 
 right of redemption under the law in question : 
 
 1. That such laws are to be liberally construed, 
 and not narrowed down by a strict construction. 
 
 2. That any person having a legal or equitable 
 interest in the land, may redeem, whatever may be 
 the evidence of his title. The 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 
 indemnity 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 ejQTectuate the objects of the 
 law, that the right to redeem should be narrowed 
 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 of redemption. Any right, 
 
REDEMPTION FEOM THE SALE. 
 
 499 
 
 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. 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 made to the treasurer within two 
 years, as well as to the defendant, 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 
 plaintiff, to defeat a tax title relied on by the defend- 
 ant, read in evidence a certificate of redemption 
 executed by the proper officer ; the defendant there- 
 upon 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 granting of 
 the certificate. The circuit court refused to admit 
 such testimony, 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 evi- 
 dence. 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 
 redemption from the sale to the defendant, and that 
 
 n 5 Illinois R. 427. 
 
500 EEDBMPTION FROM THE SALE. 
 
 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 established by other 
 proof The question whether there has been a valid 
 redemption of the lands of infants, does not necessa- 
 rily depend on the fact that the clerk has or has not 
 preserved the proof upon which the redemption was 
 founded. The statute requires an affidavit of the facts 
 to be presented to the clerk, and filed by him. Two 
 objects are contemplated by this requisition. The 
 affidavit 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 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 sustain 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 the supreme 
 
 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 aU lands and town lots which have been, or may hereafter 
 be sold for taxes, may be redeemed at any time mthin 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 at any time witliin two yeara from and 
 after the expiration of such disability. That all applications for the redemption 
 
KEDEMPTION FROM THE SALE. 501 
 
 cotirt in Masterson v. Beasley} upon certiorari. It 
 appeared that in November, 1826, an application was 
 
 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, the 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 appMcation, shall, at the time of 
 publishing the aforesaid notice, deposit, with the clerk of the court to wMch 
 the application is to be made, an amount of money equal to that for which such 
 land or lot was soM, and the taxes subsequently paid thereon by the pm-ehaser, 
 or those claiming under him, together with interest, and fifty per centum 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 requu-ed 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 oflfered. 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 the title which passed by such sale, and shall award restitution of 
 the premises, and direct that 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, shall be 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 applica- 
 tion, the court may entertain the application 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 
 shaJl 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, on 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 
 1 3 Ohio E. 301. 
 
502 EEDEMPTION PROM THE SALE. 
 
 made to the Common Pleas by Beasley, as agent of 
 the minor heirs of Massie. In support of the appli- 
 cation, Beasley produced the certificate of the auditor 
 of State, showing that 100 acres of land charged with 
 taxes in the name of John Jonett, had been sold to 
 Masterson, 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 application 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 
 
 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 cla imin g under him, shall be entitled 
 to any compensation for any improvements wliich 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, mthin thirty days after the date thereof, cause a, coilified copy of such 
 order, with the seal of the court aiBxed thereto, to be recorded among the 
 records of deeds, in the county wherein such land or lot is situated." 
 
 The amendatoiy act of March 1 6, 1 839, 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 purchasers, 
 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 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 com-t 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 provision in the act to which this is an amendment, to the contrary not- 
 withstanding. This act, and that to which this 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 coi-porate." 
 
EEDEMPTION TBOM THE SAIE. 
 
 503 
 
 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 
 accordingly. This judgment was affirmed. 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 purchaser's money and 
 interest must be refunded in all cases; and if the 
 applicant has not been under any 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 applicant. An examination of the record, 
 certified from the Common Pleas, shows that the pro- 
 ceedings, 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. As the redemption is made 
 in the name, and for the benefit of the heirs, there 
 is no ground for apprehending the improper inter- 
 meddling of a stranger. It is a matter of but little 
 
504 EEDEMPTION EKOM THE SALE. 
 
 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 
 everything 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 himself The only 
 provision on that subject is, that if, on examination, 
 it shall appear to the cpurt that the claimant has a 
 legal right to redeem such land, or any part thereof, 
 the court shall adjudge the same to him, etc. It is 
 no part of the duty of the court to decide questions 
 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 
 
KEDEMPTION FEOM THE SALE. 
 
 505 
 
 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 construc- 
 tion 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 prevail. This 
 and similar cases, 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, nor his own right ; but 
 if such an attempt should be made, it could not suc- 
 ceed, 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 professes 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 sufficient. An equitable title, or a naked pos- 
 session, may give a legal right of redemption under 
 the statute, which was not intended to require inves- 
 tigations of title, further than may be necessary to 
 prevent impertinent applications. This being our 
 view of the subject, it follows that the proceedings, 
 and the order of the court below, must be afl&rmed." 
 The principle, that this class of laws should be con- 
 strued liberally, was sustained in Patterson v. Brindle} 
 and in Winchester v. Cain? In Shearer v. Woodburn^ it 
 was held that a purchaser at an execution sale of 
 land, over which the debtor exercised acts of owner- 
 ship, and who was reputed to be the owner, was 
 
 1 9 Watts E. 99. ^ j Eobinson's Lou. K. 421. 
 
 8 10 Pa. State R. 511 ; S. C, 11 Ibid. 341. 
 
 64 
 
606 KEDEMPTION FKOM THE SALE. 
 
 entitled to redeem. The general law whicli 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 statute au- 
 thorizing a redemption by '■^orphans" minors acquire 
 no rights whatever? A widow claiming dower in land 
 sold for taxes in the life-time 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 Ohapin v. Curtenius^ an agent was 
 permitted to redeem without proof of his authority. 
 So in Masterson 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 ineffect- 
 ual, unless the power of disencumbering the land is 
 vested in him by implication.® So of a power " to 
 take care of land." '' 
 
 The redemption must of course be made within the 
 time fixed by law, or the purchaser's title will become 
 absolute. And the mode and manner pointed out by 
 the statute must be pursued. The proper ofl&cer, 
 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 oflftcer the full 
 amount necessary to redeem the estate; and it is 
 important to look carefully into the law and the 
 facts, in order to ascertain the precise sum due. The 
 law, and the order of the inferior tribunal levying 
 
 1 EUiot V. Genard, 1 A. K. Mar. E. 472 ; Hood y. Mather, 2 Ibid. 558. 
 
 2 Downing v. Shoenherger, 9 Watts R. 298. ^ Finch v. Brown, 3 Gilm. K. 488. 
 * 15 m. E. 427. 6 3 Ohio E. 301. 
 
 " McCord T. Bergantz, 7 Watts E. 487. ' Patterson v. Brindle, 9 Ibid. 98. 
 
EEDEMPTION EBOU THE SALE. 50' 
 
 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 
 circumspect in their examination with a view to 
 ascertain the amount of the redemption money. 
 The maxim de mimmiis, etc., possesses no healing virtues 
 in case the owner makes a blunder in this respect. 
 The maxim, as has been shown, is seldom apphed in 
 favor of the purchaser, and it is presumed to be equally 
 inapphcable against him. The condition imposed upon 
 the former owner is usually plain and easily under- 
 stood, 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 
 ofl&cer and purchaser, where duties are imposed upon 
 them. In BrigM v. Boyd^ where the law permitted 
 a minor to redeem 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 convey- 
 ance the title became vested in one Gilman ; 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 con- 
 struction 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 entitled to the redemption money, as holding 
 the conditional estate ; 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 
 
 1 1 Story R. 478. 
 
508 EEDBMPTION FROM THE SALE. 
 
 intervening charges, which had been incurred by him, 
 and for which he might justly claim remuneration 
 under the statute." The Mississippi statute required 
 the owner, in case he desired to redeem, to tender 
 the amount necessary to effect the redemption to 
 the purchaser. In Bacon v. Conn^ the complainant 
 made the tender in due season — but 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 
 entered. The code of Louisiana authorized a re- 
 demption upon condition that the 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 
 purchaser to render an account, was equivalent to a 
 redemption.^ 
 
 The receipt or certificate of the proper officer, is 
 prima facie evidence of a redemption.^ Or the records 
 of the office where the redemption is effected, or 
 sworn copies thereof, may be resorted to. Loose 
 declarations of parties will not be admitted in ques- 
 tions of this character.* A mandamus is an appropriate 
 remedy, where a redemption is improperly refused 
 by a public officer.^ The law of New York and Illi- 
 nois, relative to redemption notices, has been stated 
 in a preceding 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 authorities to give 
 at least six months' notice to redeem from tax sales, 
 
 1 1 S. & M. Ch. R. 348. 2 Jiroohs v. Eardwick, 5 Lou. An. K. 675. 
 
 3 Taylor v. Steele, 1 A. K. Mar. R. 316. * Lane v. Sharpe, 3 Scam. R. 567. 
 
 "i Finch V. Brown, 3 Gilm. R. 488. 
 
BBDEMPTION FROM THE SALE. 509 
 
 before the expiration of ttvo 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 Neiv York} the notice to the owner was valid, 
 if lunar months were intended by the statute, other- 
 wise it was void. The court held that solar months 
 were designed. By the court : " Does the word 
 months, in the statute, mean lunar or calendar time ? 
 The general rule which must be applied to this case 
 is, that unless there is something in the statute indi- 
 cating that the legislature intended calendar 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 the expira- 
 tion of that period, for four weeks. Now, as calendar 
 time is used, by the legislature, in fixing the period 
 for redemption, it is a just and reasonable inference 
 that they intended 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 succeeds it, and were intended to include 
 part of it, it should be construed to mean the same, 
 otherwise 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." 
 
 1 10 Wend. K. 393. 
 
510 EXCESS OR ABUSE OF AnTHOKITY. 
 
 CHAPTBE XXVIII. 
 
 OF THE EFFECT OF THE SALE AND DEED, WHERE THE OFFICER 
 HAS ABUSED OR EXCEEDED HIS AUTHORITY. 
 
 It is a general principle, that if in the execution 
 of an authority conferred hy law upon a public ofl&cer 
 or private individual, 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 excess, becomes 
 a trespasser, ah initio. And it is immaterial whether 
 the authority is derived from the common or statute 
 law ; or whether the abuse or excess consists of an act 
 of commission or omission. In each instance the act 
 is illegal, but the remedy varies according to the 
 circumstances of each particular case.-^ On the other 
 hand, the abuse or excess of an authority infad 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 
 
 1 The Six Carpenters' Case, 8 Co. 144 ; Bagshaw v. Goward, Cro. Jac. 147 ; 
 Taylor v. Cole, 3 T. E. 292 ; Winteriourne v. Morgan, 11 East R. 395 ; Auscomb 
 V. Shore, 1 Campb. R. 283 ; Messing v. Kemble, 2 Ibid. 115 ; 1 Wils. E. 154 ; 
 2 W. Bl. 1218 ; Bac. Abr., Tit. Trespass ; 1 Cliitty PI. 185, 11 Am. Ed. 1851 ; 
 5 B. & C. 485 ; 2 John. R. 191 ; 10 Ibid. 253, 369. 
 
EXCESS OK ABUSE OF AUTHOKITY. 511 
 
 authority for doing. The same principle is applied 
 to the execution of all private authorities, and to 
 powers of appointment and revocation growing out 
 of the statute of uses. There an excessive execution 
 of the power does not vitiate and taint the entire act, 
 but only so much as constitutes the excess, provided 
 the excess can be seen and separated. The rule is 
 thus laid down by Sugden : " Where there is a com- 
 plete execution, and something ex ahundanii added, 
 which is improper, there the execution shall be good, 
 and only the excess void, but where there is not a com- 
 plete execution of apower, and the boundaries between 
 the excess and execution are not distinguishable, it 
 will be bad. K a man, having a power to lease for 
 twenty-one years, lease for forty, that will be good in 
 equity fro 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 powers, 
 it is believed that no case can be found where the 
 principle 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 abund- 
 antly prove that where the ofl&cer abuses his authority 
 by selling more land than is necessary to pay the 
 tax, his act is void.^ 
 
 1 Sugden on Powers, Chap. 9, Sec. 8. 
 
 '■* Adams v. Adams, Cowp. E. 651 ; Campbell v. Leach, Ambler 740 ; Roe v. 
 Prideaux, 10 East E. 158. 
 
 3 Ante, 336-7 ; Mason r. Fearson, 9 Howard U. S. R. 248 ; O'Brien v. Coulter, 
 2Blackf. R. 421. 
 
512 EXCESS OK ABirSB OF AUTHORITY. 
 
 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 ofl&cer 
 should convey to the governor for the use of the 
 State. The law further provided, that when a less 
 quantity than the whole should be sold, it should 
 be surveyed and set apart to the purchaser 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 plaintiff for 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 undivided part thereof, then the verdict is to be 
 set aside ; otherwise 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 of&cer did no more than he was authorised 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. lie 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 
 
 1 Taylor's (M. C.) K. 41 ; Bat. Ed. 480. 
 
EXCESS OE ABUSE OF AUTHOEITY. 513 
 
 purchaser, therefore, cannot show his title without 
 exhibiting on the face of it an abuse of the autJwrity 
 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 authority for doing. But how, 
 in the present case, can such separation 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 of&cer had authority to demand. No one, there- 
 fore, can tell how much would have been required to 
 raise the tax legally demandable. K this were a case 
 of private agency, we 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 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 innocent persons are likely to suffer, 
 the law has said ' that it wiU intend from the act and 
 its effects, that the agent designed to execute his au- 
 thority, but has only done so in a bungling manner.' 
 But we think in the case of public ofl&cers, whose 
 authority is not derived from any individual, that 
 the law is clear that whenever they transcend their 
 65 
 
514 EXCESS OB ABTJSE OU AUTHORITY. 
 
 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 therefore 
 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 individ- 
 ual, 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 operation 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 
 repeated, that the purchaser by his oivn 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 is the excepted acre to be found ? 
 Not in the deed ; but must require something further 
 to be done, either by the consent of the parties, or 
 the compulsory process of law ; such a resort is clearly 
 at variance with what the legislature contemplated 
 to follow from the act it authorized the sheriff to do." 
 Still another distinction is taken by Cruise : " There 
 
 ^ Six Carpenters' Case, 8 Co. 144. 
 
EXCESS OE ABUSE OF AUTHOIUTY. 515 
 
 is a material difference, in common latv powers, between a 
 naked power or bare authority, and a power coupled 
 witli 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 ivith an interest, it is good for so 
 much as is loithin thepoiver, and void for the 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."^ It may 
 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.* 
 
 1 4 Craise Dig. Tit. 32, Chap. 13, Sec. 2, citing Jenk. 205. 
 
 2 Ante, 45. 3 Sugden on Pow., Chap. 1, Sec. 1. 
 
 * Waldron v. McComb, I Hill R. Ill ; Clark v. Courtney, 5 Pet. E. 319 ; 
 Taylor >. Galloway, 1 Hammond E. 232. 
 
516 COVENANTS OF THE OFFICER. 
 
 CHAPTER XXIX. 
 
 OP THE COVENANTS OP THE OPFICER, CONTAINED IN THE 
 TAX DEED. 
 
 It is a very unusual thing for a statute to require 
 covenants to be inserted in a tax deed, by which the 
 State, ofl&cer or former owner, are to become bound 
 in the event that the title of the grantee proves 
 defective. But in New Hampshire and Vermont, the 
 form of the deed prescribed by law, contains a cove- 
 nant substantially, that the officer making the con- 
 veyance 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} it was 
 held that the intention of the legislature in requir- 
 ing this particular form of deed, was to make an 
 operative conveyance of the land where the provi- 
 sions of the law had been complied with, and not to 
 bind the officer by this imoluiniary 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 covenant. He is 
 
 1 11 Vermont K. 212. 
 
COVENANTS 01' THE OTFICEK. 
 
 517 
 
 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 proceedings, than to hold the collector 
 liable on covenants which he has no option whether 
 to omit or not. If the contract 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 Uable. 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 Wihon v. Cochran} was an action upon 
 such a covenant, against the officer who executed the 
 deed. It 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, 
 voluntarily 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 volun- 
 tarily have taken the office of collector. Having 
 accepted the office, and made the sale for the pay- 
 ment of the taxes assessed, so far as it appears, in the 
 regular performance of his duty, the statute gave 
 him no option as to the form of the conveyance to 
 
 1 14 N. H. E. 397. 
 
518 COVENANTS OP THE OEEICER. 
 
 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 consideration. The collector is a 
 public ofl&cer, and the greater portion of the consid- 
 eration goes into the public treasury. That the 
 of&cer, 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 evicted. The fact that the 
 deed commences with a description of the grantor as 
 collector, negatives the supposition that he is to 
 assume such responsibility. It is the deed of a public 
 officer, made in his public capacity. The covenants 
 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 cove- 
 nant 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 listed and assessed the 
 land, a proceeding in which the collector 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 omis- 
 sions, neglect and other irregularities upon such a 
 covenant, is undecided. No objection, however, can 
 
COVENANTS OP THE OPFICEE. 519 
 
 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 oflSce, but if he does so, he assumes the 
 full measure of responsibility for its faithful execution 
 which the law has imposed upon the incumbent for 
 the time being. Where the of&cer voluntarily cove- 
 nants 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 anal- 
 ogous in principle. 
 
520 CONSENT OF OWNER TO lEKEGDLARITIES. 
 
 CHAPTER XXX. 
 
 OP THE CONSENT OP THE OWNER TO IRREGULARITIES IN THE 
 PROCEEDINGS. 
 
 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 proceedings, 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 irregularity, a 
 sale under such circumstances wUl 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 indi- 
 vidual. 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. This was the doctrine 
 established bv the supreme court of Alabama, in the 
 
CONSENT OF THE OWNER TO lEREGULARITIES. 
 
 521 
 
 case of Scales v. Avis^ 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 Janu- 
 ary 4, 1843, announcing that the sale would take 
 place February 1, 1843, and the collector, discovering 
 his error, amended the advertisement, by changing 
 the day of sale to April 4 ; but this was done after 
 the first publication, so that the full three months' 
 notice, required by law, was not, in fact, given. The 
 collector notified the delinquent 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 ap- 
 plied in Kentucky, to a sheriff's sale, where the officer 
 seized and sold more land of the judgment 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 that the 
 judgment debtor was not estopped at law from rely- 
 ing upon the error to defeat the title of the purchaser.^ 
 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 proceed- 
 ing as creating a contract by way of estoppel, and 
 compel the completion of the purchaser's title. And 
 in Biichannon v. Tlpshmv^ 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 
 
 1 12 Ala. E. 617. 2 Isaacs \. GearheaH, 12 B. Mon. E. 231. 
 
 8 1 Howard U. S. E. 56. 
 66 
 
522 CONSENT or the ownek to ieeegulaeities. 
 
 authority to sell, there was & privity of contract between 
 the owner and purchaser, 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 enforce a sale of a valuable tract of land for a 
 trifling consideration — an unconscionable bargain — 
 has never been decided. It is predicted, however, 
 that such a case would find but little favor in that 
 forum ; and it will be shown hereafter, that a tax sale 
 which is void at law, can, in no conceivable case, be 
 aided by a court of equity. No act done under a 
 statutory power, which is void for non-compliance 
 with the letter and spirit of the law, can be aided 
 there. Chancery possesses no dispensing or substitutional 
 power. 
 
CORPORATION SALES. 
 
 523 
 
 CHAPTEK XXXI. 
 
 OF SALES OF LAND FOR TAXES, UNDER THE CHARTERS AND 
 ORDINANCES OF MUNICIPAL AND OTHER CORPORATIONS. 
 
 A municipal corporation possesses no authority to 
 levy and collect 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 
 compensation than the promotion of the public good. 
 Such interference with the natural right of acquisi- 
 tion and enjoyment guaranteed by the constitution, 
 can only be justified when public necessity clearly 
 demands it. Being a sovereign power, it can only be 
 exercised by the general assembly, when delegated 
 by the people, in the fundamental law; much less 
 can it be exercised by a municipal corporation with- 
 out a further unequivocal delegation by the legislative 
 body.-^ But the legislature have competent authority 
 to delegate the power of taxation to municipal cor- 
 porations, for the purpose of enabling them to carry 
 into effect the trust committed to their charge. All 
 lands and other property are held on the implied 
 
 1 Mays V. Cincinnati, 21 Ohio E. 273 ; Sharp v. Spier, 4 Hill R. 76. 
 
524 COEPORATION SALES. 
 
 condition that they may be taxed equally for general 
 and heal 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 levy- 
 ing and collecting the tax prescribed by the charter, 
 which constitutes their organic law.*^ They take no 
 powers whatever by implication, unless absolutely 
 necessary to carry into effect some power expressly 
 delegated to them. The rule is thus laid down in 
 8 harp v. Spier. ^ "A corporation must show a grant, 
 either in terms or by necessary implication, for all the 
 powers which it attempts to exercise ; and especially 
 must this be done Avhen it claims the right, by taxing 
 or otherwise, to divest individuals of their property 
 without their consent. The exercise of the corpo- 
 rate 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 proceed- 
 ings to collect 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. By the common law, 
 corporations cannot make a by-law to enforce the 
 payment of taxes, by warrant to distrain and sell the 
 
 1 Clieanmj v. Hooser, 9 B. Mon. E. 330 ; Talbot v. Dent, Ibid. ; Hope v. Deade- 
 rick, 8 Hiimphroy E. 1. 
 
 ^ Hope v. Dmderick, 8 Humphrey E. 1 ; Fitch v. Pinckard, i Scam. E. 69. 
 
 3 Mack V. Jones, I Poster E. 393 ; Dillingham v. Snow, 5 Mass. E. 547 ; 
 Stetson V. Kempton, 13 Ibid. 272. * 4 Hill E. 76. 
 
 '' West School District of Canton v. Merrills, 12 Conn. E. 431 ; Kemper v. 
 McClelland, 19 Ohio E. 324. '^Nicholl r. Nashville, 9 Humphrey E. 252. 
 
CORPORATION SALES. 525 
 
 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 
 action of assumpsit is the appropriate remedy to 
 recover the tax, in all cases where the charter is silent 
 as to the mode of collection.^ And where express 
 power was conferred upon a town corporation, to levy 
 taxes and sell land for the non-payment of them, but 
 the charter was silent as to the power of the corpora- 
 tion to convey the land sold to the purchaser at the 
 sa,le, it was held that the power of conveyance could 
 not be exercised by the town. 1. Because a corpo- 
 ration can exercise no implied powers. 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 exempt 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 municipal corporation 
 the power to declare that the collector's deed shall 
 be conclusive, or even prima facie evidence of a com- 
 pliance with all the prerequisites of the ordinance, 
 providing for the sale of lots within the town or city 
 limits for the non-payment of taxes due and unpaid 
 thereon. The legislature alone possesses the power 
 
 1 Bergen v. Clarhson, 1 Halstead E. 352. 
 
 2 Mayor v. Howard, 6 Har. & John. 383 ; Dugan v. Mai/or, 1 Gill & John. 499. 
 ^Doe V. Chunn, 1 Blackf. R. 336. 
 
 * Fitch V. Pinchard, 4 Scam. E. 69 ; Mack v. Jmes, 1 Poster E. 393. 
 ^ Fitch V. Pinchard, 4 Scam. E. 69 ; Mack v. Jones, 1 Foster E. 393. 
 
526 COKPORATION SALES. 
 
 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 all intents and purposes, and special 
 in their character. Therefore no general law, regu- 
 lating the taxing power of the State at large, can be 
 construed in any given case a^ embracing taxes levied 
 by such corporations. Upon this principle, it was 
 held in Shoakvater v. Armstronff,^ that a general statute 
 declaring a tax deed made in pursuance of a sale for 
 "public taxes," prima fade evidence of conformity with 
 the requisitions of the law, and authorizing the 
 respective collectors to make a report of the delin- 
 quent 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 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 jproperty 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 mu- 
 nicipal corporation is authorized to assess taxes 
 " according to latv," 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. 
 
 1 Fitch V. Pinchard, 4 Scam. E. 69. ^ 9 Humphrey E. 217. 
 
 ^ Bank of Georgia v. Savannah, Dudley E. 132, citing 10 Mass. R. 514; 17 
 Ibid. 461. 
 
COKPOEATION SALES. 
 
 527 
 
 Such a construction ought not to be placed upon the 
 charter, as would prevent the corporation from par- 
 ticipating in the improvements of the system of tax- 
 ation which may be made, from time to time, by the 
 laws of the land.-' The corporation possesses no 
 power, either to assess a tax not authorized by char- 
 ter, nor to change or modify the public laws of the 
 land, regulating the taxing power.^ And it is pre- 
 sumed, that when the charter is silent as to the 
 principles, mode and manner of taxation, the analo- 
 gies 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 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 made prima facie evidence of title) 
 1. The existence of a corporation, by evidence of the 
 charter and its acceptance by the inhabitants. The 
 charter may be proved by an exemplification of it 
 under the great seal of State, or the production of 
 the printed 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 evidence of its 
 
 1 Ontario Bank t. Bunnell, 10 Wend. E. 186. 
 
 2 Mack V. Jones, 1 Foster E. 393. 
 
 5 Doe V. Chunn, 1 Blackf. E. 336 ; Mack v. Jones, 1 Eoster E. 393. 
 
528 COKPOEATION SALES. 
 
 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 piu-- 
 port to have been made.^ What provisions of the 
 charter and ordinances are to be regarded as peremp- 
 tory 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 ordi- 
 nances of a municipal corporation, 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 contained in the charter of a private corpora- 
 tion, which it may be proper to notice in this connec- 
 tion. On AprU 15, 1803, the legislature of Ohio, 
 incorporated "the proprietors of the half million 
 acres of land lying south of Lake Erie, called suf- 
 ferers land," for the purpose of enabling the proprie- 
 tors 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 claim of title to the land, surveying, locating 
 
 1 Fitch V. Pinckard, i Scam. R. 69. 
 
 ^ Fitch V. Pinckard, i Scam. R. 69 ; Shoalwater V. Armstrong, 9 Humphrey E. 
 217 ; Doe v. Chunn, 1 Blackf. E. 336 ; Ronkendm-ffY. Taylor, 4 Peters E. 349 ; 
 Corporation of Washington v. Pratt, 8 Wliea. R. 686 ; Mason v. Pearson, 9 Howard 
 V. S. E. 248. 
 
COEPOEATION SALES. 529 
 
 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 pur- 
 chaser; 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 authority, and the same is hereby 
 given to them and their successors, 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 out and improving the 
 public roads in said tract, as this assembly shall direct." 
 The act contained no provision in favor of the rights 
 of infants or femes covert. In 1806, the legislature 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 share holder 
 in the corporation, for the purpose of defraying the 
 67 
 
530 COKPOBATION SALES. 
 
 State tax, levied as aforesaid, and other necessary 
 expenses of the corporation. In Beaty v. the Lessee of 
 KnoivUr} the lessors of the plaintiff, in error, were 
 infant share holders in the corporation aforesaid, and 
 their interest in the lands of said corporation were 
 sold, under the charter and vote of said corporation, to 
 pay the assessment aforesaid. The defendant below 
 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 a failure to pay the tax, was a high 
 prerogative, and should never be exercised where the 
 right was doubtful ; that 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 company ■" on the contrary, it clearly 
 appeared that it was not the intention of the legisla- 
 ture 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.^ 
 
 i 4 Peters R. 152. 
 
 - Inasmuch as this case is the only one of any importance, which illustrates 
 the nature and extent of the taxing power, conferred upon mere private corpora- 
 tions, 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 this 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 bo derived from the law of Ohio. This law, it is insisted, 
 is a private act, not designed for public pui-poses, and consequently cannot 
 
COKPORATION SAL.KS. 
 
 531 
 
 The case of Thompson v. Gotham^ involved the 
 vaHdity of a tax title derived from the same source 
 
 affect the rights of any individual who did not assent to its provisions ; that 
 the provision 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 authori- 
 ties 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 de- 
 scended 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 pub- 
 lic 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 incorporation 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 ob- 
 jection 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 right 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 Connecticut, and to that of Ohio. Eights have been protected 
 and regulated under those laws, and to the provisions of the latter ai'e 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 the corporate franchise, being restrictive of individual rights, cannot be ex- 
 tended 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 neces- 
 sary 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 the collection thereof. As the power to 
 tax for the purpose of paying a tax to the State, is not found among the enumera- 
 ted powers of the durectors, it must be derived, if it exists, under the words ' all 
 other necessary expenses of said company ;' 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 favor of this con- 
 struction, 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 
 1 9 Ohio K. 170. 
 
532 CORPORATION SALES. 
 
 as that litigated in the preceding case. The defend- 
 ant, who set up the tax title, proved a legal levy of 
 
 State. That the half million of acres 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 remained 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 im- 
 posed, 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 inci- 
 dental expenses, arising from canying into effect the powers expressly given ; 
 but do they invest the directors with a new and substantive 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 1 
 Ample provisions are found in the State law imposing 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 appointed, who were 
 required to hold their offices at places named in the act. The collector 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 up- 
 on 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 
 tinder 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 had 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 
 t.ax 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 conve- 
 nience 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 ex- 
 ercised when the right is doubtful. In the preamble to the Ohio act of incorpo- 
 ration, there is a reference to the Connecticut act and to the cession of the re- 
 serve, 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. 
 
CORPOKATION SALES. 533 
 
 the tax, the appointment of a collector, and his qualifi- 
 cation, and also a deed from the collector, which 
 recited the charter of the corporation, the 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, 
 
 in said State, and are stUl 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 of title to the same, (under the authority of the 
 United States, when the same shall be obtained,) to suiTey and locate the said 
 land, and to make pai-tition 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 incoi-po- 
 ration, and which could not be attained by the individual efforts of the proprie- 
 tors. 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 incorporation of the company was designed to enable 
 the proprietors to accomplish specific objects, and that no more power was given 
 that was considered necessary to attain these objects. The words ' all necessary 
 expenses of the company,' cannot be so construed as to enlarge the power to tax, 
 which is given for specific pui-poses. A tax to the State is not a necessary ex- 
 pense 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 pow- 
 ers. 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 dis- 
 cretion, within the scope of the authority confeiTed. If the words of this sec- 
 tion 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 theu' 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 necessai-y to state this con- 
 sequence, to show the danger of such a construction. The restrictions im- 
 posed in other parts of the statute, very clearly demonstrate 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 incorporation, the court do not 
 find a power given to the directors to assesss a tax, as has been done, in the 
 case under consideration, to pay a tax to the State." 
 
534 CORPOKATION SALES. 
 
 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 vahdity of the sale — that the 
 onus was upon the defendant 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 shareholders in the " Sufferers' tract." 
 In the early settlement of the New England States, it 
 was usual for the 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 asses 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 proprietor, and the corporators, or the 
 major part of them, had power to sell and convey, 
 through the agency of a committee or single ofl&cer, 
 appointed for the purpose, in case the proprietor, 
 against whom the tax was assessed, proved delin- 
 quent. The modus operandi of the proceeding was to 
 warn a meeting of all the proprietors, under a warrant 
 from a justice of the peace, or in some other manner, 
 according to the particular statute under which the 
 power was conferred, and the meeting voted a tax 
 upon the whole tract held in common, and apportioned 
 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 
 
CORPOKATION SALES. 
 
 535 
 
 in a newspaper or by posting in public places, and 
 sometimes in botli 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 construc- 
 tion 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 ditficult 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 proprietors, and those who sold and 
 conveyed, and many presumptions were indulged in 
 for the purpose of sustaining these ancient titles. 
 Where, however, the proceedings affirmatively ap- 
 peared upon the face of the conveyance to be illegal, 
 the sales were held void. This general statement, and 
 a reference to the cases, is deemed sufficient for the 
 information of all concerned in this class of titles.^ 
 
 1 2 Dane Abr., Chap. 68, Art. 4, Sec. 5; Sullivan on Land Titles, 116, 121 ; 
 Bolt V. Perky, 11 Mass. R. 169 ; Farrar v. Eastman, 5 Greeul E. 345 ; S. C, 
 1 Fairfield E. 191 ; Porter v. Whitney, 1 Greenl. E. 306 ; Inman v. Jackson, 
 4 Greenl. K. 237 ; Farrar v. Perley, 7 Ibid. 404 ; Wentworth v. Allen, 1 Tyler 
 E. 226 ; Decker v. Freeman, 3 Greenl. E. 338. 
 
536 rOREEITOKBS. 
 
 CHAPTER XXXII. 
 
 OF THE FORFEITURE OF LANDS TO THE STATE, WHERE THE 
 TAXES HAVE NOT BEEN PAID. 
 
 The omission or neglect of a duty which the party 
 binds himself 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 from the performance of the 
 thing are defeated and determined.-' It is a punish- 
 ment 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 definitions include 
 forfeitures of conditions, obligations, offices, and 
 estates, and other penalties accruing in civil cases, 
 or inflicted for transgressions or omissions of duty 
 imposed by the criminal laws of the land.^ Forfeit- 
 tures for crime have been abolished in this country. 
 But the common law rule in relation to the forfeiture 
 of estatesfor breaches or the non-performance of condi- 
 
 1 Bac. Abr., Tit. Forfeiture ; Beard v. Smith, 6 Munroe E. 444. 
 
 2 2 Bl. Com. 267. 8 Beard v. Smith, 6 Munroe K. 444. 
 
FOEFEITUEES. 
 
 637 
 
 tions 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, 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 jurisprudence. To these may be 
 added such forfeitures as are declared by statute, for 
 the non-performance of some duty imposed upon 
 the owner of an estate.-'- It is a familiar principle, 
 that a court of equity will not lend its aid to enforce 
 a forfeiture, but on the contrary will relieve 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 land, or pay the tax assessed 
 upon it, have been directed by the legislature. This 
 class of forfeitures are based upon the principle that 
 every owner holds his estate upon the implied condition 
 that he will furnish a list of his taxable estate, and 
 promptly pay his share of the common burdens 
 assessed against the entire community ; and if he 
 omits to comply with the condition, and his estate is 
 offered at public vendue, and no purchaser 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 declaring the forfeiture varies according to the 
 caprice of each State. In some instances, the words 
 of the statute are, that he 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 
 
 1 Beard v. Smith, 6 Munroe K. 430. 
 
538 FOREBITUEBS. 
 
 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 redemption, 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. 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 of&ce found, and not the free- 
 hold in deed or in law.-^ " These inquests of office," 
 says the learned author of the commentaries upon 
 the laws of England, "were devised by law as an 
 authentic 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 England, 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 
 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 
 
 1 Dwarris' Stat. 743 ; Plowden, 486. ^ 3 Bl. Com. 259. » 2 Inst. 221. 
 
FORPEIXTJEES. 
 
 539 
 
 doctrine is maintained in Dowlie'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 pre- 
 scribed for acquiring titles to waste and unappropri- 
 ated 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 ofl&ce, 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, /emes covert, and persons iwn compos, 
 were allowed three years to redeem, and thus save 
 the forfeiture. The law further required a listing of 
 the land, a return of the list, and a publication of the 
 delinquency of the owner. In Kinney v. Beverly} the 
 latter, who was the original proprietor of the land, 
 under a grant from the commonwealth, brought an 
 action of ejectment against Kinney, who claimed 
 under a warrant and survey, and patent of land for- 
 feited 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 
 
 1 3 Co. R. 10. 2 5 Co. E. 82. 
 
 s 7 Cranch E. 603. * 2 Hen. & Munf. E. 318, 344. 
 
540 EOREEITURES. 
 
 inquisition, or in any other manner, except by force 
 of the statute. All of the judges agreed upon a 
 judgment in favor of Beverly, because 1. The land 
 was not 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 polit- 
 ical 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 com- 
 monwealth. On this ground, I have held that the 
 commonwealth could neither take nor grant anything, 
 except by matter of record." (He then cites Black- 
 stone 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 nwde to be provided for 
 by the legislature, whereby the certainty of the lands 
 may be shown, and the seizin, 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 in England, 
 and by our constitution, whereby it is declared that 
 no man shall be disseized of his freehold or be con- 
 demned, 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, without being first heard in his own defence. 
 
JOKFBITURES. 
 
 541 
 
 In the case before us, the plaintiff has been disseized 
 of his lands, and they have been granted over to a 
 third person, without notice or warning whatsoever."^ 
 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 plaintiff below gave in evidence a title derived 
 from the Commonwealth. The defendant then gave 
 in- evidence a patent of elder date, granted to Banks 
 and Claiborne, who were strangers to this controversy, 
 covering the contested premises. To avoid the effect 
 of this, the plaintiff produced and read a certified ex- 
 tract from the book of the auditor of public accounts, 
 showing that the claim of Banks and Claiborne was 
 sold to the State for taxes, in 1806, and never redeem- 
 ed. The court below, then, at the instance of the 
 plaintiff, instructed 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 controversy 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 
 appealed to this court, and relies on this instruction 
 as error. It may be a question of some moment, 
 how far the purchase of the claim of Banks and 
 
 1 Upon this point, Judge Koane 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 pretense to say, 
 that locations under the act must be preceded by inquisitions of ofBice. Such a 
 construction would defeat the great end and object of our acts, in this particu- 
 lar ; would gi'eatly 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." 
 
 2 3 Litt. K. 38. 
 
542 FOBl'EITURES. 
 
 Claiborne by the government could receive or infuse 
 validity into the title of the lessor of the plaintiff, 
 and whether the right of entry would not pass ex- 
 clusively 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 
 Fairfaxes Devisee v. Hunter'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 ofl&ce, were insufficient for 
 that purpose, without express provision to that effect. 
 No doubt this principle applies to our Commonwealth 
 as it did to the Crown, and it is doubtless a common 
 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 
 qviestion was sold in pursuance 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 ' he 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- 
 
 1 2 Bl. Com. 344. ^ 7 Cranch. E. 603. 3 3 Litt. Stat. 33.5. 
 
PORFEITUBES. 
 
 543 
 
 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 pretension 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 the sales. We discover 
 no provision directing the auditor to record these 
 returns. We do not scruple the power of the legisla- 
 ture to have made the auditor's books, or even ti^ese 
 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 
 wanting, 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 evi- 
 denced, took the legal title from Banks and Claiborne, 
 and passed it 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,^ provided, that 
 "any person, (infants and persons non 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 commissioner of the 
 tax, and in the case of a non-resident, with the 
 auditor, on or before the first day of October next, 
 shall, for and in consequence of such failure, /or/k'i^ 
 his or her claim to the commonwealth." In Barbour 
 V. Nelson^ it appeared that the plaintiff, who sued for 
 a tract of land containing sixty thousand acres, had 
 failed to list it for taxation, as required by the law. 
 
 1 2 Litt, Stat. 463. 2 j Xitt. E. 60. 
 
544 EOBPEITUKES. 
 
 Whereupon the circuit court instructed the jury, that 
 " the title was forfeited to the Commonwealth, 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 suflB.- 
 cient to show that the plaintiff had no title." The 
 court of appeals reversed a judgment rendered in 
 pursuance of the foregoing instructions, saying : " If, 
 hy the operation of this statute, the title to lands is 
 divested out of non-residents, immediately on a fail- 
 ure 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 Common- 
 wealth, the failure to enter the lands for taxation 
 should be ascertained by an office of inquisition, 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 gov- 
 erned the English courts, in expounding their acts of 
 parliament, declaring forfeitures to the king. Thus, 
 it has been held, where a man is attainted by parliar 
 ment, 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, there they shall not be in 
 the seizin 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- 
 
 1 Broke, title Office, cited and recognized in 2 Plowden, 486, and 3 Coke 
 Ecp. 10. 
 
rOIlEBITURES. 545 
 
 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 
 anything.' And the reason assigned is, that ' it is a 
 part of the liberties of England, and greatly for the 
 safety of the subject, that the king may not enter 
 upon, or seize any man's possession, upon bare 
 surmises, 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 forfeiture, 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 con- 
 struction of the statute of this country, 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 
 Commonwealth, 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 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 apprehend, 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 im- 
 practicable for a purchaser of a forfeited claim, after 
 69 
 
546 FOEFEITUKES. 
 
 office found, to overreach, 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 Com- 
 monwealth 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 protect 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 government, pro- 
 duced by the revolution, the Commonwealth of neces- 
 sity 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 re- 
 spects 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 foregoing opinions, that the common law rule 
 which 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 
 
EOIfFEITUBES. 
 
 547 
 
 of constitutional law which declares " that no man 
 shall be disseized of his freehold, but by the judgment 
 of his peers, or the law of the land." It must be con- 
 fessed 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 descrip- 
 tion of the land in the other, ought to be ascertained 
 judicially, and not left to the determination of 
 the auditors or listers. There ought to be some 
 higher evidence of title in the government 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 of&cer 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. This 
 difficulty is obviated in North Carolina, Ohio and 
 Illinois, by express statutes. 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 conducts 
 
548 roRi'EiTu:8ES. 
 
 ing 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 legisla- 
 ture took some steps to dispose of them. After a 
 considerable accumulation of such forfeited lands in 
 the hands of the State, the legislature have author- 
 ized them to be disposed of at public vendue, either by 
 the State auditor, who was required to advertise the 
 time and place of sale, or that of&cer 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 ordinary 
 cases.^ The statute of Illinois^ declared that " every 
 tract of land or town lot offered for sale by any col- 
 lector, as herein before 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 under no legal 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 subse- 
 quently accruing, 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 
 
 1 Register v. Brt/an, 2 Hawkes K. 17 ; Jones v. Gibson, Taylor N. C. E. 41. 
 ^BucMey t. Oshom, 8 Ohio E. 180 ; Hannd t. Smith, 15 Ohio R. 134. 
 ^K. S. 1845, pp. 448, 450, Sees. 77—90. 
 
roRSEiTUKES. 549 
 
 lands lying in his county, which had been forfeited to 
 the State ; and the clerk was authorized to advertise 
 and sell the same biennially. The sheriff was required 
 to assist in the sales. The clerk was directed to exe- 
 cute and deliver certificates of sale to the purchaser, 
 and on presentation of these certificates, the auditor 
 was required to convey the lands to them. Such are 
 the substantial provisions of the statute of 1845. 
 The language of this law is broad enough to vest the 
 title ipso facto in the State. It is free from all am- 
 biguity whatever — declares the title of the owner 
 forfeited, and transfers it to the State. If constitu- 
 tional, 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 complied with by the officers mak- 
 ing the sale. The only requirements are, a list 
 transmitted by the auditor to the clerk, an adver 
 tisement by the clerk, and a sale by the clerk 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 
 
 1 Buckley v. Oshorn, 8 Ohio K. 180. 
 
 ^ Of course, the proceedings prior to the forfeiture must have been regular in 
 all respects. 
 
550 EOEFEITUEES. 
 
 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 former 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, or person in 
 captivity, the owner or owners thereof shall have the 
 right to redeem the same," etc. In Reynolds v. Leiper's 
 heirsf 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 forfeited in 1826. Leiper 
 died in May, 1831, leaving the applicants his heirs, 
 all of whom were minors ; the land was sold Decem- 
 ber 12, 1831, for the taxes due thereon for the years 
 1826, 1827, 1828, 1829, 1830 and 1831. The redemp- 
 tion was resisted upon the ground, that as the forfeit- 
 ure happened during the life-time of the ancestor, no 
 such estate descended to the heirs, as would authorize 
 them to redeem. The Common Pleas ordered a re- 
 demption, and the order was affirmed by the Supreme 
 Court. In Modgdon v. Wright^ 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 forfeiture and the day of 
 the sale, the owner paid several assessments of State 
 
 1 Hannd v. Smith, 15 Ohio E. 134. 
 
 2 6 & 7 Ohio R. 250. 8 36 Maine E. 326. 
 
EOBFEITHRES. 
 
 551 
 
 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 with- 
 out. Such a course of proceedings might, perhaps, 
 be properly regarded as a pledge, that the owners 
 would be permitted to redeem. By 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 forfeiture, further than it has mani- 
 fested an intention to do so by its enactments." 
 
 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 /o?/(?i'^ to the person or persons in remainder or 
 reversion, all the estate which he or she so neglecting 
 or refusing, may have in said lands," etc. In the 
 Lessee of McMillan v. Rollins} which was an action of 
 ejectment by the reversioner, to enforce a forfeiture 
 under this statute, it appeared upon the trial, that 
 
 1 5 Hammond R. 28. 
 
552 FORPEITUKES. 
 
 William McMillan, the owner, made a will devising 
 the lands to his wife for life, with remainder to the 
 lessors of the plaintiff, and died. The wife on Feb- 
 ruary 29, 1825, made a lease to the defendant of the 
 premises thus devised to her, and which were the 
 same in controversy, for and during the term of her 
 natural hfe, upon certain trusts for herself and minor 
 children, and thereupon the defendant entered into 
 possession. Neither the tenant for life, or 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 WiUiam 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 28, 
 1829, the defendant deposited with the county auditor 
 money to redeem from the tax sale. Judgment was 
 rendered 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 in- 
 curred. 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 enforce 
 the forfeiture by ejectment. 
 
EFFECT OF A KEPEALING STATUTE. 
 
 553 
 
 CHAPTER XXXIII. 
 
 OF THE EFFECT OF THE REPEAL OF 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, not- 
 withstanding 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 suflBcient 
 to accomplish that intention; and in the latter 
 instance, where a right has become vested, it is not 
 within the scope of legislative power to divest it by 
 a repeal of the statute under which it was acquired.^ 
 The general rule is illustrated by the case of Mc Quil- 
 Jcen 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 September 1, 1824, after 
 
 1 DwarriB, 676 ; Smith's Com. 890. 2 Smith's Com., Chap. 19. 
 
 3 8 Blackf. E. 581. 
 
 70 
 
554 BFrECT OS A EEPEALING STATUTE. 
 
 the assessment of the tax, but before the sale took 
 place. The repealing law contained this clause : 
 " saving, however, any act done, etc., previous to the 
 passage of this act, etc." The court held the sale 
 void, saying : " The road law being thus repealed, 
 the case is without difficulty. The law is well settled, 
 that when a 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 collection, was absolutely 
 repealed, at least two months before the sale in ques- 
 tion 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 Illinois 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 enacted, requiring merchants to obtain a 
 license to sell goods, are hereby repealed : Provided, 
 that the repeal of said acts shall in no ivay affect or impair 
 any right or interest acquired under said acts!' An eject- 
 ment cause came before the Circuit 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 " cfa'w «Hrf 
 
 1 Ante, pp. 224—234. ^ Session Laws 1839, p. 266. 
 
EFEECT OF A BEPEALING STATUTE. 
 
 555 
 
 color of title made in good faith" upon a deed made in 
 pursuance of a sale for taxes, held after the repeal- 
 ing statute above recited took effect, and which sale 
 was conducted in pursuance 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 belonging to the public ; that the tax deed was 
 void upon its face, when tested by the law ; and that 
 the defendant had no color and claim of title within 
 the meaning of the statute of limitations. 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 pre- 
 sumed that the decisions in both cases were satisfactory 
 to the bar. Certain it is, they were correct upon gen- 
 eral principles. All inchoate rights derived under a 
 statute, are lost by its repeal, unless expressly saved. 
 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 remarks that 
 " the law itself may be disannulled by the author, 
 
 ^Butler V. Palmer, 1 Hill E. 324. 
 
556 EFFECT OF A REPEALING STATUTE. 
 
 but the rights acquired under it must still remain." 
 This principle of natural justice has become one of 
 the axioms of constitutional law in this country. No 
 vested right 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 considered by the court, in Bruce v. Schuyler^ 
 where the defendant 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 certifi- 
 cate 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 depriving 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, unless the opposi- 
 tion 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 constitutional competence of the 
 legislature to abolish the power of the auditor to 
 
 1 Fletcher v. Peck, 6 Cranch R. 87 ; Benson v. Mayor of New York, 10 Bar- 
 bour S. C. R. 233 ; Plymouth V. Jackson, 15 Pa. State E. 44 ; Butler v. Cliariton 
 County Court, 13 Missouri E. 112 ; Wright v. Marsh, 2 G. Green E. 94. 
 
 ^ 4 Gilm. R. 221, 
 
BITBCT OF A EBPEALING STATUTE. 
 
 557 
 
 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, etc. The State constitu- 
 tion 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 by the auditor of the land in question a contract 
 within the meaning of the constitution? That, I 
 think, will be manifest by adverting to the law au- 
 thorizing the sale, and the action under it. In order 
 to collect its revenue, 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 purchase, 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 
 ofl&cer 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 transaction. All argument, there- 
 fore, to prove it a contract would be superfluous, and 
 
558 EFFECT 01? A REPEALING STATUTE. 
 
 that it is such an one as is contemplated by the con- 
 stitution, can, I think, be made equally clear, and if 
 so, it follows, that the legislature could not constitu- 
 tionally destroy the authority of that officer to convey 
 the land according to the terms of sale, by a repeal of 
 the law requiring the performance of that duty. 
 Such an act would impair the obligation of the con- 
 tract, and would consequently be void. By a series 
 of adjudications, the conditional 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 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 performance, the conclusion is the same. Every 
 conceivable change of a contract impairs its validity, 
 and renders it null and void. This constitutional 
 provision extends to and embraces both contracts 
 executed and executory, and as well those entered 
 into by a State, as those made by individuals. And 
 in a leading case upon this subject, it has been held 
 by the Supreme Court of the United States, that a 
 legislative grant is a contract within the meaning of 
 the constitution, and that a subsequent act of the 
 legislature 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 
 
EFFECT OP A REPBALINa STATUTE. 
 
 569 
 
 operates only upon the remedy of the purchaser, 
 and not upon the obhgation 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 prescribed 
 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 pur- 
 chase of the land, and from its importance as con- 
 firming and evidencing title, it cannot 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 by the counsel 
 for the defendant, to justify the repeal insisted upon, 
 are such as affect vested rights, which are not secured 
 by any constitutional provision, by reason of their not 
 vesting under a contract, or such as take away a 
 peculiar privilege, conferred by a prior act, or the 
 repeal of a penal or criminal law, by which the juris- 
 diction of the court is divested, before any right under 
 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 power is allowed, yet, 
 even with regard to them, it is not without its limit. 
 
560 EFFECT OF A REPEALING STATUTE. 
 
 The obligation of a contract is that which obliges a 
 party to perform his contract, or repair the injmy 
 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 one mode 
 of proceeding for another, they must afford a reason- 
 able 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 qixestion, it is equally 
 obnoxious to the constitutional prohibition, whether 
 it is considered as operating upon the obligation, or 
 the remedy upon the contract, 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 constitution 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 depends upon the will of 
 the legislature. 'When,' says Judge Story, 'we speak 
 of the obligation of a contract, we include, in the 
 
ErEECT OF A KEPEALINQ STATUTE. 561 
 
 idea, some known means, acknowledged by the mu- 
 nicipal law, to enforce it.' It is also a well settled 
 principle, that the repeal of a law in which a con- 
 tract consists, is an infringement of the constitution. 
 A legislative grant is a contract 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 
 contract. Whatever diversity of opinion, therefore, 
 there may be, as to how far the existing law enters 
 into, and forms a part of, a contract between indi- 
 viduals, 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 ofl&cers 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 subsequent 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 vinder the 
 prior law, such a construction cannot be tolerated.^ 
 
 1 Garrat v. Wiggins, 1 Scam. E. 335. 
 
 71 
 
562 EFFECT OF A KEPEALINQ STATUTE. 
 
 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.^ 
 
 1 Brown v. Veazie, 25 Maine E. 359 ; Eldridge v. Tihhitts, 5 Lou. An. B. 380. 
 
JUKISDICTION AND KEMEDIES. 
 
 663 
 
 CHAPTEE XXXIV. 
 
 OP fHE JURISDICTION OF THE COURTS IN CAUSES INVOLV- 
 ING THE VALIDITY OP TAX SALES, AND OF THE REMEDIES 
 OP PARTIES INTERESTED THEREm. 
 
 Ordinarily, the validity of a tax, and the regularity 
 of the proceedings to enforce its collection, are ques- 
 tions properly cognizable in a court of law. But a 
 court of equity undoubtedly possesses ample author- 
 ity 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. 
 The officer has no rigM to proceed in such a case, or in such 
 a manner ; and the execution of the power under such 
 circumstances, is calculated to cast a cloud upon the 
 title of the owner, and to render it unmarkdaUe, in 
 
 1 2 Watennan's Eden on Injunctions, 339, note.. 
 
564 JURISDICTION AND REMEDIES. 
 
 the equitable sense of that term. And the effect 
 may be, that 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 would indemnify 
 him for the threatened wrong to his title. Should a 
 sale and conveyance take place, under the proceed- 
 ings 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 
 inheritance, 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 circumstances, 
 a court of equity would grant relief upon the familiar 
 principles of action in that court. The New York 
 authorities seem to be somewhat vacillating upon 
 this point. In one case, it is said, that if the proceed- 
 ings 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 erroneous, 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, and one rendered so by extrimic evidence ; e. g., 
 where the land was not subject to taxation, where 
 the taxes had been paid, or the sale redeemed from. 
 
 ^Livingston v. HoUenbeck, 4 Barb. S. C. R. 16; Van Ransdkarv. Kidd, 
 Ibid. 17. 29 Paige C. E. 388. 
 
JURISDICTION AND BEMEDIES. 
 
 565 
 
 In other cases, the courts of that State 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 
 in the former case, the defect will remain apparent 
 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 respect- 
 able, in point of legal attainment, it may be remarked 
 that their adjudications cannot be supported upon 
 principle, and are clearly against the current of au- 
 thorities. Preventive justice, administered through 
 the restraining power of a court of equity, is one of 
 the most valuable features in our system of jurispru- 
 dence. The application of this principle, to proceed- 
 ings to enforce the collection of a tax, and to tax 
 sales, is not difficult. Where there are no equitable 
 circumstances to distinguish the case from an ordinary 
 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 attending the 
 trespass, which distinguishes it from a common tres- 
 pass, and which appeals to the conscience of the 
 chancellor for the relief prayed. Thus, in the case 
 
 1 Van Sansdlear v. Kidd, 4 Barb. S. C. K. 17 ; Thompson v. Eblxtts, Hopkins 
 C. E. 272 ; Mohaiah Sj- Hudson R. R. Co. y. Clute, 4 Paige C. E. 384. 
 
566 JUKISDICTION AND KEMEDIES. 
 
 of Osborne v. Bank U. 8.^ 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 tax- 
 ing 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 fiscal agent 
 of the government, and also would have the effect of 
 disordering the national finances. On the other hand, 
 when a tax — simply unconstitutional — unaccompa- 
 nied by any circumstances of peculiar injury, is about 
 to be enforced by a distress and sale of personal prop- 
 erty, in the ordinary way, and for which wrong the 
 complainant had an adequate remedy at law, cannot 
 be enjoined by a court of equity.^ These cases fully 
 illustrate the extent of the doctrine contended for. 
 Courts of equity are invariably in the habit of grant- 
 ing injunctions to stay waste, spoil and destruction, 
 and other injuries to the inheritance, attended by cir- 
 cumstances of pecviliar hardship; or where, according 
 to the analogies of equity jurisprudence, relief to the 
 injured party would be proper. They have also inter- 
 fered to prevent sales of land, under a claim of author- 
 ity 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 
 appointment, indeed, imder all classes of powers 
 arising ex coittractu — in such cases, it has never been 
 inquired whether the title to be made, under such a 
 power, will or will not be indisputable. The fact that 
 the proceeding takes place under a statute authority, 
 cannot affect the application of the general rule. It 
 
 1 9 Wheaton R. 773 ; 5 Cond. R. 771. 
 
 2 McCoy V. Chillicothe, 3 Ohio R. 370. 
 
JURISDICTION AND KEMEDIES. 567 
 
 sounds ill, in the mouth of him who attempts to sell 
 another's land, under color of law, to say that his 
 sale will be a nullity, and therefore cannot injure the 
 complainant. The rigJii 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 pro- 
 ceeding, 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 reassess 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 harrass 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 preventing 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 Besides, no chancellor would hesitate 
 to exercise this power, where the law declares the 
 tax deed to be conclusive, or Qy en prima facie evidence 
 of title in the purchaser. The best reasoned case in 
 support of this doctrine is Burnett v. Cincinnati^ which 
 was a bill in chancery for an injunction, to enjoin a 
 sale by the marshal of the city, of real estate owned 
 
 1 3 Ham. K. 73 ; S. C, 1-4 Ohio Cond. R. 476. 
 
568 JURISDICTION AND EEMEDIES. 
 
 and possessed by the complainant, for a city assessment 
 to improve the streets. The bill set out the title and 
 2Jossession of the complainant, and the nature and char- 
 acter of the assessment made by the city council, alleg- 
 ing that it had not been made in accordance with the 
 charter and ordinances, but was illegal and voidj 
 stating particularly wherein the illegality of the 
 proceeding consisted. The prayer of the bill was to 
 stay the sale until the matter should be heard and 
 adjudged of in equity." The defendants demurred, 
 and the bill was dismissed j»?-o/or?wa. The defendant 
 appealed to the supreme court, where the demurrer 
 was overruled, 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 complain- 
 ant, 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 position, it results that public officers, having 
 authority to operate upon the property of their 
 fellow citizens, must be permitted to proceed, how- 
 ever illegal, unjust, or oppressive their conduct may 
 be. It follows, too, that the property of a citizen 
 may be exposed to sale, under circumstances that 
 render it impossible 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 what- 
 ever. If such be the rule of the law, we must so 
 administer it. But nothing short of a series of 
 
JUEISDICTION AND EEMBDIBS. 569 
 
 repeated adjudications would be sufficient to demon- 
 strate 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 individuals 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 contradictions in the 
 cases, are occasioned by the dicta of the judges, and 
 not by any confliction in the principle decided. In 
 regard to real estate, it is well established that 
 chancery may interpose, by injunction, to prevent 
 what is considered as destruction. But destruction, 
 in the sense used, does not mean annihilation. It 
 means no more than that injury which greatly im- 
 pairs 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 
 untU removed, the property might be valueless to 
 the owner ; subject, too, during the period of litiga- 
 tion, 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 posses- 
 sion; but if title does pass, he is remediless altogether. 
 A mode, therefore, of deciding the question, before 
 any right is effected, is safest for all parties. It was 
 upon this ground the court entertained jurisdiction 
 72 
 
570 JHEISDICTION AND EEMEDIES. 
 
 in the case of The Bank 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 under 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 reve- 
 nue, furnish no reason why the court should not 
 interpose. The application for an injunction 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 the 
 Bank United States v. Osliorn and others^ is a case 
 directly in point of enjoining the collection of a tax. 
 That case was most earnestly litigated, 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 demur- 
 rer, and send back the cause, at the suggestion of the 
 defendants, for further proceedings." The statute of 
 Ohio alluded to in the foregoing opinion, provided 
 that " any person having both the legal title to, and 
 
 1 9 Whea. E. 738. 
 
JURISDICTION AND KBMEDIES. 
 
 571 
 
 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 estabhshed doctrine 
 of the Ohio courts, that this statute is merely declar- 
 atory 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 interest.-^ 
 The collector is a proper and necessary party to such 
 a bill.^ 
 
 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, canceling the tax deed, and 
 perpetually enjoining the purchaser and those claim- 
 ing under' him, from asserting title, making an entry 
 upon the land, or otherwise disturbing the title or 
 possession of the complainant. The case of Yancey 
 et al. V. Hopldnsf was a bill in chancery, filed by 
 Yancey, to set aside the sale and conveyance of a 
 parcel of land, sold on the 19th day of September, 178 6, 
 for the taxes of 1784-5, and purchased by Yancey, 
 the deputy sheriff who made the sale, and was one of 
 the defendants, and by him conveyed to Harris, the 
 other defendant. The chancellor in the court below 
 set aside the sale, and decreed the cancellation of the 
 tax deed, whereupon the defendants appealed. The 
 complainant, an infant, was the owner of the estate 
 at the time of the sale, and resided in a foreign 
 county. Harris was in possession of the land at the 
 
 1 Anderson v. State of Mississippi, 23 Miss. E. 459 ; Lyon v. Hunt, 11 Alabama 
 E. 295 ; Dyery. Branch Bank of Mobile, 14 Ibid. 622. 
 " Anderson v. State of Mississippi, 23 Miss. B. 459. 
 n Munf. R. 419— 437. 
 
572 JUKISDICTION AND EJiMBDIES. 
 
 time of the sale, under the dower claim of Elizabeth 
 Hopkins, 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 sufficient 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 by the appellant's 
 counsel, that the complainant had a plain remedy 
 at law, by ejectment to recover the premises. 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 defend- 
 ants 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 et al. v. 
 
JURISDICTION AND BBMEDIES. 
 
 573 
 
 Littk et at} a tax sale and deed were set aside because 
 of a fraud among the bidders at the sale. In Roland 
 V. Dobjf the sale and deed were set aside because the 
 taxes had been paid previous to the sale. And in 
 Bacon v. Gonnf a tax deed was ordered to be canceled 
 where the owner had tendered the money to redeem, 
 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 effected 
 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 lan- 
 guage of Judge Pope, a tax title is one of strict right, 
 where a court would not grant a new trial, or a chan- 
 cellor enforce such an unequal bargain.* And in 
 Douglass v. Dangerfield^ where the tax purchaser was 
 complainant, Judge Hitchcock, in delivering the 
 opinion said : " This is a case of considerable import- 
 ance, whether we consider the amount of property 
 in contest, or the principles involved. The amount 
 of property exceeds 1300 acres, which the complain- 
 ant claims he is entitled to, for which he has paid, or 
 rather, originally paid |17,53i. Having paid this 
 much for the land, he now attempts, in a court of 
 chancery, to force the legal title from the defendants. 
 If there 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 
 
 1 2 Ham. E. 504 ; 1-4 Ohio Cond. E. 445. = 1 Harrington CIi. E. 3. 
 
 a 1 S. & M. Ch. R. 348. * Mayhem v. Davis, 4 McLean E. 213. 
 
 610 Ohio E. 152. 
 
574 JUEISDICTION AND REMEDIES. 
 
 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 principles of 
 equity, would hesitate a moment in dismissing the 
 bill on the ground of inadequacy of consideration. And, 
 upon similar principles, a court of equity would not 
 interfere to relieve a purchaser at a tax sale, as 
 between him and the owner of the land, except when 
 required to do it in consequence of positive law.^' 
 
 It may therefore be laid down, as a general rule, 
 that a court of equity will give a thorough and close 
 scrutiny into a title derived under a tax sale, when- 
 ever it comes before that court.^ The facts of the 
 latter 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 Thus, in Dudley et al. v. Little et al.^ 
 where a sale was set aside 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. It is also held, that creditors who 
 have a lien 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.* 
 
 1 Douglass Y. Dangerfield, 10 Ohio E. 152 ; Yancet/y. Hopkins, I Munf. R.419; 
 Blaheney v. Ferguson, 3 Eng. Ai-k. E. 277. 
 
 2 Chapter 35. " 2 Hammond E. 504. 
 
 * Gillettv. Webster, 15 Ohio E. 623; O'Brien v. Coulter, 2 Blackf. R. 421 ; 
 Branson t. Yanceyet al., 1 Dev. Eq. E. 77. 
 
JUEISDICTION AND REMEDIES. 575 
 
 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 made the tax a lien 
 upon the land in favor of the purchaser, the bill of 
 the creditor was dismissed because he failed to prove 
 a tender of the money, due under this statute, to the 
 purchaser. It may be added, that a redemption may 
 be enforced by mandamus, where the relator has a 
 legal right to redeem and has complied with the 
 requisitions of the statute. Thus much for the 
 remedies of the owner and his creditors. 
 
 Where the purchaser has acquired a right at a tax 
 sale, he may enforce it by such remedies as are usually 
 adopted in analogous cases. Thus, if the officer re- 
 fuses to execute and deliver to him a certificate of 
 pin-chase, or deed of conveyance, when he has become 
 entitled to either by a fair and regular purchase, he 
 may by mandamus compel the execution of them,-^ 
 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 hold- 
 er of the legal title as a trustee, compel a conveyance 
 of the latter title. The question will be examined in 
 a subsequent part of this work.^ One thing is evident, 
 however, that the purchaser who seeks relief under 
 such circumstances must aver in his bill, and prove 
 
 1 Maxcr/ Y. Clabaugh, 1 Gilm. R. 26 ; People t. Mayor, etc., 10 Wend. E. 395 ; 
 Ante, 351, 440. 
 
 2 Ante, 440-1 ; Bank of Utica y. J/ersereau, 3 Barb. C. E. 528. 
 
 8 Rennick et al. v. Wallace, 8 Ohio E. 540 ; Stuart v. Parish, 6 & 7 Ibid. 
 204; Wallace v. Seymour, Ibid. 313; Douglass v. Damjerfidd, 10 Ibid. 152; 
 Gwynnev. Neiswanger, 15 Ibid. 367 ; S. C, 18 Ibid. 400 ; S. C, 20 Ibid. 556. 
 
576 JUEISDICIION ANB REMEDIES. 
 
 upon the hearing, a strict compliance by the officers 
 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 his 
 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, subject to occasional 
 exceptions, that the remedial power of a court of equity 
 does not extend to the supplying of any circumstance, 
 for the want of which the legislature has expressly, 
 or by implication, declared the instrument or act voidj 
 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, 
 
 1 Douglass t. Dangei'Jield, 10 Ohio B. 152. 
 
 '•^ Gait v. Galloway, i Peters R. 339 ; Hollingsworth v. Barbour, Ibid. 494 ; 
 McArihur v. Nevil, 3 Oliio E. 178 ; Taylor v. Meyers, 7 Whea. E. 23 ; Wallace 
 V. Porter, 14 Ohio E. 277 ; Jackson y. Clark, 1 Pet. E. 629. 
 
 8 Hemphill v. Holt, 3 Hanji. E. 232 ; Douglass t. Dangei-Jield, 10 Ohio E. 152 ; 
 WaUacc v. Seymour, 6 & 7 Ibid. 313. 
 
 4 KdhjY. Hunter, 12 Ohio E. 216. 
 
 5 Hannel v. Smith, 15 Ohio E. 134. 
 
JUEISDICTION AND EEMEDIES. 577 
 
 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 formahties required by 
 the statute to attend the execution of the power, they 
 must be punctiHously compHed 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 policy of the law. 
 
 It may be laid down as a general rule, subject to 
 no exceptions, 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, will not be made 
 available 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 re- 
 covery 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 
 execution of the will 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 the execution of it.^ These two cases are the 
 
 1 YouTigv. Keogh, 11 Illinois R. 642. ^ Youny t. Dowling, 15 IHinois R. 481. 
 73 
 
578 JURISDICTION AND KBMEDIES. 
 
 strongest illustrations of the rule which can be found 
 in the books. The statute of Illinois in relation to 
 guardian sales made under orders of the Circuit Court, 
 for the maintenance and education 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 
 reqmrement was omitted in Young v. Keogh, which 
 was an action of ejectment, and the sale was held 
 void. Afterwards, Dowhng, who was a purchaser 
 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 equity, 
 than at law. Such was the conclusion in Young v. 
 DotvUng, 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.^ 
 
 1 Caton, J. -. " In this case a very important principle is involved, whicli 
 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 guardian's 
 sale made in 1846, under an order of the cu'cuit court. The title in the case of 
 Young v. Keogh, (11 111. 642,) was precisely liie 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 that 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 pro- 
 ceedings were regular except that the guardian never made a report of his pro- 
 ceedings under the order of sale, as that order had directed and the statute re- 
 quired. 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 imequivocal, 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 
 
JIJEISDICTION AND EEMEDIES. 
 
 579 
 
 The same principle was applied by Judge Story, in 
 Bright v. Boyd} to an administrator's sale, which was 
 void at law for non-conformity with the statute. 
 
 recovered a judgment in ejectment against the complainant, thus determining 
 in conformity to the decision of this comt 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. 
 The bill sets 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 guardian 
 for the premises ; and that, believing 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 procui'C 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 wliich, 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 exercise 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 rale 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 dis- 
 tinguish 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 requu-ed 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 shall 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 exercise of the power, and this last act, it has said, should 
 1 1 Story R. 478. 
 
580 JUEISDICTION AND KEMEDIES. 
 
 The cases where a power of appointment, or of revo- 
 cation, which arise by construction under the statute 
 
 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, 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 Talid execution of the power confen'ed 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 guardian, 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 previ- 
 ous order of the coui't, 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 substance, 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 essen- 
 tial 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 sufficient 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 the requnements 
 of the statute, it may with another, and thus, in its unlimited discretion, it 
 may fritter away the whole statute. It is seriously claimed, that because the 
 purchaser purchased in good faith, and paid the fuU 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 full value, without an order of the comt, to 
 a pui-chaser, 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 conveyance to the pm-chaser, and then the 
 entire statute would be gone. But the trath is, the purchaser at these statutory 
 sales gets no imperfect equitable title which may be perfected in chanceiy ; he 
 
JUKISDICTION AND EEMEDIES. 581 
 
 of uses, where the power is required by the donor 
 to be executed through the instrumentaUty of a will, 
 
 gets the whole title which the infant had, or he gets no title whatever. Undoubt- 
 edly, 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 regulai-ly 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 
 he supposes. The case does not show that the guardian appropriated the money 
 which he received of the complainant to the support and education of the infants, 
 or invested it in other estate for their benefit, or applied it in any way to their use. 
 It simply shows tha,t ho received it as guardian. Had the money been invested 
 in other lands for the infants, it may be 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 have known, when he 
 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 1 The complainant was in a 
 position to compel 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 hands, and 
 incapable of thinking or knowing or doing any thing aflFecting then- 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 thkd 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 legisla- 
 ture to thi-ow every cheek 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 proceeding, and if all 
 was found right and fan-, to approve them, imtil 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 laud, 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 pro- 
 ceeding was either conformable 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 
 
582 JURISDICTION AND KBMBDIES. 
 
 and is executed by deed, in which case equity will 
 aid the defective execution of it, is not an exception 
 io the general rule ; though the will is not executed 
 as required by the statute of wills, equity relieves 
 because the deed takes effect under the instrument 
 
 says the title might be transfen'ed in a particular way, and if done in any other 
 way, the statute gives it no sanction, and it 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 coiui 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 execution. 
 
 We are not without authority directly on this point. The case of Bright v. 
 Boyd, (1 Story R. 478,) is almost precisely like this in aU its essential paiticu- 
 lars. There an administrator had, in pm-suance of a statute, been authorized 
 by the 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, etc., and the purchasers 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 ad- 
 verting to the decision at law, said : ' It is now argued,_ that however coiTCCt 
 this doctrine may be at law, yet in a court of equity the omission to give the 
 bond witliin 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 tliink so. The mistake was a volimtary 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 defect- 
 ive 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 fonnalities required thereby for its 
 due execution, for otherwise the whole policy of the legislative enactments 
 might be overturned. There may, perhaps, bo exceptions to this rule ; but if 
 there bo, the present case does not present any ch-cumstances which ought to 
 take it out of the general rule. Therefore, it seems to us, that the non-compli- 
 ance with the 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. 583 
 
 which creates the power, and not under the will. 
 The maxim being that every instrument made in 
 execution of the power, refers to the instrument 
 creating the power. The principle that equity must 
 follow the law, and cannot supply any defect which 
 would render a sale and conveyance void at law, for 
 non-conformity with the statute, is pecuharly appli- 
 cable to tax sales and conveyances, because of the 
 fact, that they are regarded as titles stricti juris, de- 
 rived under a naked statute authority. No instance 
 is known of an attempt to make a tax title good by 
 an appeal to a court of equity. If the reader desires 
 to pursue this question further, he is referred to the 
 authorities cited in the margin.-^ 
 
 1 1 Story's Eq., Sec. 96, 177, 178 ; Fonb. Eq. B. 1, C. 1, Sec. 7 ; Earl of 
 Darlington v. Pvltney, Cowper K. 267. 
 
684 HOW TO PLEAD A TAX TITLE. 
 
 CHAPTER XXXV. 
 
 OF THE MODE OP 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 defense, 
 or nature of the controversy in which the question 
 arises. In real actions, and actions of ejectment, 
 brought by the party who claims the land under such 
 a title, and in trespass quare clausimi /regit, and actions 
 upon the case in tort, instituted by him for an injury 
 to the possession or inheritance, the general allegation of 
 title will be sufficient, as in ordinary cases. In trespass 
 and cases prosecuted against him by the former owner, 
 his title may be given in evidence under the general 
 issue. 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 entrusted the power of 
 making it ; where he relies upon his title as a defense 
 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 defense upon the existence of an outstand- 
 ing tax title in a third person, the title must be specially 
 alleged in the pleading of the party. This proposition 
 will not be denied. But how shall this special alle- 
 gation be framed ? What particularity and certainty 
 
HOW TO PLEAD A TAX TITLE. 585 
 
 is required by the rules of pleading in such cases ? 
 Is the general allegation that the proceedings were 
 " in due form of law," " in conformity with all the pro- 
 visions of the statute in such case made and provided," 
 " regular," or " %«/," 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 
 proceedings were in conformity with the require- 
 ments of law ? Pleading is defined to be, " the state- 
 ment of \h.e facts which constitute a cause of action or 
 ground of defense." Now, what facts constitute the 
 cause of action or ground of defense, where a tax 
 title is relied upon ? Clearly, all of those which the 
 law has declared shall exist, in order to consummate a 
 complete and perfect title. Each independent act of 
 the ofiicers who have anything to do with the pro- 
 ceedings, from the listing of the land for taxation, 
 until the title is consummated 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 defense depends, shall be stated. The 
 exceptions 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 by 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 jurisdiction, and the course of pro- 
 ceedings therein ; but they will not take notice of 
 74 
 
586 HOW TO PLEAD A TAX TITLE. 
 
 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 jurisdic- 
 tion, and that their proceedings were regular ; nor 
 will the court take judicial notice of the authority 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 pre- 
 sumption in behalf of an officer entrusted 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 presuming that, as a public officer, he has 
 performed his duty by pursuing his authority ; there- 
 fore, 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 depends, lie 
 more properly within the knowledge of the former 
 owner, for we have seen that these facts should be 
 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 ; there- 
 fore, all 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," 
 etc., is a mere legal conclusion, without giving the 
 facts from which that conclusion is drawn. Therefore, 
 in all such cases, the pleader must show, with reason- 
 able certainty, the particular facts upon which the 
 regularity or legality of the proceedings depend, 
 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 
 
HOW TO PLEAD A TAX TITLE. 587 
 
 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 arbi- 
 trators " duly made their atvard." 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 by virtue of 
 a " lawful execution " he seized the goods, etc., is insuffi- 
 cient, 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. So, where an officer is sued for 
 false imprisonment, it is not sufficient in his justifica- 
 tion, to state that he arrested and imprisoned the 
 plaintiff under a " kffal warrant" etc. So, where the 
 proceedings of an inferior court of limited jurisdic- 
 tion, are relied upon as a cause of action or ground 
 of defense, it is not sufficient for the pleader to allege, 
 that the proceedings were had before "a court of 
 competent jurisdiction and authority" but he 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, etc. 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 to Lord Coke's 
 rule, that "circumstances implied by law, need not he 
 stated." That rule simply amounts to this : In plead- 
 ing 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 deHvered, there- 
 fore if the pleader alleges that " the defendant, on, 
 etc., at, etc., made his certain deed of that date, etc.," 
 
588 HOW TO PLEAD A TAX TITLE. 
 
 the law implies that it was in writing, sealed and 
 delivered. If a feoffinent be pleaded, livery of seizin 
 need not be alleged, for it is implied in the word 
 " enfeoff edr 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 assign- 
 ment. There is no analogy between this class of cases 
 and tax titles. If a tax deed was, by law, conclusive, 
 or even prima fade 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. But it has 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 compliance. The plea of per- 
 formance of a condition precedent, is somewhat 
 analogous to a pleading which sets forth a tax sale 
 as a cause of action or ground of defense ; 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 performance 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 
 
HOW TO PLEAD A TAX TITLE. 589 
 
 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, set forth all 
 of the facts which the statute has made essential to 
 itsvahdity. The statute of 27 Hen. VHI. c. 16, 
 declares, that bargains and sales 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, etc. It has been held that in plead- 
 ing a bargain and sale under this statute, the time 
 when, and court where the enrollment 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 an use. So, 
 in pleading a devise of land, it is necessary to allege 
 the seizin of the devisor, and that he, being seized 
 on, etc., at, etc., made and published his last wiU and 
 testament, in ivriting, bearing date, etc., by him signed 
 and attested and subscribed, in his presence, by three 
 credible witnesses, etc., 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 specially allege all of the facts neces- 
 sary 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 avihorUy, he must not only allege 
 the authority, but set forth the facts which show that 
 
590 HOW TO PLEAD A TAX TITLE. 
 
 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 executed in 
 pursuance of it, that the court may see upon the 
 face of the plea, that the terms of the power have 
 been pursued. 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 life-time 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 
 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 seizin, but the death of the ancestor 
 and his own pedigree. One claiming title by succes- 
 sion must specially allege the existence of all the 
 facts necessary to establish the validity of his title as 
 successor, etc. So one claiming a freehold by marriage 
 with the person seized, must allege the marriage. In 
 pleading a dower encumbrance, the seizin 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 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. 
 
HOW TO PLEAD A TAX TITLE. 591 
 
 place and manner of making them, the judgment of 
 the court, and all of the proceedings 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 inheritance ;" 
 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 
 consideration. 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 particu- 
 larity 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 warrant to collect had been duly delivered to the 
 collector ; 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 collector ; that the tax remained due and 
 
592 HOW TO PLEAD A TAX TITLE. 
 
 unpaid ; that personal notice had been given to the 
 dehnquent, where the law requires it; that a judgment 
 had been rendered by a court of competent jurisdic- 
 tion, against the land, where the law requires a 
 judgment; that a valid precept had issued upon such 
 judgment, and was duly deliveredto the officer appoint- 
 ed 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, etc., where such recording is 
 requisite ; that due notice to redeem had been given 
 the owner; that the officers charged with the perform- 
 ance of the duty have duly returned the proceedings 
 to the proper office, and that they were filed or re- 
 corded as required by law ; that the time limited for 
 redemption had expired ; and that the officer had 
 executed and delivered to the purchaser a deed in 
 due form, etc., which deed had been duly recorded, etc. 
 Such strictness is not only in conformity with the 
 principles of pleading and the precedents in analogous 
 cases, but is supported by express authority. 
 
 In the case of Blalteney v. Ferguson} the bill alleged^ 
 that on November 5, 1827, the sheriff of Pulaski 
 County " advertised and sold for taxes, in due form of laiv, 
 according to the form of the statute in such case made and 
 provided'; the S. W. \ of Sec. 17, T. 4., N. R 9 W., etc., 
 that one Sampson Gray then and there became the 
 purchaser thereof, and received from such sheriff a 
 
 iSEng. E. 277. 
 
HOW TO PLEAD A TAX TITLE. 593 
 
 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 his interest was 
 sold to Benjamin Blakeney, by the sheriff of Pulaski, 
 under an execution against said Moses, and that 
 Blakeney was now seized of said interest by virtue 
 of said 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, hy the 
 sheriff of Pulaski, to Gray's heirs, in pursuance of the 
 sale of Nov. 5, 1827, a specific performance, 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 demur- 
 rer for want of equity, which was sustained by the 
 court, upon the ground that the general averment that 
 the tax sale was in due form, etc., was insufScient. The 
 court say : " The rule of law that prevailed at the 
 time of the alleged sale, (alluding to the common law 
 as contradistinguished from the statute then in force 
 which made the deed conclusive evidence,) required 
 75 
 
594 HOW TO PLEAD A TAX TITLE. 
 
 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 assess- 
 ment 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 specially 
 every fact essential to the consummation of the title, 
 and that Jiaving failed to do so, they could not he permitted 
 to support them hy proof." The same doctrine was 
 tacitly maintained in Stead's executors v. Course? These 
 authorities are directly in point. 
 
 In Furness v. Williams^ which was assumpsit by the 
 assignee of a note against the maker, the defense 
 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 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," etc. 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 defense relied upon is a breach of the 
 
 1 4 Crancli E. 403. ^ l\'D\.'R.22^. 
 
HOW TO PLEAD A TAX TITLE. 695 
 
 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 cove- 
 nants. On every principle of correct pleading, he is bound 
 to set forth the proceedings iinder ivhich the lot tms sold, so 
 that the court can see that the covenant has been broken; on- 
 he must make the general averment that the sale vras 
 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 regu- 
 larity 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 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 was evi- 
 dently 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 court or counsel. 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 prima 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 the expense and 
 delay of a trial by jury ; and if the facts are not 
 
596 HOW TO PLEAD A TAX TITLE. 
 
 truly stated in the pleading, the existence of any 
 particular fact may be denied by the opposite pleader, 
 and thus the issue in fact to be tried will be narrowed 
 down to a single point. Suppose, for example, in the 
 Illinois case, the land had not been advertised for 
 sale, in the time and manner required by law, and 
 the pleader, in setting forth the proceedings, omits 
 the averment that it was so advertised ; on demurrer 
 to the plea, the question of law is presented, whether 
 an advertisement is a prerequisite which must be 
 complied with, and the whole case must turn upon 
 this point. On the other hand, suppose no advertise- 
 ment 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 advertisement, but not 
 in the time or manner required by law, a special repli- 
 cation and demurrer thereto may present the question 
 of law to the court, or a general traverse, the question 
 of fact to a jury. In every view, therefore, the 
 special mode of allegation is preferable. 
 
KULES OF EVIDENCE. 597 
 
 CHAPTER XXXVI. 
 
 or THE RULES OP EVIDENCE RELATIVE TO MAINTENANCE AND 
 OVERTHROW OP A TAX TITLE. 
 
 Where the statute, under which the title originated, 
 or vrhich is in force at the time of the trial, is silent 
 as to the mode of proving or disproving any fact 
 involved in the contest, 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 
 transaction, 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 pre- 
 sumption arises, that the failure to produce it is found- 
 ed upon the knowledge of the party, that its introduc- 
 tion would defeat or weaken his claim of right. The 
 rule is therefore essential to the pure administration 
 of justice. 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 
 suhstUutionary in its nature, so long as the primary 
 
598 RULES OF EVIDENCE. 
 
 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 existence 
 of more original and reliable sources of information. 
 Because the better evidence affords the greatest 
 certainty of the fact in question, and removes all 
 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 de- 
 struction, the next best evidence must be resorted to, 
 thus recognizing the principle, that there are degrees 
 in the various kinds of secondary evidence.^ The 
 application of this rule to the proof of a tax title is 
 unquestionable. In some instances the statute law 
 expressly requires that all of the proceedings shall 
 be reduced to writing, and each document connected 
 with them filed or recorded in some public ofi&ce, for 
 the benefit of all parties concerned ; and makes the 
 original, or certified or sworn copies thereof, admissible 
 in evidence. But independent of this, the very nature 
 of the proceeding implies the necessity of perpetua- 
 ting 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, valua- 
 tion, levy of the tax, the authority to collect, the 
 return of delinquents, the advertisement, registry and 
 certificate of sale, deed, etc., all necessarily imply 
 that they are to be in writing, and authenticated by 
 the proper officer. It would be utterly impossible to 
 conduct the proceedings in any other manner. The 
 
 1 Starkie Ev., Part 3, Sec. 10 ; 1 Grcenl. Ev., Chap. 4, Sec. 82. 
 
 2 1 Greenl. Et., Sec. 84, note ; Mariner v. Saunders, 5 Gilm. R. 121-4. 
 
EULES OF EVIDENCE. 599 
 
 universal usage has been to reduce the proceedings 
 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. It has been 
 said, that the original is in no case admissible, and 
 that the party claiming under it must produce a certi- 
 fied or sworn copy, but it was held in Spear v. Ditty f 
 that the rate bill might be proved by the production 
 of itself. The most usual mode of proof is by means 
 of an ofl&ce copy — i. e., by a copy made out by the 
 of&cer 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 copy in the hands of the ofiicer who made 
 it, or to whom it was delivered, be received in evi- 
 dence 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. But such evidence ought not to be permitted 
 
 '^ Laird T.Hdster, Ante, iST, note; Job v. Tebbetts, 5 Gilm. R. 380; Bruen\. 
 Graves, 11 Illinois R. 442. 
 
 2 8 Vermont R. 419. 
 
 3 Parker v. Smith, 4 Blackf. E. 70 ; Coman v. State, Ibid. 241. 
 
 4 Graves v. Brum, 1 Gilm. R. 167 ; S. C, 11 Illinois E. 431 ; JoIy. Tebbetts 
 5 Gilm. E. 376 ; S. C, 11 lUiaois R.453 ; Schuyler v. Hull, Ibid. 462; Sheldok 
 T. Coates, 10 Ohio R. 278. 
 
 5 McCall V. Larimer, 4 Watts E. 351. 
 
600 RULES Of EVIDENCE. 
 
 when there is any suspicion of a fraudulent destruc- 
 tion or suppression 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 it 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 evidence being inad- 
 missible where the officer has omitted to record the 
 originals, or recorded them defectively.^ In all cases 
 where office books and files are relied upon to prove 
 a particular fact, their admissibility depends upon 
 the following facts : 1. That the person who made 
 it had official authority to do so. 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 proceed- 
 ings, 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 competent evidence to 
 prove the performance of any prerequisite. It is the 
 duty of the officer to make a transcript of the entire 
 proceedings, so that the court can determine, upon 
 
 1 Doe ex dem. Kelleij v. Craig, 5 Iredell E. 129 ; Ante, pp. 133-4 ; The Proprie- 
 tors of Cardigan r. Page, 6 N. H. R. 182. 
 
 ^Lessee of Massie's Heirs v. Long, 2 Ham. R. 287; S. C, 1-4 Oliio Cond. 
 R. 364. 
 
 ^ Minor V. McLean, 4 McLean R. 138; Colt y. Wdls, 2 Vermont E. 318; 
 Kellogg v. McLaughlin, 8 Ohio R. 114. 
 
 * Dikaman v. Parrish, 6 Barr R. 210 ; Doe ex dem. Kelly v. Craig, 5 Iredell R. 129. 
 
BULES OF EVIDENCE. 
 
 601 
 
 inspection, whether the law has been complied with 
 or not. The oflicer has no power to decide upon the 
 legality of the proceeding, nor certify to his legal 
 conclusions. Thus, the recital of " due Twtice " in the 
 record of a special and summary proceeding, was held 
 insufficient to prove notice to the party in interest ; 
 the record ought to have set out the notice at length, 
 that the court might judge of its legality.^ So, where 
 a stranger certified 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. Gamesf 
 where a question as to the validity of the listing arose, 
 the only evidence of it was the certificate of the 
 auditor, that the land in question was '■'■regularly 
 entered on the duplicate for taxation," and the court 
 held the evidence of a legal listing insufficient. 
 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 is a copy of this record that is evidence, and not a 
 historical account of what was done." The same point 
 was decided by the Supreme Court of the United 
 States.* In Henry v. Tihon^ which was an action of 
 trespass against the collector, for arresting and impris- 
 oning a delinquent taxable inhabitant, the defendant, 
 in his justification, set forth his return to the tax list 
 
 1 Bjex v. CroTce, \ Cowper K. 26 ; Gilhert. v. Columbia Turnpike Co., 3 John. 
 Ca. 107. 
 2 Ndsm V. Pierce, 6 N. H. R. 194. ^\ McLean R. 319. 
 
 * Games v. Stiles, 14 Peters R. 322. '^ 19 Vermont R. 447. 
 
 76 
 
602 RULES OF EVIDENCE. 
 
 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, etc." On demurrer, the plea 
 was held insufficient. By the court : " This general 
 statement that the collector had given the plaintifi" 
 legal iiotice, we think insufficient to show that he had 
 given him the six days' notice required by law. 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 necessary. It seems, indeed, to be 
 well settled, that public ministerial 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 Vermont, that a certificate of the record 
 of the advertisement of the tax sale, instead of a 
 transcript of the notice, was insufficient.® Whenever 
 parol evidence of any fact connected with the pro- 
 ceedings is admissible, the officer who conducted them 
 is a competent witness to prove the fact* Where 
 the statute requires proof of the advertisement, by 
 the affidavit of the printer, no other evidence is 
 admissible.^ In the absence of any statutory pro- 
 vision, the notice may be proven by the introduction 
 of the newspaper in which it was inserted, accom- 
 panied by proof that it was published the requisite 
 
 1 7 Vermont E. 18. 
 
 2 Lancaster v. Pope, 1 Mass. E. 86 ; Davis v. Maynard, 9 Ibid. 242 ; Wellington 
 V. Gale, 13 Ibid. 483 ; Perry v. Dover, 12 Pick. R. 206. 
 
 8 Coit T. Wells, 2 Vei-mont R. 318. 
 
 * Carpenter t. Sawyer, 17 Vermont E. 121. 
 
 "^ Luf borough t. Parker, 16 S. & E. 351. 
 
EULES OF EVIDENCE. 
 
 603 
 
 number 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 required in proving a negative averment. Other 
 important questions, relative to the evidence required 
 in this class of cases, have been discussed incidentally, 
 in preceding chapters. 
 
 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 
 shown, that, as a general rule, m 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 dis- 
 tant day, to be required. From the establishment of 
 some facts, it is possible others may be presumed, and 
 less than positive testimony may establish those facts. 
 In this case, as in all others depending upon testimony, a 
 sound discretion, regulated by the law of evidence, will 
 be exercised." 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 
 
 1 Thevenin v. Slocum, 16 Oliio R. 519. '^ Ante pp. 91—93. 
 
 ■o 4 Cranch E. 403. 
 
604 RULES OE EVIDENCE. 
 
 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 vahdity 
 of the title, might he presumed from the estabhshment 
 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 pre- 
 sumption ought to be indulged in, to support a stak 
 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 negative 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 
 dihgence in the prosecution 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 iipon 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 he preserved as a necessary muniment of title" 
 The same principle is laid down in Allen v. Smith} 
 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 
 
 11 Leigh E. 231. 
 
EXILES or EVIDENCE. 605 
 
 into the principles by which tax title causes are 
 investigated and decided. To use the language of 
 Judge Phelps upon this point, in answer to the 
 opposing doctrine : " 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, other- 
 wise, we are driven to forced and violent presumptions 
 the other vray, which are not to be made."-^ In the 
 preceding chapters, many instances will be noticed by 
 the critical 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. But a party who 
 lies by for a number of years, without asserting his 
 claim of right under a tax deed, cannot ask the court 
 to sustain his title by j)resumptions.^ And in Hole v. 
 Rittenhouse^ the rule is laid down, that no lapse of 
 time wUl afford presvimptive evidence of the regu- 
 larity of a tax sale, where the purchaser, or those 
 claiming under him, have never been in possession of 
 the property purchased. There the deed was twenty- 
 one years old. The older the deed, when unaccom- 
 panied by possession, the staler the claim, and the less 
 favor shown to it by the courts. Where the possession 
 is a recent one, as 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, 
 
 1 S-pmr V. Bitty, 8 Vermont R. 419. 
 
 2 Bichardson v. Dorr, 5 Vermont E. 9. 
 Ms Pa. State K. 305. 
 
 * 1 Greenl. K. 306. ^ Ante, p. 286. 
 
606 RULES OF EVIDENCE. 
 
 relied upon the doctrine of presumption to cure the 
 defect in the advertisement, but the court decHned to 
 apply the doctrine to that case, saying: "The proceed- 
 ing complained of was only about twelve years since, 
 and in all 7-ecent cases of this nature, the courts of 
 law have required a strict compliance with legal pro- 
 visions, on the part of the collector, in the execution 
 of his duty. In ancient transactions, many presump- 
 tions 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 insuflB.- 
 cient ; no premmption can he 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 sliotus upon its face that the 
 proceedings were irregular. This is a self-evident propo- 
 sition. It may be a question, whether a defendant, 
 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 presumptions, for the purpose of 
 sustaining a title to real property, 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 imraaterial whether the presump- 
 tion 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 
 
 1 1 Wash. C. C. R. 335-6. ■" 4 Pick. R. 160. 
 
RTTLES OF EVIDENCE. 607 
 
 E. Eobbins and others, under whom the demandant 
 claimed title. The tenant objected to this evidence, 
 because the record of the authority of the committee 
 to make the deed was not produced. It may be 
 proper to state that the General Court constituted 
 the legislative power of the colony of Massachusetts, 
 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 demandant. The tenant 
 moved for a new trial, and it was granted by the 
 Supreme Court. Parker, C. J. : " The general princi- 
 ple is, that where one claims under a deed or other 
 instrument used in the conveyance of real estate, 
 which appears 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 prin- 
 ciples 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 either case, the deed is prima 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 reg- 
 ular 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 
 
608 KULES OF 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 substi- 
 tuted. For the presumption is of an authority 
 coextensive with the act; whereas the power may 
 show a hmited 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 from 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." 
 
 In the case of The Pejepsciit Proprietors v. Ramom} 
 which was a real action, the plaintifis demanded 100 
 acres of land, counting uj)on their own seizin within 
 thirty years, and upon a disseizin 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 constable of 
 Brunswick, to one Samuel Thompson, for taxes 
 assessed on the same, as land of non-resideni proprietors. 
 The tenant produced the deed, and an entry by 
 Thompson soon after its date, and also gave in evi- 
 dence the copy of a record of the town of Brunswick, 
 showing that Hunt was, at a town meeting holden May 
 4, 1779, chosen and sworn as constable for the year 
 1779. The tax bills of the town, signed by certain 
 
 114 Mass. R. 145. 
 
KULES OF EVIDENCE. 609 
 
 persons as assessors, were also produced; and there 
 was some evidence tvMch ivent to show a tvant of eonformiiij 
 to the requirements of the law, as to the advertisements prior 
 to the sale. The demandants, upon this state of facts, 
 insisted that the tenant, in order to estabhsh the valid- 
 ity of the collector's deed, should be required to prove 
 that the collector had been duly chosen into office 
 at a legal totvn 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 totvn 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 he presumed that all the other pre- 
 requisites for giving him authority were complied with. 
 A verdict was returned for the tenant; the demand- 
 ants filed 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 constable 
 before the sale, as to the notification, etc., it was proper 
 to leave the evidence to the jury, with instructions that they 
 might lawfidly 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 Coleman et al. v. Anderson^ which was a writ 
 of right, the tenant rested her defense on deeds 
 from Jonathan Loveitt, constable and collector of 
 
 1 10 Mass. K. 105. 
 
 77 
 
610 EULES OF EVIDENCE. 
 
 Windham, to Caleb Graifam, dated February 10, 1780, 
 and from Ichabod Hanson, constable and collector of 
 the same place, to said Graflfam, dated 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 No- 
 vember 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 b}^ 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 continued disseized of 
 the demanded premises. In support of these collect- 
 ors' 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 documents to justify the said 
 sales, excepting only the deficiencies 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 t-estimony, or evidence of any kind, to 
 each of them ; and he believed all the law required 
 was the proof of such facts, papers and documents, 
 as might be considered the ground of strong presump- 
 
KULES or EVIDENCE. 611 
 
 tions of the existence of other facts. With regard 
 to the notifications and advertisements required by 
 law to be made in two public newspapers, it being 
 proved that a notification was pubhshed 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 form- 
 ing 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 Court con- 
 firmed the verdict, and entered judgment accordingly. 
 Sewell, 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 \<mA ahnost proverUalli/ 
 denominated a collector's title, as expressing a case of doiiht 
 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 disseizin. 
 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 nottvitlistanding 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/ etc., was right in sub- 
 
612 BULES OP EVIDENCE. 
 
 mitting such evidence as there was, although incomplete; 
 and if the jury were satisfied that the deficiencies 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 willfully withheld, the jury were very 
 properly instructed to consider 'every thing as -proved, 
 which might be rationally and fairly f resumed from the 
 facts and 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 evi- 
 dence 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 lo7ig and uninter- 
 rupted 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 appears, had no 
 notice in fact of the irregularities in the proceeding. 
 And the court place the presumption upon the 
 ground, that the jury must be "-satisfied that the 
 deficiencies 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 willfdly zvithheld" 
 This doctrine cannot, therefore, be extended to the 
 original purchaser, "/or he is bound to collect and pre- 
 serve 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. 
 
RULES OF EVIDENCE. 613 
 
 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 persons, for the documents and 
 facts necessary to establish the validity of the title. 
 The presumjstion is not raised for the purpose 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 prerequisite in question. The 
 rule also requires, that all of the records, documents, 
 and facts, which can be collected by the party, after 
 diligent and faithful search, tending to establish the 
 regularity of the proceedings, shall be submitted to 
 a jury, and they directed to ]Dresume only such facts 
 as may h^ fairly and rationally f resumed from the facts 
 and circumstances proved. This excludes every 
 presumption which is contradicted by the facts given 
 in evidence before the jury. Thus, suppose the list 
 and valuation produced, and the land in controversy 
 nowhere appears upon the list ; the jury shall not be 
 permitted to presume a listing of the land for taxa- 
 tion. 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 
 presumption is forbidden by the facts proven. Sup- 
 pose, 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 have been inserted 
 in a newspaper not authorized by law to publish the 
 delinquent list, or, though having due authority, the 
 
614 EULES OP EVIDENCE. 
 
 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 contrary, 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 defendant'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 premmiintiir 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 punc- 
 tual adherence to the letter would be equivalent to 
 saying, that a sale for taxes should not be supported. 
 It would only be necessary to lie by until the evi- 
 dence 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 presumed that a 
 tax title, whether good or bad, is a substantial foun- 
 dation 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 possessor. 
 
 1 1 Greenl. Ev. Sec. 20, and oases there cited. ^ 17 S. & R. 350. 
 
RULES 0¥ EVIDENCE. 615 
 
 In Freeman v. Thayer^ the sale was made March 19, 
 1816, the deed bore date April 1, 1816, was acknowl- 
 edged 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 war- 
 rants to the collector ; and to prove that such collector 
 complied with the requisitions of law as to advertis- 
 ing 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 
 by law had been given. The judge who presided 
 at the trial, ruled, 1. That the rule of evidence pre- 
 scribed 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 
 probability that all the other acts required by law 
 had been performed, they would be authorized to 
 presume, after such a lapse of time, that all of the 
 proceedings had been regularly and legally conduct- 
 ed, but that they were not required to make any 
 such inference or presumption; it was a matter sub- 
 mitted 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 : 
 
 1 33 Maine B. 76. 
 
616 RULES OE EVIDENCE. 
 
 "The provisions of the section quoted 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 evi- 
 dence for subsequent proceedings in court to establish 
 titles to real estate dependent upon sales for the non- 
 payment of taxes ; but they do not impair the obli- 
 gation of contracts, or distinct vested rights, when 
 applied to cases involving the validity of prior sales. 
 There never 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 sup- 
 ported by a particular kind or amou.nt of evidence. 
 The legislature had the power and the right to pre- 
 scribe the evidence to be received, and the eifect of 
 that evidence in proceedings in our courts. They 
 may prescribe and change remedies, and such regula- 
 tions 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 time of defense 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, etc., 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" 
 
KULES OF EVIDENCE. 617 
 
 In Farrar v. Eashnan^ a proprietary tax sale was 
 sustained where it took place forty years prior to the 
 trial, and there had been a possession for that 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, are drawn with any attention to legal preci- 
 sion. 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 uphold- 
 ing their proceedings, and of titles derived from them, 
 and after such long acquiescence, they are to be viewed 
 with great indulgence; whether, in a recent case, greater 
 precision, and a more clear and perfect deduction and 
 pursuance of authority, would not be required, it is 
 not necessary now to decide. It is not essential, that 
 all the facts necessary to sustain and justify the sale, 
 should be recited in the deed. They may be pre- 
 sumed or proved aliunde. Such as do not appear in 
 the records, and among the papers of the proprietors, 
 may, and after such a length of time, will be pre- 
 sumed." 
 
 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 defend- 
 ant, 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 
 
 1 5 Greenl. R. 345. 2 22 Ohio (1 Warden) R. 241. 
 
 78 
 
618 EULES or EVIDENCE. 
 
 required by law. On inspection, it appeared that the 
 list was sworn to by the collector, but there was no 
 certificate of the auditor, in the nature of a jurat, that 
 the oath was administered by him to the collector. 
 Two questions were discussed 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 indulging in presumptions, the court 
 remarked, after disposing of the case upon the author- 
 ity of a prior decision in that court,-^ that "upon 
 principle it is equally clear. When the duplicate 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, etc., which the latter was required to pay 
 over against a specified day. Before this credit could 
 be allowed or certificate made, the auditor must be 
 satisfied, by the oath of the collector, of its correct- 
 ness. To have allowed the credit, or made the 
 certificate without this, would have involved him, not 
 only in criminal neglect of duty, but actual misfea- 
 sance. Under such circumstances, unless the statute 
 makes written evidence indispensable, the officer will 
 be presumed to have done his duty until the contrary 
 appears.^ The law will presume all to have been 
 rightly done, unless the circumstances of the case over- 
 
 1 Winder's Lessee v. Sterling, 7 Ohio E. 190, Part 2. 
 ^ 1 Greenl. Ev. 51 ; Math, on Pres. 36. 
 
RULES or EVIDENCE. 619 
 
 turn this presumption ; and consequently, as stated 
 by the Supreme Court of the United States, in Bank 
 of the U. 8. 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 circumstances, may be found in Williams v. 
 East India Co.f Kelly v. Connellf Wheelock v. Hall,^ 
 Brown v. Connelly^ Harlwell v. Root^ and Jaclcson v. 
 SliqferJ Facts presumed are as effectually estab- 
 lished as facts proved, where no presumption is 
 allowed; and hence, in accordance with this long 
 estabhshed rule of evidence, the court, in Lessee of 
 Winder v. Sterliiig^ were entirely justified in saying 
 that the act of the auditor in allowing the credit, and 
 making the certificate, which could only lawfully be 
 done after the delinquent list has been verified 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. Sniith,^ 
 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 evidenced 
 by a bond, which had been lost or mislaid; that on 
 August 27, 1800, Sims, being embarrassed in his pecu- 
 niary circumstances, conveyed the land to John and 
 
 1 12 Whea. E. 70. ^ 3 East. E. 192. 
 
 33DanaE. 532. ^S N. H. E. 310. 
 
 6 5 Blackf. E. 390. " 19 John. E. 345. 
 
 ' 11 John. E. 513 ; 9 Cowen E. 110. * 7 Ohio E. 190, Part 2. 
 " 1 Leigh E. 231. 
 
620 RULES OF EVIDENCE. 
 
 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 sched- 
 iile 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 
 election, 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 Presley Neville, of Ohio, and 
 a 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 question 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 perform- 
 ance of the contract between Morgan and Sims, for 
 the delivery of possession, and an account of the rents, 
 profits, etc. 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, etc. The land was listed for taxation in 
 the name of Tidball, the locator, instead of Morgan, 
 
EULBS OF EVIDENCE. 621 
 
 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 the complainant, say- 
 ing : " 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 compli- 
 ance were to be presumed in favor of possession after 
 such a length of time. No such proof was offered. 
 And such a presumption ought not to be raised, to 
 defeat 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 compHance with them might easily be fortified by 
 the evidence 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 pur- 
 chaser 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 conveyance from Morgan's devisee ; 
 and thus afforded decisive evidence against the pre- 
 sumption 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 
 
622 RULES OP EVIDENCE. 
 
 Appeals, after citing and approving the rule of strict- 
 ness, 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 performance of 
 these acts in pais (advertisement, etc.) ; 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 pre- 
 sumption 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 complied with admiguem (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 defense ; and they ought at once to collect the 
 proper evidence of compliance with the law; and 
 these documents being written, can be just as easily 
 preserved 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 reargu- 
 ment of this cause was awarded, and the question 
 discussed, whether twenty years' adverse possession, 
 under the tax title, was not a bar to the complainant's 
 equity, but the court reafl&rmed their former decree.-^ 
 
 1 The Vii-ginia court, in Robindt v. Preston, (4 Grattan R. 141,) applied the 
 doctrine of presumption to a sheriff'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, etc., in the usual form, and a possession under the deed from 1816 to 1845, 
 
EULES OF EVIDENCE. 623 
 
 The same principle was asserted by the Supreme 
 Court of New Hampshire, in the case of Waldron v. 
 Tiittle^ and in that case the rule is laid down, which 
 is probably appHcable 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, notori- 
 ous and exclusive possession — such an one as will 
 constitute, technically, an adverse possession. This 
 case, was an action of trespass, de lonis 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 pur- 
 suance 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 the officer who made the sale of 
 1780, and 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 performance of all legal pre- 
 requisites 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 com- 
 petent for them to presume, from the possession of 
 
 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 conveyed. 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 authority of the said sheriff to sell and convey said land." 
 1 3 ». H. B. 340. 
 
624 RULES OF EVIDENCE. 
 
 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 con- 
 veyances. 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 any such presumption, with respect to the 
 deed of Holmes, could rest. That deed was made 
 more than forty years ago ; but it has not been 
 accompanied by any exclusive possession. The plaint- 
 iff 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 a 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 legahty of 
 such a title, must show, afl&rmatively, that the Ima 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, untU 
 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 be 
 left to a jury, as evidence of particular facts, the 
 
EULES or EVIDENCE. 625 
 
 ordinary proof of which, cannot be found. The deed 
 of Felker stands on ground somewhat diflferent. 
 That instrument purports to convey a portion of the 
 estate in the land in 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 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 presump- 
 tion 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 
 that court a second time,^ upon the same state of 
 facts, and the court reaffirmed the doctrine, that no 
 presumption can be indulged in to support a tax sale. 
 Upon a critical review of all the decisions relative 
 to presumptions, 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 presumptions, 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 possession 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 
 
 MN. H. R. 371. 
 
 79 
 
626 EULES OF EVIDENCE. 
 
 the period fixed by the statute of hmitations, is a 
 sufficient basis for a presumption of regularity. 5. 
 That one out of jDOSsession, but claiming under a tax 
 title, has no right to the benefit of any presumption 
 in his behalf 6. That no presumption can be sus- 
 tained, which is contradicted by the record and 
 documents, connected with the proceedings, and 
 7. A presumption, in such cases, is never admissible, 
 where the record or files, which evidence the exist- 
 ence of the proceedings, can be produced. 
 
OF THE TITLE OF THE PURCHASER. 627 
 
 CHAPTER XXXVII. 
 
 OF 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 sub- 
 sequent to the sale have been strictly complied with 
 — that the owner has neglected to redeem — and 
 that a deed in due form has been executed and deliv- 
 ered 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 eflfect of divesting all prior 
 interests in the land, and vesting in the grantee an 
 independent and paramount legal and equitable title 
 in fee ? Does it annihilate a contingent estate ? Is 
 the dower of the wife and curtesy of the husband 
 gone forever? 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 importance to land own- 
 ers, and of much interest to the profession. In AtMm 
 V. Rinman^ Chief Justice Treat said : " The land itself 
 
 1 2 Gilm. R. 449. 
 
628 OP THE TITLE OF THE PUKCEASBR. 
 
 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 
 established. This results from the paramount author- 
 ity 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. 
 
 This question was discussed in Nmwanger v. Ckvifnne, 
 which was • argued on four several occasions before 
 the Supreme Court of Ohio, on the law and equity 
 side. The facts were, that the premises in contro- 
 versy were situate in Madison County, and constituted 
 a part of the Virginia Military District. They were 
 entered by David Ross in 1810, surveyed in 1816, 
 and patented in November, 1838, to Neiswanger, the 
 assignee of Ross. 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 subse- 
 quently conveyed it, by quit claim, to Gwynne, and 
 the latter took possession under the tax title. Neis- 
 wanger instituted an action of ejectment to recover 
 the possession of the premises. The statute under 
 which the sale took place, declared that the " deed 
 shall convey to the purchaser, etc., a good and valid 
 title to the land, and such deed shall be received in 
 
OF THE TITLE OF THE PUKCHASEE. 629 
 
 all courts of this State as good evidence of title, etc." 
 The court, upon this statement of facts, gave judg- 
 ment 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 lonafide purchaser under 
 the law." To which Birchard, J. replied : " The first 
 question 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 different title than 
 was possessed by the former owner ? This question 
 appears to have been settled in this court by the 
 decision in Stuart v. Parish, where it was held that 
 the legal title of the patentee 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 jiroceedings 
 in the tax sale were regular, his remedy is a bill in 
 equity. Until the tax sale is brought before us in 
 such manner as makes it material to the determina- 
 tion 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 
 
 1 13 Ohio K. 74. 
 
630 or THE TITLE OE THE PUKCHASEK. 
 
 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 pur- 
 chaser at a tax sale, the owner, at the time of the sale, 
 having no other than an equitable interest, but 
 having, subsequent to the sale, acquired the legal 
 title ? 2. If the court has such power, is the case 
 made in the complainant'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 Ross 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 Eoss ; that when the patent issued, the 
 holder of it became the trustee of the person claim- 
 ing under the tax title ; and that a court of equity had 
 the power, and it was its duty, to compel a conveyance 
 to the tax purchaser or his assigns.^ Upon the over- 
 ruling of the demurrer, leave was given the defendant 
 to answer the bill. An answer was accordingly filed, 
 to which the complainant replied, and evidence was 
 taken 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 alreadyi*^ A decree was rendered for 
 the complainant, the court deciding, 1. That when 
 the land was sold for taxes, the conveyance, in pur- 
 suance 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 
 
 115 Ohio K. 367. '^ Ante.p. 111. 
 
OF THE TITLE OP THE PURCHASEK. 631 
 
 purely equitable ; 3. That when his assignee subse- 
 quently 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 con- 
 tinued. It was reargued, at the next term, when the 
 court dismissed the bill, upon the ground that the com- 
 plainant acquired a le^al 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 very 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 argument 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 equitable right ; if the land be regularly sold 
 for taxes, the property, accompanied with a legal 
 title, goes to the purchaser, no matter how many 
 estates, legal or equitable, may be connected 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 
 holding the legal title, he cannot avail himself of it. 
 The land is gone, and another title has intervened. 
 
632 OF THE TITLE OP THE PUECHASEE. 
 
 Just so with a person holding under a purchase from 
 the government ; 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 iy a tax sale a legal title, 
 and ivhen not good at latv, that a court of chancery has no 
 poiver to aid the purchaser in completing his title." From 
 this 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 forever. No covenant running with the 
 land, nor warrantee, no incident to the title, as a title, 
 passes to the tax purchaser. He takes it by another 
 right — by a netv and independent &\idi. 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, that the title of the former owner 
 passes to the tax purchaser. But I suppose, by the 
 sale and conveyance, if both are regular, the title of 
 the former owner ceases to be operative, or becomes 
 extinct, and the tax purchaser acquires a title to the 
 
OF THE tihb or the puechasbr. 633 
 
 property, exactly equal to the former owner, before 
 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." 
 
 The Ohio decisions in the case of Neiswanger v. 
 Guoynne} 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 pur- 
 chase, to be found in the history of tax title juris- 
 prudence. 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 bar- 
 gained and sold by the government, is based upon 
 impregnable legal grounds. 1. The taxing power of 
 the State operates upon all property within its terri- 
 torial 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 positive 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 which declared, 1. That 
 the title to the land, both at law and in equity, should 
 vest in him by virtue of his purchase ; 2. That the 
 deed should be conclusive evidence of his title, and 
 
 1 Reported in 13, 15, 18 and 20, Ohio B. 
 80 
 
634 OF THE TITLE 03? THE PUKCHASBR. 
 
 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 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 leAtev forum, 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 difference of 
 opinion among the judges, as to the application of 
 this rule of State sovereignty, where the legal title 
 was, at the time of the tax sale, in the Federal gov- 
 ernment. The majority held, that the case of Eoss 
 V. Bourland^ 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. 
 Jachsonf 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 
 
 1 1 Pet. K. 664. 2 13 p^j. r. 493. 
 
OE THE TITLE OS THE PURCHASER. 635 
 
 and not the State legislature. One, of course, is 
 bound to respect the decisions of courts, but when 
 those courts vacillate 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 juris- 
 diction, and it appeared 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 jus- 
 tice. Under very similar circumstances, and under 
 laws which made a distinction in phraseology, with- 
 out a real difference in substance, the Supreme 
 Court held the holder of the legal title a trustee 
 for the tax purchaser, and decreed 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 assigned 
 for this ruling, and unless there is some compact 
 between the Federal and State governments, the 
 decision cannot be sustained upon principle or au- 
 thority. It is even contended by highly respectable 
 jurists, that the States may exercise th.eir taxing power 
 over the public domain of the United States within 
 
 ^ Lessee of Wallace v. Seymour et al., 6 & 7 Ohio R. 313; Stuart v. Parish, 
 Ibid. 204 ; Bmick v. Wallace, 8 Ibid. 540. 
 ^ Dixon v. Doe, 23 Miss. K. 84. 
 
636 OF THE TITLE OE THE PURCHASEE. 
 
 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 Supremo 
 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 au- 
 thorities. When it is remembered that the power 
 to hold land oven, 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 com- 
 pacts and ordinanqes 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 property within its territorial 
 jurisdiction — it may well be doubted whether all of 
 the public domain lying within the States 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 set- 
 tlement 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 
 much reflection, and believing that such was the 
 common opinion of the bench and bar, and the un- 
 
OF THE TITLE OF THE PURCHASER. 637 
 
 derstanding 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 incidentally 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 premises 
 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, ilieir 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 iwt the independent and superior, or ultimate 
 title of a third person. This seems to us to be a prop- 
 osition so clear, that it need but be mentioned to 
 receive universal concurrence." The Pennsylvania 
 statute of April 3, 1804, provides "that sales of unseat- 
 ed lands for taxes, etc., shall be in law and equity valid 
 
 1 The author was promised the opinion of the jurist alluded to, upon this 
 interesting question, and he would have been happy to have inserted it in a note, 
 but it is no-w evident that the opinion will not be ready in time for publication 
 in this edition. 
 
 2 14 Alabama E. 622. 
 
638 OF THE TITLE 01' THE PURCHASER. 
 
 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 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 execu- 
 tion 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. Banlc of the United States^ 
 which was an action of covenant to recover a ground- 
 rent, it appeared that James Eobinson, being the own- 
 er in fee, made a perpetual lease of the land — reserv- 
 ing 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 Ir,win, 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 constituted a bar to the action 
 of covenant. This position was denied by the court. 
 Kennedy, 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 
 
 1 Sergeant's Land Laws of Pa., 217; LiuffbarougJi v. Parker, 16 S. & R. 
 351-8 ; Blah t. Waggoner, 2 Ibid. 472 ; Straunch v. Shoemaker, 1 W. & S. 166 ; 
 McCord V. Bergantz, 7 Watts R. 490 ; Mirrlon v. Harris, 9 Ibid. 323 ; Cad v. 
 Spring, 2 Ibid. 396 ; Fager v. Campbell, 5 Ibid. 288 ; Collins v. Barclay, 7 Barr 
 R. 67. 2 1 BaiT R. 349. 
 
OF THE TITLE 01? THE PtJKOHASEE. 639 
 
 account of the taxes assessed on the ground-rent 
 issuing out of it. Tor 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 unseated; 
 and generally, for this purpose, it is amply sufficient. 
 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 are made, by 
 one act of assembly, separate and distinct subjects 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^ will furnish some 
 light upon 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 
 
 111 Iredell E. 624. 
 
640 OS THE TITLE OF THE PUKCHASER. 
 
 consideration that the said Watson would erect on 
 said lot a building, 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 Watson 
 covenanted, for himself and his assigns, that, after the 
 erection 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 persons 
 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 plaint- 
 iff, 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 1846-7. 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 ; 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 otherwise, shall be subject to 
 the payment of public taxes, except land of the 
 University, houses set apart for divine worship, etc. 
 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 
 
0¥ THE TITLE OF THE PUKCHASER. 641 
 
 for ten years, remainder to B. and his heirs, the valu- 
 ation 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 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, ivkere 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 ordinary 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 building worth, 
 say $2,000, is erected upon it. The lessee enjoys the 
 entire use and profits of the lot in its improved con- 
 dition. 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 receiving the prop- 
 erty, in its improved condition, at the end of the 
 term. That is true, and then he will be bound to 
 81 
 
642 . or THE TITLE OF TILE PUKCHASBK. 
 
 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 appor- 
 tioning 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 pro- 
 vides that, in case tenants are compelled to pay the 
 tax, they shall have the right to deduct it out of the 
 rent." 
 
 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 authoritative 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 destroy all prior in- 
 terests in the estate, whether vested or contingent, 
 executed or executory, and those in possession, rever- 
 sion and remainder. In such case, the tax law itself is 
 notice to the whole world of the liability of the land 
 for all public assessments — and every one claiming 
 
OF THE TITLE OF THE PTIKCHASEK. 643 
 
 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 
 simply of the former owners. All that can be re- 
 quired of the purchaser in such cases, is to show title 
 out of the State, prove the regularity of the pro- 
 ceedings, 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 de- 
 mand 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 ex- 
 hausted — then, the sale and conveyance by the 
 officer passes only the interest of him in whose name 
 it was hsted — upon whom the demand was made — 
 who had notice of the proceedings, and who alone 
 can be regarded as legally delinqueifA. In such cases 
 the title is a derivative one, and the tax purchaser 
 can recover in ejectment, only such interest as he 
 may prove to have been vested in the defaulter at 
 the time of the assessment. Any other construction 
 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 
 
 1 Bigler v. 'Kams, 4 W. & S. 137. 
 
644 QI' TUB TITLE OF THE PUEOnASEE. 
 
 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 as dehnquent. 
 There are no express adjudications upon this point, 
 but such seems to be fairly imphed from the course 
 of decisions relative to the manner of listing 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 prerequi- 
 site — is manifest from the circumstance, that a pub- 
 lication, or personal demand of the 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 during 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 ofiicer conveys to the purchaser. 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 proceed- 
 ing. 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 persons 
 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 hound to 
 take notice, where no one is hound to give notice." ^ 
 
 In Finch v. Brown^ which was an application by a 
 widow to redeem a tract of land, in which she claimed 
 
 1 16 Viner's Abr., Chap. 2 ; 5 Binney E. 157, 311, 313. = 3 Qiim, jj, 438. 
 
OF TCE TITLE OF THE PURCIIASBB. 645 
 
 a dower interest, and which was sold in her husband's 
 lifetime, the court, in speaking of her right of dower, 
 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 question, but it is easily answered under 
 the statute of Illinois.^ " No act, deed or conveyance, 
 performed or executed by the husband, without the 
 assent of his wife, evinced by the acknowledgment 
 thereof in the manner required 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 hus- 
 band, shall prejudice the 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 inasmuch 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 protect her rights in the premises. Indepen- 
 dent 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, 
 
 1 R. S. 1845, p. 200, Sec. 14. 
 
646 OJ THE TITLE OF THE PURCHASER. 
 
 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 satisfaction, by levying 
 a fine or suffering a common recovery. This doctrine 
 has been recognized in this country, the court hold- 
 ing 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 con- 
 trary rule would be manifestly unjust. 
 
 It was held, by the Supreme Court of Georgia, in 
 Doe ex. dem. Gledney et al. v. Deavorsf under a statute 
 which declared that taxes should " be f referred to all 
 securities and encumbrances whatever;" that the State 
 had a lien upon all lands for the taxes due upon 
 them ; that this lien took 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 December of that 
 year, the latter had the paramount title.^ It would 
 
 1 Sish V. Smitk, 1 Gilm. E. 503 ; Hale. v. James, 6 John. Ch. R. 258 ; Dunliam 
 V. Oshorn, 1 Paige R. 635 ; Tabele v. Tabek, 1 John. Ch. R. 45 ; Smiley v. 
 Wright, 1 Ohio Cond. R. 447 ; 4 Kent Com. 50 ; 2 BI. Com. 138 ; 1 Thomas' 
 Coke, 475. 2 8 Geo. R. 479. 
 
 '" This being an important and well considered ease, the opinion of Judge 
 Nisbet is given at length. He said: "This was an action of ejectment. The 
 plaintiff claimed under a tax collector's deed, and the defendant iinder a 
 sheriff's 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 
 Com-t, 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 wag 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 duo by a citizen is a lien upon his property, which can be 
 
OP THE TITLE OP THE PUECHASEE. 647 
 
 seem, upon principle, that the sovereign power of 
 the State to levy and collect taxes — the nature of 
 
 enforced by a re-sale, 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 docs not seem to hold that gene- 
 rally 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 ease 
 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 defense 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 
 indispensable to the maintenance of all the privileges and immunities of the 
 people ; it is also indispensable to national independence, without which, indi- 
 vidual immunities and privileges are valueless. Hence it is, that in the very 
 nature of the social compact, as a basis upon which the foundations of govern- 
 ment 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 be 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 collecting it, lies within the legisla- 
 tive competency, to be aiTanged 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 declaration upon that subject, are a 
 mortgage to the exclusion of any other lien or encumbrance. The decision 
 goes upon the idea, that the obligation to support the government precedes and 
 is paramount to every contract between citizens ; and without 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 a lien which ovenides 
 every other security or encumbrance. By the fourteenth section 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 whatever.' 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. 
 
648 01? THE TITLE Off THE PUROHASEK. 
 
 tax laws, which are regarded as notice to all the 
 world, of the liability of property to taxation — the 
 
 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 1 A legal preference, that is priority, 
 is given to the taxes, not only over all encumbrances whatever — such as mort- 
 gages 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 upon 
 ajudicial sale will not, a 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 properly 
 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 funda- 
 mental principle, 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 enactment. If the lien exists without a legislative declaration — 
 if it be an elementary principle of government, recognized by the ablest states- 
 men — 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 he is insolvent, or when there is a fund in 
 hand for distribution. Upon this idea, it looks to marshaling assets. And in 
 case of the alienation, bona fide, of property by private sale, this construction 
 would wholly 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 he 
 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. 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 eiieet when, by law, in each 
 and eveiy 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 
 
OF THE TITLE OP THJS PURCHASER. 649 
 
 fact that all property is impliedly pledged for the 
 prompt payment of all assessments, made under the 
 
 payment. It is argued that the taxes are not a lien, from certain provisions of 
 the tax law — such as that which declares all sales, made to prevent their pay- 
 ment, void — that which makes them first to he paid, in case of the death of 
 the debtor, and charges the adminstrator, personally — and that which charges 
 the mortgagee with the tax due upon the mortgaged property. These provi- 
 sions 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 
 example, that which declares void all gifts and conveyances, etc., 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 the 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 pajinent. Prompt 
 collection is as necessary 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 pnt 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 crciiitor. No. To collect taxes, the State moves with 
 uncontrollable power, directly and instantaneously 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 
 this record, if the doctrine of the court prevails, 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 retain, he could institute no process to hold up the 
 fund. The sheriff, ofiScially, 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 forever. The collector and his sureties would not be liable, for 
 he could not be in default. So it would be in any case where there is a honafde 
 sale of property intervening the first of January and the return of the digest of 
 taxes to the collector, whether that sale be private or judicial. The consequence 
 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. When the tax was collectable, and default in payment made, he issued 
 his execution — the land is levied on and sold. The question put by one of the 
 counsel for plaintiff in error, (Col. Brown), is conclusive of the case. If these 
 proceedings are authorized by law, (and that they are, no one questions), does'not 
 the purchaser get a title 1 If he does not, then the State has devised an ingenious 
 piece of statutory mechanism, for the purpose of entrapping her citizens. The 
 previous purchaser has no right to complain, for the tax lien is by public law, 
 82 
 
650 OP TEE TITLE OF THE PUROHASEE. 
 
 authority of the constitution and laws — all neces- 
 sarily concur in creating, by implication, a lien, without 
 any express declaration to that eflfect. 
 
 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 Conrad v. The Atlantic Insurance Company of New York (1 Peters, 386.) 
 That decision places a construction on the 65th section of the act of Congress, 
 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 insuffi- 
 cient 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,' etc. The Supremo Court 
 held, that the priority, thus limited in behalf of the United States, was not a 
 right that superseded and overruled an assignment made by the debtor, and 
 subjected the property so assigned to execution ; but was a right of prior pay- 
 ment 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 per- 
 sonal liberty. If this were the only provision of our law on the subject, the 
 question would be very diff'erent. 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 pre- 
 ferred to all securities Jind 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 preference in the cases stated, of 
 insolvency, etc. It cannot be enlarged beyond its terms. Our law, in "•eneral 
 terms, confers a preference over all encumbrances and securities, and, as we 
 tiiink, creates a lien." 
 
STARE DECISIS. 651 
 
 CHAPTER XXXVIII. 
 
 OF THE PRINCIPLE OF 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 
 interests of law as a science.-^ It is said by Blackstone 
 to be " an established rule to abide by former prece- 
 dents, 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 
 
 1 Parke, J., in Mirehouse t. Eenndl, 1 CI. & Fin. 546. 
 
652 STARE DECISIS. 
 
 solemnly declared and determined, what before was 
 uncertain, and, perhaps, indiflferent, is now become 
 a permanent rule, which it is not in the breast of 
 any subsequent judge to alter or vary from, accord- 
 ing to his private sentiments; he being sworn to 
 determine, not according to his own private judg- 
 ment, but according to the known laws and customs 
 of the land ; not delegated to pronounce a new law, 
 but to maintain 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 over- 
 ruled cases, and count the number of decisions which 
 have been overturned by ancient and modern courts. 
 The latv and the opinion of a judge are not synonymous 
 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's 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 ques- 
 tion. It is founded on policy — to ensure 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 uniform as the statute 
 law itself — indeed more so — a decision which over- 
 turns a prior one has a retroactive effect — its tend- 
 ency is to disturb vested rights — whereas the 
 promulgation of a new rule by the legislature 
 operates prospectively only. To enable the citizen 
 
STAKE DECISIS. 653 
 
 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 difference 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 jeopardy ; 
 andin neither case canhe possess the requisite informa- 
 tion 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 a new 
 decision on those circumstances — in other words, to 
 make a precedent. " But it never fell from a judge 
 in this country, that he would obey a solemn judg- 
 ment in one case and not in others. This is a 
 doctrine to which our courts are not accustomed."^ 
 The discretion of judges in the application of the 
 maxim stare decisis, is not an arbitrary one. " Discre- 
 tion," 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 
 
 1 Lord Eldon, 6 Dow E. 112. 24 Bun., jj. 2539. 
 
 8 Frink v.'Darst, 14 Illinois K. 310-312, and cases there cited. 
 
654 STAEE DECISIS. 
 
 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, when 
 it clearly appears that they were erroneous or unjust.^ 
 But in questions affecting property, unfulfilled con- 
 tracts, and existing instruments, the authority of errone- 
 ous precedents seems at its maximum. The notorious 
 Beiodly 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 rela- 
 tion to former decisions in regard to tax titles. The 
 Supreme Court of Vermont had decided that the 
 neglect of the collector to lodge a copy of his pro- 
 ceedings in the town clerk's office, within the time 
 required by the statute, rendered 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 follow- 
 ing 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 
 
 1 Bowers v. Green, 1 Scam. R. 42 ; Kenny v. Greer, 13 Illinois R. 432 ; Little 
 V. Smith, 4 Scam. R. 400. 
 
 2 1 P. Wms, 207. 
 
 " 4 Burr. R. 2580 ; Broom's Legal Maxims, 112. 
 
 * Mead v. Mallet, 1 D. Chip. 239. 6 19 Vermont R. 49 
 
STARE DECISIS. 655 
 
 of property, it should not he changed mthout an imperious 
 necessity, whatever we might think of it, were it res 
 Integra." In Bellows v. Elliot^ the same maxim was 
 appHed in another tax title cause. The Supreme 
 Court of New Hampshire had decided that a sale of 
 land, in unorganized townships, should be in conform- 
 ity 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 saying : '' 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 con- 
 clusion." The Supreme Court of Ohio thus com- 
 mented on the rule in Hannel v. 8mith : ^ " Whether, 
 as a matter of policy, the strictness 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 
 arguments of plaintiff's counsel would be much more 
 applicable unto a legislative body, than to a judicial 
 tribunal. Where a principle of law has been estab- 
 lished 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 
 
 1 12 Vermont E. 569. ^ 13 N. H. E. 256. » 15 Ohio E. 134. 
 
656 STAKE DECISIS. 
 
 legislature can do but little harm, as their acts are 
 only prospective in their operation ; but a change of 
 decisions by this court, interferes with previously 
 acquired rights. Our decisions, in this respect, have 
 a retrospective operation." And in Games v. Stiles} 
 Judge McLean thus spoke of rights derived under 
 these tax 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 construc- 
 tion 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." 
 
 1 14 Peters R. 322. 
 
STATUTES OP LIMITATION. 657 
 
 CHAPTER XXXIX. 
 
 OF TAX TITLES AS THE FOUNDATION OP AN ADVERSE POS- 
 SESSION UNDER THE STATUTES OP LIMITATION. 
 
 At common law, there was no limitation as to the 
 time of comnaencing a suit/ and now a party is not 
 bound to sue immediately 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 demands the enactment of 
 such laws, and they are universally sanctioned by the 
 practice of nations, and the consent of mankind; espe- 
 cially 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 unreason- 
 able length of time. This remark is peculiarly 
 applicable to land titles. Nothing so much retards 
 
 1 Co. Litt. 115, 6. ' Watkins v. White, 3 Scam. K. 549. 
 
 83 
 
658 STATUTES OF LIMITATION. 
 
 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.-' The principle upon which these statutes 
 are based, is derived from the natural law. This 
 position is sustained by the unanswerable argument 
 of Vattel.^ The usiicapio and p^escriptio of the civil 
 
 1 Bradstreet v . Huntington, 5 Peters E. 407 ; Hawkins v. Barney's Lessee, 
 Ibid. 457. 
 
 ^Law of Nations, B. 2, Chap. 11. "Nature has not herself established a 
 private property over any of her gifts, and particularly over land ; she only 
 approves its establishment 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 disorder 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 appearances of a thing utterly abandoned, or not 
 belonging to him — and of coming at length to wrest it from a bonajide posses- 
 sor, 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 possession. 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 imprescriptible 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 
 aE 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 pre- 
 sumed to have entirely renounced and abandoned it. This is what forms the 
 absolute presumption (juris et de jure,) of its abandonment — a presumption 
 upon which another person is legally entitled to appropriate to himself the 
 thing so abandoned. The absolute presumption does not here signify a conjec- 
 ture 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, there- 
 fore, confii-ms a title as firm and just as that of property itself, and established 
 
STATUTES OF LIMITATION. 659 
 
 law was the simple application of the law of nature 
 to the afiairs of 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 limitation recognize 
 the principles of natural justice, but fix an arUtrary 
 period of limitation according to the local wants of 
 
 and supported by the same reasons. The hona 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 indiyidual 
 should be stable and certain, does not allow any man to disturb him in his 
 possession. The right of usucaption properly signifies that the hona fide posses- 
 sor 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 possession, and sets up the plea of prescription in bar to 
 the claims of the pretended proprietor. Nothing can be more equitable than 
 this rule. K the claimant were permitted to prove his property, he might 
 happen to bring proofs, very convincing, 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 that he should be allowed to call in question the rights 
 of the possessor, when, by his own fault, he 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 hma 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 reaUy 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 substantial 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 con- 
 fusion, and rendering doubtful the respective rights of the parties, is not suficient 
 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." 
 
660 STATUTES OE LIMITATION. 
 
 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."^ These statutes, 
 though in terms, acting upon the remedy alone, 
 indirectly bar the right. A right without a remedy is 
 unknown to the common law. Yet these statutes 
 are held to be constitutional. When prospective in 
 their 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 to take away the 
 one, or dispense with the other. In prescribing the 
 evidence which shall 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 opera- 
 tion, 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 legislature, 
 according to the nature of the titles, the situation of 
 the country, and the emergency which leads to their 
 enactment.^ 
 
 Those statutes which act directly upon the right, 
 are more questionable, but still their validity may be 
 sustained upon principle and authority. There is a 
 statute of Illinois of this character which has given 
 
 1 MElmoyk v. Colim, 13 Pet. E. 312. 
 
 ^ Angell on TJim., Chap. 2, Sec. 11, and authorities there cited. 
 
STATUTES OF LIMITATION. 661 
 
 rise to much discussion and litigation. The act is 
 entitled " an act to quiet possessions and confirm 
 titles to land," approved March % 1839/ and was 
 incorporated in the revised code of 1845, under the 
 title " 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." Another section 
 provides, that " whenever a person, having color of 
 title, made in good faith, to vacant and unoccupied 
 land, shall pay all taxes 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." The act contains the usual saving 
 of the rights of infants, etc. Judge Pope of the 
 District Court of Illinois, held the law to be unconsti- 
 tutional, in Arroiusmith v. Burlingim^ 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 
 
 1 Laws 1838-9, p. 266. ' R. S. 1845, p. 104. 
 
 8 Western Legal Observer, 1849, p. 46. * Ibid. 97, 129,289. 
 
 ^Irving v. Browndl, 11 Illinois E. 402 ; Spettman v. Curienius, 12 Ibid. 409 ; 
 Cole V. Pennoyer, 14 Ibid. 158 ; Rawlings v. Barley, 15 Ibid. 178. 
 
662 STATUTES OF LIMITATION. 
 
 all courts to give to this class of statutes a liberal 
 construction. 
 
 Having premised thus much, let us proceed to the 
 application of these general principles, and of particu- 
 lar statutes, to rights and possessions originating under 
 tax titles. This subject must be considered in refer- 
 ence, 1. 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 en- 
 acted, by the statute, 21 Jac. 1, c. 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 thereafter first descend or accrue 
 to the same ^ and in default thereof, such persons so 
 not entering, and their heirs, shall be utterly exclu- 
 ded and disabled from such entry after to be made."-' 
 The principle of this clause has been adopted by most 
 all of the American States. The Illinois statute of 
 February 10, 1827, (and which took effect June 1, 
 1827,) declares, "that no person who now hath, or 
 hereafter 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 right, for the recovery of such lands, etc., 
 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, 
 
 1 Cruise Dig. Tit. 31 ; Prescription C. 2 Sec. 14. 
 
STATUTES OP LIMITATION. 663 
 
 giving them twenty years, respectively, 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 only 
 competent when the plaintifi" 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 
 exceptions 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 seizin, or 
 possession. A naked possession is no evidence of 
 title, except as against strangers. Every possessor 
 is, therefore, presumed to be in possession in subor- 
 dination to the title of the rightful proprietor. These 
 legal principles and presumptions give rise to the 
 doctrine of adverse possession. To repel the pre- 
 sumption 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 posses- 
 sion under claim and color of title — under an 
 apparent right. Indeed, an adverse possession is 
 nothing more nor less than a possession under claim 
 and color of title. It need not be a rightful title — 
 else the statutes of limitation are unavailing and 
 
 1 Laws 1827, p. 285, Sec. 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. 
 
 2 Taylor v. Horde, 1 Burr. E. 60. 
 
664 STATUTES OF LIMITATION. 
 
 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. Anything which clearly 
 defines the extent of the claim, which professes to 
 pass the land, and is not obviously defective, wUl 
 constitute the basis of an adverse possession. That 
 it need not be ivritten, is manifest from the fact, that 
 imrol gifts, disclaimers by tenants, and an 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 evi- 
 dence of claim is relied on, it need not purport to 
 carry the legal title. Thus a contract for a convey- 
 ance, or a deed without a seal has been held to be 
 sufficient. It has been said that the title must be 
 prinia 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 proven. 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 mala 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 contin- 
 ued, renders it adverse to the owner. The only 
 exceptions to this rule are those cases where a ten- 
 ant enters in privity with the title of the proprietor, 
 
STATUTES OP LIMITATION. 665 
 
 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 mort- 
 gagee, vendor and vendee, trustee and cestui que trust, 
 and tenants in common. Where this relation exists, 
 am/ hostile holding is in had 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, and bars 
 the entry of the former owner and those claiming 
 under him, for the simple reason, that it repels the pre- 
 sumption that the possessor entered under the owner, 
 and bears upon the face of the transaction, 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 
 
666 STATUTES OF LIMITATION. 
 
 to be conclusive, or even prima fade evidence of title 
 in the purchaser at the tax sale, then all of the au- 
 thorities concede the correctness 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 prohandi rests upon 
 the purchaser 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 
 paramomii 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 
 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. Mc Arthur} a tax deed, 
 which was not evidence of title, was held to be ad- 
 missible in evidence for the purpose of defining the 
 boundaries of the purchaser's claim, and thus "establish 
 the extent of his possession. And in Waldron v. Tvitle} 
 in speaking of the effect of a tax deed, the court 
 remarked : " There are cases in which a deed thus 
 inoperative as an instrument of conveyance, may be 
 evidence as to the extent and character of the 
 possession. Thus, it being a presumption of law, 
 that he who enters imder a deed, enters claiming 
 according to his deed, and that his possession is ad- 
 verse 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 
 
 1 6 & 7 Ohio E. 307. 24N. H. E. 371. 
 
STATUTES or LIMITATION. 667 
 
 extent and character of his possession."-^ But the 
 case of Heariclc 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 collector, 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 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 
 completed in the fall of that year, or the spring of 
 1829 ; that they 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 posses- 
 sion 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 
 
 1 It was, however, said in WaUingford v. Fishe, (24 Maine E. 386), " That a 
 tax sale and deed being void, could give no rights whatever ; they were as 
 ineffectual to give seizin, as they were to convey title." 
 
 '' 4 Porter Ind. E. 164. 
 
668 STATUTES OF LIMITATION. 
 
 doings alone, and not of the anterior proceedings. It 
 further appeared, that Isaac Dunn was one of the 
 mesne grantees from the United States, under whom 
 the plaintiflFs 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 
 defandants 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 commencement 
 of this suit, they should find for the defendants. 2. 
 That if the jury believe, from the evidence, that the 
 defendants were in the possession of said land, hold- 
 ing the same by virtue of a sale for taxes, and 
 claiming it as their own at the time of the convey- 
 ance of Piatt, and the Diimis 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, can- 
 not recover in this suit." These instructions were 
 refused, and the court instructed the jury as follows : 
 " That the collector's certificate of sale is not evidence 
 to prove that the land was advertised for sale, as 
 required by law; and that, if there is no other 
 
STATUTES OF LIMITATION. 669 
 
 evidence of such advertisement, 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 instructions should have 
 been given. They assume positions which are obvi- 
 ously correct, and are pertinent to the defense set up. 
 It was shown by the evidence, that Stephen and Frisby 
 Hides entered upon the land in dispute, in the year 
 1828 ; and that they, and those claiming under them, 
 have been in the continuous possession of it ever 
 since. Their entry appears to have been made in 
 good faith, under an assertion of right, and a title 
 which they beheved to be good. To constitute an 
 adverse possession a rightful title is not required. It 
 has been said, that ' whenever this defense 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 defend- 
 ants held was not a nullity. It was derived from a 
 collector's sale, and a deed made in pursuance of that 
 sale. The land in question was assessed for taxation 
 for the year 1824, as non-resident land, and a precept 
 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, prima facie 
 evidence that the collector had done his duty relative 
 to the sale? In this view, it is evident that the defend- 
 ant'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 
 
 1 See R. S. 1824, Sec. 12, p. 344. ^ X)oe v. Himdkh, 4 Blackf. R. 494. 
 
670 STATUTES OF LIMITATION. 
 
 fully established by the evidence; but whether it 
 commenced within 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 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. 1. Because the premises were in the 
 adverse possession of the defendants at the time of 
 the conveyance to Isaac Dunn ; and 2. Because their 
 right of entry was barred by the statutes of limita- 
 tion. 
 
 The Illinois statute of January 17, 1835, declares, 
 " that hereafter no person who now has, or hereafter 
 may have, any right of entry into any lands, etc.,, of 
 which any person may be possessed by actual residence 
 thereon, having a connected title in laiv or equity dedwihle 
 of record, from this State or the United States, or from 
 sioy piMic officer, or other person, 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," etc. 
 The same statute barred all actions, real, possessory, 
 ancestral and mixed, and writs of right under simi- 
 lar circumstances. The statute also provided, that 
 
STATUTES OP LIMITATION. 671 
 
 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 impris- 
 oned, 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, 
 after the time when their respective disabilities ceased. 
 The act took effect by its terms, June 1, 18BB} 
 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. Brownf 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 contro- 
 versy 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, 
 
 > Laws 1835, pp. 42-3. 
 
 2 Bhinehart v. Schuyler, 2 Gilm. E. 528 ; Bruce y. Schuyler, 4 Ibid. 278. 
 
 3 11 Howard TJ. S. E. 414. 
 
672 STATUTES OP LIMITATION. 
 
 and required the auditor to advertise 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 prima fade evidence of a 
 compliance with the prerequisites. A majority of 
 the court held, that the defendant was not entitled to 
 the benefit of the limitation 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 offi- 
 cer authorised 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 according to that power, the deed is void 
 upon its face, because the action of the auditor is 
 Ulegal, and the law presumes it to be known to a 
 purchaser. The latter can acquire no title under it. 
 Being a void deed, possession 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 
 
STATUTES OF LIMITATION. 673 
 
 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 circum- 
 stances 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, authorised ly laiv, 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, ' author- 
 ized 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 authorized 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 foundation for a possession under a right which 
 had been acquired by a purchase — not a mere naked 
 85 
 
674 STATUTES OF LIMITATION. 
 
 possession, but one taken in good faith by the pur- 
 chaser. The legislature intended to extend its pro- 
 tection to persons who had occupied land under a 
 connected title, jmma facie good against ^roof aliunde, 
 which would rebut or destroy such prima facie title." 
 Judges Taney, Catron and Grier dissented.-' 
 
 1 In relation to the legal presumption, that erery man is bound to know the 
 law, which ivas relied upon to sustain the majority opinion, Cliief 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 arc, 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 
 contirming defective and Toid deeds for real property, have frequently been 
 passed in some of the States ; and their validity has been recognized by this 
 court. Limitation laws, in regard to suits for real estate, are founded on the 
 same principle. Por if the title papers of the party in possession are legally 
 executed, and made by persons who had 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 igno- 
 rance of the law. And with this object in view, it could make no difference, 
 whether the legal defect was shown 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 distinc- 
 tion between ignorance of the law in one respect, and ignorance in another. 
 And if every legal defect in 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 ofBcer, authorized to sell for 
 taxes. Erom his official 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 requii-ed by law ; and professes 
 to convey to the purchaser a valid title in due form. Almost every one, not 
 perfectly acquainted with the different 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 bo sold, by force of a lien for 
 taxes due ; suclx sale carried the true owner's title throughout, including the 
 patent, regardless of the fact in whoso name the land was advertised and sold. 
 So the laws of Illinois expressly jirovido. The statute has no reference to 
 titles good in themselves, but was intended to protect apparent titles, void in 
 law, and to supply a defense where none existed without its aid. Its object is 
 repose. It operates inflexibly, and on principle, regardless of particular cases 
 of hardship. The condition 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 correct, no possible convey- 
 ance, made by a public officer, which is void because the requisite foi-ms of law 
 
STATUTES OF LIMITATION. 675 
 
 The construction of this statute came before the 
 Supreme Court of Illinois, in Irving v. Broivnell} The 
 question arose in an action of ejectment. The decla- 
 ration was served January 18, 1848. The plaintiff 
 deduced a regular title from the United States. The 
 defendant claimed title under a tax deed, dated Jan- 
 uary 20, 1829, reciting a sale January 8, 1827. This 
 deed was 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. 
 Trumbull, J. : [after discussing another limitation law, 
 which wiU be noticed presently,] " There is, however, 
 another act, passed January 17, 1835, under the 
 second section of which (which is to be found in 
 Eevised 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 
 
 hare 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." ill Illinois E. 402. 
 
676 STATUTES OF LIMITATION. 
 
 for the non-payment of taxes, etc. 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 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, Avithout proof of these prerequisites, it is a 
 sufficient title to protect any one who can connect 
 himself with it, and show that he has been possessed 
 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 pre- 
 requisites 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 accep- 
 tation, 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 used ; and there can be no 
 question, when the whole act of 1835 is examined, 
 that the legislature never intended, by the term ' con- 
 nected title,' a perfect and complete title. The title 
 contemplated can mean nothing more than such a 
 
STATUTES OF LIMITATION. 677 
 
 title as is evidenced by a deed in proper form, and 
 duly executed 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 resi- 
 dence thereon, for seven years, when this action was 
 commenced ; 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 
 autlioriiy of the officer, to sell the land for the non- 
 payment 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 frima facie evidence 
 of title, will not answer, if the testimony 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 heretofore stated,^ it appeared that 
 the defendant had paid the taxes for the years 1839, 
 1840, '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 sufficient ; and, 3. That suffer- 
 ing the land to be sold for the taxes of 1844, and 
 purchasing it himself, was not equivalent to a pay- 
 ment of the tax for that year. Trumbull, J. said : 
 
 l.4nfe, p. 661. 2 n Illinois R. 402. ^Ante,^.m^. 
 
678 STATUTES OP LIMITATION- 
 
 " This brings us to a consideration of the first section 
 of the act of March 2, 1839, entitled ' An act to quiet 
 possessions and confirm titles to land;' which is to 
 be found incorporated 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 possesssion 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 tenements, shall be held and 
 adjudged to be the legal owner of said land or tene- 
 ments, to the extent and according to the purport 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 actual possession thereof, and pay taxes upon 
 the same, for the space of seven years. Three things 
 are necessary, and must concur, to enable a party to 
 avail himself of this statute : 1. He must have a 
 claim and color of title to the land, 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. What the claim and 
 color of title must be, that will enable a party to 
 take advantage of this statute, is a question of some 
 difficulty. 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 has been adverse ; that is, under claim of 
 
STATUTES OV LIMITATION. 679 
 
 title, although the statutes are silent as to the char- 
 acter 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 limita- 
 tion 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 mean- 
 ing, 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 entitled to the 
 protection of the act of 1839. By the 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 
 authorize the recovery of the land, when unattacked, 
 as if no better title was shown — that is, d. prima facie 
 title. Such a title, connected with seven years' 
 actual possession and payment of taxes, becomes 
 
680 STATUTES or LIMITATION. 
 
 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 prima 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 was not shown that he 
 had actual possession of the premises in dispute, for 
 seven successive years previous to the commence- 
 ment of the action ; nor does it show that he paid 
 all taxes assessed upon the land, during said seven 
 years. The action was commenced January 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 possession contemplated by the 
 statute. As the legislature, in reducing 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 posses- 
 sion under the act of 1839 should be more open, 
 marked and manifest, than under the former law. It 
 would be unreasonable, when the legislatvire 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 construc- 
 tion to both. The legislature, undoubtedly, meant 
 
STATUTES OF LIMITATION. 681 
 
 what they have said, that the possession must be 
 actual ; that is, visible, open and exclusive, either by 
 an inclosure, the erection of 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 defend- 
 ant 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 
 requirement of the law. In this case it is not pre- 
 tended that possession 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 
 insists was a payment of the tax of that year. This 
 is not so. 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 iipon the land. 
 It is only lands upon which taxes are not paid, that 
 can be sold. In no view of the case did the defend- 
 ant put himself in a situation to have the benefit of 
 the act of March 2, 1839." 
 
 This decision has been substantially followed by 
 Judge Drummond. It has been held in his court, 1. 
 That the tax deed must he prima facie evidence of title, 
 in order to avail the possessor under this statute. 2. 
 That a tax sale and certificate, under which the 
 86 
 
682 STATUTES or limitation. 
 
 defendant entered, and continued in possession seven 
 years, did not constitute claim and color ; and that if 
 the tax deed was executed and dehvered within the 
 seven years, in pursuance of the sale, it could not 
 have relation back to the sale or entry, so as to pro- 
 tect 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 Mon- 
 day 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 was listed in the name of the purchaser, or 
 where he was in possession at the time of the assess- 
 ment and sale. 
 
 The decisions in Illinois, upon the construction of 
 the limitation 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 ivritten evidence of it.-' The statute of January 
 17, 1835, required possession by actual residence under 
 a connected title, deducible of record, etc., while the act 
 of March 2, 1839, required in terms, 1. Actual posses- 
 sion 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 legisla- 
 ture seems to have been to make the law of 1839 
 more effectual in protecting the hona fide settler, than 
 
 1 Taylor v. Buclcner, 2 A. K. Mar. E. 18 ; McCall v. Nealt/, 3 Watts E. 72. 
 
STATUTES OF LIMITATION. 683 
 
 the previous 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. " A title which, tested by itself, 
 would appear to be good," would, when accompanied 
 by seven years' actual residence upon the land, be a 
 protection to the settler under the law of 1835. This 
 is conceded in Irving v. Brownell, in reference to a tax 
 title which was notoriously bad. For what object, 
 then, was the law of 1839 enacted ? It is senseless 
 and unmeaning, 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 
 — tvritten evidence of the claim, and actual residence 
 are unnecessary. The law of 1835 requires actual 
 residence under a connected title, deducible of record, etc. ; 
 and by the true rule of construction, there must be a 
 chain of paper title — prima 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 inclosure, cultivation, residence, or 
 any of the various acts which, according to the prin- 
 ciples of the common law, are evidence of a posses- 
 sion. 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 disseized the true owner. 
 
684 STATUTES OF LIMITATION. 
 
 continued his possession for seven years, made im- 
 provements 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 con- 
 struction 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 mala fide, by purchasing of 
 one who he knew had no title, or with actual notice 
 of a paramount 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 liberally — for it is intended 
 for repose.^ The conclusion to be drawn in view of 
 this process of reasoning is, that while the act of 
 1835 was intended to embrace only connected titles, 
 deducible of record, which are 'prima 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 or bad, prima facie or not, so that it was 
 acquired in good faith. The only distinctive differ- 
 ences between the law of 1827 and 1839 being, that 
 the latter reduces the time of limitation from twenty 
 
 ^McCall V. Nealy, 3 Watts R. 72 ; Mmdij v. Fleming, 4 Geo. E. 119 ; Den. v. 
 Hunt, 1 Spencer E. 493 ; Jaclcson v. Thomas, 16 John. K. 301 ; Banh v. Smyers, 
 2 Strobhart R. 28 ; Angell on Limitations, 435 ; Tillingh. Adams, 471. 
 
 ^ Conyers v. Kenans, 4 Goo. B. 317 ; Fain v. Garthright, 5 Ibid. 12. 
 
STATUTES OP LIMITATION. • 685 
 
 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 possession 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 purchaser, 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 within five 
 years after the date of such sale, and not after." 
 Another statute of that State, in declaring the legal 
 efiect of a tax sale and conveyance, provided, that 
 " The deed so made by the collector shall be acknowl- 
 edged 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 Pillow v. 
 Roberts^ which was an action of ejectment, the de- 
 fendant 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 re- 
 versing the judgment. On the point as to the statute 
 of limitations, Judge Grier, who delivered the opinion, 
 
 1 13 Howard U. S. B. 472. 
 
686 STATUTES or LIMITATION. 
 
 remarks: "In order to entitle the defendant 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- 
 payment of taxes. He was not bound to know that 
 all of the requisitions of the law had been complied 
 with, in order to make the deed a valid and indefeasi- 
 ble 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 protection of the statute, be- 
 fore he could be entitled to it. Such a construction 
 would annul the act altogether, which was evidently 
 intended to save the defendant from the difiiculty, 
 after such a length of time, of showing the validity 
 of his tax title." 
 
 The Pennsylvania statute provides, that " no action 
 for the recovery of land sold for taxes 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 disability 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." From what 
 period of time does the limitation 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 limi- 
 tation 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 ejects 
 
STATUTES OF LIMITATION. 687 
 
 ment, when no one was in actual possession, 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 contended 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 re-considered, and the 
 decision was, that the five years began to run from 
 the time the purchaser took possession, and not from 
 the sale ; because, according to the principles which 
 govern actions of ejectment, the owner could not 
 sue until the tax purchaser took possession.^ And 
 such continued to be the ruling of the Supreme Court 
 of Pennsylvania,^ until the passage of the statute of 
 March 29, 1824, 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 
 date of the sale.^ 
 
 1 Parish y. Stevens, 3 S. & E. 298. 
 
 2 Wain V. Shearman, 8 S. & R. 357. 
 
 " Cranmer v. HaU, 4 W. & S. 36 ; Bigler v. Kams, Ibid. 137 ; McCall v. Hime- 
 baugh. Ibid. 164; Bayard v. Inglis, 5 Ibid. 465. 
 * Roib r. Bowen, 9 Barr K. 71. 
 
688 IMPROVEMENTS. 
 
 CHAPTER XL. 
 
 OP COMPENSATION FOR IMPKOTEMENTS 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 obhgation 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 form- 
 ing 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 consti- 
 tute 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 plaintiff 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, may be 
 treated as an equitable set-off^ and the value thereof 
 
 ^ 3 Kent Com. 334 ; 5 John. E. 272 ; 1 A. K. Mar. E. 444. 
 
IMPEOVJSMBNTS. 689 
 
 recouped} The rule of the civil law was more equitable 
 in its character. It was, that the honcefidd possessor 
 was entitled to be reimbursed, by way of indemnity, 
 the expenses of beneficial improvements, so far as 
 they augmented the property in value.^ The common 
 law proceeds upon the assumption, that it is the duty 
 of government to assist the rightful owner of prop- 
 erty 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 prosecu- 
 tion of his remedy ; that the improvements may be 
 of such a costly 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 associa- 
 tions connected with it ; that it may have answered 
 all of his necessities and desires in its original state, 
 without the improvements ; that the adverse posses- 
 sor, 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 obligation 
 resting upon the owner to pay for them. As a gen- 
 eral rule, this reasoning is entitled to great weight, 
 but a distinction ought to be made between ignorance 
 
 1 2 John. Ca. 441 ; 1 Ibid. 281 ; 1 John. Ch. K. 387 ; 8 Whoa. R. 81-2. 
 - 2 Kent, 336. 
 
 87 
 
(390 IMPKOVEMENTS. 
 
 sxiAyiaxiioi good faith. The reasoning of Chief Justice 
 Taney, 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 lUinois held, 
 that where a deed — commonly called a quit claim 
 — 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 subse- 
 quently 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 
 innocent purchaser is deprived of his land, and the 
 fruits of his labor. Who will say, 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 follows, 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 and permits him to 
 go on with his improvements, without 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 bona fide purchaser, without notice, and for a 
 valuable consideration, seeks an account in equity, 
 against such possessor, for the rents and profits, the 
 
 ^Ante, pp. 675-6. 
 
 - G John. C. E. 68-9 ; 1 Scho. & Lcf. R. 73 ; 1 Story's Eq., Sec. 388 ; Brad- 
 ley V. Snyder, 14 111. E. 263. 
 
IMPKOVEMENTS. 691 
 
 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 ah 
 estate holds only an equitable title thereto, and seeks 
 the aid of a court of chancery to enforce it, this aid 
 will only be given on the terms of making compen- 
 sation for the beneficial improvements made by the 
 defendant.^ And it is very strongly intimated by 
 Judge Story, that the courts 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 coun- 
 try, in whatever form they may have been presented 
 to the court, it may be safely aflBrmed that equity 
 will grant relief to the bona fide possessor who has 
 made lasting and valuable improvements upon the 
 land.* The right of a bona fide possessor to sustain 
 a bill for compensation, after an eviction at law, is 
 denied in WintJa^op v. Huntington!' Where the occu- 
 pier has been guilty of fraud, or had notice of the 
 defect in his own title, or of a superior outstanding 
 title, he is not entitled to compensation.'^ Such is 
 
 1 BrigU V. Boyd, 1 Story E. 478. ^ ii,;a. 3 Ibid. 
 
 * Parklmrst v. Van Cortlandt, 1 J. C. E. 274 ; Botsford t. Burr, 2 Ibid. 
 405 ; Bennedict v. Oilman, A Paige C. R. 58 ; Sluice's case, 1 Bland's E. 57 ; 
 Southall V. McKeand, 1 Wash. Va. E. 336 ; Dellet v. Whitner, 1 Chev. E. 213 ; 
 part 2; Gillis v. Martin, 2 DeT. Ch. E. 470; Witliers v. Yeadon, 1 Eich. 
 Cli. E. 324 ; Kennedy v. Kennedy, 2 Ala. E. 571 ; Goodwin v. Lyon, 4 Porter 
 Ala. E. 297 ; Herring v . Fdlard, 4 Humph. E. 362 ; Pulliam v. Robinson, 
 
 1 Mon. E. 228 ; Stevenson v. Dunlap, 7 Ibid. 134 ; Ballard v. Stephenson, Ibid. 
 364; Hamilton v. Hamilton, 5 Litt. E. 28; McCampbellr. McCamphell, Ibid. 92; 
 Bichardson v. McKinson, 6 Litt. B. 320 ; Thompson t. Masm, 4 Bibb E. 195 ; 
 Hewett T. Berryman, 5 Dana E. 162 ; Taylor v. Whiting, 9 Ibid. 399 ; Barlow 
 V. Bdl, 1 A. K. Mar. E. 246 ; Griffith v. Depew, 3 Ibid. 177 ; Bdl v. Bamett, 
 
 2 J. J. Mar. E. 516 ; Hawlcins v. Lowry, 6 Ibid. 55. ^ 3 Ohio E. 327. 
 
 ^ Van Home v. Fonda, 5 J. C. E. 388; Putnam t. Ritchie, 6 Paige C. E. 390; 
 
692 IMPROVEMENTS. 
 
 believed to be the equity rule in regard to compen- 
 sation 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 possi- 
 ble 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 
 bona fide occupant, and securing to him full compensa- 
 tion for any losses which he might otherwise sustain 
 by reason of an eviction under a paramount title. 
 These laws are variously denominated, " betterment," 
 "improvement," and "occupying claimant" laws. 
 They are undoubtedly constitutional, standing upon 
 equitable principles and public policy for their sup- 
 port.^ They are sustainable upon the same principle 
 that statutes of limitation and acts curing or confirm- 
 ing void and defective titles, are held 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 posses- 
 sion 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, without giving the 
 adverse possessor notice of the claim, he shall be 
 estopped from denying the duty of compensation. 
 
 McKim V. Moodij, 1 Band. E. 58; Morris v. Terrell, 2 Ibid. 6; Pomeroy v. 
 Lamheth, 1 Iredell C. R. 65 ; De Brahm v. Femoick, 1 Desan. K. 114 ; Bekm v. 
 Briggs 4 Ibid. 465; Ddlel T. Whitncr, 1 Chcv. R. 213, part 2 ;■ Harrison y. 
 Fleming, 7 Mon. R. 537 ; Harrison v. Baker, 5 Litt. R. 250 ; Scroggs v. Taylor, 
 1 A. K. Mar. R. 247 ; Patrick v. Marshall, 2 Bibb R. 40. 
 
 1 RossY. Irving, 14 111. R. 176-8. 
 
 ^ Ross Y. Irving, 14 Illinois R. 171, and cases there cited. The only cases 
 which maintain the opposing doctrine arc Nelson v. Allen, 1 Yerger R. 360, and 
 Green v. Biddle, 5 U. S. Cond. E. 370. 
 
IMPROVEMENTS. 693 
 
 Such laws are prospective in their character, and are 
 no more unjust to the owner, than the common law 
 rule was to the possessor. 
 
 Whether these laws are applicable to improve- 
 ments made under tax titles, and what kind of a tax 
 title will constitute a proper basis for a claim of com- 
 pensation, 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 
 Boss 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," etc., from an action for the mesne profits, and 
 gave him compensation for lasting and valuable im- 
 provements made prior to the receipt of such notice. 
 In the case cited, where the defendant was in posses- 
 sion, and made improvements under a tax deed which 
 was not evidence joer se of title, and who failed to prove 
 a compliance by the ofl&cer, 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 limi- 
 tation 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 exempted from a suit for the 
 back rents and profits. 
 
 The Pennsylvania statute of April 3, 1804, de- 
 clared : " that no action for the recovery of land sold 
 for taxes shall lie, unless the same be brought within 
 
 lUIlUnoisK. 171. 
 
G94 IMPROVEMENTS. 
 
 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 with- 
 in the United States, five years after such disability 
 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 ; hut 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 
 parsons recovering the same, before he, she or they 
 shall obtain possession of the land so recovered."^ 
 In the construction of this statute it has been held, 
 that the purchaser is entitled to compensation for 
 improvements, whether the lands, at the time of the 
 sale, belonged to persons laboring under disabilities, 
 or those who were legally competent to protect 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 neglects to make the necessary 
 inquiries, he must be treated as a mala fide purchaser, 
 and cannot recover compensation for his improve- 
 ments. 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 or 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 compen- 
 
 1 1 S. & K. 38 ; 4 Smith Laws 202, Sec. 3. 
 •■' Crekjh v. Wilson, 1 S. &. R. 38. 
 
IMPEOTEMENTS. 695 
 
 sation.^ It was, however, held that, although the sale 
 of land exempt from taxation was absolutely void, yet 
 the purchaser was entitled to the value of his im- 
 provements under this statute.^ In another case, 
 it was held that the purchaser was entitled 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 princi- 
 ple that, under this statute, compensation is incident 
 to every recovery for irregularity in the assessment, 
 process or sale ; in fine, that it was designed for the 
 protection of every lona fide purchaser at a tax sale, 
 who has expended money or labor on the faith of the 
 title he acquired.* And it seems to be conceded, that 
 in all cases where the purchaser knew of the illegality 
 of the sale, he is entitled to no compensation what- 
 ever. 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 stafute. The only conceiv- 
 able 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 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 
 
 '^ McKee r. Lamberton, 2W. & S. 107; Hockenhury v. Snyder, Ibid. 240; 
 Miller T. Keene, 5 Watts E. 350 ; Cranmer v. Hall, 4 W. & S. 36 ; Lambertson v. 
 Horjan, 2 Ban- R. 22. 
 
 2 Coney r. Oweii, 6 Watts K. 435. In this case Judge Kennedy dissented. 
 
 s Gilmorev. Thompson, 3 Watts E. 106. 
 
 * See, also, Coney v. Owen, 6 Watts E. 436. 
 
696 IMPROVEMENTS. 
 
 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 jDurchasers at 
 tax sales, for money and labor expended in improv- 
 ing the land purchased, unless the illegality of their titles 
 appears iqwn the face of the proceedings under ivhich they 
 claim. 
 
or THE INTEKPBETATION AND CONSTRUCTION, ETC. 697 
 
 CHAPTEE XLI. 
 
 OF THE INTERPRETATION AND CONSTRUCTION OF STATUTES 
 AFFECTING REAL PROPERTY. 
 
 Eights 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 their 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, for- 
 feitures, taxes, etc., 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 legis- 
 lative spoliation and private invasion. The govern- 
 ment can take it but in one of 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 conceded to be 
 
 1 Entick Y. Carrington, 19 Howard St. Tr. 1066. 
 
698 OF THE INTEBPBETATION AND 
 
 the duty of the government to furnish adequate 
 remedies to the owner, not only to recover the posses- 
 sion of it when wrongfully or unjustly withheld from 
 him ; but, also, to protect him in the possession and 
 use of it, by the punishment of the wrong doer. This 
 remedial power of the government imposes upon it 
 the duty of furnishing to creditors ample means to 
 enforce the collection of just debts, by subjecting 
 the estate of the debtor to their payment. The only 
 additional power over private property, which may 
 be exercised by strangers, is that implied in the com- 
 mon law maxim, " Salus populi est suprema lex." There 
 is an implied assent on the part of every member of 
 society, that his own individual welfare shall, in case 
 of necessity, 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 defense 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 en- 
 dured, rather than a public inconvenience ; thus, if a 
 public highway be out of repair, and impassable, a 
 passenger may lawfully go over the adjoining land. 
 In every instance above given, an interference with 
 private property is obviously dictated and justified 
 siimma 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 
 
CONSTRUCTION or STATUTES. 699 
 
 principles of natural justice 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 strictli/ — 
 especially where they are penal in their character or 
 effects} 
 
 The various rules of interpretation and construction 
 which have a direct bearing upon this class of statutes, 
 have been incidentally cited and discussed in the pre- 
 ceding portions of this work, especially those which 
 govern statutes conferring powers to be exercised 
 over real property. It is now proposed — contrary 
 to the original plan of the work — to conclude this 
 chapter with a concise statement of those rules which 
 are generally applied in the interpretation and con- 
 struction 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 piimeval principle in man which 
 ever urges him, with irresistible power, to represent 
 outwardly that which moves him within; a pressing 
 urgency of utterance."^ Whatever may be our 
 thoughts, emotions, will, desires, or commands, the 
 object we have in view can alone be accomplished by 
 resorting to outward manifestations. There is no direct 
 communion 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, ges- 
 tures, signals, telegraphs, monuments, sculptures of 
 
 1 Smith's Com. 854 ; Sharp t. Spier, 4 Hill R. 76 ; Smith v. Spooner, 3 Pick. 
 E. 229 ; Wales r. Stetson, 2 Mass. E. 146 ; 9 Gill & J. 479 ; Broom's Legal 
 Maxims, 3-6 and 465 ; Ante, chapters 1 and 2. 
 
 2 Lieber's Legal and Political Hei-meneutics, chap. 1, sec. 2. 
 
700 OF THE INTEEPKETATION AND 
 
 all kinds, pictorial and hieroglyphic signs, the stamp 
 on coins and seals, beacons, buoys, insignia, ejacula- 
 tions, articulate sounds, or their representatives — 
 that is, phonetic characters, on stones, wood, leaves, 
 paper, etc. — 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 con- 
 tortion of the countenance, may convey the emotion 
 or thought of a human being, as clearly as an articu- 
 late sound, or a written statement. These signs are, 
 therefore, used to convey ideas ; and interpretatwn, 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 the 
 interpretation of such signs as are used by the law- 
 making body, we purpose to deal. There is a mani- 
 fest distinction between interpretation and construc- 
 tion, though they are frequently confounded, and 
 used as synonymous 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 communi- 
 cate. Construction, on the other hand, is the drawing 
 of conclusions, respecting subjects that lie beyond 
 the direct expression of the text — conclusions which 
 
 ^ Lieber, chap. 1, sec. 3. 
 
CONSTRUCTION OF STATUTES. 701 
 
 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 legisla- 
 ture may use words which every one understands, 
 and which, for the case put in the text, are suffi- 
 ciently clear ; but if yoii 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 instan- 
 ces, 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 inter- 
 pretation. The human mind is incapable of antici- 
 pating, 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 mani- 
 fested by a sound exposition of the ivords 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 foot- 
 ing, 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 sometimes, in the 
 exercise of that discretionary power which the 
 doctrine of construction gives rise to, make some 
 
702 OF THE INTEUPEETATION AND 
 
 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 legislative body of a State, solemnly expressed, 
 according to the forms prescribed in the constitution 
 — an act of the legislature. The word is used in 
 contradistinction to the common law. Statutes are 
 divided into classes, each distinguished by a technical 
 name. They are general or special, 'puhlic 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 judicially 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 exceptions than rules, 
 being only those which operate upon particular per- 
 sons and private concerns. Of these, the courts are 
 not bound to take notice, unless they be formally 
 shown and pleaded. Statutes are also either declara- 
 tory of the common law, or remedial of some defects 
 therein. A declaratwy 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 statutes are those Avhich are made to supply 
 the defects, or abridge the superfluities which ex- 
 perience may prove to exist in the common law. 
 
CONSTRUCTION OF STATUTES. 703 
 
 This class is subdivided into enlarging statutes, by 
 which the common law is rendered more comprehen- 
 sive and extended than it was before ; and into 
 restraining statutes, whereby the common law is nar- 
 rowed down to that which is regarded by the legisla- 
 lature 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 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 pepetual statute is 
 one which is not limited by express words, and con- 
 sequently continues in full force and effect until 
 repealed by the legislature. Still another division, is 
 into affirmative and negative. An affirmative statute is 
 one which is affirmative in its terms ; such a statute 
 does not abrogate or repeal the common 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 execution' 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 purchasers, unless 
 it is recorded in the time prescribed by the statute : 
 the statute of frauds declares that no action shall be 
 
 1 1 Bl. Com, 85-7. 
 
704 OF TIIE INTERPBETATION AND 
 
 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 instrument shall be received 
 in evidence, unless regularly stamped, etc. In all of 
 these instances, the statutes supersede the common 
 law — repeal it by implication, because both cannot 
 be enforced. And lastly, some statutes are called 
 jKiial. By this term is not only included those 
 statutes which inflict 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 corpora- 
 tions or individuals in derogation of common right ; 
 those made in derogation of the common law ; 
 those which affect property ; those which are techni- 
 cally called disabling acts ; and statutes which impose 
 restrictions upon trade or common occupations, or 
 which levy an excise or tax upon the citizen — 
 indeed, it embraces all laws which in any manner 
 affect the liberty or property of the citizen, in viola- 
 tion 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 borrowed from the civilians, it is 
 proper to review in a concise manner, the principles by 
 which the writers upon the natural and civil law were 
 governed in construing and interpreting a given text. 
 Lieber, in his Avork on " Legal and Political Herme- 
 neutics," thus defines the different species of inter- 
 
CONSTRUCTION 01? STATUTES. 705 
 
 pretation: 1. Chse — wherefor just reasons connected 
 with the formation and chai-acter of the text, we are 
 induced to take the words in their narrowest meaning. 
 2. Eodensive — that which induces us towards the 
 adoption of the more or most comprehensive signifi- 
 cation of the words. 3. Extravagant — 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 pro- 
 ceeds simply on the general principles of interpreter 
 tion in good faith, without being tied down by any 
 specific or superior 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. Predestinated — is that where the 
 person who interprets, either consciously 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 cunning, 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, comprehensive, 
 and transcendent or extravagant, and thus defines 
 them : 1. Chse — that which inclines to the directest 
 possible application of the text, or the principles it 
 involves ; to new or unprovided cases, or to contra- 
 dictory 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, 
 89 
 
70G OP THE INTERPRETATION AND 
 
 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 belonging to the province of that text. 
 4. Extravagant — is that vfhich carries the effect of 
 the text beyond its true limits, and is, therefore, 
 no longer genuine construction — as the previous 
 species becomes of a more and more doubtful charac- 
 ter, the more it approaches to this. The difference 
 between transcendent and extravagant construction 
 is this : the former remains, in spite of its trans- 
 cendency, within the spirit of the law, or document 
 to be construed ; while extravagant construction 
 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 interpre- 
 tation to be applied to every kind of text. 1. We 
 must convince ourselves of the ffmuineness 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 interpreta- 
 tion. To have two meanings in view is equivalent 
 to having no meaning — and amounts to absurdity. 
 3. In no case of human 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 
 
CONSTBUCTION OE STATUTES. 707 
 
 good faith ; but they are peculiarly requisite in inter- 
 pretation, because its object is to discover something 
 that is doubtful, obscure, vailed ; which therefore may 
 admit of different explanations. If without common 
 sense, we make even of strict syllogism, an instru- 
 ment, apparently, to prove absurdities, how much 
 more are those two ingredients of all honesty neces- 
 sary in interpretation. Common sense and good faith 
 are the leading stars of all genuine interpretation. 
 Good faith and interpretation means that we con- 
 scientiously desire to arrive at truth, that we honestly 
 use all means to do so, and that we strictly adhere 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 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, knowledge and accurate 
 care and selection. 5. We must try 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 
 cotemporaneous interpretation is founded upon this 
 principle. 7. If technical terms belonging distinctly 
 to the terminology of an act 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, particu- 
 lar 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 ivords themselves, and bring to our assistance 
 
708 OP THE INTEEPKETATION AND 
 
 extraneous principles, rules, or other aid, in that meas- 
 ure and degree only, as the strictest interpretation 
 becomes difficult or impossible. 11. That which is 
 probable is preferable to the improbable ; the fair to 
 the unfair ; the customary to the unusual ; the easy 
 to the difficult ; the intelligible to the unintelligible. 
 12. We are to follow the special rules of interpre- 
 tation which have been prescribed by proper au- 
 thority. 13. We must endeavor to find assistance 
 in that which is near, before we resort to that which 
 is less so. Thus, we must first try to ascertain the 
 meaning 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, etc., 
 of the same author ; and if that does not suffice, we 
 resort to cotemporaneous 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 appli- 
 cable at all, constitute vahd rules of construction. 
 
 2. That the main guide of construction is analogy, 
 or rather reasoning by parallelism. 3. That the aim 
 and object of the text are essential, if distinctly known, 
 in construing them. 4. So, also, are the causes of a 
 law. 5. That no text imposing obligations is under- 
 stood to demand impossible things. 6. That privi- 
 leges, 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 com- 
 pact, or solemn agreement, the closer ought to be its 
 
CONSTRUCTION OF STATUTES. 709 
 
 construction. 8. That a text imposing a performance, 
 expresses the minimum, if the performance is a sac- 
 rifice to the performer ; the maximum, if it involves 
 a sacrifice or sufferance on the side of the other party. 
 9. That the construction ought to harmonize with 
 the substance 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 construc- 
 tion 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 con- 
 struction must be in certain cases. 12. That nothing 
 contributes more to the substantial protection of 
 individual liberty, than a habitually close interpreta- 
 tion and construction. 13. It is important to ascer- 
 tain 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. 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 interpretation and 
 construction in the civil code.^ The best classifica- 
 tion of the several species of construction and inter- 
 pretation is that of Rutherforth — 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 
 
 1 Smith's Com., chap. 12 ; Vattel's Law of Nations, chap. 17. 
 
710 OF THE INTBRPllBTATION AND 
 
 short of it, and we are to collect it from rational or 
 probable conjecture only. 3. Mixed — where the 
 words, though they do express the intention when 
 they are rightfully 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 its classifi- 
 cation 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 particu- 
 lars 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 they are 
 inserted here for the convenience of the profession. 
 The author is aware that there are many other rules 
 of construction not to be found in the following 
 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. 
 
CONSTKUCTION OF STATUTES. 711 
 
 MAXIMS AND RULES OF INTERPEETATION AND CONSTRUCTION. 
 
 1. Courts have nothing to do with the propriety 
 or expediency of a statute. 3 Scam. R. 153 ; 8 John. 
 R. 51. 
 
 2. The rules and maxims of interpretation and 
 construction, laid down by the sages of the common 
 law, must be adhered to. 3 Scam. R. 157 ; 7 Cranch 
 R. 52 ; 2 U. S. Cond. R. 412 ; 1 Kent's Com. 462 ; 10 
 John. R. 479. 
 
 3. The common law enters largely into the con- 
 struction of every statute, and a just interpretation 
 is ever controlled by that law. 10 John. R. 586. 
 
 4. 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 possible, and by the course which that 
 law observes in similar cases. Dwarris, 695; IP. 
 Wms. 252 ; 1 Saund. R. 240 ; 10 John. R. 579 ; Doug. 
 R. 27; 1 Burr. R. 445; 1 Kent's Com. 464; 6 Bac. Abr. 
 383; Co. Litt. 272, k; Plowden's Com. 365; 3 Co. 
 R 7 ; 4 Co. R. 4. 
 
 5. When a power is given by statute, but the 
 means of executing it are not prescribed, the power 
 must be executed according to the course of the 
 common law ; and where the provisions of the stat- 
 ute 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 Bac. Abr. Title Statute, 383-4. 
 
 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 Bac. Abr. 383; 6 Mod. R. 143; 1 N. 
 
712 OF THE INTEEPEETATION AND 
 
 H. K 555-6; 4 Gilm. R. 205-6; 8 Iredell, 1-47; 
 Dwarris, 696. 
 
 7. When a statute makes an innovation upon the 
 established principles of the common law, it must 
 be strictly construed. 16 John. R. 7 ; 2 Gilm. R. 
 184 and 429 ; 4 Binney R. 116 ; 5 Denio R. 119 ; 1 
 Barb. S. C. R. 65 ; 3 Kelly R. 31 ; 4 Gilm. R. 20 ; 4 
 Mass. R. 471 ; 15 Ibid. 205 ; 9 Pick. R. 496 ; 13 Ibid. 
 284 ; 3 Stew. & Port. R. 13 ; 2 Humph. R. 320. 
 
 8. The power to construe statutes is vested in the 
 courts alone. 1 Bl. Com. 87, note 26 ; 7 John. R. 
 494; Ibid. 508-9. 
 
 9. The legislature have no right to usurp this 
 judicial prerogative, by means of declaratory and 
 explanatory laws, especially where they injuriously 
 affect vested rights. 7 John. R. 508-9. 
 
 10. The rules for the construction of statutes are 
 the same, at law and in equity. Peters' C. C. R. 188. 
 
 11. There is no difference in the rules of construc- 
 tion, applicable to public and private statutes. 9 
 Porter R. 266. 
 
 12. The validity of a rule of construction is not 
 to be tested by extreme cases. 8 John. R. 420-1 ; 
 12 Ibid. 483. 
 
 13. The intention of the legislature must always 
 control in the construction of a statute. 2 Cranch 
 R. 10; Ibid. 358; 5 T. R. 449; 3 Cowen R. 89; 3 Scam. 
 R. 153 ; Bre. R. 243 ; Ibid. 249 ; 12 John. R. 176 ; 15 
 Ibid. 358 ; 4 Gushing R. 314 ; 1 Mis. R. 147 ; 2 H. 
 & J. 69 ; Ibid. 167; 2 Pet. R. 662 ; 1 Ibid. 64; 21 
 Wend. R. 211 ; 1 Green R. 240. 
 
 14. All statutes, whether penal or remedial, are to 
 be construed according to the apparent intent of the 
 legislature, to be gathered from the entire language 
 
CONSTRUCTrON OF STATUTES. 713 
 
 used, in connection with the subject-matter and pur- 
 pose of the law. 19 Conn. R. 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. R. 394. 
 
 16. Although it is a fundamental rule, that every 
 law must be construed according to the intention of 
 the makers, that intention is never resorted to for 
 any other purpose than to ascertain what they, in 
 fact intended to do, and not for the purpose of ascer- 
 taining what they have done. 3 Barb. S. C. R. 9. 
 
 17. Where a law is plain and unambiguous, whether 
 expressed in general or more limited terms, there is 
 no room left for construction, and a resort to extrin- 
 sic circumstances is not permitted for the purpose of 
 ascertaining the meaning. 9 Porter R. 266. 
 
 18. In such cases, the legislative will must be 
 obeyed by the courts. 2 Cranch R. 358 ; 2 Gilm. R. 
 1 ; 3 A. K. Mar. R. 489 ; 2 Pet. R. 662 ; 1 Pick. R. 
 45 ; Ibid. 250. 
 
 19. Courts may give a sensible and reasonable 
 interpretation to legislative expressions which are 
 obscure, but they have no right to distort those which 
 are clear and intelligible. 13 Mass R. 324. 
 
 20. The ordinary rule is, that the intention can 
 only be determined by the fair and natural import 
 of the terms used, and in view of the subject-matter 
 of the law. 19 Vermont R. 131 ; 3 Kelly R. 146 ; 
 21 Vermont R. 152 ; 3 Missouri R. 496 ; 25 Maine 
 R. 493. 
 
 90 
 
714 OF THE INTEEPKETATION AND 
 
 21. Without reference to any traditional history of 
 the occasion of the enactment of the statute, unless 
 that result from some known state of embarrassment 
 vmder the former law. 19 Vermont R. 131. 
 
 22. Where the language is so obscure as to cloud 
 the intention, or when it is couched in ambiguous 
 terms, so that the real meaning is doubtful, then 
 every extrinsic fact and circumstance may be resorted 
 to for the purpose of ascertaining the unexpressed 
 intention of the legislature. 2 Cranch K 358 ; 7 
 Ibid. 52. 
 
 23. Thus, you may resort to the title of the statute. 
 3 Whea. R 610 ; 2 Cranch R 358 ; 1 Kent, 469 ; 14 
 John. R 206 ; 2 Bailey R 334 ; 1 Ham. R 469 ; 3 
 Hawkes R 403 ; 9 Porter R 266 ; 1 Kelly R 157. 
 
 24. To the preamble. 4 T. R 793 ; 2 Cowper R 
 543 ; 3 Scam. E. 465 ; 15 John. R 89 ; Ibid. 390 ; Co. 
 Litt. 79 a. ; 3 McCord R 298 ; 1 Pick R. 248 ; 1 Har- 
 rington R 285 ; 1 Kelly R 157 ; 1 Kent 461. 
 
 25. To usage under it. 1 T. R 728 ; 1 Scam. R 
 71 ; 3 Scam. R 100 ; Ibid. 470 ; 1 Lou. Ann. R 419 ; 
 5 Cra. R 22 ; Harper R 101 ; 5 Iredell Eq. R 71. 
 
 26. To a comparison with other laws. 1 Bl. Com. 
 60 ; 9 Cowen R 506. 
 
 27. To cotemporaneous construction. 3 Scam. R 
 97; Ibid. 465; Bre. R. 213; 1 Gilm. R 517 ; 2 Ibid. 1; 
 1 Kent, 464 ; 16 Ohio R 599. 
 
 28. To arguments founded upon the hardship of 
 the law. 9 Cranch R 203. 
 
 . 29. To the history and situation of the country at 
 the time the law was enacted. 1 Whea. R. 115 ; 3 
 Scam. R 160 ; Ibid. 609 ; 17 Vermont R 479. 
 
 30. To the reason and spirit of the law. 6 Cranch 
 R 307; 3 Scam. R 153; 15 John. R 358; 3 A. K. 
 Mar. R 489 ; 4 Comst. R 140. 
 
CONSTRUCTION OF BTATTJTES. 715 
 
 31. To the inconveniences which will result from 
 a particular construction. 2 Cranch E. 358 ; Bre. 
 app. 22 ; 3 Scam. R. 153 ; Co. Litt. 66 a, and Butler 
 and Hargrave's note 6 ; 3 Mass. K 215 ; Ibid. 523 ; 
 7 Ibid. 306 ; 11 Pick. E. 487 ; 2 Mass. E. 475. 
 
 32. To the absurd consequences which will follow 
 it. 2 Cranch R. 358 ; Bre. app. 22 ; 3 Scam. E. 153. 
 
 33. It is always presumed that the legislature in- 
 tend the most reasonable and beneficial construction 
 of their acts, where the design of them is not appar- 
 ent. 4 Mass. E. 534 ; 12 Ibid. 383. 
 
 34. If it is apparent that, by a particular construc- 
 tion of a statute in a doubtful case, great public 
 interests will be endangered or sacrificed, it ought 
 not to be presumed that such a construction was in- 
 tended by the legislature. 3 Scam. E. 153. 
 
 35. The intention must be collected from the whole 
 act. 2 Cranch E. 358 ; 2 Scam. R. 224 ; 3 Ibid. 35 ; 
 Ibid. 153 ; 1 Kent's Com. 461 ; 12 John. E. 175. 
 
 36. The most natural and genuine way of constru- 
 ing a statute, is to construe one part by another part 
 of the same statute, and so that, if possible, no sen- 
 tence, 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 & J. 1 ; 22 Pick. 
 E. 571 ; 1 Harrington E. 285 ; 4 Blackf E. 148 ; 2 
 Mich. (Gibbs) E. 138 ; 1 Lou. Ann. R. 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 
 
716 OP THE INTERPKETATION AND 
 
 real intention of the legislature from the broader ex- 
 pressions, it is their duty to give effect to them. 12 
 Geo. E. 526 ; 2 Scam. R 223 ; 3 Ibid. 37, 157. 
 
 38. If any part of a statute is obscure, intricate or 
 doubtful, 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 Md. R. 335. 
 
 39. The general system of legislation upon the 
 subject-matter may be taken into view, in order to 
 aid the construction of one statute relating to the 
 same subject; and it is proper to consider other 
 sta.tu.tes in pari materia, whether they be repealed or 
 unrepealed. 3 Mass. E. 17, 296, 418 ; 1 Pick. E. 
 248 ; 10 Ibid. 235 ; 2 Bailey E. 541, 554 ; Cooke 
 E. 258 ; Bre. E. 185, 213, 243 ; 3 Scam. E. 144 ; 9 
 Cowen E. 507; 5 Monroe E. 157; 15 John. R. 380; 
 1 Kent, 433 ; 2 Bibb E. 80, 96 ; 1 Kelly R. 32 ; 3 
 Zabr. E. 143 ; 4 Gilm. E. 221 ; 19 Vermont R. 230 ; 
 4 Florida E. 445 ; 3 How. U. S. E. 516 ; 12 N. H. 
 R. 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 un- 
 certainty or ambiguity in their meaning. 4 M'Lean 
 R. 463. 
 
 41. Where words in a statute are express, plain 
 and clear, they ought to be understood according to 
 their natural and genuine signification, unless by such 
 exposition a contradiction or inconsistency would 
 arise, by reason of some prior or subsequent clause, 
 and it should thence appear that the intention of 
 the legislature was different. 2 Md. R. 111. 
 
CONSTKUCTION OP STATUTES. 717 
 
 42. The natural import of the words of any statute 
 according 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 inten- 
 tion of the legislature be clearly and manifestly re- 
 pugnant to them. 7 Mass. R. 523. 
 
 43. When terms of act 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 commonly used. 1 Pick. R. 261. 
 
 44. In construing an ordinary statute, every word 
 must be understood according to its legal meaning, 
 unless the context shows that the legislature used it 
 in its more popular sense ; but in penal enactments, 
 where it is sought to depart from the ordinary mean- 
 ing of the words used, the intention of the legislature 
 that those words should be understood in a larger or 
 more popular sense, must plainly appear. 18 Eng. 
 Law & Eq. R 50. 
 
 45. Words are to be understood according to the 
 most known and popular use of them. 1 Kent, 46 ; 
 9 Cowen R. 506 ; 1 Bl. Com. 60. 
 
 46. And in a lawful and rightful sense. Co. Litt. 
 381, b. 
 
 47. Also according to their context. 1 Bl. Com. 60. 
 
 48. And the subject matter of the statute. 1 Bl. 
 Com. 60. 
 
718 or THE INTEKPKETATION AND 
 
 49. But technical words are to be understood in 
 their technical sense. 1 Bl. Com. 60 ; 1 Kent, 462 ; 
 
 4 Pick. E. 411 ; 1 Wash. C. C. R 463 ; 3 Ibid. 209 ; 
 
 5 East. RIO; 5 Humph. R 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 com- 
 munity; but when this construction would contravene 
 the manifest intention of the legislature, this rule 
 must be departed from, and effect given to the inten- 
 tion of the law. 22 Ala. R 621. 
 
 51. The words of a statute ought not to be 
 expounded to destroy natural justice. Dwarris, 726. 
 
 52. Where terms, or modes of expression, are 
 employed in a new statute, which had acquired a 
 definite meaning and application in a previous stat- 
 ute 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 R. 49 ; 3 
 Zabr. R 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 R 325. 
 
 54. When the words of the enacting clause of a 
 statute are more general than the title, the enacting 
 clause must govern. 9 Howard U. S. R. 351. 
 
 55. General words in a statute are to receive a 
 general construction, unless there is something in the 
 statute to restrain their operation. 12 Geo. E. 526; 
 
 6 Shepley R 308. 
 
 56. The rule that general and unlimited terms are 
 
CONSTKUCTION OF STATUTES. 719 
 
 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 
 K 474. 
 
 57. If a statute makes use of a word, in one part 
 of it, susceptible of two meanings, and in another 
 part, it is used in a definite sense, it is to be under- 
 stood throughout in the latter sense, unless the object 
 to which it applies, or the connection in which it 
 stands, requires it to be differently understood in the 
 two places. 1 Harrington R. 285. 
 
 58. If a statute, which grants a right or privilege, 
 admits of two interpretations, one of which is exten- 
 sive, 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 Gilm. E. 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 
 E. 307 ; 11 Co. E. 66 ; 7 Monroe E. 443 ; 7 Iredell 
 E. 48. 
 
 60. Where a statute speaks of joersows, natural per- 
 sons alone are intended. Bre. app. 10; 1 Scam. R. 178. 
 
 Contra. — It will include corporations, if not incon- 
 sistent and absurd. 15 John. E. 358 ; 11 Whea. E. 392; 
 8 Porter E. 404. This is expressly declared in the 
 didionary clause of the Illinois statute. E. S. 1845, 
 p. .472, Sec. 29. 
 
720 OF THE INTEKPBETATION AND 
 
 61. A law which in general terms speaks of plaint- 
 iflfs and defendants, applies to persons only, and 
 States, counties, and municipal corporations, are not 
 affected by its provisions, imless expressly named 
 and brought within them. 4 Gilm. R. 20. 
 
 62. Statutes treating of inferior persons or things, 
 cannot be extended to those of a superior order or 
 dignity. 1 Bl. Com. 88 ; Bre. 295 ; 1 Scam. K 140. 
 
 63. On subjects relating to courts, process, practice, 
 etc., the legislature are to be considered as speaking 
 technically, unless from the statute itselfj it appears 
 that they used the terms in a more popular sense. 
 4 Pick. K 405. 
 
 64. A statute applicable in terms to particular 
 actions cannot be extended by implication so as 
 to embrace others standing upon the same reason. 
 1 Brock. E. 523-4 ; 4 Gilm. R 207. 
 
 65. The term "void" has sometimes been construed 
 to be voidable only. 13 Mass. R. 515 ; 6 Pick. E. 483. 
 
 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 
 E. 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 E. 91. 
 
 68. A conjunction clause may be taken in a disjunct- 
 ive sense, when it is obvious that such was the inten- 
 tion of the legislature. 19 Vermont E. 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 ; 
 PI. Com. 486. 
 
 70. Affirmative words in a statute may be con- 
 
CONSTRUCTION OF STATUTES. 721 
 
 strued as a negative of that which is not affirmed. 
 5 Texas R 418. 
 
 71. No mere misnomer of a person or corporation 
 in a statute is fatal to its vaUdity, if the person or 
 corporation really intended can be collected from the 
 terms of the act. 3 Sumner R. 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's 
 Dig. 12 ; 1 Bl. Com. 89 ; Smith's Com. 673. 
 
 73. Where words have no signification, or a very 
 absurd one, if taken according to their literal accept- 
 ation, then it is necessary to deviate from the common 
 sense of the words, and construe them in such manner 
 as will result in a rational and consistent meaning. 
 1 Swift's Dig. 12. 
 
 74. The general words in one clause of a statute, 
 may be restrained by particular words in a subse- 
 quent 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 subsequent 
 general words. 8 Mod. R. 8 ; 1 Lev. 80 ; 1 Swift's 
 Dig. 12. 
 
 75. The meaning of a ijvord may be ascertained 
 by reference to the meaning of words associated with 
 it. ""NoscUur a /Soms." 3 T. K 87; Broom's Max. 
 450 ; 1 Vermont R. 225 ; 1 B. & C. 644 ; 13 East R. 
 531 ; 4 Bacon's Works, 26 ; 2 Bulstrode's R. 132 ; 2 
 Bing. R. 391 ; 4 T. R. 227 ; Smith's Com. 655-8. 
 
 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 fuU effect to their language, and 
 of declining to mould that language, in order to meet 
 
 91 
 
722 OF THE INTERPRETATION AlSTD 
 
 either an alleged inconvenience, or an alleged equity, 
 upon doubtful evidence of intention, that nothing 
 will induce me to withdraw a case from the opera- 
 tion of a section which is within its words, but clear 
 and unambiguous evidence that so to do is to fulfill 
 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 evi- 
 dence 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 limitations of a deed ; it must look to the whole 
 context, and endeavor to give effect to all the pro- 
 visions, enlarging or restraining, if need be for that 
 purpose, the literal interpretation of any particular 
 part." 6 A. & E. 7 ; S. C, 33 E. C. L. R. ; Broom's 
 Leg. Maxims, 253-4. 
 
 77. Where a word is evidently omitted by mistake 
 in one section of a statute, which omission is ex- 
 plained in another part of the same statute by a 
 reference to such section, the defective section may 
 be enforced according to such explanation. 2 Kelly 
 R 143. 
 
CONSTKUCTION OF STATUTES. 723 
 
 78. The word may, is imperative, where the rights 
 and interests of the pubhc are concerned, or where 
 the public or third persons have a claim de jure that 
 the power should be exercised, or the duty performed. 
 4 Gdm. R. 20 ; 5 J. C. K 101 ; 5 Cowen R. 195 ; 14 
 S. & K 429 ; 1 E. C. L. R. 46 ; 1 Peters' R. 46 ; 1 
 Saund. R. 58 n.1; 2 Salk. R. 609 ; Cro. Eliz. 655 ; 
 Cro. Jac. 134. 
 
 79. Where a statute makes no exceptions, the 
 courts can make none. 25 Miss. R. 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 legis- 
 lature, the thing or person, or class of things or 
 persons, would be within the general clause but for 
 the exception ; and the exception of the one specifi- 
 cally is an exclusion of every other object embraced 
 in the general words. Marsh. Dec. 360 ; 12 Whea. R. 
 438 ; 12 John. R. 290 ; 15 Ibid. 391. 
 
 81. A statutory rule must be construed with 
 reference to the whole system of pleading and prac- 
 tice of which it forms a part. 14 Geo. R. 674. 
 
 82. The punctuation of a statute will not vary its 
 true construction or sense. 1 Ohio R. 385. 
 
 83. The debates in the legislative body cannot 
 influence the construction of a statute. 3 Howard 
 U. S. R. 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 R. 335. 
 Thus, the Illinois statutes of February 23, 1819, en- 
 titled "an act to enable persons to remove fences 
 made by mistake on the lands of other persons," is 
 preceded by this preamble : " Whereas, in many parts 
 
724 OF THE INTEKPEETATION AND 
 
 of this State there is much prairie, and the lines run 
 by the United States are not well known to the inhab- 
 itants 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's Stat. 433. 
 
 85. In construing a revised code of laws, they are 
 to be considered as cotemporaneous acts, parts of one 
 entire system of law. 1 Chipman R 348. 
 
 86. The common law relative to any subject is 
 superseded by a revision of the whole of that subject 
 by the legislature. 10 Pick. R. 37. 
 
 87. Where in the revision of statutes, by incor- 
 porating several former statutes into one, the con- 
 struction 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 Zabr. R. 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 legislature. 1 Pick. R. 154 ; 
 5 Mass. R 462. 
 
 89. Where a statute law, previous to a revision, is 
 settled, either by clear expressions in the law itself, 
 or by adjudications, 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 inten- 
 
CONSTRUCTION OP STATUTES. 725 
 
 tion on the part of the legislature to effect such 
 change. 2 Gaines Ca. 151 ; 4 John. R. 359 ; 6 Texas 
 K 34; 7 Barb. S. C. R. 191 ; 4 Sand. S. C. R. 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 Pick. R. 45 ; 4 Gilm. R. 207; 31 Maine 
 R.34. 
 
 91. Where the common and statute law conflict, 
 the latter is to be regarded. 1 Bl. Com. 89 ; 8 John. 
 R. 331 ; 3 Zabr. R. 33. 
 
 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 R. 518. 
 
 93. Where an old and new statute differ, the latter 
 must prevail. 1 Bl. Com. 89 ; 1 Ohio R. 10 ; 2 Carter 
 R. 440 ; 7 Blackf. R. 314 ; 14 Illinois R. 106. 
 
 94. Courts cannot supply defective enactments, by 
 an attempt to carry out fully the purposes, which 
 may be supposed to have occasioned those enact- 
 ments. 27 Maine R. 285. 
 
 95. A casus omissus in a statute cannot be supplied 
 by judicial interpretation. 4 Grilm. R. 208 ; 14 John. 
 R. 479 ; 15 Maine R. 167 ; 6 Pick. R. 362 ; 9 Porter 
 R. 669 ; 6 Missouri R. 257 ; 7 Wend. R. 241 ; 2 Bin- 
 ney R. 279 ; 8 John. R. 322. 
 
 96. A mere failure of justice is not a sufficient 
 ground for construing statutes against their clear 
 meaning, so as to give a court jurisdiction. 10 Pick. 
 R. 506. 
 
 97. Where the reasons of an enactment are made 
 known by any authentic document, they may be re- 
 ferred to in construing a statute which is ambiguous. 
 Davies' R. 38. 
 
 98. Parties are not estopped from questioning the 
 
726 OP THE INTBEPEETATION AND 
 
 truth of recitals in the preamble to a statute. 9 GUI 
 R. 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 intention of the former. 1 Lou. Ann. 
 R. 435. 
 
 100. It is the duty of courts, so far as it is practica- 
 ble, to reconcile the different provisions of a statute, 
 so as to make the whole act consistent and harmoni- 
 ous ; and where this is impossible, to give effect to 
 that which was manifestly the controlling idea of the 
 legislature. 2 Mich. (Gibbs) R. 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 
 vi^w. 2 Mich. (Gibbs) R. 486 ; 4 Comst. R. 140. 
 
 102. An erroneous construction merely acquiesced 
 in, but never disputed or judicially litigated, is not 
 binding. Doug. R. 68 ; 1 Gaines' R. 191 ; 1 Gaines' 
 Ca. 54 ; 1 Scam. R. 165. 
 
 103. But the maxim " communis error facit jus" is 
 occasionally applied in the construction of statutes. 
 Broom's Leg. Max. 104 ; 3 Ohio R. 140 ; 3 Barb. C. 
 R. 528. 
 
 104. When the legislature adopt the statute of an- 
 other State or country, the construction of that 
 statute by the courts of the State or country from 
 whence it was borroAved, will be adopted by the 
 courts. 3 Scam. R. 288 ; 2 Peters' R. 1 ; 21 Vt. R. 
 256 ; 23 Miss. R. 213 ; 13 111. R. 15. 
 
 105. But in matters of practice, the rule is not 
 inflexible. 4 Scam. R. 402 ; 3 Ohio R. 479-480. 
 
 106. Nor where the construction in the foreign 
 
CONSTRUCTION OF STATUTES. 727 
 
 place is not applicable to the condition and mode of 
 practice of the adopting State. 5 Ohio R. 121. 
 
 107. Two acts passed at the same session, upon the 
 same subject-matter, must be construed as one act. 
 3 Monroe R 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 sufl&cient, if it extends to all persons 
 within the territorial limits described in the statute. 
 9 Greenl. E. 54. 
 
 109. Or contains provisions in which the public 
 have a direct interest, and which provisions are gen- 
 eral in their operation. 2 Greenl. R. 303 ; 2 Penn. 
 R. 1050 ; 1 Missouri R. 24 ; 1 Dev. & Bat. R 115 ; 6 
 Ala. R 289 ; 4 Blackf R 234. 
 
 110. So where it is recognized in a public act. 2 
 Greenl. R. 301. 
 
 111. Or relates to a public corporation. 7 Mass. 
 R 9 J 10 Ibid. 91 ; 8 Shepley R 58 ; 4 Ibid. 69. 
 
 112. Where the means for carrying into effect any 
 particular constitutional 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 have been intended, 
 unless they are strictly necessary. 24 Pick. R. 227. 
 
 113. Statutes which apparently conflict with each 
 other, are to be reconciled, as far as may be, upon 
 any fair hypothesis, and validity given to each, if it 
 can be. 4 Howard U. S. R 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 construction of it. 3 Zabr. E. 180. 
 
 115. Where an old statute has received an early 
 
728 OF THE INTERPEETATION AND 
 
 practical construction, which, if it were res integra, it 
 might be difficult to maintain, it wiU be adhered to, 
 especially if great mischief would follow a contrary 
 construction. 2 Mass. E. 475 ; 17 Ibid. 122 ; 3 Pick. 
 E. 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 Eng. E. 594. 
 
 117. Where a statute has received a judicial con- 
 struction, and is then repealed or expires by its own 
 limitation, and afterwards it is re-enacted in the same 
 terms, the legislature will be held to have adopted 
 such construction. 27 Maine K 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 Blackf E. 249 ; 2 Brock. E. 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 S. & 
 M. 43. 
 
 120. The decision of a State court, in the con- 
 struction of a statute of that State, is binding upon 
 the courts of every other State. 3 StrobhartE. 269; 
 
 3 Zabr. E. 590. 
 
 121. In the construction of statutes of other States, 
 judicial 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 Mass. E. 472. 
 
 122. A special statute is sometimes regarded as 
 
CONSTETICTION OF STATUTES. 729 
 
 merged in a general statute passed subsequently, if 
 the provisions of the two are repugnant. 4 Pick. 
 K 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 statiite must be pursued. 23 
 Pick. R 36 ; 3 Mete. R. 380 ; 1 Ibid. 130, 553 ; 2 Ibid. 
 599 ; 13 Barb. S. C. R 209 ; 32 Maine R 553 ; 5 
 John. R 175 ; 1 Blackf R 405 ; 7 Hill (N. Y.) R 575 ; 
 1 Manning (Mich.) R 193. 
 
 124. K 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 R 371 ; 13 Wend. R 341; 5 Cow. R 165 ; 
 5 John. R 175 ; 10 Ibid. 389 ; 10 Pick. R 383 ; 1 
 Blackf. R 405; 2 Caines' R 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 Shep- 
 ley R 371. 
 
 126. Where a statute creates an offense, and does 
 not prescribe a mode of prosecution, an indictment, 
 or other appropriate common law remedy, may be 
 adopted. 1 Mete. R 232 ; 2 Ibid. 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 can- 
 not otherwise be made effectual to accomplish the 
 object contemplated by its enactment. 17 Vermont 
 
 R73. 
 
 128. But where a penalty is superadded, this im- 
 plies a prohibition, and renders any act done in 
 
 92 
 
730 OF THE INIERPKETATION AND 
 
 violation of the law void. 1 Story R 106 ; 14 N. 
 H. R. 294 ; 14 John. R 273 ; 1 Binney R 110. 
 
 129. In construing a statute, if there be a mistake 
 apparent upon the face of the act, which may be 
 corrected by other language in the act itself, the 
 mistake is not fatal. 3 Sumner E. 279. 
 
 130. A statute cannot become obsolete by disuse, 
 or contrary usage, or by any adjudication whatever. 
 1 Bland R 550. 
 
 131. Statutes are not to be construed retrospect- 
 ively, unless the intention is palpable. Bre. E. 224, 
 295 ; 1 Scam. R 335 3 3 A. K. Mar. R 138 ; 5 Monroe 
 R 129, 140; 4 Burr. R 2460; 7 John. R 477; 3 
 Maine R 333 ; 9 Gill R 105 ; 1 Denio R 128 ; 3 
 Shepley R 134; 2 Scam. R 499 ; 10 Mass. R 437; 
 12 Ibid. 383; 16 Ibid. 215 ; 14 S. & M. 127; 3 Eng. 
 Law & Eq. E. 30. 
 
 132. Nor will a previously existing right or remedy 
 be construed away by implication. Bre. E. 296. 
 
 133. Where rights are infringed, fundamental prin- 
 ciples overthrown, and the general system of the 
 laws is departed from — the legislative intention 
 must be expressed with irresistible clearness to in- 
 duce a court of justice to suppose a design on the 
 part of the legislature to effect such objects. 1 Peters' 
 Cond. R 425. 
 
 134. Nor should a statute be construed against the 
 plain and obvious dictates of reason. 7 John. E. 502. 
 
 135. Statutes must be so construed as to suppress 
 the mischief, advance the remedy, and preserve 
 fundamental principles. Co. Litt. 381, i. ; 8 John. K 
 41 ; 10 Ibid. 467. 
 
 136. And so that no innocent man be punished or 
 endamaged. 7 John. R 482, 495-6 ; Co. Litt. 360, a. 
 
CONSTKUCTION OF STATUTES. 731 
 
 137. They are never to be construed so as to work 
 injustice. 7 John. K 495-6. 
 
 138. Nor the destruction of a previously acquired 
 right. 6 John. R 103 ; 7 Ibid. 503. 
 
 139. The province of a proviso to a statute or con- 
 stitution, is not to enlarge the enacting clause ; it can 
 only restrain, qualify or explain it. 1 Scam. K 258 ; 
 4 Ibid. 342. 
 
 140. A saving clause, in the form of a proviso, in 
 a statute, restricting the operation of the general lan- 
 guage of the enacting clause, is not void, because the 
 language of both clauses is repugnant. 23 Maine 
 R. 360. 
 
 141. The terms of a proviso may be limited by 
 the general scope of the enacting clause, to avoid 
 repugnancy. 19 Vermont R 129. 
 
 142. A limitation of an authority to do a thing 
 contained in the proviso to a statute, is a negation 
 thereof 2 Barr R 218. 
 
 143. Where a Statute specifies a time within which 
 a public 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 phraseology of the statute, 
 the designation of the time must be considered a 
 limitation of the power of the officer. 22 Ala. R 116 ; 
 Ante, pp. 186-7. 
 
 144. This rule is alike applicable to public interests. 
 22 Ala. R 116. 
 
 145. In computing time under a statute which re- 
 quires 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 computation. 2 Ala. R 494; 
 6 Shepley R 106 ; 1 Doug. (Mich.) R 450. 
 
 146. Where a statute uses the word " month," a 
 
732 0¥ THE INTEKPEETATION AND 
 
 lunar month is intended. 3 John. C. R. 74 ; 6 T. R. 
 226 ; 7 John. R. 217 ; 15 Ibid. 119 ; 1 John. Ca. 99 ; 4 
 Wend. R. 512 ; Smith's Com. 730. Unless upon the 
 whole law a different intention is apparent. 10 "Wend. 
 R. 393; Ante, pp. 508-9. In Massachusetts and Penn- 
 sylvania, it is held that calendar months will be 
 intended. 2 Mass. R. 170 ; 4 Ibid. 460 ; 19 Pick. R. 
 532 ; 2 DaU. R. 302 ; 4 Ibid. 144 ; 3 S. & R. 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 Mass. R. 40 ; 14 Ibid. 286 ; 1 Blackf R. 39 ; 1 
 Missouri R. 428 ; 1 Ibid. 147 ; 2 McCord R. 117. 
 
 148. Where an act requires a thing to be done in 
 a particular way, that way alone can be pursued. 3 
 Brevard R. 396 ; 15 Mass. R. 205; 9 Pick. R. 496 ; 13 
 Ibid. 284 ; 3 Stew. & Porter R. 13. 
 
 149. If a power is given by statute, every thing 
 essential to the exercise of that power is impliedly 
 given. 1 McCord R. 546. 
 
 150. A statute giving joint power to five commis- 
 sioners, does not make valid the a,ct of four of them. 
 1 Bay. 354. 
 
 151. Where a statute gives authority to one per- 
 son expressly, all others are excluded ; a special potver 
 is ever to be strictly pursued. Dwarris, 767 ; 11 Co. 
 Rep. 59-64. 
 
 152. Where a statute enacts that a public function- 
 ary may act in a certain way which is beneficial to 
 third persons, he must act in that way. 9 Howard 
 U. S. R. 248. 
 
 153. Statutes seemingly repugnant should be so 
 construed, if possible, that both should stand and 
 harmonize with each other. 8 S. & M. 9. 
 
 154. Where a statute gives a power to any court 
 
CONSTEUCTION Off STATUTES. 733 
 
 or officer to hear and determine an offense in a sum- 
 mary way, it is necessarily implied and supposed as a 
 part of natural justice, that the party be first cited 
 by summons, and have an opportunity to be heard 
 and answer for himself. Dwarris, 167-8 ; 1 Hawk. 
 Chap. 64, Sec. 60 ; 1 Scam. E. 515. 
 
 155. Where a statute provides that a criminal pros- 
 ecution shall be based " on complaint" it must be un- 
 der oath or affirmation — this is implied as a part of 
 the technical meaning of the expression. 4 Shepley 
 R 117. 
 
 156. In a grant by statute, any words which ex- 
 press the intention of the legislature, to invest the 
 party with title, are sufficient. 3 Monroe E. 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 Ala. E. 119 ; 8 Geo. 
 E. 380 ; E. M. Charlton E. 537 ; 1 Ala. R. 312 ; 2 
 Ibid. 26 ; 1 Scam. E. 555. 
 
 158. 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 Cal. E. 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 Pick. E. 227. 
 
 160. Where the words of a statute, in their primary 
 meaning, do not expressly embrace the case before 
 
734 OF THE INTERPEETATION AND 
 
 the court, and there is nothing in the context to 
 attach a different meaning to them, capable of ex- 
 pressly embracing it, the court cannot extend the stat- 
 ute, by construction, to that case, unless it falls so 
 clearly within the reasons of the enactment 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 enumer- 
 ated, the statute may, nevertheless, 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 enactment. 
 2 Strobhart Eq. E. 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 Litt. E. 377. 
 
 161. Cases within the reason — though not within 
 the letter of the law — are sometimes construed to 
 be embraced in its provisions. 4 Litt. E. 377 ; 7 John. 
 E. 486 ; 15 Ibid. 381. 
 
 162. And cases within the letter, but without the 
 reason, are sometimes withdrawn from its operation. 
 4 Litt. E. 377; 15 John. E. 38L 
 
 163. But this rule is not of general application. 1 
 Gilm. E. 572 ; 4 Ibid. 194; 15 John. E. 394; 1 Bibb 
 E. 214. 
 
 164. Equitable constructions of statutes are not 
 
CONSTETICTION OF STATUTES. 735 
 
 tolerated, as a general rule. 10 John. R. 680 ; 22 
 Pick. R. 387. 
 
 165. But such a construction is occasionally allow- 
 able. Co. Litt. 24, h. ; Ibid. 290, «. ; 2 B. & P. 255 ; 
 10 John. R. 457 ; 12 Ibid. 290 ; 14 Mass. R 88 ; 1 
 Pick. R. 248 ; 12 Mass. R. 383. 
 
 166. Thus, it has been extended so as to embrace 
 persons not named. Co. Litt. 272 ; Ibid. 290, a. 
 
 167. And to actions not named. Co. Litt. 365, b. 
 
 168. And to another form of conveyance than 
 those enumerated. Co. Litt. 365, h. 
 
 169. So the generality of words have been re- 
 strained by the equity of the statute, and effect 
 given to rights opposed to the letter of the law. Co. 
 Litt. 290, a. 
 
 170. It is only when statutes are ambiguous in 
 their terms, that the courts exercise the power of so 
 controlling the language, as to give effect to what 
 they may suppose to have been the intention of the 
 law makers. 1 Mann. (Mich.) R. 469. 
 
 171. A literal interpretation, which would defeat 
 the purposes of a statute, will not be adopted, if any 
 other reasonable construction can be given to it. 20 
 Ala. R. 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. 17 Vermont R. 479. 
 
 173. If the general meaning and object of a stat- 
 ute 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 application of this 
 
736 0¥ THE INTEEPRETATION AND 
 
 rule, the intention of the legislature must be clear 
 and manifest. 1 Pick. E. 248; 10 Ibid. 235; 20 
 Ibid. 267. 
 
 174. Where the manifest intention of the legisla- 
 ture 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, enlarged or 
 qualified, so as to give effect to the obvious intention 
 of the legislature. 1 G. Greene E. 325. 
 
 175. Every statute must be construed so as to give 
 it a reasonable effect. 3 Mass. E. 523; 5 Ibid. 380; 
 7 Ibid. 458; 15 Ibid. 205 ; 2 Pick. E. 571; 23 Ibid. 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 Geo. E. 190. 
 
 177. Such a construction as will defeat the purpose 
 of the law must never be given to it. 9 Whea. E. 81. 
 
 178. Courts ought not so to construe a statute as 
 to suffer it to be eluded. 15 John. E. 381. 
 
 179. A fraud upon, or evasion of a statute, will not 
 be tolerated. 9 John. E. 356; 10 Ibid. 461; 15 
 Ibid. 510. 
 
 180. A statute shall never have an equitable con- 
 struction to overthrow an estate. Dwarris, 729 ; Ken- 
 tucky 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 stat- 
 utes, should always be resorted to with great caution, 
 and never extended to penal statutes, or mere 
 
CONSTKDCTION OF STATUTES. 737 
 
 arbitrary regulations of public policy. 22 Pick. R. 
 387 ; Ante, p. 78. 
 
 183. An act confirming and quieting the title of 
 lona fide purchasers, ought to be liberally construed. 
 15 John. R 114. 
 
 184. A statute treating of superior courts, cannot 
 be extended to those of inferior dignity. 15 John. 
 R 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 John. R 185. 
 
 186. Declaratory or explanatory statutes are con- 
 strued according to the letter of them. 7 John. 
 R 497. 
 
 187. So are statutes which take away or clog a 
 common law remedy. 7 John. R. 497 ; 10 Ibid. 580. 
 
 188. So of a statute which takes away a remedy 
 given by a prior statute. 7 John. R. 497. 
 
 189. Acts of incorporation are to be construed 
 favorably to the public at large, and most strongly 
 against the corporators. 2 New Jer. R. 623 ; Bre. 
 app. 10 ; 2 Cowen R. 419. 
 
 190. They will not be extended beyond their 
 express words, or their clear import. 7 Geo. R. 221. 
 
 191. In expounding remedial statutes, the courts 
 will extend the remedy as far as the words will 
 admit, upon a liberal construction. 7 Ohio R. 247 ; 
 6 T. R 429 ; 1 Md. Ch. Decis. 342 ; 2 N. J. R 623 ; 
 9 Geo. R 253 ; 1 Penn. R 211 ; 1 Ham. R. 256, 385, 
 481 ; 2 Ibid. 74 ; 1 Barb. S. C. R. 65 ; 3 Mass. R. 254 ; 
 4 Ibid. 439. 
 
 192. But where the language of the statute is 
 clear, direct and positive, leading to no absurd results, 
 and affording a suitable remedy for an existing evil, 
 
 93 
 
738 OF THE INTEKPEETATION AND 
 
 courts are to be governed by the obvious meaning 
 and import of its terms, and not to extend its opera- 
 tion because they suppose the legislature intended to 
 give a more effectual remedy. 3 Kelly R 146. 
 
 193. 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 violence to its terms. 
 This rule was laid down in reference to the laying 
 out of public highways under a general statute. 19 
 Conn. R 597. 
 
 194. Statutes of limitation are to receive a liberal 
 construction. 4 Whea. R 207 ; 3 Mass. R 206 ; 1 
 Pet. R 351 ; 3 Ibid. 278-9 ; 3 Wend. R 189. 
 
 195. The statute of frauds is to be construed 
 liberally and beneficially. Co. Lift. 268,^.; 1 Bl. 
 Com. 8^8 ; 4 Cranch R 224. 
 
 196. Revenue statutes are to be construed most 
 favorably to the citizen. Dwarris, 743, 749 ; 10 
 Wend. R 186 ; 9 Pick. R 414 ; 8 Geo. R 30 ; 1 Dev. 
 & Bat. Eq. R 218; Dudley R 132. Co?itra. — l 
 Speers' R 343 ; 2 Monroe R 27 ; 1 McMullen R 
 421 ; 2 Story R 369 ; 4 Florida R 402. 
 
 197. Penal statutes are to be construed stricily. 1 
 Bl. Com. 88 ; 5 Whea. R 76, 94, 96 ; 2 Ibid. 119 
 121 ; 2 John. R. 379 ; 4 Mass. R 473 ; 2 Cowen R 
 419 ; 6 Ibid. 567 ; 7 Ibid. 252 ; 2 Mass. R 512 ; 
 4 Binney R 13 ; 3 Burr. R 1284 ; 2 Strange R 
 1105 ; 2 Scam. R 461, 561 ; 2 N. H. R 623 ; 20 
 Ohio R 7 ; 8 Pick. R. 370, 514 ; 1 Penn. R 210 ; 
 Minor R 143 ; 6 Greenl. R 268 ; 4 Conn. R 61 ; 18 
 Ala. R 687; 3 Hill (S. C.) R 96 ; 8 Porter R 564; 
 2 Story R 202 ; 1 Ibid. 251 ; 12 N. H. R 255 ; 6 
 W. & S. 269. 
 
CONSTRUCTION OP STATUTES. 739 
 
 198. But the plain and manifest intention of the 
 legislature ought to be regarded. 13 John. E. 498 ; 
 5 Whea. R. 76, 94. 
 
 199. And a statute which is penal as to some per- 
 sons, may be equitably construed, provided it is 
 generally beneficial. 13 John. R. 497 ; Co. Litt. 54, b. 
 
 200. The rule requiring penal statutes to be con- 
 strued strictly, means only that they are not to be 
 so extended, beyond 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 Conn. R 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 R. 781. 
 
 202. If a statute be both penal and remedial, it is 
 to be construed strictly. 9 Shepley R. 541. 
 
 203. A statute which creates a right of action in 
 an individual, or a particular class of individuals, is 
 not penal, but remedial. 12 Geo. R. 104. 
 
 204. Statute of costs construed strictly. 2 Strange 
 R. 1105; 3 Burr. R. 1284-7; 4 Binney R. 13 ; 2 
 Mass. R. 512. 
 
 205. A statute which extends human liberty is to 
 be liberally construed, but a statute which restrains 
 it, is to be strictly construed. 1 Bl. Com. 88, note ; 
 12 John. R. 373 ; 4 Shepley R. 255. 
 
 206. Statutes authorizing suits against the State, 
 are to be liberally construed. 7 Eng. R. 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 their passage. 2 Ohio R. 7. 
 
740 OF THE INTBKPEETATION AND 
 
 208. Laws exempting property from taxation, are 
 to be construed strictly. 19 Ohio E. 110 ; Ante, p. 481. 
 
 209. Laws which have reference to the pubHc 
 welfare, or the policy of a State, are to be liberally 
 construed. 4 Florida R. 445. 
 
 210. Statutes giving summary remedies, are to be 
 strictly construed. Dudley K 105 ; 7 Blackf R. 556. 
 
 211. Statutes against frauds, are to be liberally 
 construed, in suppression of the frauds prohibited. 
 Dudley E. 182. 
 
 212. Where a statute requires a thing to be done 
 in a particular way, that way alone must be pursued. 
 3 Brevard R. 306. 
 
 213. Where a statute prescribes the form of any 
 order, or summary proceeding, it must be followed 
 as far forth as is consistent with the nature and exi- 
 gency of the particular proceeding. 22 Wend. R. 
 132 ; 1 East R. 64. 
 
 214. Private statutes, conferring new and extra- 
 ordinary powers of a special nature, upon particular 
 persons, affecting the property of individuals, should 
 receive a strict interpretation. 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 Cal. R. 162. 
 
 218. Statutes giving jurisdiction to inferior courts 
 are to be construed strictly. 3 Yerger R. 62. 
 
CONSTEUCTION OS STATUTES. 741 
 
 219. Statutes which are in derogation of the com- 
 mon law, and which have the effect to divest or affect 
 the title to real estate, are to be strictly construed. 
 2 Mich. (Gibbs) K. 486. 
 
 220. A statute which authorizes a court " to ren- 
 der such judgment as substantial justice shall require," 
 means, that the court shall render substantial legal 
 justice, ascertained and determined by fixed rules 
 and positive statutes, and not the abstract varying 
 notions of equity entertained by each individual or 
 judge. 1 Cal. R. 94. 
 
 221. The power to take land for public purposes is 
 in derogation of the common law, and is to be con- 
 strued strictly. 4 Hill R. 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 Pick. R. 412. 
 
 223. Statutes which for any cause, disable persons 
 of full age and sound mind to make contracts, are to 
 be construed strictly; for though founded in policy 
 and a just regard to the public welfare, they are in 
 derogation of private rights. 3 Pick. R. 229. 
 
 224. In enforcing a summary remedy given by a 
 statute, it must be strictly pursued. 7 Blackf R. 556. 
 
 225. Laws conferring bounties are to be construed 
 liberally. 1 Peters' R. 655. 
 
 226. Where particular powers are granted to a 
 company or corporation, if they enter upon any 
 man's land, 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 to an association power to 
 
742 OE THE INTEEPEETATION AND 
 
 hold land, is to be construed liberally. 2 Edwards' 
 Ch. E. 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' R. 259. 
 
 229. Statute provisions for indemnity for losses 
 sustained by one citizen, by means of special privi- 
 leges conferred by the legislature upon another citizen, 
 ought to receive a liberal construction in favor of the 
 citizen damnified. 2 Pick. E. 33 ; 2 Mass. R. 33. 
 
 230. Private statutes made for the accommodation 
 of particular 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 Mass. E. 140 ; 2 Ibid. 
 143 ; 3 Ibid. 263 ; 7 Ibid. 393. 
 
 231. Where the words of a statute, prescribing 
 compensation to a public officer, are loose and ob- 
 scure, and admit of two interj)retations, that which 
 is most favorable to the officer should be adopted. 
 3 Story E. 87. 
 
 232. Statutes made relative to the administration 
 of justice, are to be liberally construed for the attain- 
 ment of that important object. 1 Gill E. 66. 
 
 233. Statutes in favor of particular persons or cor- 
 porations, are to be construed strictly. 3 Kelly R. 31. 
 
 234. Attachment laws to be strictly construed. 
 1 Morris E. 97, 456. 
 
 235. A statute specifying a time within which a 
 public officer is to perform an official act regarding 
 the rights and duties of others, is directory merely, 
 unless the nature of the act to be performed, or the 
 phraseology of the statute, is such that the designa- 
 
CONSTRUCTION OF STATUTES. 743 
 
 tion of time must be considered as a limitation of 
 the power of the officer. Ante, pp. 186-7. 
 
 236. It has been resolved, that, for the true and 
 sure interpretation of all statutes, be they penal or 
 beneficial, restrictive of or enlarging the common 
 law, four points are to be considered : 1. What was 
 the common law before the making of the act ; 
 2. What was the mischief and defect for which the 
 common law did not provide ; 3. What remedy the 
 parliament hath resolved and appointed to cure the 
 disease of the Commonwealth ; and, 4. The true rea- 
 son 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 Co. K 7. 
 
 237. There is a known distinction between circum- 
 stances which are the essence of the thing required 
 to be done by a statute, and clauses merely directory. 
 1 Burr. R. 447 ; 1 Swift's Dig. 13. This distinction 
 is fully explained in Chapter 14, Ante, p. 305. 
 
 238. If a statute repealing another be afterwards 
 repealed, the first statute is revived without any 
 express words, by mere implication. 1 Swift's Dig. 
 13 ; 1 Inst. 315 ; 1 Bl. Com. 90 ; Broom's Max. 27. 
 
 239. Statutes at variance with the laws of God, 
 are void. 1 Bl. Com. 58 ; Broom's Max. 58 ; Doct. 
 & Stud. 15 ; Dwarris, 642 ; 2 B. & C. 471. 
 
 240. Epressio unius est exclusio alteriiis. The express 
 mention of one thing implies the exclusion of another. 
 Co. Litt. 210, a. ; Broom's Max. 505. 
 
 241. Where a statute is passed for the benefit of a 
 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. 
 
744 OF THE INTERPKETATION AND 
 
 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 B. & Ad. 793; 2 Scott N. R. 226, 370 ; Ibid. 
 228 ; 11 East R. 685 ; 3 Scott N. R. 803 ; 6 Ibid. 
 831 ; 1 My. & K. 165 ; 4 M. & W. 482 ; Smith's Com. 
 650 ; Broom's 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 which are inappropriate, to show what the 
 legislature intended, this will suffice. 6 Hill (N. Y.) 
 R. 616 ; 2 RoUe R. 127 ; Hobart R. 93-7 ; 10 Co. R. 
 57 ; 1 Pick. R. 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 ex- 
 ample, 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 enumerated. Thus, where certain 
 specific things are taxed, or subjected to any charge, 
 it seems probable that it was intended 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 ex- 
 empt certain persons from the effect and operation 
 
CONSTKUCTION OF STATUTES. 745 
 
 of its provisions, it excludes all exemptions to which 
 the subject might have been before entitled at com- 
 mon law ; for the introduction of the exemption is 
 necessarily exclusive of all other independent extrin- 
 sic exceptions. 3 Bing. N. C. 85 ; 5 M & S. 240 ; 
 3 T. R. 442 ; 5 Ibid. 21 ; 2 East R. 166 ; 7 T. R. 60 ; 
 5 East R. 478 ; Dwarris, 712 ; Smith's Com. 655. 
 
 244. In construing a doubtful clause in a statute, 
 it will often be a question whether the clause be a 
 substantive independent clause, or only a qualifica- 
 tion 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's 
 Com. 711. 
 
 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 purview, or body of the act, but is 
 never allowed to overturn or enlarge it. Smith's 
 Com. 711. 
 
 246. There is a known distinction in law between 
 an exception in the enacting and in the proviso 
 clause of a statxite. If in the former, it must be 
 negatived in pleading — if in the latter, it need not 
 be. Smith's Com. 712 ; Dwarris, 661 ; 1 T. R. 114 ; 
 8 T. R. 542 ; Fost. 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 appointee of it, it cannot be dele- 
 gated. 11 Co. K 64 ; Smith's Com. 713 ; 26 Wend. 
 
 R. 485. 
 
 94 
 
747 
 
 APPENDIX. 
 
 For the convenience of tlie profession, and with a view to the completeness 
 of this worlc, the author appends an abstract of a tax title, which, he trusts, 
 will be acceptable, especially to conveyancers. The law of Illinois, enacted 
 Tebruary 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 ^ SCa*' STitli; to Lot 1, Block 1, in the Okiginal Plat or the City 
 OF Chicago, Illinois, acquiked under a Sale made Mat 18, 1840, 
 FOR THE Taxes of 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 ofiBce, to wit : 
 
 State of Illinois, ) 
 Cook County, J 
 
 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. 
 
 Subscribed and sworn to before me, ) John Doe. 
 
 this the 8th day of March, 1839. 
 
 Louis D. Hoard, 
 
 Clerh 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. 
 
 May 1, 1839, the said assessor returned to the county clerk his assessment 
 list, in substance as follows, to wit : 
 
748 
 
 APPENDIX. 
 
 " List of Properti/ in the First District, in the County of Cook, with the Names 
 of dm Ownei-s, and the Value of the Properti/, assessed by John Doe, for the year 1839. 
 
 Owner. 
 
 Description- 
 
 Valuation. 
 
 Remarks. 
 
 John Jones. 
 
 Lot 1, Block 1, original 
 plat, Cliicago. 
 
 $2000,00. 
 
 
 May 1, 1839. John Doe, 
 
 Assessor of District No. 1, Cook Co., Illinois." 
 
 2. March 8, 1839, Richard Roe was appointed collector of the County of 
 Cook, by the county commissioners, and took and subscribed the oath, and 
 executed and delivered the bond requu-ed 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 u, duplicate receipt thereof was filed in the clerk's 
 office. This list is a transcript of the assessor's return. 
 
 6. Mar ch 10, 1840, tie collector advertised, in tlie " 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, Blocli 1, ) 
 
 original plat, J 
 
 Chicago. ) 
 
 John Jones. 
 
 S12,00 
 
 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 
 that I shall, on the first day of the next ensuing term of the circuit court of the 
 said County of Cook, to be holden at the Court House in the City of Chicago 
 on Monday, the first day of May, 1840, make a report of the foregoing list of 
 delinquents, and apply to said court for an order to sell the said lands and other 
 real estate described therein, for the purpose of satisfying the tax, interest and costs 
 charged against the same respectively, and specifically mentioned in the said 
 list ; and the said owners, and others interested, are further notified that, on 
 
APPENDIX. 
 
 749 
 
 the second Monday next succeeding the said tenn of the said court, I shall 
 expose to public sale all of the lands and other real estate against which judg- 
 ment 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. 
 
 EicHABD Roe, 
 Chicago, March 10, 1840. Collector of Cook County, Illinois. 
 
 To this adrertisement is appended a certificate of the printer and publisher 
 of the Chicago Democrat, in these words, viz. . 
 
 "I, John Wentworth, printer and publisher of the Chicago Democrat, a 
 weekly newspaper printed and published in the City of Chicago, in the 
 County of Cook and State of Illinois, do hereby certify that the foregoing Ust, 
 and notice thereto attached, was published in said newspaper on the 10th day of 
 March, 1840; and that the number of said paper in which said list and notice 
 was published, was delivered by carriers, or transmitted by mail, to each of the 
 subscribers to said paper, according to the accustomed mode of business in said 
 office. John Wentwokth, 
 
 Printer and Publisher of the Chicago Demoa'at. 
 
 Chicago, March 12, 1840." 
 
 7. A copy of said advertisement, together with the certificate of the said 
 printer, etc., was filed in the ofiice 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 
 delinquent list to the said court in these words : 
 
 "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 Iierein set forth ; 
 
 Names 
 
 of present 
 
 owner. 
 
 Cost. 
 
 Interest. 
 
 Amount 
 of 
 tax. 
 
 Year for 
 
 which tax 
 
 is due. 
 
 Valuation. 
 
 Descript'n, 
 
 County. 
 
 J. Jones. 
 
 14 
 
 16 
 
 W2,00 
 
 1839 SB2000,00 
 
 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 
 personal property belonging to the owners whose names are mentioned in said 
 list, within the said county, of value sufficient to satisfy said taxes, interest and 
 costs, by a seizure and sale thereof. 
 
 RiCHAKD Roe, Collector. 
 
 9. The said report 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 deUnquent list, in these words, to wit : 
 
 State of Illinois, ) ^^^ 
 Cook County, ) 
 
 "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 
 
750 
 
 APPENDIX. 
 
 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 his 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. 
 
 Description. 
 
 Valuation. 
 
 Tax. 
 
 Costs. 
 
 Interest. 
 
 County. 
 
 John Jones. 
 
 Lot 1, Block 1, 
 
 original plat of 
 
 Cliicago. 
 
 ©2000,00 
 
 S12,00i 14 
 i 
 
 16 Cook. 
 
 1 
 
 And whereas, due notice has been given of the intended application for a 
 judgment against said lands, and no owner hath appeared to make defense 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 lUinois, 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 sufficient of 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 of Illinois, 
 Cook County, 
 
 Whereas, Richard Eoe, collector of said county, returned to the circuit coui-t 
 of said county, on the firet 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 ovmers have no goods and chattels within his county on which the 
 said collector can levy for the taxes, interest and costs due and unpaid on the 
 following described lands, to wit : 
 
 > SCT. 
 
 Present 
 owner. 
 
 Description. 
 
 Taluation. 
 
 Tax. 
 
 Costs. 
 
 Interest. 
 
 County. 
 
 John Jones. 
 
 Lot 1, Block 1, 
 
 original plat of 
 
 Obicago. 
 
 ^2000,00 
 
 $12,00 
 
 14 16 
 
 I 
 
 Cook. 
 
 And whereas, due notice has been given of the intended application for a 
 judgment against said lands, and no owner hath appeai-ed to make defense 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 yeara herein 
 set forth : Therefore, it is considered by the courl, 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 sufficient of each of them to satisfy the 
 
APPENDIX. 
 
 751 
 
 amount of taxes, interest and costs annexed to them severally, bo sold, uo the 
 law directs. 
 
 And to which precept this certificate was added : 
 
 State or Illinois, ) 
 Cook County, P^' 
 
 I, Louis D. Hoard, clerk of the Circuit Court, witliin and for said county, do 
 certify that the foregoing precept is a fall and perfect copy of the collector's 
 report of delinquent lands and owners, made to the said court. May 1, 1840, 
 and also the order of the said court thereon. 
 
 FsEAL 1 ^"^^t"^^^ ™y himd and the seal of said court, at the City of Chicago, 
 this 13th day of May, 1840. 
 
 Louis D. HoAKD, Clerk. 
 
 12. The sale book relating to this parcel of land is in these words, viz. . 
 Blister of Sales for Taxes on the 1 Sth day of May, 1 840. 
 
 0\7iier. 
 
 Description. 
 
 Valuation. 
 
 Tax. 
 
 Coat. 
 
 Interest. 
 
 Total. 
 
 Purcliaser 
 
 Joha Jones. 
 
 Lot 1, Block 1, 
 Grig Plat., Chicago. 
 
 352000,00 
 
 $12,00 
 
 14 
 
 16 
 
 3S12,30 
 
 .Tolxn 
 Smitbi. 
 
 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 : — 
 
 " JltTDfa all meit bg t\t$Z ^rcstnts, that whereas, at the May term, 1840, of 
 the Circuit Court of Cook County, a judgment was obtained in said court, in 
 favor of the 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 year 1839 ; and whereas, 
 on the 18th day of May, 1840, 1, Richard Boe, sheriif 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 re- 
 quisitions 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 
 whereas, 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 
 and thirty cents, for the whole parcel, which was the least quantity bid for, the 
 said tract was stricken oflF to him at that price. And whereas, it appears that 
 the certificate of said purchase has been assigned by the said John Smith to 
 John Johnson. Now, therefore, I, Richard Roe, sheriff as aforesaid, for and 
 in consideration of the said sura of twelve dollars and thirty cents, to mo 
 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, have 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 heirs and assigns, 
 forever ; subject, however, to all the rights of redemption provided by law. In 
 witness whereof, I, Richard Roe, sheriff as aforesaid, by virtue of the authority 
 aforesaid, have hereunto subscribed my name, and affixed my seal, this 20th 
 day of May, 1842. Richakd Roe, [seal.] 
 
 Sheriff of Cook County, and ex-officio Collector. 
 
752 APPENDIX 
 
 This deed was acknowledged before the Clerk of the Circtiit Court, May 20, 
 1842, and duly recorded May 21, 1842. 
 
 Ordinarily such an abstract, or one as full, alone can enable counsel to 
 determine 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 Eoe, 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. Valua- 
 tion $2000,00. 
 
 4. County tax of four mills levied June 6th, 1839. 
 
 5. Lists delivered to the collector August 20, 1839 — these regularly authen- 
 ticated. 
 
 6. The advertisement was published in the Chicago Democrat, March 10, 
 1 840, and is in conformity with the law, and regularly certified, with these ex- 
 ceptions : 1. There is no caption to the list. 2. The amount of costs and in- 
 terest is omitted. 3. The 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 recorded 
 May 22, 1842. 
 
 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, 
 precept, sale book, and deed, with the exception that the precept omits the 
 words " original plat of Chicago," simply describing the lot as " lot 1, block 1, 
 Chicago." 
 
 Au 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 
 
 Abstract op a Tax Title, (Appendix,) 747, 752 
 
 Abuse of Authority in Sale of the Land, 510 
 
 Acknowledgment of Tax Deed, 438 
 Acts in pais, 
 
 party claiming title must prove, 91 
 
 Acts of Record, 67 
 
 Adjournment of Sale, 323 
 Administhatok's 
 
 sale under order of court, 72 
 
 deed, form of, 56 
 
 Adverse Possession, 663 
 
 Advertisement of Sale, 251, 293 
 
 essential in tax proceedings, 253 
 
 contra, note, 254 
 
 a non-essential in sheriffs' sales, 252 
 
 must puiport to be an official act, 256 
 
 may be made by an officer de facto, 256 
 
 must be signed, 256 
 
 must be published in the paper designated, 257 
 
 change in name of newspaper, 258 
 State paper authorized to publish — ceased to be recognized as 
 
 such, 258 
 when insertion requii-ed in several papers must be complied 
 
 with, 259 
 
 must not be published until the time designated, 260 
 
 form and requisites of, 263, 287 
 
 when form prescribed must be pursued, 263-5 
 when none prescribed — substance of statute requirements 
 
 to be followed, 265, 266, 275 
 
 description of the land, 266, 271 
 
 when amount of the tax must be stated, 272 
 
 should state time of sale, 273 
 
 and place of sale, 273 
 95 
 
754 INDEX. 
 
 Advektisement of Sale, 
 
 names of the owners to be inserted, 276 
 
 must be published the requisite length of time, 277 
 
 number of insertions, 282 
 
 in several languages, ' 2 S3 
 
 in newspaper having the greatest circulation, 283 
 
 in extra sheets of a newspaper, 285 
 
 strictness required in the advertisement, 286 
 
 posting of additional notices, 287 
 
 consent mil not dispense with, 293 
 presumptions of regularity seldom indulged in, 293, 621 
 
 date of, prima facie evidence of time when published, 293 
 
 mistake in date cannot be added by parol, 293 
 
 proof of, 601-2 
 when presumed, 608, 612 
 
 Agents, 
 
 public and private, 67 
 
 Amendment, 
 
 of the proceedings, 423, 429 
 
 Assignment, 
 
 of the certificate of purchase, 444, 449 
 
 AnTHOEITT, 
 
 abuse of, in the sale of the land, 510 
 
 excess of, in the sale of the land, 510 
 
 power to sell land for taxes, a common law 515 
 
 depends upon statute, 45 
 
 is special, 46 
 
 and a naked power, 45 
 
 depends upon the high prerogative of the State, 46 
 
 to sell land for taxes a special one, 56-7 
 
 a special, to be strictly pursued, 86 
 
 must be proved in all cases, 97 
 
 Authokities, 
 
 distinction between general and special, 48 
 
 power to sell land for taxes special, 56-7 
 
 nature of an authority over real property, 70 
 
 statutory, 51 
 
 under statitte of uses, 49, 51 
 
 Authoritt to Collect, 
 
 essential, 200 
 
 distinction to be taken between this and authority to sell, 199 
 
 variously denominated, 199 
 
 in the nature of an execution, 200 
 
 must be made out by proper officer, 200 
 
 and delivered to proper officer, 200 
 
 must be legally authenticated, 201 
 
 delivered after day named by statute, void, 203 
 
 so when delivered before the day, 203 
 
 must recite the statute, 203 
 
INDEX. 
 
 755 
 
 AnmoKiTY OF the Officicr to Sei>l, 
 
 distinction between tliis and authority to collect, 
 
 essential to validity of sale, 
 
 a condition precedent, 
 
 various modes in which this is derived, 
 
 the authority must be regular in all respects, 
 
 regarded as similar to an execution, 
 
 must be delegated at the prescribed time, 
 
 and executed within the time fixed by law, 
 
 verification of the list or other evidence of the authority, 
 
 formalities in authority disregarded in one case , 
 
 deed not evidence of the authority, 
 
 AninENTICATION OF THE DIFFERENT DOCUMENTS, 
 
 by the official signature of the officer, 
 
 advertisement must purport to be an official act, 
 
 ■where one person holds two offices, 
 
 assessment list must be verified, 
 
 signing of record, 
 
 signing of authority to sell, 
 
 slight variances in name of officers immaterial, 
 Bids, Puffing, 
 Bidders, 
 
 highest, entitled to the property, 
 
 who are the highest, 
 
 frauds among the, vitiates the sale, 
 
 BODT sometimes seized in SATISFACTION OF THE TaX, 
 
 Caveat Emptor, 
 Cebtifioate of Sale, 
 nature and effect of, 
 interests which are acquired by, 
 right which vests after time of redemption expires, 
 right acquired by, descends to heirs, and does not vest in ex- 
 ecutor, 
 transfers a vested interest, protected by the constitution, 
 interest which passes by, prior to the expiration of the period 
 
 of redemption, 
 must be recorded in Missouri, 
 Citizen, 
 
 immunities to which he is entitled under federal constitution, 
 Color of Title, 
 
 defined, 664, 
 
 Common Law, 
 
 enters largely into the i^onstractiou of statutes. 
 Condemnation of Land for Public Uses, 
 Conditions subsequent to the Sale, 
 general doctrine as to conditions, 
 return of sale, 
 lodging deed, 
 record of proceedings, 
 
 294, 304 
 199 
 294 
 294 
 295 
 297 
 298 
 299 
 300 
 300 
 302 
 304 
 
 408,416 
 408 
 410 
 411 
 412 
 412 
 413 
 414 
 469 
 
 324 
 324 
 
 468-9 
 209 
 
 67,84 
 
 347 
 
 348-9 
 
 349 
 
 349 
 350-1 
 
 351 
 
 351 
 
 11 
 
 679, 684 
 
 59 
 7,53-4 
 
 355, 407 
 351, 352 
 
 356, 364 
 361 
 
 364, 368 
 
756 INDEX. 
 
 Conditions subsequent to the Sale, 
 
 record of certificate of purchase, 369, 370 
 
 execution and filing of surplus bond, 370, 376 
 
 notice to redeem, 376, 403 
 distinction between conditions imposed upon the purchaser 
 
 and offlcer, 403, 407 
 
 common law, 43-5 
 
 Conditional Estates, 
 
 defined, 351 
 
 how may arise, 351-2 
 
 depending on conditions precedent, 352 
 
 subsequent, 352 
 
 CONEIRMATION 01" SaLE, 
 
 essential when required by law, 417, 419 
 
 Consent or Owner, 
 
 to irregularities in the proceedings, 520 
 
 Consideration, 
 
 inadequacy of, 57, 67 
 
 Constructive Notice, 58 
 
 Constitutionality of Tax Laws, 37, 42 
 
 Constitution, 
 
 definition of 16 
 
 guarantees in favor of life, liberty and reputation in, IS, 19 
 
 property, 19, 20 
 
 distribution of power under the, 20, 27 
 
 Continuing Power, 440 
 
 Corporations, 523, 535 
 no implied power to sell land for taxes, 523-4 
 power may be delegated to them, 523-4 
 must exercise the power according to the principles of the con- 
 stitution, 524 
 and in conformity with their charter, 524 
 no powers by implication, 524 
 assumpsit the appropriate remedy to collect taxes by, 525 
 no power to convey, unless expressly granted, 525 
 cannot exempt property from taxation, 525 
 cannot declare tax deed prima facie evidence, 525 
 coi-poration taxes are not public taxes, 526 
 no power to levy double taxes, 526 
 when permitted to assess taxes "according to law" means law 
 
 in force when assessment made, 526 
 no power to defeat the policy of the general laws, 527 
 when charter silent as to the mode, &c., must follow the gen- 
 eral law, . 527 
 facts necessary to be proved by one claiming under a corpora- 
 tion tax sale, 527 
 sales by p rivate corporations, 528, 534 
 proprietary tax sale, 534-5 
 
 Courts grant no Indulgence to Tax Puroh aser, 88 
 
 and never lean in his favor, 88 
 
INDEX. 757 
 
 CoTENANTs OF THE OFnoER WHO Sells and Conveys, 516 
 
 Ceedit Sales, 326 
 
 Deed, 
 
 definition of a tax deed, 430 
 
 operation or legal eifect of, 430 
 
 must be written or printed, 432 
 
 must be on parcliment or paper, 432 
 
 must be sealed, 432 
 
 must be delivered, 434 
 
 must recite the power of officer, 434 
 
 form of deed, 435-7 
 
 date of deed, 437 
 
 acknowledgment of, 438 
 
 recording of, 438 
 
 when to be made, 439 
 
 power to execute a continuing one, 440-1 
 
 mandamus lies to compel its execution, 440 
 
 so a bill in equity, 44O 
 
 what officer must execute, 442 
 
 to whom to be executed, 444 
 death of owner of land does not deprive officer of power to execute, 449 
 
 several tracts may be included in one deed, 449 
 deed which shows upon its face a non-compliance with the law, 
 
 void, 450 
 
 must give a certain description of the land, 450-2 
 
 when it taltes effect, 452 
 
 relation of, 452-9 
 
 power to execute a deed depends upon express grant, 459 
 
 covenants in, 516 
 construction of statutes declaring deed prima facie evidence, 103, 112 
 
 power of legislature to declare deed conclusive, 100, 103 
 
 Demand of the tax, 
 
 essential, 205 
 
 tax no debt until demanded, 205 
 cannot seize body, ) 
 
 distrain goods, or V until demanded, 205 
 sell land, ) 
 
 Deputy, 
 
 when one may act by, 297, 443 
 
 Description of Land Listed and Sold, 151, 330, 450 
 
 DiEECTOKT ReQUIKEMENTS, 
 
 there is a distinction between positive and, 305 
 
 the distinction has not been pointed out, 305 
 
 there is a plain rule as to time, 305 
 
 no general rule is safe, 306 
 
 it is a rule of discretion, 306 
 easier to comply than to'assign reasons for non-compliance, 'j^ 306-7 
 
 courts should seldom hold a provision directory, 307 
 the principle is that a sound discretion must be exercised in 
 
 construing the statute, 307-8 
 
758 INDEX. 
 
 Directory Eeqcieements, 
 
 tlie application to tax laws donicj, 308 
 
 one case attempts to apply tlie rule and lay down a principle, 309 
 
 for sensible rales, see 310, 3U 
 
 disoretiokart powers, 65 
 
 Dooming, 42 
 
 Double Taxation, 
 
 not fayored, 198 
 
 how collected, 42 
 
 Duty of Owner to Tay Taxes, 86 
 
 E311NENT Domain, 
 
 distinction between, and taxing power, 7 
 
 Evidence, 
 
 onus prohandi on purcliaser, 84, 112 
 
 best eyidence requisite, 597 
 
 secondary evidence, 599 
 
 office books, 600 
 
 certificates not evidence, 600-2 
 
 proof of publication, 602 
 
 officer a competent witness, 602 
 presumptive evidence, 603, 625 
 
 Excess of Authority" in the Sale or the Land, 510 
 
 Executions, 
 
 sales under, 72 
 
 Exemption, 
 
 sale void wliere land exempt from taxation, 477 
 
 owner not bound to enjoin, 477 
 
 constitutional exemption, 478 
 
 by compact, 478 
 
 statutory, 478 
 constitutionality of exemption laws, 478, 481 
 
 exemption laws constrtied strictly, 481 
 
 corporations no power to exempt, 482 
 
 lands belonging to State, exempt, 482 
 
 Ex Parte Proceedings, 58 
 
 Extending Executions, 72 
 
 Feoffment, 43 
 
 Forfeitures of Land to xiie State, 
 
 defined, 536 
 
 equity will not aid, 537 
 
 court of law leans against, 537 
 
 and requires strict proof, 537 
 
 foundation of the riglit to forfeit, 537 
 whether inquisition necessary, 537, 550 
 
 redemption of forfeited lands, 550 
 
 waiver of forfeiture, 550-1 
 
 forfeiture by tenants for life, 551 
 
 Form 
 
 of tax deed, 435 
 
 must bo adhered to, 310 
 
759 
 
 Fraudulent Sales, 
 
 fraud will vitiato a tax sale, 
 
 466 
 
 positive frauds, 
 
 •466 
 
 constructive frauds, 
 
 467 
 
 partnerships to purchase at tax sales are fraudulent, 
 
 467 
 
 agreements among the bidders not to bid against each other. 
 
 469 
 
 pufBng bids. 
 
 469 
 
 purchase by those who are legally bound to pay the tax, 
 
 470 
 
 1 . Mortgagor, 
 
 470 
 
 2. Mortgagee, 
 
 470 
 
 3. Possessor, 
 
 470 
 
 4. Heir, 
 
 470 
 
 5. Vendee, 
 
 471 
 
 6. Agent to pay tax, &c.. 
 
 472 
 
 7. Tenant in common. 
 
 472 
 
 8. Tenant for life. 
 
 472 
 
 9. Judgment creditor. 
 
 473 
 
 10. By the officer who sells. 
 
 473-6 
 
 Government, 
 
 
 origin of. 
 
 17 
 
 duty of, 
 
 17 
 
 powers of. 
 
 15,18 
 
 the declared ends of. 
 
 14,18 
 
 Guardian's Sales, 
 
 72 
 
 Heir, 
 
 
 how to prove title of. 
 
 97 
 
 Illinois Statute of 1839, 
 
 224, 250 
 
 when court has jurisdiction under, 
 
 235 
 
 report of collector under. 
 
 235 
 
 notice of application and sale under. 
 
 237 
 
 requisites and form of judgment under, 
 
 238 
 
 form and requisites of precept under. 
 
 243 
 
 purchaser must prove judgment and precept. 
 
 247 
 
 requisites relative to deed under, 
 
 247 
 
 facts to be established by purchaser under. 
 
 248 
 
 who may attach the deed under. 
 
 248 
 
 what facts may be proved to overthrow deed. 
 
 249 
 
 Implied Powers, 
 
 
 not permissible in tax proceedings, 
 
 322, 459 
 
 Improvements, 
 
 
 compensation for, made under tax titles, 
 
 688, 696 
 
 Interpretation, 
 
 
 necessity of. 
 
 699, 700 
 
 definition of. 
 
 700 
 
 distinction between interpretation and construction. 
 
 700-2 
 
 species as defined by ethical writers. 
 
 
 1. Close, 
 
 705 
 
 2. Extensive, 
 
 705 
 
 3. Extravagant, 
 
 705 
 
 4, Erce or unrestricted, 
 
 705 
 
 5. Limited or restricted, 
 
 705 
 
760 INDEX. 
 
 Interpretation, 
 
 6. Predestinated, 705 
 
 7. Authentic, 705 
 ethical rules of interpretation, 
 
 1. Is the text genuine, 706 
 
 2. There is but one true sense, 706 
 
 3. Good faith and common sense requisite, 706 
 
 4. Words to be taken in their most probable sense, 707 
 
 5. Doubtful wox'ds to be ascertained by reference to 
 
 other passages of the same text, 707 
 
 6. And from competent sources which are extraneous, 707 
 
 7. Technical terms to be interpreted according to the 
 
 art or science from whence taken, 707 
 
 8. Tropes to be taken as tropes, etc., 707 
 
 9. Special, particular and inferior, cannot overthrow 
 
 general and superior, 7 07 
 
 10. The words themselves to be first resorted to, and 
 
 extraneous principles only under compulsion, 707-8 
 
 11. The probable, fair, easy, customary and intelligi- 
 
 ble is preferable to their oppositee, 708 
 
 12. To follow prescribed rules, 708 
 
 13. Must resort to that which is near, in preference to 
 
 that which is distant, 708 
 rides of the civilians, 
 
 1. Literal, 709 
 
 2. Rational, 710 
 
 3. Mixed, 710 
 common law rules, 
 
 1. Strict, 710 
 
 2, Liberal, 710 
 " Ita lex sceipta est," 72, 79 
 Judgment, 
 
 void, unless court had jurisdiction, 217 
 
 1. Of the person, 217 
 
 2. Of the subject-matter, 217 
 conclusive on parties and privies, 217 
 reversal of, will not affect the title of a purchaser under it, 221 
 under the tax laws of Tennessee, 221 
 
 Indiana, 222 
 
 Ohio, 223 
 Illinois, 224, 250 
 " Judgment of his Peers," 
 
 meaning of expression, 27, 36 
 Judicial Proceedings, 
 
 must intervene in some States, 217, 250 
 
 tax proceedings are quasi, 58 
 Jurisdiction, 
 
 over the person, 219 
 
 subject-matter, 219 
 
INDEX. 761 
 JnKISDICTION, 
 
 distinction between courts of general and special jurisdiction, 219 
 
 when jurisdictional facts must appear of record, 219 
 
 when presumed, 21 9 
 strictness required in the exercise of jurisdiction, in the 
 
 execution of the taxing power, 220 
 
 Knowledge of the Phrchasek, 
 
 how far he is chargeable with, 84-86 
 
 "Law oe the Land,'' 
 
 meaning of the expression, 27-36 
 
 " Legal Representative," 
 
 who is, 349-350 
 
 Lett of the Tax, 
 
 essential, 1 84 
 
 onus on purchaser to prove, 185 
 
 a municipal act, 185 
 
 must be levied when the statute directs, 186 
 
 power to levy a tax a limited one, 190 
 
 excessive levy vitiates sale, 190 
 
 one of several levies illegal, sale void, 192 
 
 " de minimus non curat lex" not applicable, 193 
 
 overlayings excessive, and sale void, 192 
 
 less tax than allowed, sale sustained, 194 
 
 for illegal purpose, sale void, 1 94 
 
 several taxes ought not to be blended together, 195 
 
 back taxes may be levied, 195 
 legislature may delegate the power to levy a tax to local tribunals, 196 
 
 power of corporation to levy must be clear, 197 
 
 illegal tax may be recovered back, 197 
 
 statutes levying taxes to be strictly pursued, 197 
 
 not to be construed as authorizing double taxes, 198 
 
 Lex Tebe^e, 27-36 
 
 Legislative Powek, 
 
 over property, 14-42 
 
 to establish rules of evidence, 100 
 whether competent to declare a tax deed conclusive evidence 
 
 of title, 100-103 
 
 Lien op the State for Taxes, 40, 646-650, and note. 
 
 Limited, 
 
 all powers are, 70-72 
 
 Limitation, 
 
 statutes of, tax titles under, 657-687 
 
 Listing, 
 
 essential to validity of tax title, 130 
 
 definition of, 132 
 
 onus on purchaser, 133 
 
 evidence of, • 133-4 
 
 must be an ofiScial document, 135 
 
 power to list conferred upon several, all must consent, 135-8 
 
762 INDEX. 
 
 Listing, 
 
 list must be verified by oiHeial signature, 138 
 
 power to list is special and limited, 140 
 
 if property beyond jurisdiction of assessor, list void, 140-4 
 
 return and lodging copy of, essential, 144 
 
 must be returned in time prescribed, 144-151 
 
 description must be certain and accurate, 151-166 
 
 listing depends upon character of the land, 166 
 
 of unseated lands, 167 
 
 of non-resident lands, 172 
 
 of lands of unknown owners, 175 
 
 must be in owner's name, 173-5 
 
 each tract must be listed separately, 176 
 
 Location, 
 
 of the land sold, 420-2 
 
 Mandamus, 
 
 to compel execution of tax deed, 69 
 
 Notice, 
 
 is of the essence of things required to be done, 251 
 
 essential in all judicial proceedings, 251 
 
 where statute is silent, notice is implied, 251 
 
 in special proceedings, notice must appear of record, 252 
 
 must appear at large, recital insufficient, 252 
 
 notice in sheriff's sale unessential, 252 
 
 essential in tax sales, 253 
 
 of application for judgment, 237 
 
 requisites of a Talid notice, 205, 274 
 
 where law requires to be posted in a public place, 287-9 
 
 by proclamation, 289 
 
 consent of owner will not dispense with a legal notice of a tax 
 
 sale, 298 
 
 by posting, 287 
 
 by advertisement, 251-293 
 
 Oath, 
 
 whether essential to title of officer, 113-129 
 
 power to administer, judicial, 301 
 
 OrnCE, 
 
 definition of an, 114 
 
 no sucli thing as an office de facto, 114 
 
 Ofpicer, 
 
 where a right is derived under one who purports to act in an 
 
 official character, the fact that he was an officer must appear, 113 
 
 definition of an officer de jure, 114 
 
 de facto, 115 
 
 acts of an, de facto, when valid, 116 
 
 acts of an assessor de facto, when valid, 122, 123 
 
 when void, 123 
 
 a collector Ayacfo, when valid, 128-9 
 
 void, 124-7 
 
 this principle applicable to tax sales, 119 
 
INDEX. 
 
 763 
 
 Onus proband^ 
 
 upon the purchaser in tax sales, 
 
 reasons, 
 
 exceptions to the rule, 
 
 how far this rule changed by legislature, 
 
 OWNEK. 
 
 who is, 
 Ownership, 
 
 defined. 
 Patents, 
 
 distinction between, and tax titles. 
 Payment of the Tax, 
 
 sale void when tax paid before sale, 
 
 how proved, 
 
 mistake as to tract paid upon, 
 
 by owner of an interfering survey, 
 
 by a tenant in common. 
 Penal Statutes, 
 
 definition of, 
 Personalty to be first Exhausted before Selling the Land, 
 Pleading, 
 
 manner of, a tax title. 
 Posting Notices, 
 Powers, 
 
 at common law 
 
 under statute of uses, 
 
 statutory, 
 
 distinction between naked and those coupled with an interest. 
 Power to sell Land for Taxes, 
 
 a stranger to the common law, 
 
 origin of, 
 
 a high prerogative, 
 
 a naked authority, 
 
 a statutory power, 
 
 a special power. 
 Presumptions, 
 
 ordinarily denied in support of a tax title, 
 
 they are indulged in support of a long possession, 
 
 contra, 
 
 general principles relative to, 
 
 possession must be open and exclusive. 
 Property, 
 
 security of, under constitution. 
 Public Domain, 
 
 whether it may be taxed by the States, 
 Purchaser at Tax Sale, 
 
 not an owner prior to expiration of redemption, 
 
 extent of his interest prior to that time, 
 
 may compel execution of deed by mandamus, 
 
 acquires a vested interest by his purchase, 
 
 the title which passes to the. 
 
 84-112 
 
 93-4 
 
 84-112 
 
 94-5 
 
 100-112 
 
 494-6 
 
 495-6 
 
 98-100 
 
 484-9 
 489 
 
 486-7 
 486 
 486 
 
 69 
 209 
 
 584-596 
 287-9 
 
 43-4 
 
 44,49 
 
 45, 51 
 
 58 
 
 43 
 45 
 45 
 45-58 
 45 
 46 
 
 91-3 
 
 603-619 
 
 619-625 
 
 625-6 
 
 624 
 
 14-17 
 
 635-7 
 
 348 
 351-4 
 
 351 
 
 350-1 
 
 627-650 
 
764 
 
 Quantity of Land which mat be Soi^d, , 335 
 
 Quo Warkanto, 
 
 proper mode of testing title to an office, 117 
 
 Quasi Judicial Proceedings, 58 
 
 Recitals in Tax Bekd not Evidence, 93 
 
 RECOKDiNe of the Tax Deed, 438 
 
 Eedemption, 
 
 defeats title of purchaser, 490-1 
 
 who may redeem, 492-505 
 
 redemption laws to be construed liberally, 505 
 
 minors cannot redeem under designation of " orphans," 506 
 
 widow cannot redeem her dower interest, 506 
 
 agent may effect redemption— no authority required, 506 
 
 must be made within the time prescribed, 506 
 
 mode pointed out must be pursued, 506 
 
 precise sum due must be tendered, 506-7 
 
 to whom a tender must be made, 507 
 
 offer to redeem, 508 
 
 receipt for redemption money, evidence, 508 
 
 mandamus lies to compel a, 508 
 notice to redeem, 376-403, 508-9 
 
 Eelation of a Tax Deed, 452-9 
 
 Remedies, 
 
 origin of, 1 5-1 7 
 
 when common law remedies may be adopted, 61 
 
 Remedies of owner, 
 
 sale may be enjoined, 563-571 
 
 deed may be cancelled in equity, 571-3 
 
 tax title not favored in equity, 573 
 
 complainant must offer to refund tax, &c., 574 
 
 redemption may be enforced by mandamus, 575 
 
 Remedies of Creditors against Tax Sale, 574 
 
 Remedies of Purchaser, 
 
 may compel execution of deed by mandamus, 575 
 or bill in chancery, 575 
 whether when he purchases an equity he may compel a con- 
 veyance of the legal title, 575, 628 
 cannot recover possession by forcible entry and detainer, 576 
 ejectment is the appropriate remedy, 576 
 no defects in title aided in equity, 576-583 
 
 Repeal of Law under which Sale made, &c., 
 
 effect of, 553-562 
 
 Representative, 
 
 who is the " legal representative," 349-350 
 
 Return of Delinquent List, 
 
 basis of power to sell, 214 
 
 Rights, 
 
 derived from nature, 15-17 
 
 of property, 14-36 
 
 guarantees in favor of 14-36 
 
INDEX. 765 
 
 Sale or the Land, 
 
 when no authority, void, 294-312 
 
 must be public, 312 
 
 and at the time designated in notice, 314 
 
 and at the place named, 322 
 
 may be conducted by a deputy, 322 
 
 power of the olEcer to adjourn sale, 323 
 
 must be to highest bidder, 324 
 
 and for cash — a sale on credit void, 326 
 
 part of the land liable to sale — part not — the sale is illegal, 328 
 
 sale must be according to the description contained in the 
 
 anterior proceedings, 330 
 
 sale of the interest of a tenant in common, 332 
 
 how the land is to be located, 332, 420 
 several parcels belonging to the same person — must bo sold 
 
 for their separate tax, 334 
 
 quantity which may be sold, 335-345 
 
 sale after county divided, 345 
 
 certificate of sale, 347 
 
 Sheriff's Sale, 
 
 advertisement not essential, 252-3 
 
 purchaser must show judgment and execution, 95-7 
 
 Special Peoceedings, 
 
 affecting property, 52-56,217 
 
 Stare Decisis, 
 
 relative to tax titles, 651-6 
 
 Statutes, 
 
 1 . Definition of, 702 
 
 2. Division of, 
 
 1 . General or special, 702 
 
 2. Public or private, 702 
 
 3. Declaratory, 702 
 
 4. Remedial, 702 
 
 1. Enlarging, 703 
 
 2. Restraining, 703 
 
 5. Temporary, 703 
 
 6. Perpetual, 703 
 
 7. Affirmative, 703 
 
 8. Negative, 703 
 
 9. Penal, 704 
 
 3. Construction of, 
 
 1. Definition of constraction, 700, 705-6 
 
 2. Distinction between constraction and interpretation, 700-2 
 
 3. The different species of construction, as defined by 
 
 ethical writers, 705-6 
 
 4. Ethical rules of construction, 708-9 
 
 5. Species of, as defined by the civilians, 
 
 1. Literal, 709-10 
 
 2. Rational, 709-10 
 
 3. Mixed, 709-10 
 
766 
 Statutes, 
 
 Common law species, 
 
 1. Strict, 710 
 
 2. Liberal, 710 
 Common law rules of construction, 
 
 1. Courts nothing to do with the expediency 
 
 of a statute, 711 
 
 2. The rales and maxims of construction to be 
 adhered to, 711 
 
 3. Common law enters largely into the construc- 
 tion of statutes, 711 
 
 ii just interpretation is ever controlled by 
 by that law, 711 
 
 the best construction is to approach as 
 near to the rule and reason of the 
 common law as possible, 711 
 
 and to conform to the course which that 
 
 law observes in similar cases, 711 
 
 where power is given by statute, but the 
 means of executing it are not pre- 
 scribed, it must be executed according 
 to the course of the common law, 711 
 
 and where the provisions of a statute are 
 general, it is subject to the control and 
 order of the common law, 711 
 
 the statute is to receive such a construc- 
 tion as may be agreeable to the rules of 
 the common law, in cases of a similar 
 nature, 711 
 
 where a common law word is used, we 
 
 must resort to that law for its meaning, 711 
 
 a statute which makes an innovation 
 upon, or is in derogation of, the com- 
 mon law, must be strictly construed, 712 
 
 4. The power to construe statutes is judicial, 712 
 
 the legislature, no right to usurp this 
 judicial prerogative, by means of doclai-- 
 atory and explanatory statutes, 712 
 
 5. Rules of construction same at law as in 
 
 equity, 712 
 
 6. And are equally applicable to public and 
 
 private statutes, 712 
 
 7. The validity of a rule of construction is not 
 
 to be tested by extreme cases, 712 
 
 8. The intention of the legislature, the polar 
 
 star of construction, 712 
 
 this rule applicable to all classes of stat- 
 utes, 712 
 this intent to be gathered from the words 
 
 used, 713 
 
INDEX. 
 
 767 
 
 Statutes, 
 
 the words are never departed from bat to 
 
 ascertain intent, 713 
 
 wlien the words are plain and unambigu- 
 ous, they must be followed, 713 
 
 courts may give a sensible interpretation 
 to words which are obscure, but they 
 have no right to distort those which are 
 clear, 713 
 
 the fair and nattu-al import of the words 
 in connection with the subject-matter, 
 is the true mode of ascertaining the in- 
 tent, 713 
 
 and this without reference to any tradi- 
 tional history of the occasion of the 
 enactment, 714 
 
 unless the statute was the result of some 
 
 known state of public embarrassment, 714 
 
 when the language is obscure or ambigu- 
 ous, then eveiy extrinsic fact may be 
 resorted to, 714 
 
 thus, you may have resort to the 
 
 1. Title of the statute, 714 
 
 2. To its preamble, 714 
 
 3. To usage under it, 714 
 
 4. To a comparison with other 
 
 laws, 714 
 
 5. To cotemporaneous construc- 
 tion, 714 
 
 6. To the hardship of the law, 714 
 
 7. To the history and situation of 
 
 the country, 714 
 
 8. To the reason and spirit of the 
 statute, 714 
 
 9. To the inconvenience of a par- 
 ticular construction, 715 
 
 10, To the absurd consequences 
 
 which will follow it, 715 
 
 11. To the public interests, 715 
 it is always presumed that the legislature 
 
 intend the most reasonable and bene- 
 ficial construction of their acts, 715 
 
 the intention must be collected from the 
 
 whole act, 715 
 
 and effect given to every clause, sentence 
 
 and word, 715 
 
 the most natural mode of construction is 
 to give effect to every part of a statute, 715-16 
 
 the broader expressions are to control the 
 less comprehensive, 715 
 
768 
 Statutes, 
 
 statutes in pari materia may be considered 
 where the intention is obscure or doubtful, 716 
 9. The general rule is that effect must be given ^ 
 
 to the wor(fe of the statute, 716 
 
 they ought to be understood according 
 to their natural and genuine signifi- 
 cation, 716 
 
 unless by giving to them such meaning, an 
 inconsistency or contradiction would 
 arise between the meaning thus given 
 and other parts of the statute, 716 
 
 they are to be understood with reference 
 
 to the subject-matter, 717 
 
 words to be understood according to their 
 most known and popular use, 717 
 
 but technical words must be regarded as 
 
 employed in their technical sense, 718 
 
 all words must be taken in a lawful and 
 
 rightful sense, 717 
 
 and according to their context, 717 
 
 and the subject-matter of the statute, 717 
 
 when susceptible of two meanings, they 
 must be construed as generally under- 
 stood, 718 
 
 they ought not to be expounded so as to 
 
 destroy or impair natural justice, 718 
 
 when words which had a definite meaning 
 in an old statute, are used in a new 
 one, they shall be construed alike, 718 
 
 when words used in different parts of a 
 statute conflict, they should be con- 
 strued according to the leading object 
 of the enactment, 718 
 
 when the words of the enacting clause are 
 more general than those used in the 
 title, the former must prevail, 718 
 
 general words to receive a broad con- 
 struction, 718 
 
 unless restrained by other words in the 
 same statute, 718 
 
 but general and less comprehensive words 
 should be so construed as to harmonize 
 with each other, 719 
 
 when a statute uses a word which is sus- 
 ceptible of two meanings, and in anoth- 
 er part of the statute it is used in a 
 definite sense, the latter is the trite 
 meaning, 719 
 
 unless its context requires a different 
 
 construction, 719 
 
Statutes, 
 
 769 
 
 when the words of a grant are suscepti- 
 ble of two meaningSj one extensive and 
 the other restrictive — and a choice is 
 fairly open and either may be adopted 
 mthout violating the object of the grant 
 — that which will give the fullest effect 
 to the grant ought to be adopted, 719 
 
 general words do not embrace the State, 719 
 
 the word persons means natural persons, 719 
 
 contra — corporations will be included, 719 
 
 the word plaintiff or defendant will not 
 include States, counties and municipal 
 corporations, 720 
 
 statutes treating of inferior persons and 
 things will not be construed to embrace 
 those of a superior dignity, 720 
 
 statutes speaking of courts, process, prac- 
 tice, etc., must be regarded as using 
 technical language, 720 
 
 statutes relating to particular actions can- 
 not be extended to others of the same 
 species, 720 
 
 void — sometimes means DozrfaWe, 720 
 
 " which" and " said" relate to the last 
 antecedent, 720 
 
 " such" may be rejected when 720 
 
 a conjunctive clause may be taken in a 
 disjunctive sense, 720 
 
 the words " shall forfeit," give only a right 
 to enforce the forfeiture, and not the 
 right itself, 720 
 
 affirmative words may be construed as a 
 
 negative of that which is not affirmed, 720-1 
 
 a misnomer, in a statute, of a person or 
 corporation, will not defeat the act, if 
 intention is apparent, 721 
 
 where the words of a statute or section 
 are repugnant to each other, the last 
 must prevail, 721 
 
 when a word, taken according to its 
 literal import, would have no effect, or 
 an obscure one, it must have a more 
 effective construction, 721 
 
 general words may be restrained by more 
 
 particular ones, 721 
 
 but where a thing is given or limited in 
 the precedent part of the statute, it shall 
 not be taken away or altered by subse- 
 quent general words, 721 
 
 97 
 
770 
 
 STATUTE3, 
 
 the meaning of a word may be ascertained 
 by reference to tlie meaning of words 
 associated with it, 721 
 
 when the natural import of the words may 
 be departed from, 721-2 
 
 a word is omitted in one section, and the 
 omission is supplied in another section, 
 by reference to tlie section which omits 
 the word, the defective section may be 
 enforced according to such explanation, 722 
 
 the word "may," is imperative, when, 723 
 
 10. When a statute makes no exceptions, the 
 
 court cannot, 723 
 
 an exception implies, that but for the 
 exception the thing or person excepted 
 would be within the statute, 723 
 
 and the exception of one thing, is proof 
 that every other thing is embraced with- 
 in the general words, 723 
 
 11. A statutory rule relating to pleading or 
 practice, must be construed with reference to 
 
 the whole system of which it forms a part, 723 
 
 12. Punctuation will not vary the construction 
 
 of a statute, 723 
 
 13. The debates in the legislative body cannot 
 influence the construction of a statute, 723 
 
 14. A recital in the preamble of a statute will 
 not limit or restrain the enacting words of the 
 statute, 723 
 
 15. In construing a revised code, they are to be 
 considered as cotemporancous acts, 724 
 
 the common law is superseded by a revis- 
 ion of the subject-matter, by the legisla- 
 tive authority, 724 
 
 words in a prior statute, which are incor- 
 porated in a revision, are to be construed 
 as though they were in the original stat- 
 ute, 724 
 
 when words in a statute have received a 
 judicial construction, and are after- 
 wards incorporated in a revised code, 
 the same construction Avill be adhered to, 724 
 
 when a statute, previous to a revision, is 
 clear, a change in the phraseology of the 
 revision will not authorize a different 
 construction, 724-5 
 
 unless there is an intent to effect a change, 725 
 
 16. Where the common and statute law differ, 
 
 the latter must prevail, 725 
 
Statutes 
 
 INDEX. 771 
 
 but an affirmative statute does not repeal 
 the common law, 725 
 
 where an old and new statute differ, the 
 
 latter must prevail, 725 
 
 17. Courts cannot supply defective enaetments, 725 
 
 a casus omissus cannot be helped by the 
 
 courts, 725 
 
 a mere failure of justice is not a reason 
 for construing a statute against its clear 
 meaning, 725 
 
 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, 725 
 
 19. Recitals in a statute are not conclusive upon 
 
 any one, 725-6 
 
 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, 726 
 
 21. Courts must reconcile conflicting provisions 
 
 of a statute, 726 
 
 22. In doubtful cases, the occasion and neces- 
 sity of the law, the mischief felt and the ob- 
 ject and remedy had in view, may be consid- 
 ered, 726 
 
 23. "Commu7iis eiTorfacit jus," 726 
 
 24. The adoption of a statute of a sister state, or 
 foreign nation, carries along with it the construc- 
 tion put upon it in the state or country from 
 whence it was derived, 726 
 
 in matters of practice, the rule is not in- 
 flexible, 726 
 
 nor where the law is not applicable to the 
 
 condition of the people, 726-7 
 
 25. Two statutes, at same session, on same sub- 
 ject, to be considered as one act, 727 
 
 26. Definition of a public act, 727 
 
 27. Where the means of carrying a constitu- 
 tion or statute into effect are not prescribed, 
 those means which do not interfere with estab- 
 lished relations and vested rights may be adop- 
 ted, 727 
 
 28. Conflicting statutes must be reconciled, if 
 possible, 727 
 
 29. Intention of the draftsman of a law is enti- 
 tled to no consideration, 72 
 
 30. Custom is entitled to weight in construing 
 
 an old statute, 727-8 
 
772 
 Statutes, 
 
 31. An old statute re-enacted, the construction 
 formerly given to it must be adhered to, 728 
 
 32. Statutes enacted at the same session to be 
 construed in pari materia, 728 
 
 33. Two statutes passed on the same day, which 
 are in direct conflict, and afterwards anoth- 
 er statute is passed which recognises one 
 of them in force, the recognised statute will be 
 regarded as containing the true rule, 728 
 
 34. The decision of a court of another State 
 upon a statute of that State, will be received as 
 
 the true construction in this State, 728 
 
 35 A special statute is sometimes merged in a 
 
 general one, 729 
 
 36. Whether statute remedies supersede the 
 common law, 729 
 
 37. A statute penalty implies a prohibition, 729 
 
 38. "Where there is a mistake in a statute which 
 may be corrected by other parts of the statute, 
 
 it is not fatal, 730 
 
 39. A statute cannot become obsolete by disuse, 730 
 
 40. Statutes cannot be construed retrospectively, 730 
 
 41. A right or remedy will not be construed 
 
 away by implication, 730 
 
 42. Where rights are infringed, fundamental 
 principles are overthrown and the general sys- 
 tem of the law is departed from, the legisla- 
 tive intention must be clear to induce a court 
 to suppose that the legislature designed these 
 consequences, 730 
 
 43. Statute not to be construed against reason, 730 
 
 44. They must be construed to suppress the mis- 
 chief, advance the remedy and preserve fun- 
 damental principles, 730 
 
 45. And so that no innocent man be punished 
 
 or endangered, 730 
 
 46. Not to be construed so as to work injustice, 731 
 
 47. Nor the destruction of a previously acquired 
 
 right, 731 
 
 48. The province of a proviso, 731 
 
 the terms of a proviso may be limited by 
 
 tlie scope of the enacting clause, 731 
 
 a limitation of an authority to do a thing 
 contained in the proviso to a statute, is 
 a negation thereof, 731 
 
 a saving clause repugnant to the body of 
 
 the act is not void in all cases, 731 
 
 49. When time is directory, and when not, 731 
 
 50. In computing time, day of the date excluded, 730 
 
Statutes, 
 
 773 
 
 51. Word month means calendar or lunar, ac- 
 cording to circumstances, 731-2 
 
 52. Where a statute gives a new power and pro- 
 vides the means of executing it, those means 
 
 must be adopted, 732 
 
 53. When a statute requires a thing to be done 
 in a particular way, that way alone can be pur- 
 sued, ' 732 
 
 54. Whore a statute confers a power, everything 
 essential to its exercise is implied, 732 
 
 55. Joint power given by statute to five, four or 
 
 any less number cannot exercise it, 732 
 
 56. Where a statute gives an autliority to a 
 particular pei'son or officer, all others are ex- 
 cluded, 732 
 
 57. Where a statute declares that a public oflScer 
 may act in a certain way, which is benefi- 
 cial to third persons, he must act in that way, 732 
 
 58. Repugnant statutes to be reconciled, 732 
 
 59. Where a statute directs judicial proceed- 
 ings — notice is implied, 732-3 
 
 60. Construction of the word "complaint," rela- 
 tive to criminal proceedings, 733 
 
 61. Words necessary to a statute grant, 733 
 
 62. Statutes take effect from their passage, 733 
 
 63. Statutes will not be construed to affect vest- 
 ed rights, 733 
 
 64. How far statutes may be construed accord- 
 ing to their equity, 733-7 
 
 65. Statutes must have a reasonable effect, 736 
 
 courts must uphold them, 736 
 
 they should never be eluded, 736 
 
 a fraud upon or evasion of, will not be 
 
 tolerated, 736 
 
 66. Statutes which are construed liberally. 
 
 1 . Tliose confirming titles and granting 
 possessions, 737 
 
 2. Statutes of limitation, > 738 
 
 3. Statutes of frauds, 738 
 
 4. Remedial statutes, 737 
 
 5. Statutes authorizing suits against the 
 
 State, 739 
 
 6. Statutes relative to tlie welfare or 
 
 policy of the State, 740 
 
 7. Laws conferring bounties, 741 
 
 8. Laws authorizing an association to 
 
 hold land, 742 
 
 9. Statutes relative to the administration 
 
 of justice, 742 
 
774 
 
 Statdtes, 
 
 67. Statutes which are to be construed strictly. 
 
 1 . Declaratory and explanatory statutes, 737 
 
 2. Statutes \yhich take away or clog 
 common law remedies, 737 
 
 3. Statutes which take away a remedy 
 
 given by a prior statute, 737 
 
 i. Acts of incorporation, 737 
 
 5- Revenue statutes, 738 
 
 6. Penal statutes, 738 
 
 7. Statutes which are both penal and re- 
 medial, 739 
 
 8. Statutes of costs, 739 
 
 9. Statutes affecting human liberty, 739 
 
 10. Laws exempting property from taxa- 
 tion, 740 
 
 11. Statutes giving summary remedies, 740 
 
 12. Statutes affecting property, 740 
 
 13. Statutes which take away the right of 
 
 trial by jury, 740 
 
 14. Statutes providing a remedy un- 
 known to the common law, 740 
 
 15. Statutes giving jurisdiction to inferior 
 
 courts. 740 
 
 16. Statutes in derogation of the com- 
 mon law, 741 
 
 17. Statutes taking private property for 
 
 public uses, 741 
 
 18. Statutes imposing restrictions upon 
 
 trade or common occupations, 741 
 
 19. Statutes which disable persons, 741 
 
 20. Statutes in favor of particular persons, 742 
 
 21 . Attachment laws, 742 
 
 68. Construction of a toll-bridge charter, 737 
 
 69. Statutes of a local character, 739 
 
 70. Statutes prescribing the form of doing a 
 
 thing, 740 
 
 71. Statutes authorizing a court to render sub- 
 stantial justice, 741 
 
 72. Where a statute gives a remedy and it may 
 be construed as a summary or usual common 
 
 law remedy, the latter will be intended, 742 
 
 73. Statutes in relation to the fees of public of- 
 ficers, the construction ought to lean in favor 
 
 of the officer, 742 
 
 74. Statute time — mode of computation, 742 
 
 75. In construing statutes we must look to the 
 
 old law, the mischief and the remedy, 743 
 
 76. Directory statutes, 743 
 
INDEX. 
 
 Statutes, 
 
 775 
 
 77. Repealing law — repealed — first law revived, 74.3 
 
 78. Statutes at variance with the law of God, 743 
 
 79. The expression of one thing, is the exclu- 
 sion of another, 743 
 
 80. Kailway and canal company acts, 743 
 
 81. A statute not to be nullified because some 
 of its provisions are absurd, repugnant, or 
 untrue, 744 
 
 82. Cases which may be regarded as within or 
 without the words of a statute, 744 
 
 83. Distinction between a dependent and inde- 
 pendent clause, 745 
 
 84. Office of a saving clause, 745 
 
 85. Distinction between an exception in the 
 enacting and proviso clause of a statute, 745 
 
 86. A statutory power connot be delegated, 745 
 
 87. Statute declaring tax deeds prima fade or 
 conclusive evidence of title, construed rigidly 
 
 and strictly, 103-112 
 
 Stkictness, 
 
 required in tax sales, 46-83 
 
 reason of the rule, 48-79 
 
 degree of strictness exacted, 79-83 
 
 Steioti Jubis, 
 
 tax sales are regarded as, 69 
 
 SnMMAKY Proceedings, 58-9 
 
 Tax, 
 
 distinction between a public and private, 105 
 
 definition of a, 7 
 
 not a judgmeiit, 205 
 
 not a contract, 205 
 
 cannot be set off, 205 
 
 not a debt until demanded, 205 
 
 levy of, essential, 184 
 
 must be levied by competent authority, 185 
 
 and within the time limited, 186 
 
 levy of, a municipal act, 186 
 
 power to levy a, a limited one, 190 
 
 too much, sale void, 190 
 
 overlayings render sale void, 192 
 
 part legal — part illegal — sale void, 1 92 
 
 maxim, "de minimus" etc., no application, 193 
 
 for an illegal purpose, void, 194 
 
 too little, sale valid, 194 
 
 several taxes levied, ought not to be blended, 1 95 
 
 back, may be levied, I95 
 
 State a lien for the, I95 
 
 Taxes, 
 
 causes of non-payment of, 63 
 
776 INDEX. 
 
 Taxation, 
 
 limited, 9 
 
 equality of, 12-14 
 
 objects of, 8-9 
 
 Taxing Powee, 
 
 what included within the, 101 
 
 distinction between the, and eminent domain, 7 
 
 no existence in a state of nature, 7 
 
 government begets its necessity, 7 
 
 the creature of civil society, 7 
 
 indispensable to every government, 8 
 
 an incident of sovereignty, 8 
 
 expressly granted in Federal constitution, 8 
 
 implied in State constitutions, 8 
 
 no limitation of the, as to amount or objects, 9 
 
 extends to all persons or property, 8 
 
 limited in some respects, 9-14 
 
 limitation of, in State constitutions, 10 
 
 limitations by compact, 10-14 
 
 limitations upon, in Federal constitution, 10 
 
 Tax Laws, 
 
 have a double intent, 62-6 
 
 construed strictly, 197-8 
 
 Tax Sales, 
 
 rule of strictness required in, 47-83 
 
 reasons of this strictness, 48-79 
 
 degree of strictness required in, 79-83 
 
 Tenants in Common, 
 
 sale of their interest, 332 
 
 Tekm, 
 
 one day in law, 319 
 
 Time, 
 
 when directory in a statute, 305-7 
 
 of tax sale, 314 
 
 Title oe the Pukchasek, ' 627-650 
 
 TJsURPEIt, 
 
 defined, 115-16 
 
 his acts void, 124 
 Valuation, 
 
 essential, 178-183 
 Vaeiances, 
 
 between different documents, 461-5 
 
KP 685 T2 B63 c,l 
 
 Author Vol. 
 
 KLackwell, Robert S 
 
 Title Copy 
 
 A Practical traetise to the 
 
 power 
 
 to sejj. iana.... 
 
 Date 
 
 Borrower's Name 
 
 
 
 
 
 
 
 
 
 
 1 ■ " 
 
H 
 
 I