Il# 
 
 'V 
 
 

 QJorn^U IQam ^rljnnl ICtbraty 
 
Cornell University Library 
 KF 685.T2B63 1864 
 
 A practical treatise on the power to sel 
 
 3 1924 018 781 785 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018781785 
 
PRACTICAL TREATISE 
 
 POWER TO SELL LAND 
 
 NOI-PAYMENT OF TAXES, 
 
 EMBKACIN6 
 
 THE DECISIONS OP THE FEDERAL COTJETS, AND Of THE STJPEEME 
 JUDICIAL TEIBUNALS OP THE SEYEEAL STATES. 
 
 BY 
 
 EOBEET S. BLACKWELL, 
 
 0.F THE ILLTNOIS BAK. 
 
 SECOND EDITION, 
 
 BEYISED AND ESLABGED. 
 
 BOSTON: 
 
 LITTLE, BROWN AND COMPANY. 
 
 18 64. 
 
IB '7 9- a ^^ 
 
 Entered according to Act of Congress, in the year 1864, by 
 
 LITTLE, BROWN AND COMPANY, 
 
 In tlie Clerli's Office of tlie District Court of the District of Massachusetts. 
 
 WINTHROP press: CAMBRIDGE. 
 ALL£K AND FABNHAU. 
 
TO 
 
 ARCHIBALD WILLIAMS, ESQ., 
 
 LATE UNITED STATES ATTORNEY FOR THE DISTRICT OF ILLINOIS. 
 
 AN ABLE LAWYER, 
 
 THE PIOSEEB IN TAX TITLE LITICJATIOlf IN ILLIKOIS, AND WHO, BY HIS ADVICE 
 
 AND ENCOURAGBMEHT, HAS MATERIALLY AIDED IN THE 
 
 PKEPARATION OF THIS WORK, AND FOE WHOM THE 
 
 AUTHOR ENTERTAINS THE HIGHEST 
 
 SENTIMENTS OF RESPECT 
 
 AND FRIENDSHIP, 
 
 THIS" BOOK IS DEDICATED. 
 
PREFACE 
 
 TO THIS EDITION. 
 
 The first edition of this work was published in the 
 year eighteen hundred and fifty-five. The death of 
 the learned author necessarily devolved the -prepara- 
 tion of a new edition upon other hands ; but the subject 
 was so thoroughly and exhaustively treated in the 
 original production, as to leave but little more to be 
 done, than to examine and incorporate the subsequent 
 decisions. Over two hundred cases have been added, 
 and several pages of new matter incorporated into the 
 text and notes. It is generally distinguished from the 
 original by being included in brackets. 
 
 -The addition of the statutes of the several States up- 
 on the subject of Tax Titles, was found to be imprac- 
 ticable without nearly doubling the size and cost of the 
 work ; and therefore, only such portions of the several 
 acts are quoted as have been niade the subject of judi- 
 cial decisions. 
 
 The references to the cases cited throilghout the vol- 
 ume have been examined and verified, and many errors 
 
 corrected therein. 
 
 E. H. B. 
 July 1, 1864. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 PA&ZS 
 Or THE FUNDAMENTAL PRINCIPLES WHICH CONTROL THE TaXINS 
 
 Power, 1—30 
 
 CHAPTER H. 
 
 Of the Nature of the Power to Sell Land for the Non- 
 
 PATiMENT OF TaXES, AND OF THE STRICTNESS REQUIRED IN 
 
 SUCH Sales, 31 — 64 
 
 CHAPTER m. 
 
 Of THE Onus Probandi, 65 — 90 
 
 CHAPTER IV. 
 
 Op THE Election and Qualification of the se^Ieral Offi- 
 cers WHO have any thing to do with the Execution of 
 THE Power, 91-^105 
 
 CHAPTER V. 
 Of the Listing and Valuation op the Land, .... 106^153 
 
 CHAPTER VI. 
 Of the Lett of the Tax, 154 — 166 
 
 CHAPTER VH. 
 
 Of the Authority to Collect the Tax, 167 — 171 
 
 CHAPTER Vni 
 Of the Demand of the Tax, . 171 — 175 
 
Vlll CONTENTS. 
 
 CHAPTER IX. 
 Of the Seizure of the Bodt, ok Goods and Chattels op 
 
 THE Delinquent, to satisfy the Tax, . .... 176 — 180 
 
 CHAPTER X. 
 Op the Return of the Delinquent List, 181 — 183 
 
 CHAPTER XL 
 
 Op the Proceedings where a Judicial Condemnation is 
 
 Required, 184—212 
 
 CHAPTER Xn. 
 
 Op the Advertisement of the Time and Place op Sale, . 213 — 250 
 
 CHAPTER XIH. 
 Op the Authority of the Officer to Sell, .... 251 — 259 
 
 CHAPTER XIV. 
 
 Of the Distinctions between Conditions Precedent and 
 
 Directory Requirements, ........ 260 — 265 
 
 CHAPTER XV. 
 Of the Sale of the Land, 266 — 295 
 
 CHAPTER XVI. 
 
 Op the Cektipicate of Sale, 296 — 302 
 
 CHAPTER XVn. 
 Of Conditions subsequent to the Sale, 303 — 344 
 
 CHAPTER XVIII. 
 
 Op the Authentication of the Different Documents, . , 345 — 351 
 
 CHAPTER XIX. 
 Of the Confirmation of the Sale, 352 354 
 
 CHAPTER XX. 
 
 Of the Location op the Land Sold, 355 357 
 
CONTENTS. IX 
 
 CHAPTER XXI. 
 Op the Amendment of the Pkoceedings, | 358 — 363 
 
 CHAPTER XXH. 
 Of the Tax Deed, 364—391 
 
 CHAPTER XXm. . 
 
 Of Vakiances between diffekent Documents and Eecokds 
 
 Relating up the Proceedings, 392 — 395 
 
 CHAPTER XXIV. 
 Op Sales Actually and Constructively Fraudulent, . . 396 — 405 
 
 CHAPTER XXV. 
 
 Op the Effect op the Sale and Deed where the Land sol6 
 
 was Exempt prom, or not Subject to Taxation, . . . 406 — 411 
 
 CHAPTER XXVI. 
 
 Op the Effect of the Sale and Deed where the Taxes 
 
 have been paid before the Sale, 412 — 417 
 
 CE^PTER XXVH. 
 
 Op the Effect op the Sale and Deed where a Redemption 
 
 FROM the Sale has been made, 418 — 436 
 
 CHAPTER XXVin. 
 Or THE Effect op the Sale and Deed where the Officer 
 
 has abused or exceeded his Authority, .... 437 — 441 
 
 CHAPTER XXIX. 
 
 Op the Covenants op the Officer, contained in the Tax 
 
 Deed, • * . . ' 442 — 444 
 
 > t 
 
 CHAPTER XXX. 
 
 Op the Consent op the Owner to Irregularities in the 
 
 Proceedings, . . ' 445 — 446 
 
 CHAPTER XXXI. 
 
 Of Sales of Land for Taxes under the Charter and Ordi- 
 nances op Municipal and other Cokpokations, . . ' . 447 — 458 
 
X CONTENTS. 
 
 CHAPTER XXXn. 
 
 Or THE FOKFEITUKE OF LaND8 TO THE SlATE WHERE THE 
 
 Taxes have not been Paid, . .* *59 — 472 
 
 CHAPTER XXXHI. 
 
 Op the Effect of the Eepeal of the Law under which 
 
 THE Proceedings took place, *^^ — ^^^ 
 
 CHAPTER XXXIV. 
 Of the Jurisdiction of the Courts in Causes involving 
 the Validity of Tax Sales and of the Remedies op 
 Parties interested therein, 481^-499 
 
 CHAPTER XXXV. 
 
 Of the Mode op Pleading a Tax Title, 500 — 509 
 
 CHAPTER XXXVI. 
 
 Of the Rules op Evidence relating to the Maintenance 
 AND Overthrow op a Tax Title, 510 — 533 
 
 CHAPTER XXXVn. 
 
 Op the Title which passes to thI; Purchaser at a Tax 
 
 Sale, 534—555 
 
 CHAPTER XXXVIII. 
 Of the Pbinciple of Stake Decisis concerning Tax Titles, 556 — 560 
 
 CHAPTER XXXIX. 
 
 ,0f Tax Titles as the Foundation op an Adverse Posses- 
 sion UNDER THE Statute op Limitation, .... 561 — 586 
 
 CHAPTER XL. 
 
 Op Compensation for Improvements made bt Persons in 
 
 Possession under Tax Titles, 587 594 
 
 CHAPTER XLI. 
 
 Of the Interpretation and Construction op Statutes af- 
 fecting Real Property, 595 gg- 
 
 Appendix, . . ... . . . 635-641 
 
TABLE OF CASES. 
 
 A. 
 
 Abbott V. Yost, 168. 
 Adams v. Adams, 511. 
 V. Baintor, 274. 
 V. Jackson, 95, 98, 102. 
 ' V. Litchfield, 107. 
 V. Turrentine, 45. 
 Ainsworth v. Dean, 97, 100, 136, 146, 
 
 286. 
 Aldrich v. Aldrich, 167. 
 Alexander v. Pitts, 232. 
 Allen V. Everts, 371. 
 V. Parish, 260. 
 0. Robinson, 73. 
 V. Scott, 168. 
 
 V. Smith, 33, 34, 66, ^74, 79, 216, 
 244, 249, 516, 528. 
 Alvord V. CoUins, 35, 72, 74, 97, 160, 
 
 235, 238. 
 Amberg v. Rogers, 381 . 
 Anderson v. Pattbn, 188. 
 V. State, 409. 
 
 V. State of Mississippi, 488. 
 Andrews v. Senter, 282, 306. 
 Anscomb v. Shore, 438. 
 Appleton V. Hopkins, 176. 
 Armstrong v. Treasurer, 409. 
 
 V. Treasurer rf)f Athens Co. 
 481. 
 Arrowsmith v. Burlingame, 8, 24, 551. 
 Arthur v. Nevill, 492. 
 Arthurs v. Smalkin, 138, 140, 143. 
 Ashville v. Means, 164. 
 Astrom v. Hammond, 411. 
 Atkins «. Hinman, 69, 148, 199, 201, 
 202, 203, 206, 209, 210. 211, 
 361, 5.35. 
 V. Kinnan, 55, 63, 263, 368. 
 Atwater v. Woodbridge, 407. 
 Auditor v. Bleight, 197. 
 Aukney v. Albright, 413, 417. 
 Anlanier v. The Governor, 93. 
 
 B. 
 
 Bacon v. Conn, 434, 490. 
 Bachelor v. Bachelor, 241. 
 Backus V. Lebanon, 407. 
 Bagshaw v. Goward, 440. 
 Bailey v. Wordye, 337. 
 Bak?r v. Towles, 74, 154. 
 Ballance v. Forsythe, 357, 399. 
 Ballard v. Stephenson, 590. 
 Ballou V. Bleeker, 7. 
 Baltimore v. Chase, 177; 
 
 Tm-npike Co, Ex parte. 111. 
 Bangs V. Snow, 160. 
 Bank v. Smyers, 684. 
 Bank of Columbia v. Okely, 23. 
 
 of Utica V. Mersereau, 136, 368, 
 373, 492. 
 
 of Georgia v. Savannah, 166, 526. 
 
 of United States v. Shultz, 570. 
 V. Osbom, 570. 
 Barbour v. Nelson, 465. 
 
 V. HoUingsworth, 576, 
 Barger v. Jackson, 353. 
 Barker v. Hesseltine, 143. 
 
 V. Blake, 146. 
 Barnard v. Graves, 168. 
 Barlow u. Bell, 590. 
 Bartholomew w. Leech, 320, 401 . 
 Baskins v. Winston, 285, 290. 
 Bassett v. Porter, 168, 176. 
 Bates V. Branch Bank of Mobile, 39, 44, 
 187. 
 
 V. P. & M. Bank, 44, 187. 
 Battemore v. White, 51, 65. 
 Bayard v. Inglis, 586. 
 Bealls V. Guernsey, 260. 
 Bean v. Tompson, 277. 
 Beard v. Smith, 459, 460. 
 Beaty v. Knowler, 33, 452. 
 Bedell v. Janney, 45. 
 Beekman v. Brigham, 74, 83. 
 Bell V. Wilson, 47, 88, 444. 
 
Xll 
 
 TABLE OF CASES. 
 
 Bell V. Barnett, 590. 
 
 V. Bowen, 96. 
 Bellows V. Elliott, 35, 74, 314, 559. 
 
 V. Parsons, 559. 
 Belton V. Briggs, 590. 
 Benedict v. Gilman, 589. 
 Bergen v. Clarkson, 29, 448. 
 Benson v. Mayor of New York, 476. 
 Bestor v. Powell, 2U, 269, 271, 316, 
 
 317, 319, 374, 442. 
 Bettis V. Taylor, 187. 
 Bettison v. Budd, 89. 
 Bewdly's Case, 558. 
 Bigler v. Karms, 548, 586. 
 Billings V. Detton, 125, 157, 158, 261. 
 Birch V. Fisher, 92, 97, 100, 110. 
 Biscoe V. Coulter, 79, 535. 
 Bishop V. Lovan, 34, 74, 251. 
 Black V. Percifield, 353. 
 Blair «. Wagoner, 544. 
 Blake v. Howe, 399. 
 
 V. Sturtevant, 96, 168. 
 Blakely v. Bestor, 125, 202, 400. 
 Blakeney v. Ferguson, 34, 62, 65, 491, 
 
 506. ■ 
 Blalock V. Gladdis, 233. 
 Bleeker v. Ballon, 1. 
 Bledsoe v. Doe, 76. 
 Bleight V, Auditor, 165. 
 Blight V. Atwell, 359. 
 
 W.Banks, 73, 359,413, 418. 
 Blunt V. Willard, 639. 
 Boardman v. Ford, 79. 
 
 V. Halliday, 92. 
 Bodley v. Hoard, 73. 
 Boisgerard v. Johnson, 35, 290. 
 Bott V. Perley, 172, 406, 458. 
 Bonnell v. Roane, 90, 172, 354. 
 Botsford V. Bnrr, 589. 
 Bouldin v. Massie, 379. 
 Bowen v. Bell, 76. 
 Bowers v. Green, 558. 
 Bratton v. Mitchell, 156. 
 Brackett v. Whidden, 168. 
 Bi-adley v. Snyder, 589. 
 Bradstreet v. Huntington, 559. 
 Branson v. Yancey, 401, 491. 
 Brewster v. Hough, 3, 406', 407, 409. 
 Bridge v. Crocker, 84. 
 Briggs V. Whipple, 514. 
 iBright ;■. Boyd, 434, 495, 589. 
 Brooks V. Hai-dwick, 354. 
 
 V. Eooney, 35. 
 Brown v. Connelly, 619. 
 
 V. Dinsmoor, 35, 64, 124, 135. 
 
 ». Hummel, 24. 
 
 V. Hutchinson, 223, 368. 
 
 V. Moore, 450." 
 
 t. Smith, 35. 
 
 u. Veazie, 34, 62, 64, 65, 69, 146, 
 216, 226, 246, 480. 
 
 V. Wheeler, 39, 44, 187, 213. 
 
 Brown v. Wright, 35, 64, 73, 74, 170. 
 Bruce v. Schuyler, 149, 150, 276, 296, 
 
 299, 390, 476, 573. 
 Bruen v. Graves, 511. 
 Brush V. Cook, 95. 
 Bryan v. Harvey, 475. 
 Buchannon v. Upshaw, 446. 
 Buchman v. Ruggles, 97. 
 Buckley v. Osborn, 406, 410, 469. 
 Budd !'. State, 21. 
 Burchard v. Hubbard, 450. 
 Burd V. Ramsay, 138, 167, 174, 177, 
 
 210. 
 Burger v. Carter, 21, 30, 197. 
 Burgess v. Pue, 168. 
 Burke v. EUiott, 95. 
 Burnett v. Cincinnati, 485, 488. 
 
 V. Delauny, 350. 
 Burns v. Lyon, 276, 319, 320. 
 Burrill v. Phillips, 299. 
 Bush V. Davison, 62, 303, 333, 339. 
 Busier v. Palmer, 475. 
 Bussey u. Gilmore, 163. 
 
 V. Leavitt, 35, 79, 219, 238. 
 Butler V. Chariton County Court, 476. 
 Byingtou v. Bookwalter, 431. 
 V. Eider, 418, 423. 
 Byrne v. Stewart, 21. 
 
 Calder v. Rutherford, 365. 
 Campbell v. Mclrwin, 188. 
 
 V, Leach, 511. 
 
 V. Wilson, 139, 141. 
 Cambridge v. Chandler, 222, 245. 
 Camden v. Allen, 172. 
 
 and Amboy E. E. Company v. 
 Hillegas, 163. 
 Carlisle v. Longworth, 34, 89. 
 Carmichael v. Aiken, 35, 144, 154, 226. 
 Carpenter v. Sawyer, 35, 249, 313, 514. 
 Carrington v. Entick, 697. 
 Carrol v. Perry, 411. 
 Cass V. Bellows, 241. 
 Caul V. Spring, 544. 
 Chambers v. Willson, 370. 
 Chandler v. Moulton, 405. 
 
 V. Spear, 35, 168, 222, 263, 368, 
 435, 436. 
 Chapin v. Curtenius, 212, 426, 432. 
 Chapman v. Bennett, 74, 275. 
 Chase v. Hathaway, 213. 
 V. Sparhawk, 168. 
 Cheaney v. Hooser, 447. 
 Chegaray v. Jenkins, 409. 
 Cheatham v. Howell, 214. 
 Chesnut v. Marsh, 187, 188, 199 iq] 
 202, 209, 402, 473. ' 
 
 Choteau v. Jones, 400. 
 Christy v. Minor, 73. 
 Cincinnati College v. State, 409. 
 
TABLE OF CASES. 
 
 XUl 
 
 Church V. Gilman, 367. 
 Clark V. Mowyer, 233. 
 Clarke v. Courtney, 33, 441. 
 *. Crane, 153. 
 V. Graham, 379. 
 V. Strickland, 281, 535. 
 V. Tucker, 249,311. 
 Cohen v. McElmoyle, 660. 
 Coit V. Wells, 97, 102, 249, 312, 512, 
 
 514. 
 Colbum V. Ellis, 96. 
 Colby V. Russell, 114, 348. 
 Cole V. Pennoyer, 565. 
 Collins V. Barclay, 417, 544. 
 Coleman v. Anderson, 161, 520. 
 Colt u. Eres, 261. 
 Columbia v. Pennoyer, 661 . 
 Coman v. State, 512. 
 Commercial Bank v. Woodside, 142. 
 Commonwealth v. Browne, 168. 
 V. Powler, 96. 
 D.Louisville Canal, 481. 
 Commissioners v. Smith, 138. • 
 
 Comstock V. Beardsley, 330, 338. 
 Coombs V. Warren, 1 44, 399. 
 Coney v. Owen, 406, 593. 
 Connelly v. Nedrow, 318. 
 Conrad v. Darden, 155, 268. 
 
 V. The Atlantic Ins. Co. of New 
 York, 650. 
 Cooper V. Brockway, 418. 
 Conyers i;. Kenan, 584. 
 Corwin v. Merritt, 63, 263. 
 Corliss V. Corliss, 213. 
 Costigau V. Mohawk & Hudson R. R. 
 
 Co., 75. 
 County Court of Obion v. Marr, 156. 
 Coxe V. Blanden, 356. 
 
 V. Clift, 482. 
 
 0. Gibson, 398. 
 
 V. Grant, 177. 
 
 V. Sartwell, 431. 
 
 V. Walcott, 433. 
 Currie v. Fowler, 73, 124, 133, 164, 228, 
 
 283, 356, 380, 421, 449. 
 Craig V. Bradford, 260. 
 
 V. Kelly, 134, 201, 289, 322, 600. 
 Cranmer v. Hall, 138, 586, 592. 
 Crawford v. State, 44, 187. 
 Creigh v. Wilson, 592. 
 Croswell v. Byrnes, 206. 
 Crowell V. Goodwin, 287. 
 Crum V. Burke, 74, 414. 
 Culver V. Hayden, 35, 225, 249, 263, 
 
 311. 
 Cummings v. Clarke, 96. 
 Curry v. Hinman, 81, 209, 211, 413. 
 Curtis V. Norton, 353. 
 Gushing v. Longfellow, 34, 278. 
 Cutter w. -Brockway, 266, 404. 
 
 Dafour v. Camfranc, 96. 
 Daggett V. Everett, 176. 
 Daily v. Newman, 235. 
 Dakotah v. Parker, 165. 
 Dallam v. Oliver, 177. 
 Davenport v. Farrar, 423. 
 Davison «. Gill, 39, 41. 
 Day V. Graham, 260. 
 Dean u. Ainsworth, 121, 123, 124, 165, 
 175, 335. 
 V. Madison, 448, 483. 
 De Brahm v. Fenwick, 590. 
 De 'Chastelleux v. Fairchild, 14. 
 Decker v. Freeman, 458. 
 Dejarnett v. Haines, 74, 79. 
 Delaplaine v. Cook, 79,' 84. 
 Delauny v. Burnett, 299. 
 Dellet V. Whitner, 589; 590. 
 Delogny v. Smith, 35. 216, 238, 241. 
 Den V. Hunt, 584. 
 Dennett v. Crocker, 417. 
 Denning v. Smith, 50, 65, 66, 68. 
 Dennis v. Shaw, 168, 200. 
 Dentlert). State, 34, 184, 188. 
 Doyor v. McClintock, 295. 
 Devinny v. Reynolds, 278, 319, 320. 
 Dickenson v. Gilliland, 278. 
 Dikeraan v. Dikeman, 299. 
 v.. Parish, 74, 513. 
 Dillingham v. Snow, 160, 168, 261, 448. 
 Divers v. Whitesides, 495. 
 Dixon V. Doe, 451, 542. 
 Doane v. Chittenden, 287, 535. 
 Doe V. Chunn, 276, 390, 449, 450, 451 . 
 
 V. Devours, 29, 210, 550. 
 
 V. Flagler, 281. 
 
 ij. Hearick, 569. 
 
 fj. Himelick, 106, 259, 571. 
 
 V. Hommel, 186. 
 
 V. Karick, 585. 
 
 V. McQuilken, 155, 160, 161, 246, 
 274, 513. 
 
 a. Strong, 290. 
 
 V. Sweetser, 285, 288. 
 
 V. Whitlock, 182. 
 
 V. Wise, 186. 
 Donahoe v, Hartless, 183. 
 
 V. Richardson, 285. 
 V. Veal, 387. 
 Donnell v. Bellas, 278, 318, 374. 
 Doty V. Beasley, 366. 
 Doughty V. Hope, 33, 34, 62, 65, 83. 
 Dougherty v. Dicky, 413, 414. 
 Douglas V. Dangerfield, 124, 128, 228, 
 399, 490, 491, 492. 
 V. Wickwire, 95. 
 Downer w. Woodbury, 98, 100, 168. 
 Downing v. Roberts, 169. 
 
 V. Shoenberger, 432. 
 Dowtie's Case, 461. 
 
XIV 
 
 TABLE OF CASES. 
 
 Dranguet v. Proadhomrae, 750. 
 Dresback v. McAithur, 34, 74, 107, 156, 
 
 406, 569. 
 Drew V. Davis, 1 60. 
 Driesbach v. Berger, 320. 
 Dubois V. Hepburn, 424. 
 Dudley v. Little, 43, 397, 489, 491 . 
 Dufour V. Cawfrane, 76. 
 Dugan V. Mayor, 448. 
 Dunden v. Snodgrass, 136. 
 Dunham v. Osborn, 550. 
 Dunlap V. Gallatin, 535. 
 Dunning v. Roberts, 200. 
 Dunn V. Games, 73, 74, 513. 
 V. Meriwether, 76. 
 V. Ealyea, 124. 
 V. Wiston, 536. 
 Dyer ■;. Branch Bank of Mobile, 406, 
 
 488, 543. 
 Dykeman v. Parish, 94, 95. 
 
 E. 
 
 Earl of Darlington v. Pultney, 499. 
 
 Early v. Doe, 34, 74, 216, 416. 
 
 Eastman v. Little, 234. 
 
 Eddy V. People, 213. 
 
 Edgerton v. Bird, 585. 
 
 Edward v. Beard, 164. 
 
 Egerton v. Third Municipality, 175. 
 
 Eldridge v. Tibbitts, 480. 
 
 Elkin V. People, 375. 
 
 Elliot V. Eddins, 69, 74, 216, 237, 248. 
 
 V. Peirsoll, 186, 206. 
 Elliott V. Gerard, 432. 
 
 V. Glancy, 470, 472. 
 Ellis u. Hall, 136, 141. 
 Elwelly. Shaw, 160. 
 Emerson v. Co. of Washington, 410. 
 Emery v. Harrison, 73, 74. 
 Entick V. Carrington, 595. 
 Erviu's Appeal, 24. 
 Erwin v. Helm, 142, 452. 
 Essington v. Neill, 268. 
 Everett v. Smith, 567. 
 
 E. 
 
 Eager v. Campbell, 319, 544. 
 Fain v. Garthright, 584. 
 Fairfax v. Hunter, 461, 464. 
 Farmers & Merchants Bank v. Chester, 
 95. 
 & Mechanics Bank v. Wood- 
 burn, 473. 
 Farnum v. Buifum, 34, 43, 52, 216, 226, 
 
 235. 
 Farrar v. Eastman, 237, 240, 249, 351, 
 381, 390, 458, 526. 
 I,. Perley, 458. 
 Faure v. Winans, 399. 
 Fell V. Price, 385. 
 
 Fellows V. Pinney, 478. 
 Ferguson v. Miles, 386. 
 Fetterman v. Hopkins, 95. 
 Finch V. Brown, 432, 435, 548. 
 Fish V. Brown, 140. 141. 
 Fitch V. Casey, 34, 65, 72, 365. 
 
 V. Pinckard, 33, 35, 74, 148, 164, 
 216, 238, 394, 447,449, 451. 
 Flanagan v. Grimmet, 79, 376, 569. 
 Flatbush v. ITremd, 55. 
 Fletcher v. Peck, 476. 
 Flint V. Sawyer, 255. 
 Foot V. Stevens, 186. 
 Forrestier v. Boardman, 279, 
 Foster v. McDevit, 74, 140, 141. 
 Foust V. Boss, 35, 74. 
 Fowler V. Bebee, 95. 
 Fox 11. Cash, 402, 
 Foxcroftu. Nevens, 114, 348. 
 Franklin v. Talmadge, 219. 
 Francis v. Russell, 177, 178, 188. 
 French v. Thayer, 324. • 
 ¥rick V. Sterrett, 320. 
 Fridge v. State, 186. 
 Frink v. Darst, 558. 
 Frye v. Bank of Illinois, 399. 
 
 v. Phillips, 367. 
 Fuller V. Hodgdon, 399. 
 Furness v. Williams, 508. 
 
 G. 
 
 Gale V. Mead, 306. 
 
 Gait V. Galloway, 492. 
 
 Games v. Stiles, 62, 65, 74, 107, 216, 
 
 514, 559. 
 Gardner v. Brown, 228. 
 u. Gi3rrish, 399. 
 Garrett v. White, 156, 251. 
 
 0. Wiggins, 35, 74, 79, 82, 86, 
 216, 248, 480. 
 Gaskius v. Blake, 436. 
 Gibson v. Bailey, 360. 
 V. Mussey, 442. 
 V. Eobbins, 140. 
 Gibbs-K. Swift, 283. 
 Giddings !;. Smith, 308. 
 Gilbert v. Columbia Turnpike Co., 39 
 
 40, 513. 
 Gillet V. Webster, 491. 
 Gilliam v. Reddick, 95. 
 Gillis V. Martin, 590. 
 Gilmore v. Holt, 95. 
 
 V, Thompson, 695. 
 Gladney v. Deavors, 177. 
 Glancy v. Elliott, 399, 401. 
 Glass V. Sloop Bfetsey, 186. 
 Goewey v. Urig, 83. 
 Goodall V. Harrison, 202. 
 Goodenow v. Tyler, 279. 
 Goodwin v. Lyon, 590: 
 Gordon v. Tax Appeal Court, 407. 
 
TABLE OF CASES. 
 
 XV 
 
 Gossen y. Kent, 175. 
 Gonveneur v. New York, 177. 
 Grand Gulf E. & B. Co. v. Bryan, 299. 
 Graves v. Bruen, 35, 79, 107, 150, 365, 
 370, 371, 373, 512. 
 V. Hayden, 375. 
 Greely v. Bartlett, 279. 
 Green v. Biddle, 590. 
 
 V. Craft, 172, 304. 
 
 V. Watson, 139. 
 Griffith II, Depew, 590. 
 Grignon's Lessee v. Aster, 1 86. 
 Guilford v. Murray, 171. 
 Gwynne v. Neiswanger, 88, 411, 492, 
 
 633. 
 Gwin V. Van Zant, 214. 
 
 H. 
 
 Hadley v. Tankersley, 35. 
 Hale V. Cashing, 98, 99, 104. 
 
 o. James, 550. 
 Hall V. Collins, 35, 72, 73, 74. 
 Hamilton v. Adams, 76. 
 
 V. Burnm, 177, 178; 188. 
 
 V. Hamilton, 590. 
 
 V. The St. Louis County 
 Court, 8. 
 ' Hand v. Ballou, 79. 
 Hannel v. Smith, 87, 133, 168, 183, 222, 
 
 253, 349, 469, 470, 492, 559. 
 Hapgood V. Batcheller, 279. 
 Harbeson v. Jack, 140, 141. 
 Hardin v. Owings, 57. 
 Hardy v. Walthara, 406. 
 Harriman v. Titus, 187. 
 Harris v. Wood, 29. 
 Harrison v. Baker, 590. 
 
 V. Fleming, 590. 
 Harmon v. Stockwell, 182, 256. 
 Halt V. Seixas, 186. 
 Hartley ■■. State, 168. 
 Hartwelli). Root, 619. 
 Harvey v. Mitchell, 74, 356. 
 Hathaway v. Goodrich, 168. 
 Hatsey v. Blood, 435. 
 Haven v. Cram, 356. 
 Hawkins v. Barney's Lessee, 559. 
 
 V. Kemp, 37, 63, 352. 
 
 V. Lowry, 590. 
 Hayden v. Dunlap, 214, 260. 
 
 V. Foster, 160, 164, 280, 285. 
 Hayes v. Hanson, 262. 
 Hearick v. Doe, 569. 
 Heath v. Roome, Ex parte, 261. 
 Hemphill v. Holt, 576. 
 Henry v. Tillson, 514. 
 Herring v. Pollard, 590. 
 Hewitt V. Berryman, 590. 
 Heydon's Case,. 45. 
 Hickeyo. Stewart, 186. 
 Hildreth v. Mclntire, 92. 
 
 Hill V. Kricke, 585. 
 V. Leonard, 35, 74. 
 V. Mason, 181. 
 Hinman v. Pope, 44, 66, 69, 74, 75, 76, 
 
 85, 206, 210, 211, 252. 
 Hitchcox V. Rawson, 74. 
 Hoagland v. Culvert, 95. 
 Hobbs V. Clements, 35, 226. 
 
 V. Shumates, 66. 
 Hockenbury v. Snyder, 138, 592. 
 Hodge V. Wilson, 33, 285, 289. 
 Hodgdon v. Wright, 471. 
 Sogins V. Brashears, 89, 370, 381, 391-. 
 Hoke V. Henderson, 24. 
 Holden v. James, 21. 
 Hole V. Rittenhouse, 72, 517. 
 Holroyd v. Pumphrey, 236. 
 Holliday v. Marshall, 367. 
 
 V. Swailes, 213. 
 HoUingsworth v. Barbour, 492. 
 HoUister v. Bennett, 162, 255, 307. 
 HoUoway v. Clark, 433, 581, 584. 
 Holt V. Hemphill, 34, 65, 73, 107, 156, 
 
 168, 216, 251, 492. 
 Homer v. Cilley, 107, 168, 182, 222, 254. 
 
 V. Smith, 220. 
 Hood V. Mathers, 395, 432. 
 Hooker v. Young, 260. 
 Hope V. Deadrick, 164, 447. 
 
 V. Sawyer, 211, 212, 270. 
 Hopkins t. Sandige, 181. 
 Horner v. Doe, 186. 
 Houghton «. Matthews, 279. 
 Howe V. Russell, 74. 
 Howell V. Maryland, 409. 
 Hubbell V. Weldon, 33, 35, 121, 534. 
 Hughey, Lessee of, v. Horrel, 34, 43, 51, 
 
 61, 115, 216, 221, 242, 248, 266. 
 Hulick V. Scovil, 79, 367, 452. 
 Hunt V. McFadgan, 90, 354. 
 Hunter v. Cochran, 413, 414. 
 Huntington v. Brantley, 181. 
 Huse V. Merriam, 161. 
 Huston V. Foster, 35, 70, 74, 367. 
 
 niinois 17. Delafield, 278. 
 
 Mutual Fire Ins. Co. v. Marseilles 
 Manufacturing Co. 423. 
 Inglis V. Bayard, 687. 
 Inman v. Jackson, 458. 
 Iron Manufacturing Co. v. Barron, 254. 
 Irving V. Brownell, 35, 74, 150, 378, 565, 
 
 5J6. 
 Irwm V. Bank of United States, 541, 544, 
 
 V. Irego, 544. • 
 Isaacs V. Wiley, 34, 61, 64, 97, 103, 213, 
 
 .358. 
 Isaacs V. Gearheart, 288, 446. 
 
 V. Shattuck, 35, 219, 249, 310, 
 312, 313, 347. 
 
XVI 
 
 TABLE OF CASES. 
 
 Ives V. Lynn, 173, 174, 245, 286, 296, 
 299, 308. 
 
 J. 
 
 Jack V. Harbeson, 169, 170. 
 Jackson v. Babcock, 53.5. 
 V. Clark, 492. 
 </. Cummings, 201. 
 V. Delancy, 356. 
 V. Esty, 35, 66,-69, 73, 74, 385, 
 
 394, 395, 396, '397, 398. 
 V. Fletcher, 139. 
 V. Moore, 68, 81, 84, 182, 413. 
 V. Roberts, 16, 368. 
 V. Roosevelt, 356. 
 V. Sassarnan, 139. 
 B. 'Shaffer, 619. 
 
 u. Shepard, 35, 73, 74, 174, 177. 
 V. Wood, 366. 
 Jackson v. Thomas, 584. 
 Jacques v. Kopraan, 228. 
 James v. Gordon, 33. 
 
 V. Stookey, 206. 
 Jennings v. McDowell, 74, 141. 
 Jarrott v. Vaughn, 423. 
 Jesse V. Preston, 33, 34, 72, 74. 
 Job V. Tibbetts, 107, 150, 151, 153, 174, 
 
 180, 201, 208, 209, 511, 512. 
 Johnson v. Goodridge, 113, 348. 
 
 V. M'Intire, 144,- 174. 
 Jones V. Burford, 173. 
 
 I'. Devore, 87, 536. 
 V. Gibson, 356, 414, 468, 548. 
 V. Mack, 482. 
 
 ats. Mack, 9, 524, 525, 527. 
 V. Perry, 20. 
 Jordon v. Rouse, 74. 
 Joyner v, Thii-d School District of Egre- 
 
 mont, 160, 165. 
 Judevine v. Jackson, 34, 62, 249, 311, 
 
 362. 
 Judson V. State, 44, 187. 
 
 K. 
 
 Keane v. Cannovas, 80. 
 Keating v. Williams, 140, 
 Keene v, Barnes, 275. 
 
 V. Houghton, 34, 266. 
 Keith V. Preston, 34, 73, 74. 
 Kellaru. Savage, 114, 348. 
 Kelley v. Craig, 199, 169, 512, 289, 322. 
 ■ V. Connell, 619. 
 V. Hunter, 492, 
 Kellogg V. McLaughlin, 238, 249, 277, 
 
 512. 
 Kempe v. Kennedy, 186. 
 Kemper v. McClelland, 48, 159, 160, 448. 
 Kendrick v. Farquar, 409. 
 Kennedy v. Daily, 139, 140, 141. 
 V. Greer, 186, 558. 
 
 Kennedy v. Kennedy, 590. 
 Kinderhook V. Claw, 213. 
 King V. Whitcomb, 168. 
 Kingman v. Glover, 176, 257, 304. 
 Kinney v. Beverly, 24, 72, 107, 118, 216, 
 248, 277, 368, 462. 
 V. Doe, ex. dem. Laman, 111, 
 112, 148. 
 Knowlton v. Supervivors, 483. 
 
 L. 
 
 Lacey v. Davis, 83, 1 14, 160, 400. 
 
 Lachman v. Clark, 134. 
 
 Lafferty v. Byers, 34, 132, 174, 216, 227, 
 
 268. 
 Laird v. Heister, 143, 415, 511. 
 Lake v. Morse, 429. 
 Lamb v. Gillett, 73, 510. 
 Lamberston v. Hogan, 592. 
 Lancaster v. Pope, 514. 
 Lane v. Dorman, 21. 
 
 V. James, 304, 306, 308. 
 V. Sharpe, 435. 
 Landon v. Litchfield, 407. 
 Langdon v. Poor, 35, 62, 218, 226, 249, 
 
 250, 362. 
 Larimer v. McCall, 138, 139. 
 Lathan v. Edgerton, 186. 
 Latimer v. Lovett, 74, 83. > 
 Lawrence v. Fast, 202. 
 
 V. Speed, 260. 
 Lazarus v. Bryson, 404. 
 Legget V. Long, 544, 593. 
 Leland v. Bennett, 338. 
 Lessee of Dresback v. McArthur, 47, 94, 
 132, 185, 477, 666. ' 
 Dunn V. Games et al., 94. 
 Holt's Heirs v. ■ Hemphill's 
 Heirs, 47, 84, 94, 132, 185, 
 254, 294. 
 James v. Stookey, 242. 
 Massie's Heirs v. Long et al., 
 
 156, 600. 
 McMillan v. Robbins, 55 J. 
 Perkins v. Dribble, 47, 153. 
 Wallace v. Seymour, 635. 
 Ward'v. Barrows, 617. 
 Winters v. Stirling, 618. 
 Levert t'. P. & M. Bank, 44. 
 Levy Court v. Gwynn, 39. 
 V. Smith, 150. 
 Lewis V. Robinson, 401. 
 Libby v. Burnham, 160. 
 Libson «. Bath, 155, 163. 
 Little V. Thurston, 82. 
 
 V. Smith, 558. 
 Livingston v. Moore, 29. 
 
 V. HoUenbeck, 482. 
 Logwood V. P. & M. Bank, 44. 
 Long V. Burnett, 118. 
 Long V. Long, 202. 
 
TABLE OF CASES. 
 
 XVll 
 
 Longfellow t'. Quimby, 279. 
 Loomis V. McClintock, 36. 
 
 V. Pingvee, 286, 306. 
 Loud V. Penniman, 284, 
 Louisville Canal v. Commonwealth, 409. 
 Love V. Gates, 74. 
 
 V. Wilbourn, 217. 
 Lovejoy v. Lunt, 276, 306. 
 Luffborough v. Parker, 216, 514, 544. 
 Lnmsden v. Cross, 79. 
 Luke V. Morse, 363. 
 Lunt V. Wormell, 143. 
 Lusk V. Harber, 211, 212. 
 Lyerly i>. Wheeler, 76. 
 Lyon V. Burt, 47, 74. 
 
 V. Hunt, 34, 488. 
 
 M. 
 
 Mack V. Jones, 3, 410, 448, 449. 
 Madison County w. Bartlett, 164. 
 Manly v. Gibson, 199, 209, 211. 
 Marbury v. Madison, 14. 
 Mariner v. Saunders, 511. 
 Margate Pier v. Hannan, 93. 
 Marr v. Enelo, 156. 
 Marsh v. Chesnut, 121, 157, 158, 261. 
 Martin v. Carron, 178. 
 
 V. Lucey, 216. 
 
 V. Mansfield, 145. 
 
 V. Tax Collector, 1 65. ' 
 Mason v. Pearson, 35, 48, 292, 451. 
 
 V. Woods, 155, 160. 
 Massie's Heirs, Lessee of, u. Long. 128, 
 
 512. 
 Masterson v. Beasley, 428, 433. 
 Matthews v. Light, 35, 74, 401. 
 Maxcyj). Clabaugh, 150, 277, 299, 373, 
 
 376, 492. 
 Mayor v. Howard, 448. 
 Mays V. Cincinnati, 447. 
 Mayhew v. Davis, 32, 74, 155, 174, 175, 
 
 180, 262, 490. 
 Mayo V. Wilson, 45. 
 McCall V. Himebaugh, 586. 
 
 w. Lorimer, 109, 167, 168, 169, 
 
 512. 
 ti.^Neely, 582, 584. 
 McCarapbell v. McCampbell, 590. 
 McCarroll v. Weeks, 28, 187, 188. 
 McCormack v. Bussell, 433. 
 McCoy V. Chilicothe, 484. 
 
 V. Dickinson College, 367. 
 
 V. Turk, 252. 
 McClnng v. Ross, 188. 
 McCord II. Bergantz, 433, 544. 
 McDonald v. Maus, 317, 319. 
 McDonough v. Gravier, 35, 63, 263. 
 McElmoyle v. Cohen, 563. 
 McEntire v. Durham, 76. 
 McGregor v. Balch, 92, 93, 95. 
 Mcllvoy V. Speed, 186. 
 
 Mclnstry v. Tanner, 95. 
 
 McKabe v. Sheaffer, 169, 170. 
 
 M'Kee v. Lamberton, 133, 140, 141, 592. 
 
 McKim V. Moody, 590. 
 
 McKim V. Soraers, 95. 
 
 McKinstry v. Piersall, 279. 
 
 McMillan v. Bobbins, 69, 4^2. 
 
 McQuilken v. Doe, 473. 
 
 Mead v: Gale, 261. 
 
 V. Mallet, 309, 559. 
 Marchant v. Langworthy, 260. 
 Means v. Osgood, 362. 
 Merritt v. Thompson, 146, 202, 204. 
 Merrick v. Hutt, 87, 90. 
 Messenger v. Germain, 117, 143, 150, 
 
 182, 252. 
 Messing v. Kemble, 438. 
 Metcalf V. Gillett, 55. 
 Michew v. McKoy, 136. 
 Michiel v. Mullen, 234. 
 Middleton v. Berlin, Ul. 
 Miles ii. Walker, 216 
 Miller v. Gorman, 138. 
 V. Keene, 592. 
 V. Williams, 374. 
 Milliken v. Benedict, 138, 140, 142, 
 Minor v. McLean, 74, 183, 256, 512. 
 V. Natchez, 72, 214, 216, 251. 
 Mirehouse v. Rennell, 556. 
 Mitchell V. Bratton, 139, 141. 
 
 V. Maxwell, 275. 
 Mix V. Whitlock, 155. 
 Mohawk & Hudson Railroad Company 
 
 V. Clute, 483. 
 Monk V. Jenkins, 262. 
 Montgomery v. Meredith, 116. 
 Moody V. Fleming, 584. 
 Moore v. Alleghany Citv, 165, 168. 
 
 V. Brown, 35, 511 52, 66, 240, 268, 
 381, 388, 573. 
 Morgan v. Camp, 200. 
 Morris v. Crocker, 35, 74. 
 
 V. Terrell, 590. 
 Morton v. Edwin, 55. 
 
 V. Harris, 282, 544. 
 
 V. Reed, 34, 44, 79. 
 
 V. Waring, 73, 404. 
 Moulton 0. Blaisdell, 82, 216, 246, 280. 
 Murray v. Guilford, 142. 
 Mussey v. White, 73, 260. 
 Myers v. Entriken, 279. 
 
 N. 
 Nalle V. Fenwick, 34, 73, 107, 109, 155, 
 
 216, 256, 402. 
 Nancarrow v. Weathersbee, 73, 154. 
 Natchez v. Minor, 33, 35, 76. 
 Negley v. Breading, 143. 
 
 V. P,ierce, r45, 155, 245, 513, 536. 
 Nelson v. Allen, 590. 
 New Jersey v. Wilson 407. 
 Nichols V. \^alker, 406. 
 
XYlll 
 
 TABLE OF CASES. 
 
 Nichols V. Nashville, 448. 
 Niles V. Wallier, 216. 
 Noble V. Indianapolis, 144. 
 
 V. The State, 266. 
 Norris V. Russell, 79. 
 Northup V. Devore, 274, 353. 
 Norwich v. Co. Commissioners, 164. 
 Noyes v. Haverhill, 268. 
 
 0. 
 
 Obe'rt V. Hannell, 219. 
 
 O'Brien v. Coulters, 34, 74, 288, 491. 
 
 O'Conner v. Mullen, 363. 
 
 Olcott V. State, 203, 206. 
 
 Oldham v. Jones, 401 . 
 
 Ontario Bank v. Bunnell, 165, 450. 
 
 Orr V, Cunningham, 431. 
 
 Osborn v. Humphrey; 407. 
 
 V. United States Bank, 484, 487. 
 Owens V. Vanhook, 138 
 Owners v. Mayor of Albany, 213. 
 Paden v. Akin, 164. 
 
 P. 
 
 Page's Case, 461. 
 
 Paine M. Moreland, 186. 
 
 Parham v. Decatur County, 28, 164. 
 
 Parker v. Baker, 95. 
 
 V. Baxter, 534. 
 
 V. Overman, 61, 89, 354. 
 
 V. Redfield, 407. 
 
 V. Rule, 34, 174, 213, 254. 
 
 V. Smith, 84, 177,412. 
 Parkhurst v. Van Cortlandt, 589. 
 Paris V. Berry, 164. 
 Parrish v. Stevens, 586. 
 Patterson v. Blackamore, 138, 140. 
 
 V. Brindle, 432, 433. 
 Patrick v. Davis, 89, 226. 
 
 V. Marshall, 590. 
 Payne v. Danley, 283, 354. 
 Payson v. Hall, 92, 97, 101. 
 Peacocks. Bell, 186. 
 Pejepscnt Proprietors v. Ransom, 519. 
 Pentland v. Stewart, 154, 155, 167, 
 
 253, 
 People!). Allen, 261. 
 
 V. Collins, 95, 96. 
 
 V. Detroit, 432. 
 
 ex. rel. Griffin v. Mayor of Brook- 
 lyn, 1. 
 
 u. HoUey, 261. 
 
 w. Mayor, 575. 
 
 V. Mayor of New York, 53, 87, 
 455, 492. 
 
 V. Peck, 261. 
 (Perkins, Lessee of, v. Dribble, 34, 125, 
 
 129. 
 Perkins v. Proctor, 406. 
 j^erry v. Dover, 514. 
 
 Peters v. Heasely, 273. 
 Phebe v. Jay, 14. 
 Phillips V. Phillips, 62, 73. 
 Piatt V. St. Clair's Heirs, 400. 
 Pickett V. Hartsock, 199, 204. 
 Pierce v. Benjamin, 268. 
 
 V. City of Boston, 172. 
 
 V. Richardson, 145, 226. 
 
 0. Sweetser, 242, 245. 
 Pike V. Hanson, 97, 99. * 
 
 Pillow i>. Roberts, 79, 585. 
 Pinkham v. Morang, 306. 
 Pinney v. Fellows, 407. 
 Pitkin V. Yaw, 199, 206, 209, 210, 282, 
 
 362, 389, 392, 395. 
 Pitman v. Brownlee, 72. 
 Pitts V. Booth, 181. 
 Piatt V. Rice, 409. 
 Plymouth v. Jackson, 476. 
 
 V. Painter, 93, 95. 
 Polk V. Hill, 212, 272. 
 Pomeroy v. Lambeth, 590. 
 Pond V. Negus, 156, 261. 
 Pope V. Headen, 34, 69, 74, 216, 337. 
 Porter v. Whitney, 35, 244, 249, 458, 
 
 517. 
 Powell V. Tuttle, 33, 61, 63, 111. 
 Powers V. Barr, 285. 
 Pritchett v. People, 95. 
 Proprietors of Cardigan v. Page, 97, 101, 
 
 102, 145, 155, 170, 255, 277, 512. 
 Propst V. Meadows, 186. 
 Providence Bank v. Billings, 3, 409. 
 PuUiam v. Robinson, 590. 
 Putnam v. Ritchie, 590. 
 
 E. 
 
 Kafferty's Heirs v. Byers, 216. 
 Rathburn v. Acker, 172. 
 Rawlings v. Bailey, 565. 
 Ray V. Murdock, 79. 
 Rayburn v. Kuhl, 118, 451. 
 Rayinond v. Bell, 186. 
 Rea V. McEachron, 353. 
 Reed v. Goodyear, 524. 
 
 V. Morton, 34, 52, 61, 77, 261, 298, 
 299, 314, 361. 
 
 V. Wright, 23. 
 Reeves v. Towles, 74, 154. 
 Register v. Bryan, 34, 50, 262, 288, 468. 
 Rcnick v. Wallace, 190, 492, 541. 
 Reynolds v. Leiper's Heirs, 470. 
 Rex V. Croke, 39, 40, 186, 214, 513. 
 
 V. Leicester, 261. 
 
 V. Sparrow, 261. 
 Rhinehart v. Schuyler, 18, 85, 149 150 
 
 573. 
 Rice V. Johnson, 275. 
 
 V. White, 296, 298. 
 Richardson v. Dorr, 35, 76, 308, 517. 
 Richardson v. McKinson, 590. 
 
TABLE "OF CASES. 
 
 XIX 
 
 Richardson v. State, 133. 
 Rising V. Granger, 143, 176. 
 Robb V. Bowen, 586. 
 Roberts v. Pillow, 89. 
 Robertson v. Livingston, 279. 
 Robinett v. Pi-eston, 95, 531. 
 Robinson v. Howe, 423. 
 
 V. Hutr, 463. . 
 
 V. Preston, 74. 
 
 u. Williams, 142, 319. 
 Robson V. Osborn, 79, 593. 
 Roe V. Prideaux, 511. 
 Rogers w. Dill, 186. 
 
 V. Park, 187, 188. 
 Ronkendorff v. Taylor, 33, 34, 52, 74, 98, 
 
 99, 216, 222, 240, 268, 282, 451. 
 Rose «. Himely, 186. 
 Rosenburger v. SchuU, 142. 
 Ross V. Barland, 541. 
 
 i). Irving, 690, 591. 
 Rowe y. Blakeslee, 406. 
 Rowland v. Doty, 81, 83,'84, 413, 489. 
 Ruby V. Hjintsman, 175. 
 Rule V. Parker, 47, 207, 210, 254. 
 Runnels v. State, 14. 
 Russell V. Reed, 405. 
 
 V. Werntz, 146. 
 
 Same v. Wendell, 432. 
 Sandford v. DeCamp, 406. 
 Sargent v. Bean, 235. 
 V. Peirce, 55. 
 Saunders v. Springsteen, 115. 
 Sawyer v. City of Alton, 164. 
 Savannah v. Hartridge, 165. 
 Scales V. Alvis, 34, 177, 2.50, 277, 445. 
 Scarritt v. Chapman, 209. 
 Schlencker v. Kisley, 95, 96, 168. 
 Schmidt V. Gatewood, 43. 
 Schuyler u. Hull, 107, 152, 512. 
 Scott' t). Babcock, 74, 266. 
 
 V. Detroit Young Men's Society, 
 74, 83. 
 
 i;. Onderdonk, 482. 
 
 V. Surnatn, 279. 
 Scroggs V. Taylor, 590. 
 Sewall V. Jones, 165. 
 Seymour v. Hartfoi-d, 406, 409. 
 Sharp V. Hart, 188 
 
 V. Speir, 33, 39, 53, 447, 448, 596. 
 
 V. Jolmson, 63, 263. 
 Shaw V. Dennis, 164. 
 
 V. Peckett, 172. 
 Sheafe v. Wait, 283. 
 Sheaffer v. McKalbe, 140, 144. 
 Shearer v. Woodburn, 34, 62, 432. 
 Shed V. Martin, 79. 
 Sherwood v. Reade, 33. 
 Sheldon v. Coates, 98, 104, 233, 350, 512 
 V. Van Buskirk, 168. 
 
 Shiramen u. Inman, 34, 140, 235, 288, 
 
 360. 
 Shoenberger v. Downing, 506. 
 
 u. Armstrong, 84, 449, 451. 
 Shortbridge v. Catlett, 367. 
 Shriver v. Lynn, 186. 
 Shumway v. Sliumway, 213. 
 «ibloy V. Smith, 137, 144, 263, 276, 348, 
 
 345. 
 SilUman v. jFrye, 296, 380. 
 Sisk V. Smith, 390, 550. 
 Six Carpenters' Case, 437, 440. 
 Smiley v. Wright, 550. 
 Smith V. Allen, 45, 47, 86, 94, 98, 254, 
 287, 293. 
 u. Bodfish, 54, 66, 74, 394. 
 u. Burlingame, 213. 
 ■V. Corcoran, 73, 156. 
 K. Hiloman; 39, 42, 55, 368. 
 i.-. McGrow, 138. 
 V. Moreman, 76. 
 V. Sawyer, 339. 
 
 u. State, 76, 187, 189, 394, 464. 
 V. Spooner, 596. 
 Southall V. McKeand, 589. 
 Spangler v. Jacoby, 54. 
 Spear v. Ditty, 35, 98, 155, 175, 218, 
 225, 249, 263, 312, 313, 347, 363, 511, 
 516. 
 Specker v. Wakely, 585. 
 Spellman v. Curtenius, 148, 183, 188, 
 , 199, 204, 206, 210, 211, 300, 356, 565. 
 Spiller V. Baumgard, 257. 
 Stackpole v. Arnold, 345. 
 Stanberg v. Sellon, 79. 
 State Bank v. Buckmaster, 260. 
 u. Cooper, 21. 
 V. Marsh, 213. 
 y. People, 410. 
 y. Savannah, 450. 
 V. Smyers, 584. 
 State V. Allen, 28. 
 
 0. Bank of Newbern, 166. 
 y. Click, 260. 
 !'. Cole, 49. 
 V. Coleman, 21. 
 y. {"alkinburge, 163. 
 V. Jersey City, 144. 
 u. Mcintosh, 155. 
 u. Pemberlon, 164. 
 u. gcott, 39. 
 V. Simons, 21. 
 y. Wilson, 410. 
 y. Woodside, 168. 
 Stanley y. Smith, 216, 413. 
 Steadman y. Planters Bank, 74, 79. 
 Stead's Executors v. Course, 34, 65, 74, 
 
 133, 162, 287, 508, 515. 
 Stephens v. Wellsj 414. 
 Stetson y. Kempton,' 160, 163, 448. 
 Stevens v. HoUiston, 202. 
 u. McNamara, 74^ 
 
XX 
 
 TABLE OF. CASES. 
 
 Stevens v. Kobertson, 76. 
 Stevenson v. Dunlap, 590. 
 Stewart v. Aten, 128. 
 
 u. Brooks, 433. 
 
 u. Davis, 409. 
 
 V. Graffies, 257. 
 
 V. Shoenfelt, 410. 
 Stiles V. Weir, 216, 225, 226. 
 Stowell V. Zouch, 45. 
 St. Louis Co. Court u. Hamilton, 16. 
 
 V. Sparks, 156, 261. 
 Stra'uch u. Shoenaaker, 136, 544. 
 Striker v. Kelly, 33, 83, 260. 
 Stringer v. Young, 260. 
 Strong V. Flagler, 239. 
 
 I). Parish, 492. 
 Stuke's Case, 589. 
 Summer v. Sherman, 34, 63, 68, 309. 
 
 «. Dorchester, 165. 
 Sutton V. Calhoun, 225, 235, 381 . 
 
 .;. Nelson, 316, 317. 
 Swan V. Knoxville, 1'64. 
 
 Tabele v. Tabele, 550. 
 
 Talbot V. Dent, 447. 
 
 Tallman v. White, 43, 83, 84, 124, 125, 
 
 182. 
 Taylor v. Brown, 260. 
 u. Buckner, 582. 
 u. Cole, 440. 
 .,. French, 33, 249, 309, 313, 348, 
 
 559. 
 V. Galloway, 33, 36, 441 . 
 V. Horde, 566. 
 u. Mj'er, 492. 
 
 t,. People, 174, 180, 187, 201. 
 V. Porter, 19, 22. 
 V. Steele, 418, 435. 
 V. Stringer, 402. 
 V. Whiting, 590. 
 ■ Tax Cases, 407. 
 Terrett v. Taylor, 407. 
 Terry v. Blight, 34, 74, 76. 
 Thacher v. "Powell, 35, 39, 62, 177, 179, 
 
 183, 186, 188. 
 Thacker, Ex parte., 188. 
 Thames Manufacturing Co. < . Lathrop, 
 
 34, 68, 119, 122, 157, 261. 
 Thayer v. Stearns, 1 53. 
 The King v. The Corporation of Bed- 
 ford Level, 93. 
 Thevenin v. Slocum, 515. 
 Thomas v. Lawson, 89. 
 !,'. Leland, 164. 
 Thompson v. CanoU, 178, 292. 
 a. EbbettB, 483. 
 u. Gardner, 172, 174. 
 V. Gotham, 73, 216, 454, 
 V. Mason, 590. 
 ti. Kojgers, 174, 255,266. 
 
 Thompson v. Schuyler, 150, 370. 
 Thurston v. Little, 64, 107, 153, 160. 
 
 v. Martin, 114, 406. 
 Tibbettsw. Lot, 107. 
 Tidd V. Smith, 245. 
 Tiernan v. Wilson, 288. 
 Tilson V. Thompson, 371. 
 Tipton V. Weyand, 96. 
 Tolman v. Emerson, 76, 368, 518. 
 Torrey, v. Millbuiy, 160, 263. 
 Townsen v. Wilson, 114. 
 Townsend v. Downer, 517. 
 Treat v. Orono, 75. 
 Treon's Lessee v. Emcrick, 128, 227. 
 Troutman v. May, 74. 
 Trustees of Paris v. BeiTy, 1 64. 
 Tucker v. Aiken, 93, 98, 102. 
 Turner v. Leomans, 79. 
 
 V. Watterson, 320, 
 Turney v. Yoeman, 124, 132, 365. 
 Tweed ;;. Metcalf, 286, 303. 
 
 V. 
 
 United States v. Dandridge, 528. 
 V. Kirkpatriek, 260. 
 V. Maurice, 92, 95. 
 V. Van Zandt, 260. 
 Upton V. Holden, 168. 
 Usher v. Pride, 472. 
 
 u. Taft, 255, 266. 
 
 Van Alen v. Vanderpool, 279. 
 Vance v. Schuyler, 150, 260. 
 Vancleave v. Milliken, 585. 
 Vanderbilt v. Adams, 164. 
 Van- Doren v. New York, 482. 
 Van Horn's Lessee v. Dorrance, 276. 
 V. Fonda, 14, 590. 
 Van Rensselaer v. Kidd, 482, 483. 
 Van Wormer v. Mayor of Albany, 186. 
 Vanzant v. Waddell, 20. 
 Varick V. Tallman, 33, 34, 43, 65, 77, 79, 
 
 83, 84. 
 Varney v. Stevens, 401 . 
 Vernon's Case, 45. 
 Voorhees v. United States Bank, 186. 
 Voris V. Thomas, 399, 400. 
 
 W. 
 
 Waddell v. Vanzant, 30. 
 Waldby v. Callendar, 481. 
 Waldron v. McComb, 33, 441. 
 
 0. Tuttle, 72, 74, 283, 531, 569. 
 Walker v. Chapman, 156, 261. 
 Wallace v. Porter, 492. 
 
 V. Scott, 138. 
 
 V. Seymour, 492, 541. 
 Wallingford v. Fiske, 281, 282, 569. 
 
TABLE OF CASflS. 
 
 XXI 
 
 Wales II. Stetson, 596. 
 
 Wain V. Shearman, 586. 
 
 Ward V. Barrows, 182, 527. 
 
 Ware v. Bradford, 76. 
 
 Washington v. Pratt, 216, 251, 235, 290, 
 
 451. 
 Watkins v. White, 559. 
 Waters v. State, 120, 165. 
 Watt 0. Gilmore, 367, 395. 
 Watson V. Atwood, 79. 
 V. Esty, 327. 
 V. Stuker, 74, 75. 
 Watterson v. Wilson, 168, 170, 172. 
 Webber v. Cox, 214. 
 Webster v. French, 156, 261. 
 Weed V. McQuiken, 185, 192. 
 Weeks v. Milwaukie. 
 Weor V. Hahn, 220, 324. 
 Weller v. St. Paul, 483. 
 Wellington v. Gale, 35, 514. 
 Wentworth v. Allen, 233, 458. 
 Westcott V. McDonald, 73. 
 West School District of Canton u. Mer- 
 rills, 159, 448. 
 Weyand v. Tipton, 76. 
 Wheaton w.. Sexton, 76. 
 Wheeler v. Anthonj, 144, 168, 
 
 V. Yeuda, 548. 
 Wheelock v. Hall, 528. 
 White V. Kendrick, 21. 
 V. White, 23. 
 V. Willard, 318. 
 Whiteside v. Divens, 423. 
 Whittelsey v. Clinton, 107. 
 Wiggins V. Mayor of New York, 260. 
 Wiley V. Bean, 377, 379. 
 V, Palmer, 4. 
 w. Scovill, 147, 282, 395. 
 Willard v. Blount, 545. 
 V. Strong, 399. 
 V. Wethersbee, 29. 
 Williams v. Cammack, 481. 
 
 V. East India Company, 619. 
 li. Grey, 401. 
 V. Harris, 228. 
 V. Hilton, 399. 
 
 V. Peyton, 33, 35, 69, 74, 77, 
 215, 246. 
 
 Williams v. State, 187, 189. 
 Williamson ti. Bedford, 76. 
 
 V. Berry, 186, 353. 
 Williamsport v. Kent, 448. 
 Wilson V. Bell, 34, 68, 376. 
 
 V. Cochran, 443. 
 
 V. Watterson, 140, 141, 142. 
 Wilcox V. Jackson, 189, 541. 
 
 V. Smith, 93, 95. 
 Wilkins v. Huse, 183, 188, 190,216,233, 
 
 252, 272, 353. 
 Williston V. Colkett, 136. 
 Winchesters. Cain, 154, 432. 
 Winder v. Sterling, 182, 527, 528. 
 Winterbonrne v. Morgan, 440. 
 Wistar v. Kammerer, 35, 216. 
 Withers v. Yeadon, 590. 
 Witherspoon v. Diinlap, 275. 
 Woddye v. Coles, 288. 
 Woodburn v. Farmers & Mechanics' 
 Bank, 402. 
 V. Wiseman, 282. 
 Woodcock V. Bennett, 23. 
 Worthing v. Webster, 533. 
 Wright V. Bennett, 423. 
 
 V. Mars*!, 476. 
 Wyman v. Campbell, 186. 
 
 Y. 
 
 Yancy v. Hopkins, 34, 44, 53, 65, 66, 
 
 145, 176, 187, 402, 488, 491. 
 Yeuda v. Wheeler, 35, 124, 125, 144, 
 
 226, 548. 
 Young V. Dowling, 494. 
 
 V. Keogh, 55, 353, 493. 
 
 V. King, 416. 
 
 «. Lorain, 39, 186, 187. 
 
 V. Martin, 34, 62, 138, 241. 
 
 o. Stringer, 305. 
 
 u. Thompson, 205, 362. 
 
 Z. 
 
 Znrcher v. Magee, 39, 44, 187. 
 Zylstra's Case, 21. 
 
AMERICA]^ REPORTS CITED. 
 
 NAME OF RBPORTEB. 
 
 Addison, 
 
 Adams, 
 
 Aikens, 
 
 Alabama or Minor, 
 
 Alabama, N. S. 
 
 Allen, 
 
 Appleton, 
 
 Ashmead, \ 
 
 Bailey, 
 
 Bailey's Chancery, 
 
 Baldwin, 
 
 Barboar, 
 
 Barbour's Chancery, 
 
 Barr, 
 
 Bay, 
 
 Bibb, 
 
 Binney, 
 
 Blackford, 
 
 Bland's Chancery, 
 
 Blatchford, 
 
 Brayton, 
 
 Breose, 
 
 Brevard, 
 
 Brockenbrough, 
 
 Caines' 
 
 Caines' Cases in Error. 
 
 California, 
 
 Call, 
 
 Carolina Law Repository, 
 
 Cameron & Norwood, 
 
 Carter, 
 
 Casey, 
 
 Chandler, 
 
 Charlton (T. U. P.), 
 
 Charlton (R. M.), 
 
 Cheves' Chancery Cases, 
 
 Cliipman (N.), 
 
 Chipman (D.), 
 
 Clarke's (Vice Chancellor), 
 
 Cobb, 
 
 Coleman & Caines' Cases, 
 
 Comstock, 
 
 Conference, 
 
 Connecticnt, 
 
 STATE. 
 
 Pennsylvania. 
 
 New Hampshire. 
 
 Vermont. 
 
 Alabama. 
 
 Alabama. 
 
 Massachusetts. 
 
 Maine. 
 
 Pentisylvania. 
 
 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. 
 
 Pennsylvania. 
 
 Wisconsin. 
 
 Georgia. 
 
 Georgia. 
 
 South Carolina. 
 
 Vermont. 
 
 Vermont. 
 
 New York. 
 
 Georgia. 
 
 New York. 
 
 New York. 
 
 North Carolina. 
 
 Connecticut 
 
AMERICAN REPORTS CITED. 
 
 xxni 
 
 NAME OF KBPORTER. 
 
 Constitutional Court. 
 
 Cooke, 
 
 Coweii, 
 
 Coxe, 
 
 Crabbe, 
 
 Cranch, 
 
 Gushing, 
 
 Cushman, 
 
 Dallas, 
 
 Dana, 
 
 Day, 
 
 Denio, 
 
 Dessaussure, 
 
 Devereux's Equity, 
 
 Devereux's Law, 
 
 Devereux & Battle, 
 
 Devereux & Battle's Equity, 
 
 Douglass, 
 
 Dudley, 
 
 Dudley's Law, 
 
 Dudley's Equity, 
 
 Edwards' Chancery, 
 
 English, 
 
 Fairtield, 
 
 Florida, 
 
 Foster, 
 
 Freeman's Chancery, 
 
 Gallison, 
 
 Gibbs, 
 
 Gill, 
 
 Georgia Reports, 
 
 Gill & Johnson, 
 
 Gilman, 
 
 Gilmer, 
 
 Gilpin, 
 
 Grant, 
 
 Grattan, 
 
 Gray, 
 
 Green, 
 
 Green's Chancery, 
 
 Greene, 
 
 Greenleaf, 
 
 Griswold, 
 
 Hall, 
 
 Hals ted, 
 
 Halsted's Chancery, 
 
 Hammond, 
 
 Hardin, 
 
 Harper's Law, 
 
 Harper's Equity, 
 
 Harrington, 
 
 Harris,. 
 
 Harris & Gill, 
 
 Harris & Johnson, 
 
 Harris & McHenry, 
 
 Harrison, 
 
 Hawks, 
 
 Haywood, 
 
 Hening & Mnnford, 
 
 Haywood, 
 
 Hill, 
 
 STATE. 
 
 South Carolina. 
 
 Tennessee. 
 
 New York. 
 
 New Jersey. 
 
 U. S. Circuit. 
 
 U. S. Supreme Court. 
 
 Massachusetts. 
 
 Mississippi. 
 
 Pennsylvania. 
 
 Kentucky. 
 
 Connecticut. 
 
 New York. 
 
 South Carolina. 
 
 North Carolina. 
 
 North Carolina. 
 
 North Carolina. 
 
 North Carolina. 
 
 Michigan. 
 
 Georgia. 
 
 South Carolina. 
 
 South Carolina. 
 
 New York. 
 
 Arkansas. 
 
 Maine. 
 
 Florida. 
 
 New Hampshire. 
 
 Mississippi. 
 
 U. S. Circuit. 
 
 Michigan. 
 
 Maryland. 
 
 Georgia. 
 
 Maryland. 
 
 Illinois. 
 
 Virginia, 
 
 Pennsylvania. 
 
 U. S. Circuit, E. Dis., Pa. 
 
 Virginia. 
 
 Massachusetts. 
 
 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. 
 
XXIV 
 
 AMERICAN REPORTS CITED. 
 
 NAME OF EEPORTER. 
 Hill, 
 
 Hill's Chancery, 
 Hoffman, 
 
 Hopkins' Chancery 
 Howard, 
 Howard, 
 Hughes, 
 Humphreys, 
 Illinois Reports, 
 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 R. 
 Maine, 
 Manning, 
 Martin, 
 Martin, 
 
 Martin & Terger, 
 Marshall (A. K.), 
 Marshall (J. J.), 
 Mason, 
 
 Massachusetts, 
 Maryland Reports, 
 Maryland Chancerv, 
 M'Cord, 
 
 M'Cord'S Chancery, 
 M'Lean, 
 M'MuUan, 
 
 M'MuUan's Chancery, 
 Meigs, 
 Metcalf, 
 Mississippi, 
 Minor, 
 Missouri, 
 Monroe, Thomas, 
 Monroe, Benjamin, 
 Morris, 
 . Munford, 
 Murphey, 
 New Hampshire, 
 New Jersey, 
 Nott & M'Cord, 
 Ohio, 
 Overton, 
 Paige, 
 Paine, 
 Peck, 
 Peck, 
 
 Pennington, 
 Pennsylvania, 
 
 STATE. 
 
 South Carolina. 
 
 South Carolina. 
 
 New York. 
 
 New York. 
 
 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. 7th 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. 
 
 Pennsvlvania. 
 
AMERICAN KEPORTS CITED. 
 
 XXV 
 
 NAME OP KEPOETEK. 
 
 Penrose & Watts, 
 
 Peters' Circviit Court, 
 
 Peters, 
 
 Peters* U. S. Condensed, 
 
 Pike, 
 
 Pickering, 
 
 Porter, 
 
 Porter, 
 
 Randolph, 
 
 Eawle, 
 
 Rice, 
 
 Bice's Equity, 
 
 Richardson's Law, 
 
 Richardson's Equity, 
 
 Riley's Chancery Cases, 
 
 Riley's Law Cases, 
 
 Eohinson, 
 
 Robinson, 
 
 Root, 
 
 San ford's Chancery, 
 
 Sanford's Sup. Court, 
 
 Saxton's Chancery, 
 
 Scammon, 
 
 Selden, 
 
 Sergeant & Eawle, 
 
 Shepley, 
 
 Slade, 
 
 Smedes & Marshall, 
 
 Smedes & Marshall's Chancery, 
 
 Smith, 
 
 Southard, 
 
 South Carolina, 
 
 Speer, 
 
 Speer's Equity, 
 
 Spencer, 
 
 Stanton, 
 
 Stewart, 
 
 Stewart & Porter, 
 
 Story, 
 
 Strobhart, 
 
 Strohhart's Chancery, 
 
 Sumner, 
 
 Taylor, 
 
 Tennessee, 
 
 Texas, 
 
 Tyler, 
 
 Vermont, 
 
 Virginia Cases, 
 
 Walker, 
 
 Wallace, 
 
 Walker's Chancery, 
 
 Washbiirn, 
 
 Washington Circuit Court, 
 
 Washington, 
 
 Watts, 
 
 Watts & Sergeant, 
 
 Wendell, 
 
 Weston, 
 
 Wharton, 
 
 Wright, 
 
 Wheaton, 
 
 STATE. 
 
 Pennsylvania. 
 
 IT. S. 3rd Circuit Court. 
 
 U. S. Supreme Court. 
 
 Supreme Court U. S. 
 
 Arkansas. 
 
 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. 
 
 Mississippi. 
 
 Indiana. 
 
 New Jersey. 
 
 South Carolina. 
 
 South Carolina. 
 
 South Carolina. 
 
 New Jersey. 
 
 Ohio. 
 
 Alabama. 
 
 Alabama. 
 
 tr. S. 1st Circuit Court. 
 
 South Carolina. 
 
 South Carolina. 
 
 TJ. S. 1st Circuit Court. 
 
 North Carolina. 
 
 Tennessee. 
 
 Texas. 
 
 Vermont. 
 
 Vermont. 
 
 Virginia. 
 
 Mississippi. 
 
 U. S. Circuit. 
 
 Michigan. 
 
 Vermont. 
 
 U. S. 3rd Circuit Court. 
 
 Virginia. 
 
 Pennsylvania. 
 
 Pennsylvania. 
 
 New York. 
 
 Vermont. 
 
 Pennsylvania. 
 
 Ohio. 
 
 TJ. S. Supreme Court. 
 
XXVI AMERICAN REPORTS CITED. 
 
 NAME OP EEPOKTEE. STATE. 
 
 Wilcox, Ohio. . 
 
 Woodbury & Minot, U. S. 1st Circuit Court. 
 
 Wythe's Chancery, Virginia. 
 
 Yeates, Pennsylvania. 
 
 Yerger, Tennessee. 
 
 Zabriskie, New Jersey. 
 
BEITISH REPORTS CITED, 
 
 REPOKTEKS. 
 
 Adolphus & Ellis, 
 Ambler, 
 
 Barnewall & Cresswell, 
 Bamewall & Adolphus, 
 Bingham's Eeports, 
 Bingham's New Cases, 
 Broderip & Bingham, 
 Bulstrode, 
 
 BuiTOW, 
 
 Campbell's Nisi Piius Reports, 
 
 Clark & Finnelly, 
 
 Coke R., 
 
 Cowper, 
 
 Croke's Charles, 
 
 Croke's Elizabeth, 
 
 Croke's James, 
 
 Douglas, 
 
 East, 
 
 Dow, 
 
 English Law and Equity Eeports, 
 
 KEPOKTERS. 
 
 English Common Law Reports. 
 
 Espinasse, 
 
 Hobart, 
 
 Howell's State Trials, 
 
 Levinz, 
 
 Lord Raymond, 
 
 Maule & Selwyn, 
 
 Meesou & "Welsby, 
 
 Mylne & Keen, 
 
 Modern, 
 
 Plowden, 
 
 Peere Williams, 
 
 RoUe, 
 
 Salkeld, 
 
 Saunders, 
 
 Scott's New Reports, 
 
 Taunton, 
 
 Term Reports, 
 
 William Blackstone, 
 
 Wilson. 
 
MISCELLANEOUS WORKS CITED. 
 
 NAME OF WOKK. 
 
 Adams on Ejectment, 
 
 American Leading Cases, 
 
 Ane;ell on Limitations, 
 
 Bacon's Works, .... 
 
 Bacon's Abridgment, 
 
 Blackstone's Commentaries, . 
 
 Broom's Legal Maxims, . 
 
 Ciiitty's Pleadings, 
 
 Coke's Littleton, 
 
 Corayn's Digest, .... 
 
 Cruise's Digest, 
 
 Doctor and Sttident, 
 
 D warns on Statutes, 
 
 East's Pleas of the Crown, 
 
 Eden on Injunctions by Waterman, 
 
 Federalist, .... 
 
 Fonblanque's Equity, 
 
 Foster's Pleas of the Crown, 
 
 Gale's Statutes of Illinois, 
 
 Greenleaf s Evidence, . 
 
 Institutes by Coke, . 
 
 Kent's Commentaries, . 
 
 Lieber's Legal and Political Hermeneutics, 
 
 Littell's Statutes of Kentucky, 
 
 Marshall's Decisions, 
 
 Opinions of the Attorneys General of the United States 
 
 Paley's Works, .... 
 
 Perkins' Treatise on Conveyances, 
 
 Revised Statutes of Illinois, 1845, 
 
 Revised Laws of Illinois, 1 833, 
 
 Sergeant's Land Laws of Pennsylvania, 
 
 Shepherd's Touchstone, 
 
 Smith's Commentaries, 
 
 Smith's Laws of Pennsylvania,. 
 
 Starkie's Evidence,' . 
 
 Story on Constitution, . 
 
 Story's Equity Jurisprudence, 
 
 Sugden on Powers, 
 
 Sullivan's Lectures, 
 
 Sullivan's Land Titles, 
 
 Vattel's Law of Nations, 
 
 Viner's Abridgment, 
 
 Webster's Works, 
 
 Western Legal Observer, 
 
 ABBEEVIATIOK. 
 
 Ad. Eject. 
 Am. Lead. Ca. 
 Ang. Lim. 
 Bac. Works. 
 Bac. Abr. 
 Bl. Com. 
 Broom's Max. 
 Chitty PI. 
 Co. Litt. 
 Com. Dig. 
 Cru. Dig. 
 Doct. & Stu. 
 Dwarris. 
 East P. C. 
 Eden Injunc. 
 Fed. 
 Fonb. E. 
 Fost. P. C. 
 Gale's Stat. 
 Greenl. Ev. 
 Inst. 
 
 Kent Com. 
 Lieber Herm. 
 Litt. Stat. 
 Marsh. Dec. 
 Op. Atty. Gen. 
 Paley's Works. 
 Perk. 
 
 R. S. 111. 1845. 
 R. L. III. 1833. 
 Serg. Land Laws. 
 Touch. 
 Smith's Com. 
 Smith's Laws. 
 Stark. Ev. 
 Story Const. 
 Story Eq. 
 Sugd. Pow. 
 SuL Lee. 
 Sul. Ld. Titles. 
 Vattel. 
 Vin. Abr. 
 Web. Works. 
 Wes. Leg. Ob. 
 
INTRODUCTION. 
 
 The subject of the, following work is a matter of controlling 
 importance to the landed interest of the United States, inas- 
 much as it relates to an extraordinary 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 all the States since their admission into the Union ; 
 and it has, on several occasions, been resorted to by the Federal 
 Government. A very large number of cases involving the 
 validity of titles, having their origin in this power, have been 
 adjudicated by the Federal and State tribunals. The princi- 
 ples of law which relate to powers of this character, are calcu- 
 lated to enlist the attention of every lawyer ; and in the new 
 States especially, are of constant application in the regular 
 course of his practice. Notwithstanding the importance of the 
 law upon this subject, no separate treatise has been devoted to 
 its investigation. Kent, in his commentaries, has paid no at- 
 tention to the subject, and Mr. Hilliard, in his work on Real 
 Property, dismisses it quite summarily; in fact, no general 
 treatise upon American law, deigns to treat it upon principle. 
 The annual digests of American decisions have not even as- 
 signed 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. 
 
XXX INTRODUCTION. 
 
 The decisions of our courts upon the subject, — numbering up- 
 wards of one thousand — are scattered throughout the pages of 
 seven or eight hundred volumes of the American reports, and 
 are thus inaccessible to the mass of the profession. A 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 justifies its publication. The attention of the 
 author has been directed to this matter, by his employment in 
 a number of tax title causes before the Supreme and Circuit 
 Courts of Illinois, and the Circuit Court of the United States ; 
 and the difficulties under which he labored in the prosecution 
 of his studies upon this branch of the law, and in the prepara- 
 tion of his briefs and arguments, suggested the idea that a sep- 
 arate treatise upon this subject would be well received 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 remember- 
 ing the remark of Lord Coke, that some addition to the general 
 stock of learning is " a debt which every man owes to his pro- 
 fession," cheerfully undertook the task, prosecuted it at such 
 periods of leisure as occurred in the course of his engagements 
 at the bar, and now submits it to public criticism. The author 
 does not claim for himself originality in the execution of the 
 work, either as to the ideas advanced, or even the language 
 employed to express them. He has endeavored to present the 
 principles which eminent judges and lawyers have laid down 
 for the control of officers engaged in the execution of this class 
 of powers, and when they themselves were clear in the mode of 
 expression, he has not hesitated to adopt their language. 
 
INTRODUCTION. XXXI 
 
 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 Index, 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 
 governs their construction. This is alluded to by Judge 
 McLean, in delivering the opinion of the Supreme Court of the 
 United States, in the case of Games v. Stiles (14 Peters, 322), 
 which came up from the State of Ohio: " The laws of Ohio, 
 imposing a tax on lands, and regulating its collection, like simi- 
 lar laws in, perhaps, almost all the other States, are peculiar in 
 their provisions, having been framed under the influence of a 
 local policy. And this policy has, to some extent, influenced 
 the construction of those laws. There can be no class of laws 
 more strictly local in their character, and which more directly 
 concern real property, than these. They not only constitute a 
 rule of property, but their construction by the courts of the 
 States, should be followed by the courts of the United States 
 with equal, if not greater strictness, than the construction of 
 any other class of laws." Again, the sale of land for the non- 
 payment of taxes, is a proceeding unknown to the common law 
 of England. While the feudal tenure prevailed in that coun- 
 try, the enforcement of the collection of the tallage, scutage, 
 or hidage tax, by a sale of the land itself, would have been con- 
 
XXXn INTRODUCTION. 
 
 trary 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 still re- 
 tained the paramount right ; and the fief was distinguished 
 from allodial 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 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 invol- 
 untary 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 revenue, and sometimes 
 a composition takes place between the land-owner and the gov- 
 ernment, and the tax is redeemed by the payment of a gross 
 sum. Thus the common law is a stranger to the power of sale 
 exercised in this country over landed estates, for the non-pay- 
 ment of taxes assessed. Yet that law furnishes the principles 
 by which this new power is to be governed. It is the chief ex- 
 cellence of the common law that it is flexible, and constantly 
 expands with the exigencies of society ; that it applies to new 
 combinations of circumstances those rules which are derived 
 from its fundamental principles. In the language of Judge 
 Story, " May it ever continue to flourish here, for it is the law 
 of liberty, and the watchful and inflexible guardian of private 
 property and public rights." 
 
 Chicago, June, 1855. 
 
POWER TO SELL LAND 
 
 FOR NON-PAYMENT OF TAXES. 
 
 CHAPTER I. 
 
 OP 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 con- 
 ferred by the government, in the proper application of the tax. 
 
 When, however, property is appropriated by virtue of the 
 right of eminent domain, it is taken, not as the owner's share of 
 a public burden, but as so much more than his share. Special 
 compensation is, therefore, to be made.^ The taxing power has 
 no existence in a state of nature. It is the creature of civil 
 society. Government begets its necessity. There must be in- 
 terwoven in the frame of every government a general power of 
 
 1 6 Johnson, 92 ; 11 Johnson, 77 ; Bleecker v. Ballon, 3 Wendell, 263. 
 
 2 The People ex rd. Griffin v. The Mayor of Brooklyn, 4 Comstock, 419. 
 
 1 
 
^ OF THE FUNDAMENTAL PRINCIPLES 
 
 taxation. Money is, with propriety, considered as the vital 
 principle of the body politic ; as that which sustains its life and 
 motion, and enables it to perform its most essential functions. 
 A complete power, therefore, to procure a regular and adequate 
 supply of revenue, 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 particular, 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 could 
 exercise the powers expressly delegated to it. In vain have the 
 people, in their primary capacity, established government, and 
 armed it with legislative, judicial, and executive powers, unless 
 the means of performing these functions have also been granted 
 to the government, either expressly or by implication. In the 
 Federal Constitution there is an express grant to Congress, of 
 the power to " levy and collect taxes." The State Constitutions 
 do not confer this power upon the Legislature by any specific 
 clause ; it passes under the general designation of " Legislative 
 power." It is implied, upon the principle, that a grant of legis- 
 lative, judicial, and executive powers, carries with it, by con- 
 struction, all the means necessary for their execution. It is 
 also implied from the limitations to be found in tlie several 
 State Constitutions, as to the manner of levying taxes. The 
 power of taxation operates upon all persons and'property within 
 the territorial iurisdiction of a State. There is no limitation 
 upon the power of the Legislature, as to the amount or objects 
 of taxation. The interest, wisdom, and justice of the repre- 
 sentative body, and its relation with its constituents, furnish 
 the only security against unjust and excessive taxation. These 
 
 1 Federalist, No. 30. 
 
WHICH CONTROL THE TAXINO POWER. . O 
 
 principles are fully sustained by the authorities.^ Such is the 
 nature, 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 justification of the grant of an ade- 
 quate taxing power to every government, is the protection of 
 the citizen from the " continual plunder " to which he would 
 otherwise be subjected by tlie wants of the government, and 
 the rapacity of the public agents.^ It is not to be presumed, 
 therefore, that the people of this country, in framing their gov- 
 ernments, designed, while conferring the taxing power for the 
 express purpose of preventing the indiscriminate plunder of 
 their property by public agents, to legalize a system by which 
 the very evil they intended to guard against might finally pre- 
 vail. Besides ; one of the great ends of government is the pro- 
 tection of private property, which, in a state of nature, was 
 held by a precarious tenure, and liable to constant invasion by 
 superior force. It would not, therefore, be reasonable to sup- 
 pose that the citizen, in entering into a governmental compact 
 for the purpose of appealing to the strong arm of constitutional 
 law, when his rights of property were invaded, intended to 
 confer an arbitrary power of taxation upon the government, 
 in the exercise of which his property would be rendered equally 
 insecure as in the natural state. He would gain nothing by 
 such a compact ; true, he would have a security against the 
 force and fraud of his neighbors, but would thereby become a 
 prey to the passions of the entire community, acting under 
 color of a written coiistitution. Such a view of the constitution 
 of a free people would render it a mere license to governmental 
 plunder. Happily for the people, the power of taxation which 
 . they have delegated to their government, is not an arbitrary 
 
 ^ Providence Bank v. Billings, 4 Peters, 514; Brewster v. Hough, 10 New 
 Hampshire, 138 ; Mack ». Jones, 1 Foster, 393. 
 2 Federalist, No. 30. 
 
4 OF THE FUNDAMENTAL PRINCIPLES 
 
 one, but limited by the words and spiiit of the Constitution, 
 and the principles of natural justice. 
 
 Under the Federal Constitution, all revenue bills must origi- 
 nate in the popular branch of Congress ; direct taxes must be 
 apportioned among the States, according to their respective 
 numbers, to be determined by adding to the whole number of 
 free persons (including those bound to service for a term of 
 years, and excluding Indians not taxed), three-fifths of all 
 other persons ; taxes can be laid only for the purpose of pay- 
 ing the debts, and providing for the common defence and gen- 
 eral welfare of the United States ; no direct tax can be levied 
 unless in proportion to the enumeration of persons as contained 
 in the census, directed to be taken by the Constitution. In 
 some of the States, all, and in others many, of the following 
 limitations are imposed upon the taxing power. No tax can 
 be levied, under any pretence whatever, without the consent 
 of the people or their representatives. Revenue bills must 
 originate in the lower branch of the legislature. Taxes can 
 be levied and collected only for public purposes ; this is also 
 implied from the very definition of 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 
 assesspients, new valuatioas of property shall be taken at 
 stated periods. No one species of property shall be taxed 
 higher than another of egual value. In some of the States by 
 constitxition, in others by ordinance or compact, the lands of 
 non-resident proprietors cannot be taxed higher than lands be- 
 longing to residents of the State ; and it has been held by the 
 Supreme Court of Alabama, that the clause in the Federal Con- 
 stitution, 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 uon-re§idents 
 than, by the general laws, were imposed upon residents.^ To 
 
 1 Wiley V. Parmer, 14 Alabama, 627. 
 
WHICH CONTROL THE TAXING POWEB. 5 
 
 prevent the moneys 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 conse- 
 quence of appropriations made by law ; and that the people 
 may keep watch of their agents, it is further provided that 
 accurate statements of the public receipts and expenditures 
 shall be attached to and published with the laws, at the end of 
 each session of the legislature. Such are the positive restric- 
 tions which the people, in the exercise of their inherent sov- 
 ereignty, have seen proper to impose upon the taxing power 
 of their representatives. 
 
 By compact made between the Federal Government and 
 some of i^ie new States, it is expressly stipulated that bounty 
 lands, granted, or to be granted by the United States for mil- 
 itary 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. Re- 
 strictions imposed by the Federal Constitution upon the taxing- 
 power of the States, may be noticed in this connection. The 
 public domain of the United States cannot be taxed by the 
 States in which they lie ; nor can lands, purchased by the 
 Government of the Union, with the assent of the State, for 
 the erection of forts, magazines, arsenals, dock-yards, mints, 
 post-offices, court and custom-houses, and other needful build- 
 ings, which may be necessary in carrying into effect the powers 
 intrusted to the Federal Government. This would be taxing 
 the means employed by the General Government in the execu- 
 tion of its acknowledged powers. Besides, " exclusive legis- 
 lation is granted to Congress by the Constitution, over all such 
 places as may be ceded by the States to the General Govern- 
 ment, 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 
 
 ' 4 Wheaton, 316 ; 9 Wheaton, 738. 
 1* 
 
6 OF THE FUNDAMENTAL PEINCIPLES 
 
 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 enjoyment of their prop- 
 erty, except so far as it may be taken in one of two ways, viz : 
 as a public tax, upon principles of just equality, or for public 
 use, with a just compensation, ascertained according to the 
 provisions of the Constitution. As money is property, the 
 collection of every tax is' taking property from the citizen, and 
 to be legal, must be referable to one of the two modes above 
 mentioned. The principle of just equality is, therefore, the 
 governing one by which the validity of every tax levied by the 
 legislature, is to be determined. This equality can be secured 
 only by uniformity in levying the tax, and a periodical valua- 
 tion of the estate of every citizen. If the tax is laid to raise a 
 revenue for the expenses of the State, it should be laid equally 
 upon all the property in the State. 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 pre- 
 tence of taxation. 
 
 The distinction between constitutional taxation, and the 
 taking of private property for public use, by legislative power, 
 may not be definable with perfect precision. But it is clear, 
 that_ whenever the property of a citizen shall be taken from 
 him by the sovereign will, and appropriated, without his con- 
 sent, for the benefit of the public, the exaction should not be 
 considered as a tax, unless similar contributions be made by 
 that public itself; or rather, shall be exacted by the same 
 public will, from such constituent members of the same com- 
 munity generally, as own the same kind of property. This is 
 
 1 5 Dana, 31 ; 9 Dana, 516; 4 New Hampshire, 556; 6 Harris & Johnson, 
 382, 383 ; 6 Barbour, 209. 
 
WHICH CONTROL THE TAXINO POWER. 7 
 
 ill accordance with the well-known maxim, that a common 
 burden shall be sustained by a common contribution. The 
 ascertainment of the value of all the property in the State or 
 district where the tax is to be levied, is essentially necessary, 
 to enable the taxing power to make such an assessment as 
 the wants of the State or district may require, to apportion it 
 among all the citizens of the State or district, and compel 
 all to share equally in the common burden. Such are the 
 principles by which tlie legislative power in this country is 
 controlled in the levy of taxes, as laid down by all of the 
 authorities. The difficulty seems to lie in their application to 
 the facts of each particular case. Wq shall content ourselves 
 with a reference to the adjudged cases, without attempting to 
 reconcile them with eacli 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 tlie value of property, 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 rigiits 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. Prom 
 the declared ends of government. 2. Prom the particular 
 provisions of the Constitution. 3. Prom the structure of the 
 government itself. In discussing this subject we shall refer 
 to the Constitution of Illinois, because it is more familiar to 
 us, while at the same time, it is substantially like that of every 
 other State in the Union. The thirteenth article of that in- 
 
 1 6 Barbour, 209 ; 5 Dana, 31 ; 9 Dana, 516 ; 6 New Hampshire, 556; 6 Har- 
 ris & Johnson, 382, 383 ; 4 Comstock, 419. 
 ^ 2 Kent's Com. 331. 
 
8 OF THE FUNDAMENTAL PEINCIPLES 
 
 strument, in order "that the general, great, and essential 
 principles of liberty and free government may be recognized 
 and unalterably established," proceeds to declare : 1. " That all 
 men are born equally free and independent, and have certain 
 inherent and indefeasible rights, among which are those of 
 enjoying and defending life and liberty, and of acquiring, 
 possessing, and protecting property and reputation, and of pur- 
 suing their own happiness." 2. " That all power is inherent 
 in the people, and all free governments are founded on their 
 authority, and 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, reputation, and property, 
 independent of human laws. 3. That these rights are inde- 
 feasible in their nature. 4. That all power is inherent in the 
 people at large. 5. That human government is founded upon 
 their authority. 6. That government is instituted for their 
 security. 7. That the only end of government is the preserva- 
 tion and perpetuation of these inherent powers and rights. 
 
 They all affirm the great truth, that " rights are from na- 
 ture, while titles and remedies are the invention of society." ^ 
 The Hon. Edward Bates, now Judge of the Land Court in St. 
 Louis, in his argument in the case of Hamilton v. The St. 
 Louis County Court,^ thus enforces this position: "What is a 
 Constitution, and what are its objects ? It is easier to tell what 
 it is not, than what it is. It is not the beginning of a commu- 
 nity, nor the origin of private rights ; it is not the fountain of 
 law, nor tlie incipient state of government ; it is not the cause, 
 but consequence of personal and political freedom ; it grants 
 no rights to the people, but is the creature of their power, the 
 instrument of their convenience, designed for their protection 
 in the enjoyment of the rights and powers which they possessed 
 before the constitution was made ; it is but the frame-work of 
 
 1 Judge Pope, in Arrowsmith v. Burlingame, 4 M'Leau, 497. 
 
 2 15 Missouri, 13, 14. 
 
WHICH CONTROL THE TAXING POWER. « 
 
 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, prop- 
 erty, personal freedom, a love of political 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 limitation 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 dormant in every nation, and are boundless in ex- 
 tent, and incapable of definition. Our Constitution, in express 
 terms, acknowledges and continues in force all former rights, 
 laws, offices, and functions of office." 
 
 A similar recognition of existing rights is to be found in 
 most of our constitutions. It is a simple affirmation of a prin- 
 ciple of natural justice, that revolutionary and peaceable 
 changes in the form of government do not overturn the estab- 
 lished rights, duties, and obligations which may have been ac- 
 quired or created prior to the change. ^ Nor has a conquest 
 any such effect.^ Rights and obligations depend upon the nat- 
 ural law for their existence and mode of enforcement. Force 
 was the vital principle of society in a state of nature. This 
 led to violence and bloodshed. Peace and civilization demand- 
 ed 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 ob- 
 ject. The legislature have power to prescribe general rules for 
 the government of society ; the courts are empowered to ex- 
 
 1 9 Cranch, 43 ; 4 Wheaton, 518. 
 
 2 8 Wheaton, 588 ; 1 Peters, 542 ; 7 Peters, 51 ; 12 Peters, 410. 
 
10 OF THE FUNDAMENTAL PKINCIPLES 
 
 pound 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 gov- 
 ernment, ,to regulate the mode of acquisition 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 department thereof, has an inherent power ; that it 
 can rightfully exercise such powers only as have been dele- 
 gated to it by the people, in their written constitution ; and 
 that these powers are to be exercised in subservience to, and 
 not in subversion of, the declared ends of government. We 
 must, therefore, look to the constitution 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 House of Representatives, 
 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 in 
 justices of the peace." These are all of the powers which the 
 people have delegated to the government. They constitute 
 together the power to make, apply, and execute laws. But they 
 are held by the government in trust, to be exercised for the 
 protection, and not destruction, of the rights of life, liberty, 
 reputation, and property. This simple limitation, resulting 
 from the declared ends of the government, if faithfully ob- 
 served, would be a sufficient guarantee against governmental 
 wrong. 
 
 But the people, in the abundance of their caution, have 
 thought proper to impose many specific limitations on these 
 general powers of the government, for the purpose of more ef- 
 fectually protecting the life, liberty, reputation, and property of 
 the citizen. Those relating to the security of life, liberty, and 
 reputation, may be thus enumerated. No ex post facto law 
 shall ever be passed. No person shall, for the same offence, 
 
WHICH CONTROL THE TAXING POWER. 11 
 
 be twice put in jeopardy. No person shall be held to answer' 
 for any criminal offence, unless on the indictment, or present- 
 ment, of a grand jury. No person shall be compelled to give 
 evidence against himself. General warrants to searah or seize 
 a citizen are prohibited. In all criminal prosecutions the ac- 
 cnsed hath a right to be heard, by himself and counsel ; to de- 
 mand the nature and cause of the accusation against him ; to 
 confront the witnesses against him ; to have compulsory pro- 
 cess to compel the attendance of witnesses in his favor ; and to 
 a speedy public trial, by an impartial jury of the vicinage. 
 All persons shall be bailable by sufficient sureties. Excessive 
 bail shall not be demanded. All penalties shall be propor- 
 tioned to the nature of the offence. No person shall be trans- 
 ported out of the State. No person shall be imprisoned for 
 debt. There shall be neither slavery nor involuntary servi- 
 tude in this State. Every citizen may freely speak, write, and 
 print on any subject, being responsible for the abuse of that 
 liberty. The pardoning power is vested in the executive ; and 
 the privilege of the writ of habeas corpus is secured. 
 
 The specific limitations in favor of property are as follows : 
 Private property shall not be taken for public use without just 
 compensation. All taxes shall be levied by valuation of 
 estates. The obligation of contracts shall remain inviolate. 
 No conviction for crime shall work a forfeiture of estate, or 
 corruption of blood. No soldier shall be quartered upon the 
 citizen. The people shall be secure in their houses, papers, 
 and possessions from unreasonable searches. Besides the fore- 
 going, there are three additional guarantees in favor of the 
 rights of the citizen : 1. " No freeman shall be imprisoned, or 
 disseized of his freehold, liberties, or privileges, or outlawed, 
 or exiled, or in any manner deprived of his life, liberty, or 
 property, but by the judgment op his peers, or the law op 
 THE LAND." 2. " Every person in this State ought to find a 
 certain remedy in the laws, for all injuries or wrongs which he 
 may receive in his person, property, or character ; he ought to 
 obtain justice freely, and without being obliged to purchase it, 
 completely and without denial, promptly and without delay. 
 
12 OF THE FUNDAMENTAL PRINCIPLES 
 
 conformably to the laws ; " and 3. " The right of trial by jury 
 shall remain inviolate." 
 
 Such are the specific limitations and guarantees of the Con- 
 stitution, .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 emphatically declared, " That a frequent recur- 
 rence to the fundamental principles of civil government, is ab- 
 solutely necessary to preserve the blessings of liberty." These 
 provisions, and the declared ends of government, 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 ex- 
 perience has abundantly proven, that mere declarations of rights 
 and restrictions of power, afford, of themselves, but feeble se- 
 curity against the abuse of governmental authority. Sir William 
 Blackstone, after treating of the absolute rights of individuals, 
 as defined and protected by the laws of England, says : " In vain 
 would these rights be declared, ascertained, and protected by 
 the dead letter of the laws, if the Constitution had provided no 
 other method to secure their actual enjoyment. It has, there- 
 fore, established certain other auxiliary subordinate rights of the 
 subject, which serve principally as outworks or barriers, to pro- 
 tect and maintain inviolate the three great and primary rights 
 of personal security, personal liberty, and private property." ^ 
 
 The people of the United States have, in their constitutions, 
 done the same thing, with this essential difference, that the 
 outworks and barriers erected for the protection of these pri- 
 mary rights, are much more complete and perfect than those of 
 the British Constitution. These rights are defined and declared 
 in our constitutions, substantially as they are by the common 
 law, but with us the declaration of rights is absolutely binding 
 upon the government, and every department thereof, while in 
 England they do not bind the government. There the prac- 
 tical maxim is, that Parliament is omnipotent, and the only 
 guarantee the subject has against legislative aggression is in 
 
 ' 1 Blackstone's Com. 140. 
 
WHICH CONTROL THE TAXING POWER. 13 
 
 the organization of Parliament, and in the individual responsi- 
 bility of the members of the popular branch to their constitu- 
 ents. 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 
 unconstitutional and void, before they reach their intended 
 victims. This doctrine, though seriously resisted at first, is 
 now the settled 4aw of the land, and familiar to all. The 
 reasoning in support of it is unanswerable. All power is 
 inherent in the people. The Constitution is the form of 
 government instituted by them in their sovereign capacity, 
 in which first principles are laid down, and fundamental laws 
 established. It is- the supreme, permanent, and fixed will 
 of the people, in their original, unlimited, and sovereign 
 capacity. In it the inherent rights of the citizen are recog- 
 nized, and the obligation and duty of the entire community 
 to protect and preserve them inviolate, are specifically pro- 
 vided for. It is 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 capacity. 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 absolutely void. The su- 
 premacy of. the Constitution over ordinary laws, is the great 
 reason why the latter should give way when inconsistent with 
 the former. The oath of fealty taken by every officer of the 
 government, demands, at the hands of the judges, an adhe- 
 rence to the fundamental law. 
 
 Besides, the Constitution is a law to which every citizen is a 
 party, but acts of the legislature are but the will of a majority 
 of the community. To make them binding upon the minority, 
 they must be in conformity with the principles of the Constitu- 
 tion ; to the adoption and continuance of which every one is 
 
 2 
 
14 OF THE FUNDAMENTAL PKINCIPLES 
 
 presumed to have assented. If the legislature, in the exercise 
 of an unlimited discretionary power, can overleap the b'arriers 
 ■ of the Constitution, and put at defiance the fundamental prin- 
 ciples of the government, then our boasted freedom and inde- 
 pendence 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 which freedom 
 and the rights of man shall be understood and maintained, the 
 government of the law only acknowledged, and the eternal 
 principles of justice secured to all, we shall, in the language 
 of a distinguished statesman, " be called upon to curse our 
 revolution as a great fountain of discord, violence, and injus- 
 tice." ^ In the language of Chief Justice Gibson : " It is idle 
 to say that the authority of each branch of the governmejit is 
 defined and limited in the Constitution, if there be not an 
 independent power able and willing to enforce the limitations. 
 Experience proves that the Constitution is thoughtlessly, but 
 habitually, violated ; and the sacrifice of individual rights is 
 too remotely connected with the objects and contests of the 
 masses, to attract their attention. From its every position, it is 
 apparent that the conservative power is lodged in the judiciary, 
 which, in the exercise of its undoubted rights, is bound to 
 meet every emergency ; else causes would be decided not 
 only by the legislature, but sometimes without hearing or 
 evidence." ^ 
 
 In the election, qualification, and organization, of the various 
 officers which constitute the several departments of the gov- 
 ernment, our constitutions are also more complete than in the 
 English system. Here the people elect all of their officers. In 
 England most of the important offices are held independently 
 of the people. But the great advantage of ours over the Brit- 
 ish Constitution, consists in the division of th» government 
 into separate, independent, and coordinate departments, and 
 
 1 Eunnels v. State, Walker, 147 ; Phebe v. Jay, Breese, 209 ; Marbury v. Madi- 
 son, 1 Craneh, 137. 
 
 2 De Chastelleux v. Fairchild, 15 Pennsylvania, 18. 
 
WHICH CONTROL THE TAXING POWER. 15 
 
 the consequent limitation 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 des- 
 potic, absolutely incapable of limitation ; consequently, that an 
 act passed with the usual solemnities, however oppressive and 
 unjust it may be, is absolutely obligatory, and must be obeyed. 
 This distributive feature of our government, as it is deemed 
 the most important of any, is the only outwork or barrier 
 established by the Constitution against governmental abuse of 
 power, which we propose to consider minutely. 
 
 The Constitution of Illinois sets out with this declaration : 
 " The powers of the government shall be divided into three 
 distinct departments, and each of them be confided to a sep- 
 arate body of magistracy ; those which are legislative to one, 
 those which are executive to another, and those which are judi- 
 cial to the third." The principle thus established is carried 
 out in detail 'by the organization of a general assembly, con- 
 sisting of a senate and house of representatives, and investing 
 it. with the legislative power of the State ; by the organization 
 of an executive department, called the governor, in which the 
 executive power of the State is lodged ; and by the organiza- 
 tion of supreme and inferior courts, to whom the judicial 
 power of the State is delegated. The Constitution 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 depart- 
 ments, shall exercise any power properly belong-ing to either 
 of the others, except as hereinafter expressly directed or per- 
 mitted, and all acts in contravention of this section shall be 
 
 VOID." 
 
 It will be perceived, by a careful analysis of the whole in- 
 strument, and the above sections, that all legislative power is 
 vested in the general assembly ; that the whole judicial power 
 which the people intended to grant, is vested in the courts, and 
 that every executive function of the government is vested in 
 the governor. This is to be understood subject to the excep- 
 
16 OF THE FUNDAMENTAL PRINCIPLES 
 
 tions expressly enumerated in the Constitution, 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 Representatives may impeach, and the Senate try the 
 offender. Thus the whole judicial power of the State is vested 
 in the courts, with the exception of the trial of impeachments. 
 It will be further perceived, that the general assembly and 
 governor, or either of them, cannot exercise any judicial func- 
 tions ; that neither the general assembly 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 disqualifica- 
 tion extends to the person and the department. Tiie great 
 principle thus established is, that no person or department shall 
 act as legislator, judge, and executioner, at the same time. He 
 shall not be permitted to enact, apply, and execute a law, by 
 which the life, liberty, property, or reputation 'of the citizen 
 inay, 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, executive, and judicial power. With 
 due deference to timid judges, who seem unable to surmount 
 this difficulty, and therefore give loose rein to legislative 
 power, it may be laid down as a self-evident proposition, that 
 the power of the legislative department is limited to the mak- 
 ing of laws, and not to the exposition or execution of them. 
 Again, it is the province of the legislature to declare what the 
 law shall be, and not what it is, or was. The exercise of their 
 power, precedes the conduct intended to be affected by it. It 
 would be contrary to the first principles of justice to deprive 
 a citizen of his life, 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 commis- 
 sion on his part, they might be forfeited to the State. Such an 
 administration of the government would be intolerable as 
 
WHICH CONTROL THE TAXING POWER. 17 
 
 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 legisla- 
 tion which adjudicates in a particular case, prescribes the rule 
 contrary to the general law, and orders it to be enforced. Such 
 power assimilates itself more closely to despotic rule than any 
 other attribute of government." ^ On the other hand, the judi- 
 cial power of the State acts upon past conduct, and declares 
 what the law was at the time of the happening of the act 
 complained of. It will thus be seen that the true distinction 
 between judicial and legislative power is, that the former acts 
 upon past conduct, while the latter prescribes • the rule by 
 which human action shall be governed in the future. If this 
 plain line of demarcation between these two classes of govern- 
 mental power, is strictly observed and rigidly enforced, the 
 difficulty attending this controversy will be surmounted, and 
 the rights of the citizen more fully secured. 
 
 Our constitutions all declare " That no freeman shall be 
 imprisoned or disseized of his freehold, liberties, or privileges, 
 or outlawed, or exiled, or in any manner deprived of his life, 
 liberty, or property, but by the Judgment op his peers, or the 
 LAW OP THE LAND." TMs clausc, ou accouut of its bearing on 
 the. subject under consideration, as well as its great importance 
 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 legis- 
 lature from depriving a freeman of his life, liberty, or property, 
 but declares that it shall only be done in one of two ways : 
 1. "By the judgment of his peers ; " which is universally 
 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 language was used in Magna Charta, was well 
 understood to require a judgment ; and embraced judgments, 
 by confession in criminal and civil causes, upon demurrer, by 
 
 1 4 Harris, 206. 
 
 2* 
 
18 OF THE FUNDAMENTAL PRINCIPLES 
 
 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 
 ecclesiastical 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 aifording him an oppor- 
 ■ tunity to be heard in his own defence, would be against this 
 provision." ^ 
 
 That this was the meaning of the expression, " law of the 
 LAND," as used in the great charter of EngHsh rights, seems to 
 have been the opinion of all the common law jurists in that 
 country ; but that it means the same thing in our own Consti- 
 tution, has not been so universally agreed. Some judges have 
 been greatly perplexed in attempting to ascertain its true 
 meaning, and have given judgment in entire disregard of it. 
 One judge, at least, admitting that it did mean and require a 
 "judgment," obviated its force by saying it applied only to 
 criminal cases, and that, unless the clause was so restricted, 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 any other clauses 
 of the Constitution, seem always to have been considered as 
 'the law of the land,' within the meaning of this clause."^ 
 But their judgment was reversed by the Supreme Court of the 
 United States.* In another case, where the validity of a 
 statute authorizing an arrest in a criminal case, without oath 
 or warrant, came in question, the same court held the follow- 
 ing language : " No subject shall be arrested but by the ' law 
 of the land,' — that is, by due process of law warranted by the 
 Constitution, by the common law adopted by the Constitution, 
 or by statutes passed in pursuance of the Constitution."^ 
 
 1 Sullivan's Lectures, ch. 39 and 40. 
 
 ^ Khinehart v. Schuyler, 2 Oilman, 520. 
 
 » 1 New Hampshire, 130. 
 
 * 4 Wheaton, 518. 
 
 5 Mayo V. Wilson, 1 New Hampshire, 53. 
 
WHICH CONTROL THE TAXING POWER. 19 
 
 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 nuga- 
 tory, and turn this part of the Constitution into mere nonsense. 
 The people would be made to say to the two houses, ' You shall 
 be vested with the legislative power of the State, but no one 
 shall be disfranchised or deprived of any of the rights or privi- 
 leges 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." '1 
 
 C. J. Hemphill says : " The terms, ' law of the land,' have 
 often |)een construed, and somewhat variously defined. When 
 first used in the Magna Charta of the kings of England, they 
 probably meant the established law of the kingdom, in opposi- 
 tion to the civil or Roman law, which was about being intro- 
 duced into the land, to the exclusion of the former laws of the 
 country. They are now, in their most usual acceptation, re- 
 garded as general public laws, binding upon all the members 
 of the community, under all circumstances, and not partial or 
 private laws, afiecting 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, intended by this clause, is not a very reasonable one, when 
 it is remembered that Sullivan, in his lectures, and all of the 
 English jurists, agree that judgments in the ecclesiastical and 
 maritime courts, which proceed upon the principles, and in 
 conformity to the practice, of the civil law, are regarded as 
 valid under this clause ; and when it is further remembered 
 that such a construction of the term law, would confine the 
 people of England to the old black letter law, without the legis- 
 lative power of modifying and improving it, to meet the pro- 
 gressive demands of modern civilization. 
 
 Judge Catron remarks, that " the clause, ' law of the land,' 
 means a general and public law, equally binding upon every 
 
 1 Tayloi; v. Porter, 4 Hill, 146. 
 
 ^ James v. Reynolds,. 2 Texas, 251, 252. 
 
20 OF THE FUNDAMENTAL PEINCIPLES 
 
 member of the community. The right to life, liberty, and 
 property, of every individual, must stand or fall by the same 
 rule or law that governs every other member of the body politic, 
 or ' land,' under similar circumstances ; and every partial or 
 private law, which directly proposes to destroy or affect indi- 
 vidual rights, or does the same thing by affording remedies 
 leading to similar consequences, is unconstitutional and void. 
 Were this otherwise, odious individuals and corporate bodies 
 would be governed by one rule, and the mass of the community, 
 who made the law, by another. The idea of the people, through 
 their 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 
 willing to be bound, is too odious to be tolerated in any 
 government where freedom has a name." ^ 
 
 This doctrine is advanced by Judge Peck, in the same case, 
 in these words : " A law which is partial in its operation, in- 
 tended to affect particular individuals alone, or to deprive them 
 of the benefit of the general law, is unwarranted by the Con- 
 stitution and void."^ The principle was again affirmed in 
 Jones V. Perry/ 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 according to the " law of the land." The" same principle 
 was applied by the . Supreme Court of Illinois, upon this state 
 of facts : The legislature passed a special act authorizing A. 
 to sell and convey tlie lands of an intestate, or a sufficiency 
 thereof, to raise the sum of $1,008.87, together with interest 
 and costs ; and directed that the proceeds should be applied to 
 the .extinguis'hment of the claims of A. and B. against the 
 estate of the decedent, for ^jioneys advanced, and liabilities 
 incurred by them on account of the estate. The court held 
 the law unconstitutional because it was an exercise of judicial 
 
 1 Vanzant v. Waddell, 2 Yerger, 270. 
 a 2 Yerger, 269. 
 s 10 Yerger, 59. 
 
WHICH CONTROL THE TAXING POWER. 21 
 
 power by the legislature, and also, to use the language of the 
 court, it " disseizes the freehold of the heirs of the ancestor, 
 without a hearing, upon an ex parte application and ex parte 
 evidence. It will not, we suppose, be seriously contended that 
 such an act, thus passed, under such a state of facts, is the lex 
 terrm meant, or the judgment of one's peers, intended by the 
 Constitution." ^ 
 
 The same construction is given to this clause by the Su- 
 preme Court of Tennessee, in- two other cases.^ In the latter 
 case it was held, that an act of the legislature, declaring it a 
 felony for a servant to embezzle the funds of a particular bank, 
 while the same crime, under the general law, was a simple mis-' 
 demeanor, 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 according to the course of the 
 common law, which," says Judge O'Neall, " I understand to be 
 the meaning of the words ' the law of the land.' " * Again, in 
 Byrne v. Stewart, Chancellor Watties remarks : " It has been 
 determined by the Constitutional Court, in several cases, that 
 the lex terrm contemplated by our Constitution, not only means 
 the common law, which is unquestionably the sense in which it 
 is understood in Magna Charta, but also comprehends all acts 
 in force at the time of making the Constitution."^ 
 
 Such a construction of the clause is evidently too narrow 
 and confined, as it would tie up the hands of the legislature, 
 and prevent them from enacting laws which the imperative 
 necessities of society may from time to time require. 
 
 1 Lane v. Dorman, 3 Scammon, 238. 
 
 ^ State Bank v. Cooper, 2 Yerger, 605, 606 ; Budd v. State, 3 Humphreys, 483. 
 
 * Holden v. James, 1 1 Massachusetts, 396. 
 
 * Burger v. Carter, 1 McMullan, 413 ; State v. Simons, 2 Speers, 767 Zylstra's 
 Case, 1 Bay, 384 ; White v. Kendrick, 1 Brevard, 471 ; State v. Coleman, 1 Mc- 
 Mullan, 502. 
 
 s 3 Dessaussure, 478. 
 
22 OP THE FUNDAMENTAL PRINCIPLES 
 
 The masterly and comprehensive definition of this clause by 
 Daniel Webster, is, perhaps, the true one, and sustained with 
 more unanimity by the authorities than any other : " By the 
 law of the land, is most clearly intended the general law — a 
 law which hears before it condemns — which proceeds upon 
 inquiry, and renders judgment only after trial. The meaning 
 is, that every citizen shall hold his life, liberty, property and 
 immunities, under the protection of general rules which gov- 
 ern society. Everything which may pass under the form of an 
 enactment is not, therefore, to be considered as the law of the 
 land. If this were the case, acts of attainder, bills of pains and 
 penalties, acts of confiscation, acts reversing judgments, and 
 acts directly transferring one man's estate to another, legisla- 
 tive 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 impor- 
 tance, completely inoperative and void. The administration 
 of justice would be an empty form and idle ceremony, and 
 judges would sit to execute legislative judgments and de- 
 crees, not to declare the law and administer the justice of 
 the country." ^ 
 
 In Taylor v. Porter,^ Judge Bronson says of this provision : 
 " The meaning of this section, then, seems to be, that no mem- 
 ber 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 be done by mere legislation." Again he 
 remarks : "It will be seen that the same measure of pro- 
 tection against legislative encroachment, is extended to life, 
 liberty, and property ; and if the latter can be taken without 
 a forensic trial and judgment, there is no security for the 
 
 1 Argument in the Dartmouth College Case, 5 Webster's Works, 487, 488. 
 " 4 Hill, 146. . 
 
WHICH CONTROL THE TAXING POWEK. 23 
 
 others." He concludes that " the law of the land " and " due 
 process of law," are synonymous terms. A similar decision 
 was made in White v. White. ^ The doctrine of Webster and 
 Bronson is adopted, in its fullest extent, by the Supreme Court 
 of lowa.^ 
 
 Judge Story says that " this clause, in effect, affirms the 
 right of trial according to the process and proceedings of the 
 common law." ^ Chancellor Kent says : " The words, ' by 
 the law of the land,' as used in Magna Charta, &c., are unr 
 derstood to mean due process of law." * Justice Johnson, in 
 delivering the opinion of the court in the Bank of Columbia 
 V. Okely," and speaking of these words, says, that " after vol- 
 umes spoken and wpitten with a view to their exposition, the 
 good sense of mankind has at length settled down to this : that 
 they were intended to secure the individual from the arbitrary 
 exercise of the powers of government, unrestrained by the es- 
 tablished principles of private rights and distributive justice." 
 
 The clause in question accomplishes this intention com- 
 pletely, if it requires judicial as well as legislative action ; 
 but if it means that a man may be deprived of his rights, 
 simply by an act of the legislature, without judgment, it is 
 difficult to perceive, in such a case, how the citizen can be 
 said to be secured against the arbitrary exercise of legislative 
 power, or how the legislature is restrained by the established 
 principles of private right and distributive justice. Judge 
 Wood worth, in Woodcock v. Bennett/ remarks, that "it is 
 one of the great principles upon which our security depends, 
 under a government of laws, that no person shall be put out of 
 his freehold, or lose liis goods and chattels,- unless he be duly 
 brought to answer, or be forejudged of the same by due course 
 of law." Judge Tucker says of these. words, "the meaning 
 
 1 5 Barbour, 481-483. 
 
 ^ Eeed v. Wright, 2 Greene, 22, 24. 
 
 ° Story on the Constitution, sec. 1783. 
 
 ^ 2 Kent's Commentaries, 13. 
 
 6 4 Wheaton, 244. 
 
 « 1 Cowen, 740. 
 
24 OF THE FUNDAMENTAL PRINCIPLES 
 
 and intention of which, certainly is, that no man shall be de- 
 prived of his property, without being first heard in his own 
 defence." ^ Chief Justice Ruffiii 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 statutes which would deprive a citizen of the rights 
 of person or property, without a regular trial according to the 
 course and usage of the common law, would not be the law 
 of the land in the sense of the Constitution." ^ In Brown v. 
 Hummel,^ it is said by the judge delivering the opinion of the 
 court, that, " By the law of the land is meant, the law of an 
 individual case, as established in a fair open trial, or an oppor- 
 tunity given for such trial, in open court, and by due course 
 and process of law : not a bill of attainder, in the shape of an 
 act of assembly, whereby a man's property is swept away from 
 him without a hearing, trial, or judgment, or the opportunity 
 of making known his rights, or producing his evidence." 
 
 Again, the same court, in Brvine's Appeal,* state, that this 
 clause "Is an affirmation of a great doctrine contained in 
 Magna Charta : ' Neither will we pass upon any one, but by 
 the lawful judgment of his peers, or by the law of the land ;' 
 and Lord Coke says, that the words per legem terrce, mean by 
 due process of law, and being brought into court to answer ac- 
 cording to law. If government is interdicted from taking pri- 
 vate property, even for public use, without just compensation, 
 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 prop- 
 erty is his own, and that he shall enjoy it according to his 
 pleasure, — injuring no other man, — until it is proved, in due 
 process of law, that it is not his, but belongs to another." 
 Judge Pope affirms the same general principle in Arrowsmith 
 V. Burlingim.^ 
 
 1 Kinney v. Beverley, 3 Henning & Munford, 336. 
 ^ Hoke V. Henderson, 4 Devereux, 1 5. 
 » 6 Barr, 87. 
 ♦ 4 Harris, 256. 
 6 4 McLean, 498. 
 
WHICH CONTROL THE TAXING POWER. 25 
 
 4 
 
 Upon a careful review of all the authorities, it may be safely 
 affirmed as a principle of constitutional law, that the clause in 
 question requires 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 con- 
 struction, admit that it was so construed in England, and 
 the only reason assigned for not adhering to the same con- 
 struction in this country, is, that many acts of the legislature* 
 would be inconsistent with it, and, therefore, this cannot be its 
 true meaning ; thus bringing the Constitution to the test of 
 legislation, instead of legislation to the test of the Constitu- 
 tion. 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 otlier hand, the power of the legislature, as limited by 
 the weight of authorities, consists in the power to pass general 
 laws for the peace, safety, and happiness of the people, direct- 
 ing what they may do or omit, and declaring 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 spolia- 
 tion. It will be seen that every individual has, in the Con- 
 stitution, 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, whicli authorizes a seizure and divestiture of his right 
 thereto, for such violation. This is most clearly the true read- 
 ing and exposition of tlie text of the Constitution. If, how- 
 ever, the requirements of the Constitution must yield to legis- 
 lative usage, in direct violation thereof, then, of necessity, all 
 legislative acts which conflict .with these great fundamental 
 principles, should be held, in their construction and applica- 
 tion, to the most rigid scrutiny. 
 
 In concluding this branch of the subject, it may not be con- 
 
 3 
 
26 OF THE FUNDAMENTAL PRINCIPLES 
 
 sidered improper to make a few suggestions in relation to the 
 constitutional mode of enforcing the collection of taxes. 
 
 The power to levy a tax properly belongs to the legislative 
 power. 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- 
 ize 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 con- 
 vey the land itself. Now before the power to sell the land can 
 exist under the law, the fact of the levy and non-payment of 
 the tax, the demand, and return of no goods, or that the body 
 cannot be found, must exist. These facts must be ascertained 
 to exist before the power of sale attaches. Whether the power 
 to decide the question of delinquency is vested by law in the 
 regularly constituted judicial tribunals, or in those specially 
 instituted for that purpose, or in the collector himself, can 
 make no kind of difference ; it is the exercise of judicial 
 power, and the officer who sells performs an executive func- 
 tion ; so that, in point of fact, the legislative, judicial, and 
 executive departments of the government, all aid in the execu- 
 tion of the taxing power. The legislature declare what facts 
 shall constitute a cause of forfeiture ; the judiciary ascertain 
 the facts, apply the rule of law prescribed, and pronounce a 
 judgment of condemnation. 
 
 For these reasons it has been suggested by an eminent law- 
 yer of Illinois, who has great experience in questions of this 
 character, that " No valid sale of land, for the non-payment of 
 a tax, having the effect of divesting the owner of his estate, 
 can legally take place, unless each of the three great depart- 
 ments of the government concur in the condemnation." It 
 was in accordance with this suggestion that the Legislature of 
 Illinois, in 1839, passed a new revenue law, levying an uni- 
 form tax, requiring a personal demand of the owner, and 
 directing, that in case payment of the tax was neglected or 
 refused, the goods and chattels of the delinquent should be 
 
WHICH CONTROL THE TAXING POWER. 27 
 
 seized and sold in satisfaction. 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 Cir- 
 cuit _Court of the county, and apply for judgments 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 advertisement, certified by the printer, if no objection was 
 taken to the regularity or legality of the proceedings, the 
 court was authorized to render a judgment for the taxes, and 
 order a sale of the land. After judgment, the clerk was 
 required to make out, under the seal of the court, and deliver 
 to the collector, a precept containing a copy of the report and 
 the order of the. court thereon, which constituted the author- 
 ity of the officer to sell. This continues substantially the law 
 of Illinois to this day. 
 
 Similar statutes were in force in Tennessee, Ohio, and Indi- 
 ana. No such power as that of selling land for the non-pay- 
 ment of taxes, is to be found in the revealed, natural, civil, or 
 common lay- 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 citizen, such as the sale of land for the payment 
 of the debts of the owner. In all of these cases judicial pro- 
 ceedings intervene. The Constitution declares that private 
 property may be taken for public use, upon making just com- 
 pensation. The legislature direct the laying out of a public 
 highway. Before the title of the owner is divested, a regular 
 judicial inquiry takes place. The questions, whether the use 
 is a public one, or whether it is a mere legislative pretence to 
 divest the title of the owner, and confer it upon a favorite, and 
 what compensation shall be made to the owner, as an equiva- 
 lent for the loss of his estate, are all inquired into and judici- 
 ally 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 proceed- 
 ings always intervene. There is no difference in principle, 
 
28 OF THE FUNDAMENTAL PRINCIPLES 
 
 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 
 diifer 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 immemorial usage. The former 
 demands, and the latter sanctions, this departure from the let- 
 ter and spirit of the Constitution. It is said in Parham v. De- 
 catur County,! ti^at "the sovereign right to lay and collect 
 taxes grows out of the _necessities of the government — an 
 urgent necessity — which admits no property in the citizen 
 while it remains unsatisfied. The right to tax is coeval with 
 all governments. It springs out of the organization of the 
 government. All property is a pledge to pay the necessary 
 debts and expenses of the government." The Supreme Court 
 of Tennessee decided, that their summary tax laws were con- 
 stitutional, holding this language : " It is certainly true that 
 they have the character of summary proceedings, and it is 
 equally true, that they must, of necessity, be so ; for if the 
 government were necessitated to take the cautious and tedious 
 steps of the common law, in giving personal notice, making up 
 regular pleadings, and having a trial by jury, judgment and 
 execution, it would cease to exist, for want of money to carry 
 on its necessary operations ; loss of credit, and a total extinc- 
 tion of the national faith, the basis of all regular governments, 
 must be the inevitable consequence."^ In the case of The 
 State V Allen ,8 the court in commenting upon the lex terra of 
 the Constitution, as applied to these su.mmary,tax laws, say : 
 " We think that any legal process, which was 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 embraced 
 in the alternative, ' law of the land.' " And in Harris v. 
 
 > 9 Georgia, 352. 
 
 2 McCarroU v. Weeks, 2 Overton, 215. 
 
 8 2 McCord, 56. 
 
WHICH CONTROL THE TAXING POWER. 29 
 
 Wood,i the Court of Appeals of Kentucky remark, that " Taxes 
 were always recoverable (before the adoption of the Constitu- 
 tion), 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 dis- 
 train, <fec." The same general doctrine has been asserted in 
 other cases.^ 
 
 It is undoubtedly a principle of natural justice, that every 
 person shall have an opportunity of being heard before he is 
 condemned ; and to a hearing every tax-payer is entitled — 
 but not before the ministerial officers 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 determin- 
 ing the question whether he will redeem or contest the valid- 
 ity of the sale. If he adopts the latter course, then, and not 
 till then, is he entitled to be fully heard in his defence, in the 
 judicial tribunals of the 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 necessity begets another necessity, that in the 
 . execution of such a power the law shall be strictly and punc- 
 tiliously complied with in all of its requirements." Besides, 
 so cautious are the courts in confining the taxing power within 
 the bounds of " state necessity," that they will never permit 
 the enfoi-cement of a penalty, or double tax, in a summary 
 manner, under the " vague and indefinite pretence of taxa- 
 tion." Taxation includes the power to collect, in a summary 
 mode, the amount levied, from the necessity of the case. This 
 
 1 6 Monroe, 643. 
 
 2 Doe V. Devours, 11 Georgia, 79; 6 Missouri, 64; Bergen v, Clarkson, 1 Hal- 
 sted, 352 ; Livingston v. Moore, 7 Peters, 469. 
 
 " Willard v, Wetherbee, 4 New Hampshire, 118. 
 
 3* 
 
30 OF THE FUNDAMENTAL PRINCIPLES, ETC. 
 
 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 euactr 
 ments, and under the guise of taxation, to impose penalties 
 which are to be enforced without recourse to the ordinary tri- 
 bunals. The Constitution protects the citizen from all judg- 
 ments against his person or property, otherwise than by a reg- 
 ular jury trial, as heretofore accustomed. Now the only diffi- 
 culty 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 taxa- 
 tion, 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 provision, ' law of 
 the land,' if the alleged tax shall amount to a penalty, for 
 some infraction of the law, the tax collector cannot, by his 
 authority, assess the penalty under the name of a tax, for if it 
 is a penalty, a jury must decide upon the supposed infraction 
 before the penalty can be inflicted." 
 
 I 
 
 1 1 McMuUan, Law, 420. 
 
NATUBE OF THE POWER TO SELL LAND, ETC. 31 
 
 CHAPTER II. 
 
 OF THE NATURE OF THE POWER TO SELL LAND FOR THE NON- 
 PAYMENT OF TAXES, AND OF THE STRICTNESS REQUIRED IN 
 . SUCH SALES. 
 
 According to the strict rules of the common law, the only 
 authority which a stranger could exercise over an estate in 
 land, was a power of selling, leasing, or incumbering it. The 
 power was 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 contrary to the pol- 
 icy of the feudal system, and consequently 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 inter- 
 vention of the judicial tribunals. 
 
 From the nature of voluntary alienations, and the mode of 
 effecting them — by feoffment and livery of seizin — it is very 
 certain that they did not admit of the annexation to them, 
 of powers of appointment and revocation. The strictness of 
 those times would not countenance the apparent repugnancy 
 of giving or selling an estate absolutely to another, and yet 
 reserving to the feoffor the privilege of recalling the estate, or 
 vesting it in another, without a new livery. Such a transac- 
 tion was not consistent with that public notoriety, which was 
 then deemed a necessary circumstance in the alienation of 
 property.^ The only means which the feoffor had, of retaining 
 any authority over land, after its alienation, was by annexing a 
 
 ^ Sngden on Powers, Chap. 1, ^ 1. 
 
32 NATDKE OF THE POWER TO SELL LAND 
 
 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 reentry ; 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 reentry upon the land.i But it will be remembered, 
 l^iat these conditions were regarded with jealousy by the 
 courts, and a strict compliance with their terms was invari- 
 ably 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 agree- 
 able to themselves.^ On the enactment of the statute of uses, 
 powers of revocation 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 latter it was held to be a mere naked authority. 
 Such was the general nature of common-law powers. 
 
 In modern times, when a more free and unrestricted power 
 of alienation took place, and the interests of mankind required 
 that the real property of the citizen should contribute to the 
 common burdens of the community, and be subjected to the 
 payment of his debts, involuntary alienations became frequent. 
 The power to sell and convey the estate, to satisfy the charge 
 thus created, was usually vested in some court or public ofiicer. 
 In this manner a class of powers, to which the common law 
 was an utter stranger, have sprung into existence ; but which, 
 
 ' Powell on Powers, 1, 2. 
 
 ^ Sugden on Powers, Chap. 1, § !• 
 
 " Powell on Powers, 2. 
 
33 
 
 nevertheless, are controlled, in their execution, by the prin- 
 ciples 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 exercised in doubtful 
 cases. 1 It is a naked power, which, in this instance may be 
 defined to be a power operating upon an estate, in which the 
 officer who executes it, has no manner of interest, and over 
 which he has no 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 the agent to, execute it, and 
 prescribes, the formalities whi(!h 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 autho- 
 rity. The officer to whom it is delegated has no general 
 power to sell land for the taxes charged- against it, but simply 
 a special one, to sell in the particular case mentioned in the 
 statute creating the power .^ 
 
 1 Beaty v. Knowler, 4 Peters, 152 ; Sharp v. Speir, 4 Hill, 76. 
 
 2 Williams v. Peyton, 4 Wheaton, 77 ; s. c. 4 Peters, Cond. 394 ; Varick v. 
 Tallman, 2 Barbour, 113; Sharp v. Speir, 4 Hill, 76 ; 4 Smedes & Marshall, 631 ; 
 Waldron v. McComb, 1 Hill, 111; Clarke v. Courtney, 5 Peters, 319; Taylor v. 
 Galloway, 1 Hammond, 232; Hodge v. Wilson, 12' Smedes & Marshall, 498; Hub- 
 bell V. Weldon, Hill & Denio, 139 ; Allen v. Smith, 1 Leigh, 248 ; Jesse v. Preston, 
 5 Grattan, 120. 
 
 5 Doughty V. Hope, 3 Denio, 595 ; Varick v. Tallman, 2 Barbour, 113 ; Sharp ». 
 Speir, 4 Hill, 76, 4 Smedes & Marshall, 630, 631 ; Hodge v. Wilson, 12 Smedes & 
 Marshall, 498. 
 
 * Natchez v. Minor, 10 Smedes & Marshall, 246. 
 
 = Williams u. Peyton, 4 Wheaton, 77 ; o. u. 4 Peters, Cond. 394 ; Varick v. 
 Tallman, 2 Barbour, 115, 116; EonkendorfiF v. Taylor, 4 Peters, 349; Powell v. 
 Tuttle, 3 Comstock, 401 ; Sherwood v. Reade, 7 Hill, 431 ; Striker v. Kelly, 2 
 'Denio, 330 ; James v. Gordon, 1 Washington, C. C. 335 ; 4 Smedes & Marshall, 627, 
 628 ; Fitch v. Pinckard, 4 Scammon, 69. 
 
34 ■ NATURE OE THE POWER TO SELL LAND 
 
 It will, therefore, be perceived, that the officer intrusted 
 with the power of sale exercises a naked, statutory, and special 
 authority, depending alone upon the high prerogative of the 
 state, and the letter of the law, for its support. This much 
 for the nature of the power. 
 
 The validity of a tax sale depends upon the authority of the 
 officer to sell, and upon the fairness of the transaction. It 
 would be going too far to say, that the officer, selling land with 
 or without authority, could, by his mere conveyance, tsansfer 
 the title of the rightful proprietor. He must act in conformity 
 with the law, from whence his power is derived, and the pur- 
 chaser 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 the proceedings of the officers 
 who have any thing to do with the listing and valuation of the 
 land, the levy and collection .of the tax, the advertisement 
 and sale of the property, the return, filing, or record of the 
 proceedings, whether the acts are to be performed before or 
 after the sale, must be in strict compliance with the statute 
 authorizing the sale.^ 
 
 1 Stead's Executor v. Course, 4 Cranch, 403; s. c. 2 Peters, Cond. 151. 
 
 2 Judevine v. Jackson, 18 Vermont, 470; Early v. Doe, 16 Howard (TJ. S.), 610 ; 
 Lyon V. Hunt, 11 Alabama, 29.5 ; Sumner v. Sherman, 13 Vermont, 609; Isaacs 
 V. Wiley, 12 Vermont, 677 ; Doughty v. Hope, 3 Denio, 595 ; Shimmin v. Inman, 
 26 Maine, 228 ; Smith v. Bodfish, 27 Maine, 295 ; Brown v. Veazie, 25 Maine, 
 362; Varick v. Tallman, 2 Barbour, 113; Blakeney i>. Ferguson, 3 English 
 (Ark.), 277; Young v. Martin, 2 Yeates, 312; Shearer v. Woodburn, 10 Barr, 
 511 ; Morton v. Beed, 6 Missouri, 74, 75 ; Parker v. Rule, 9 Cranch, 64, s. c. 3 Peters, 
 Cond. 308 ; Eonkendorff v. Taylor, 4 Peters, 349 ; Nalle v. Fenwick, 4 Randolph, 
 585 ; Yancy v. Hopkins, 1 Munford, 419 ; Farnnm v. Buffum, 4 Cashing, 267 ; 
 Lessee of Hughey v. Horrell et al., 2 Hammond, 231, s. c. 1 Ohio, Cond. 335 ; Holt 
 V. Hemphill, 3 Hammond, 232, s. o. 1 Ohio, Cond. 551 ; Carlisle v. Longworth, 5 
 Hammond, 368, s. 0. 5 Ohio, 229 ; Lafferty v. Byecs, 5 Hammond, 457 ; Lessee of 
 Dresback v. McArthur, 6 and 7 Ohio, Cond. 307; Lessee of Perkins v. Dibble, 10 
 Ohio, 433 ; Fitch v. Casey, 2 G. Greene, 300 ; Reeds v. Morton, 9 Missouri, 878 ; 
 O'Brien v. Coulters, 2 Blackford, 421 ; Dentler v. State, 4 Blackford, 258; Register 
 V. Bryan, 2 Hawks, 17 ; Pope et al. v. Headen, 5 Alabama, 433 ; Scales v. Alvis, 12 
 Alabama, 617 ; Terry v. Blight, 3 Munroe, 270 ; Bishop c/. Lovan, 4 B. Monroe, 
 116 ; Allen v. Smith, 1 Leigh, 248 ; Wilsons v. Bell, 7 Leigh, 22 ; Jesse v. Preston, 
 and Keith u. Preston, 5 Grattan, 120 ; Thames Manufacturing Co. v. Lathrop, 7 
 Connecticut, 550 ; Keene v. Houghton, 19 Maine, 368 ; Gushing v. Longfellow, 26 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 35 
 
 In the language of Chief Justice Marshall : " That no indi- 
 vidual, or public officer, can sell, and convey a good title to, 
 the land of another, unless authorized to do so by express law, 
 is one of those self-evident propositions to which the mind 
 assents without hesitation ; arid that the person invested with 
 such a power must pursue with precision the coiirse prescribed 
 »by 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 prima facie void.^ 
 
 The strictness required in such cases, has its origin in that 
 great fountain of the common law which regulates powers. A 
 special authority must be strictly pursued ; but more 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, provided there is no unreasonable delay ; they may 
 sell at public or pj-ivate vendue ; they may sell it all at once. 
 
 Maine, 306 ; Jlobbs v. Clements, 32 Maine, 67 ; Matthews v. Light, 32 Maine, 305 ; 
 Brown v. Smith, 1 New Hampshire, 36 ; Brown v. Dinsmoor, 3 New Hampshire, 
 103 ; Mason v. Pearson, 9 Howard (U. S.), 248; Moore v. Brown, 4 McLean, 211 ; 
 Jackson v. Esty, 7 Wendell, 148 ; Culver v. Hayden, 1 "Vermont, 359 ; Hall y. Col-, 
 lins, 4 Vermont, 316; Richardson o. Dorr, 5 Vermont, 9 ; Spear y. Ditty, 8 Ver- 
 mont, 46; Bellows o. Elliot, 12 Vermont, 669 ; Isaads d. Shattuck, 12 Vermont, 
 668; Brown u. Wright, 17 Vermont, 97; Carpenters. Sawyer, 17 Vermont, 121 ; 
 Langdon v. Poor, 20 Vermont, 13 ; Chandler v. Spear, 22 Vermont, 388 ; Taylor v. 
 French, 19 Vermont, 49 ; Wistar v. Kammerer, 2 Yeates, 100 ; Burch v. Fisher, 13 
 Sergeant & Rawie, 208 ; Huston a. Foster, 1 Watts, 478 ; Foust v. Ross, 1 Watts 
 & Sergeant, 501 ; Porter v. Whitney, 1 Greenleaf, 306 ; Delogny v.- Smith, 3 
 Louisiana, 418; Morris n. Crocker, 4 Louisiana, 147; McDonough v. Gravier, 9 
 Louisiana, 546 ; Carmichael v. Aikin, 13 Louisiana, 205 ; Alvord u. Collin, 20 
 Pickering, 418 ; Brooks v. Rooney, 11 Georgia, 427 ; Boisgerard v. Johnson, 23 
 Mississippi, 122 ; Bussey v. Leavitt, 3 Fairfield, 378 ; Garrett v. Wiggins, 1 Scam- 
 mon, 335 ; Graves v. Bruen et al., 11 Illinois, 437,438 ; Hill v. Leonard, 4 Scammon, 
 140 ; Fitch v. Pinckard, 4 Scammon, 69 ; Williams v. Peyton, 4 Wheaton, 77 ; 
 Jackson v. Shepard, 7 Cowen, 88 ; Thatcher v. Powell, 6 Wheaton, 119; Irving 
 V. Brownell, 11 Dlinois, 402; Hubbell u. Weldon, Hill & Denio, 139; Yeuda v. 
 Wheeler, 9 Texas, 408; Hadley v. Tankersley, 8 Texas, 12. 
 
 1 Thatcher v. Powell, 6 Wheat. 119 ; s. c. 5 Peters, Cond. 27. 
 
 2 4 Smedes & Marshall, 628. 
 
 ' The President, &c. of Natchez v. Minor, 10 Smedes & Marshall, 264. 
 
36 NATURE OF THE POWEK TO SELL LAND 
 
 or at different times ; they may sell it entire, or in parcels, 
 to suit the interest of the estate, or the convenience of pur- 
 chasers, 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 reqiiires of them, is the exercise of good faith, and a 
 due regard to the interests intended to be promoted by the 
 testator. 
 
 But if, on the other hand, a special power is delegated to 
 them ; if, for example, they are required to sell at a particu- 
 lar time, for cash, at. public auction, in particular parcels, by 
 lease and release, or any other prescribed mode of convey- 
 ance ; or if any other specific directions are given in the will, 
 as to the manner in which the power shall be exercised, all of 
 these become conditions precedent, and must be strictly ob- 
 served by the executors, or the power is not well executed, and 
 no title will pass to the purchaser.' 
 
 So, where a general power of attorney is given by one per- 
 son to another, to sell and convey an estate, a discretion is 
 necessarily vested in the attorney, and great latitude is allowed 
 in the exercise of the authority. But if the owner of the 
 estate prescribe, in the instrument creating the power, the 
 mode of its exercise, all of the requirements of the warrant 
 must be strictly complied with, or the power does not arise. 
 The powers in both of the cases mentioned, are termed com- 
 mon-law authorities.^ The same rules apply to the execution 
 of powers of appointment and revocation, which grow oiit of 
 the statute of uses. Where the power is given generally, 
 without defining the mode in which it must be executed, it 
 may be exercised either by deed, will, or a simple note in writ- 
 ing, without even an attestation ; and the reason is, that the 
 law treats the instrument by which the power is executed, as a 
 mere appointment of revocation of the use, according to the 
 will of the donor, and if the intention to do this is manifest 
 
 1 Taylor v. Galloway, 1 Hammond (Ohio), 232; Loomis v. McClintock,'10 
 Watts, 274. 
 
 2 Sugden on Powers, ] . 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 37 
 
 upon the face of the instrument, it is regarded as a valid exe- 
 cution. ^ 
 
 But there are cases where the power is special, in which par- 
 ticular circumstances are required to attend the execution of 
 it. " These are generally, first, a particular instrument ; sec- 
 ondly, 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 im- 
 posed . on the execution of such a power, it is either to protect 
 the remainder-man from a charge in any other mode, or to 
 preserve the person to whom it'is given, from a hasty and un- 
 advised execution of the power. In each case, the circum- 
 stances must be strictly complied with ; in the first, it would be 
 in direct opposition to the agreement, to consider the estate 
 charged, when the mode pointed out is not adhered to ; in the 
 second, to dispense with the solemnities and forms required to 
 attend the execution of the power, is to deprive a man of the 
 bridle which he has thought proper to impose on his weakness 
 br frailty of mind, in order effectually to guard himself against 
 fraud and imposition." ^ 
 
 The strictness required in the execution of this class of 
 powers, is admirably sustained by the reasoning of Lord Ellen- 
 borough, in the case of Hawkins v. Kemp.^ There, the terms 
 of the power required that the revocation should be by deed or 
 other instrument in writing, executed in the presence of, and 
 attested by, three credible witnesses, enrolled in one of his 
 majesty's courts of record at Westminster, and with the con- 
 sent and approbation of nine persons, named in the instru- 
 strument 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 tlie 
 court, the Lord Chief Justice saying : " Every one of these 
 required circumstances is in itself perfectly arbitrary, and 
 
 1 Sugdeu on Powers, Chap. 5, ^ 2. 
 ^ Sngden on Powers, Chap. 5, ^ 3. 
 ' 3 East, 410. 
 4 
 
38 NATURE OF THE POWER TO SELL LAND 
 
 (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 appro- 
 bation 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 autliorized, 
 unsealed, unattested, unenrolled, and unsanctioned by any 
 consent or approbation whatever. If these circumstances be 
 unessential and unimportant, except as they are required by 
 the creator of the power, they can be satisfied only by a strictly 
 literal and precise performance. They are incapable of 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 resem- 
 bling 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 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 iu a 
 judicial capacity. In all of these cases the power is special and 
 the proceedings are summary. If this special authority is con- 
 ferred upon a superior court of general jurisdiction, which 
 usually proceeds according to the course of the common law, 
 the tribunal is regarded, quoad hoc, as an inferior court with 
 special jurisdiction. The rule applicable to such a power is 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 39 
 
 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 proceed- 
 ing 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 0. J. Marshall is similar. He says : " In 
 summary proceedings, where a court exercises an extraor- 
 dinary power under a special statute prescribing its course, 
 we think tliat 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 ^ In 
 other words, all of the facts which are essential to the exercise 
 of the power, must affirmatively appear upon the face of the 
 record ; they cannot be supplied by proof, or made out by 
 intendment. The authorities upon this point are uniform.^ 
 
 If, on the other hand, this special authority is conferred 
 upon an inferior tribunal of limited jurisdiction, or upon com- 
 missioners, or upon any other individuals who act quoad hoc 
 in a judicial capacity, the rule is still more' strict. It is thus 
 laid down. Where a special authority is delegated by statute 
 to particular persons, or to any inferior tribunal, affecting the 
 property of individuals against their will, the course prescribed 
 by law must be strictly pursued, and appear to be so upon the 
 face of the proceedings, or the power is not well executed.* 
 
 1 Young «. Lorain, 1 1 Illinois, 636, 637. 
 
 2 Thatcher o. Powell, 6 Wheaton, 119, s. c. 5 Peter's Cond. 28. 
 
 ' Zurcher v. Magee, 2 Alabama, 2.'53 ; Bates v. Branch Bank of Mobile, 2 Ala- 
 bama, 689 ; Brown v. Wheeler, 3 Alabama, 287. 
 
 * Smith 0. Hileman, 1 Scammon, 323 ; Sharp v. Speir, 4jBill, 86 ; Rex v. Croke, 
 1 Cowper, 26 ; Davison v. Gill, 1 East, 64 ; 7 Term, 363 ; 1 Burrow, 377 
 4 Burrow, 2244 ; Gilbert v. Columbia Turnpike Company, 3 Johnson's Cases, 107 
 State V. Scott, 3 Green (New Jersey), 340; Levy Court v. Gwynn, 4 Harris & 
 Johnson, 227. 
 
40 NATUEE OF THE POWER TO SELL LAND 
 
 Aud 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 
 complied with, the proceeding is a nullity, and the adjudica- 
 tion gives it no additional validity. 
 
 In the case of Rex v. Croke,i 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 Lon- 
 don, in common council assembled," and that notice in writing 
 should be given to the mortgagee in possession, &c. The order 
 of the Quarter Sessions recited an application by the " Mayor, 
 Commonalty, and Citizens of London," that proof of due notice 
 had been given to Croke, the defendant, and omitted to state 
 whether Croke was a mortgagee in or out of possession. On 
 certiorari, the court of King's Bench quashed the order of con- 
 demnation, 1. Because of the misrecital of the corporate name 
 of the city of London ; 2. Because the record did not set out 
 the notice, and aver that it was in writing ; and 3. Because 
 the order did not show that the defendant was a mortgagee in 
 possession of the land condemned. Gilbert v. Columbia Turn- 
 pike Company,^ was a proceeding to condemn land for the use 
 of the turnpike company, under a statute which provided, that 
 in case of a disagreement between the company aud 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, freeholders of the county, 
 and not inhabitants of any of the towns through which the 
 road shall pass. The law further provided, that the commis- 
 sioners 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, <fec. 
 
 1 1 Cowper, 26. 
 
 2 3 Johnson's Cases, 107. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 41 
 
 The inquisition did not recite a disagreement ; the non-iuterest 
 of the judge who appointed the commissioners ; that the com- 
 missioners were -not inhabitants of any town through which 
 the turnpike passed, and that a written notice was given to the 
 owner. The inquisition was brought before the Supreme Court 
 by certiorari, and quashed for the reasons above named. In 
 each of the preceding cases it will be seen that the question 
 came directly before the court, on certiorari, to quash the 
 order itself. 
 
 In Davison v. Grill,i an qrder was made by two justices of 
 the peace, under the 13 Geo. 3, c. 78, sec. 19, for stopping up 
 an old footway, and setting out a new one. A schedule was 
 annexed to the statute, giving the form of the order, and the 
 statute declared that the forni set out in such schedule, " shall 
 be used on all occasions, with such additions and variations 
 only, as may be necessary to adapt it to the particular exigency 
 of the case." The form referred to sets forth the length and 
 breadth of the new or substituted footway. The justices omit- 
 ted to state in their order the length and breadth of the substi- 
 tuted way. The action was trespass, q. c.f., 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 foot- 
 way stopped up by them. Judgment was given for the de- 
 fendant, Kenyon, C. J., saying : " The court are always dis- 
 posed to support, as far as they can, the acts of the magistrates 
 below, but we must take care not to let our wishes carry us 
 beyond the bounds of law. The justices have a limited power 
 given them under the act of parliament, and it must appear 
 that this order was made by virtue of that power, &c. The 
 words of the act are peremptory. I cannot, therefore, say 
 that these words are merely directory. Power is given to the 
 magistrates to take away, on certain conditions, a right which 
 the public before enjoyed, and this is to be done in a certain 
 
 1 1 East, 64. 
 
 4» 
 
42 NATURE OF THE POWER TO SELL LAND 
 
 prescribed form, &c. Now here is a material variance in the 
 order, from the form prescribed, for it does not set forth the 
 length and breadth of the new path set out in lieu of the old 
 one." 
 
 Smith V. Hileman,^ was an ejectment to recover a parcel of 
 land, which the defendant claimed under a sale made by an 
 administrator to pay debts, in pursuance of the order of the 
 Circuit Court. The statute under which this proceeding took 
 place, required the administrator to set forth in his deed of 
 conveyance, " the order of the court at large." The deed, in 
 this case, omitted to set forth the order at large, but recited it 
 substantially. The court held that no title passed by the deed. 
 Smith, J., in delivering the opinion, says : " The reason of this 
 precision we are not at liberty to inquire into, nor what the 
 supposed necessity may have been, in the opinion of the legis- 
 lature, for its adoption. It is sufficient to perceive, that the 
 recital of the substance of the order, is not a compliance with, 
 or an observance of, the act. A special power granted by 
 statute, affecting the rights of individuals, and which divests 
 the title to real estate, ought to be strictly pursued, and should 
 appear to be so on the face of the proceedings." The last 
 cases cited arose collaterally, and the proceedings, in each 
 case, were treated as nullities. 
 
 It will thus be seen, that the common-law rule which dis- 
 tinguishes between general and special powers, is uniformly and 
 consistently applied by the courts in England and the United 
 States, to every class of powers, whether they are regarded as 
 common-law authorities, those deriving their effect from the 
 statute of uses, or statutory powers. It has already been 
 shown that the collector, or other officer, has no general 
 authority to sell laud for the non-payment of taxes, but a 
 special power to sell in the particular cases prescribed by law.^ 
 Wherefore it i& held that those cases must exist, or the power 
 does not arise ; andwhen it does arise, all of those formalities, 
 
 1 1 Scammon, 323. 
 
 2 Ante, p. 33. 
 
FOR THE NON-PATMENT OF TAXES, ETC. 
 
 43 
 
 which the law creating the power has imposed upon its own 
 ofEcers, for the security of private rights, must be faithfully 
 observed in the e.xecution of the power. The power itself, is a 
 high prerogative, and the exercise of it, a rigorous proceeding. 
 It divests the owner of his title without his consent, and very 
 often for a trifling consideration ; and the legislature have 
 usually shown a cautious solicitude to protect the rights of 
 private property, by clogging the exercise of this power with 
 conditions and forms, intended as guards against oppression 
 and fraud. 1 
 
 The doctrine of the common law, which requires that those 
 conditions shall be complied with, and forms strictly observed, 
 more forcibly applies to ministerial officers, charged by statute 
 with the execution of a special authority to be exercised over 
 the estates of individuals, than in those cases where one citizen 
 delegates a special power to another ; because those officers are 
 agents, appointed under the aiithority 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 another, whom he 
 might esteem more worthy of confidence, but must abide the 
 act of the agent of the law.^ 
 
 Besides, in this class of powers, the government, by its 
 agents, acts in hostility to, and with the view of subverting the 
 title of the citizen, for an alleged breach of its revenue regula- 
 tions. Under such circumstances the presumption is, that the 
 owner has violated no law — neglected no duty enjoined upon 
 him, which shall have the effect of working a forfeiture of his 
 estate. He waives nothing by silence, stands upon all of his 
 rights, and is permitted to insist upon a strict compliance with 
 ' all of those conditions which the law has imposed upon its own 
 agents, for their guide in the execution of the power .^ An- 
 
 1 Tallman v. White, 2 Comstock, 70; Hughey v. Horrell, 2 Hammond, 231 ; 
 Famum v. Buffum, 4 Gushing, 267. 
 
 ? Schmidt w. Gatewood, 2 Kiehardson, Equity, 170; Dudley v. Little, 2 Ham- 
 mond, 504. 
 
 ' Varick v. Tallman, 2 Barbour, 113. 
 
44 NATURE OP THE POWBK TO SELL LAND 
 
 other reason assigned for this strictness is, that the power of 
 the officer to sell land for the non-payment of taxes by the 
 owner, is a naked one, not coupled with an interest ; and in 
 all such cases, whether the power is general or special, the 
 common law requires that every prerequisite to the exercise of 
 the power, must precede it ; that the agent must pursue the 
 power, or his act will not be sustained by it.' Judge Scates, 
 in Hinman v. Pope,^ well remarks, that " this vigilance of the 
 law upon naked powers, is a substitute for that vigilance which 
 INTEREST always prompts in those who execute a power coupled 
 with an interest." ' . 
 
 Again, proceedings of this kind partake somewhat of a judi- 
 cial character, yet, in point of fact, they are usually ex parte, 
 always summary, and the notice to the owner is merely con- 
 structive. The course of the common law in judicial proceed- 
 ings is thus departed from — that fundamental principle of 
 natural justice which requires actual notice, and an opportun- 
 ity of a hearing before condemnation, is violated in spirit, and 
 the owner of the land, under pretence of delinquency, " is dis- 
 seized 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 general, be made by ordinary suits, and that the 
 proceedings, in such cases, must, of necessity, be summary and 
 ex parte. But this very necessity begets another, that in the 
 execution of such a power, the law shall be strictly and punc- 
 tiliously complied with, in all of its requisitions.^ This rule is 
 applied to all summary proceedings prescribed by statute, where 
 the accustomed course of the common law is departed from.* 
 
 And here it may be remarked, that the common law enters 
 
 ^ Vide authorities cited ante, p. 33. 
 ^ 1 Gilman, 131. 
 
 * Morton v. Eeed, 6 Missouri, 64. 
 
 * Levert v. P. & M. Bank, 8 Porter, 104; Logwood v. P. & M. Bank, 1 Minor 
 (Alabama), 23 ; Yancy v. Hopkins, 1 Minor (Alabama), 171 ; Crawford v. State, 
 
 1 Minor (Alabama), 143; Bates v. P. & M. Bank, 8 Porter, 99 ; Judson v. State, 1 
 Minor, 153 ; Zurclier v. Magee, 2 Alabama, 253 ; Bates v. Branch Bank of Mobile. 
 
 2 Alabama, 689 ; Brown v. Wheeler, 3 Alabama, 287. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 45 
 
 largely into the construction of every statute. A just inter- 
 pretation is ever controlled by that law.^ It is said to be the 
 best construction of a statute to expound it as near to the rule 
 and reason of the common law as possible, and by the course 
 which that law observes in similar cases. ^ The reason assigned 
 by Chancellor Kent for this nile of cronstruction, is thus stated : 
 " Eor 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 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 regarded " 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 instinctively look to the old one, 
 which is superseded, or repealed. To use the quaint and 
 expressive language of Lord Coke : " In construing a statute, 
 we must look to the old law, the mischief, and the remedy." 
 No judge, however acute, can properly construe a new law, 
 without knowing what the old law was. This seems a self- 
 evident proposition. When a word is used in a statute, which 
 has a well-known and definite meaning at common law, it is 
 presumed that the legislature used it in that sense, and it 
 should be so received and expounded by the courts.* When a 
 
 1 10 Johnson, 586. 
 
 2 Dwarris on Statutes, 695; 1 P. Williams, 252 ; 1 Saunders, 240; 10 Johnson, 
 579 ; Douglas, 27 ; 1 Burrow, 445 ; 1 Kent, 464 ; 6 Bac. Abr. 383 ; Co. Litt. 272 6; 
 Stowell . . Zouch, Plowden, 365 ; Heydon's Ca«e, 3 Coke R. 7 ; Vernon's Case, 
 4 Coke R. 4. 
 
 8 Kent's Com. 464. 
 
 * 6 Bac. Abr. 383; 6 Modern, 143; Mayo v. Wilson, 1 New Hampshire, 53; 
 Bedell v. Janney, 4 Oilman, 205, 206 ; Adams v. Turrentine, 8 Iredell, 147; 
 Dwarris on Statutes, 696. 
 
46 NATURE OP THE POWER TO SELL LAND 
 
 power is given by statute, but the means of its execution are 
 not prescribed, the power must be executed according to the 
 course of the common law. Where the provisions of a 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 a^eeable to the rules of the common 
 law in cases of that nature ; for statutes are not presumed to 
 make any alteration in the common law, further or otherwise 
 than the act expressly declares.' 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 by legislative authority." ^ 
 
 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, recog- 
 nized by the common law, and there are no negative words in 
 the statute, the party injured has an election to proceed under 
 the statute, or at common law. And lastly, when a statute 
 makes an innovation upon the established principles of the 
 common law, it must be strictly construed in all cases.^ Thus, 
 in every view, the rules of the common law, in relation to 
 special and naked powers and summary pi'oceedings, are pecu- 
 liarly applicable to those officers of the law who, under the 
 authority of general statutes, sell land for the non-payment of 
 taxes. There are other reasons, equally, if not more weighty, 
 why those officers should strictly conform to the requirements 
 of the law. The chief purpose of government is the protection 
 of life, liberty, and property ; and this is a fundamental princi- 
 ple in our free constitutions. The bill of rights attached to 
 every one of them, declares, that the " acquisition, possession, 
 and protection of property," is one of the inalienable rights of 
 every citizen. A speedy and complete remedy, by due course 
 of law, for all invasions of property, is guaranteed to him. He 
 
 1 6 Bac. Abr., title " Statute," 383, 384. 
 " Revised Statutes, 1845, p. 337, sec. 1. 
 8 16 Johnson, 7 ; 2 Gilman, 184 and 429; 4 Binney, 116. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 47 
 
 is protected in the enjoyment of his property from the encroach- 
 ment of every department of the government, by those limita- 
 tions which have been imposed by tlie Constitution upon the 
 taxing power ; by that provision which prohibits tlie taking of 
 private property for public uses, without due compensation, 
 and by the further declaration that he shall not be " disseized 
 of his freehold, or in any manner be deprived of his property, 
 without the judgment of his peers or the law of the laud." Not 
 even a conviction for the highest crime known to the law, can 
 have the effect of working a forfeiture of his estate. Thus the 
 mantle of the Constitution and laws is thrown around the prop- 
 erty of the citizen, to shield it from public or private invasion. 
 The spirit of these great fundamental principles, therefore, re- 
 quires, that when the high power of selling the estates of delin- 
 quent tax-payers is delegated to a subordinate officer, all of those 
 conditions, checks, and forms, which the legislature have seen 
 proper in their wisdom to prescribe, with a view to prevent 
 fraud, oppression, and injustice in the execution of the power, 
 should be observed by the officer in letter and spirit. It is a 
 maxim of the law, that every statute ought to be so construed 
 as to preserve unimpaired fundamental principles. ' 
 
 The evident intention of the legislature in the enactment of 
 this class of laws, is to coerce the payment of taxes from the 
 unwilling, and at the same time to protect the rights of private 
 ownership as guaranteed by the fundamental principles of our 
 institutions. The former object is accomplished by the sale of 
 the delinquent's lands ; the latter by those conditions and 
 forms, with which the officer is bridled and restrained in the 
 execution of the power of sale. A double — a general and 
 particular — iuteut is thus manifested in all such laws, both of 
 which should be sacredly respected, and carried out by the 
 courts in construing them ; the true 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 adequate importance ; nor should the 
 
 1 1 Peter's Cond. 425 ; 8 Johnson, 41. 
 
48 NATURE OP THE POWER TO SELI, LAND 
 
 power be exercised in any other mode than that specially 
 pointed out by the statute.' As a matter of public policy, tax 
 sales should not be sustained, unless the laws are shown to 
 have been complied with. In the varied transactions of men, 
 absolute punctuality in the payment of taxes is impossible. 
 Misfortune, disease, and death prevail in every community, 
 and interrupt the performance of -the duties of the citizen 
 toward the government of his choice. A mere oversight of 
 the owner, and not a wilful and perverse disposition, may have 
 been the occasion of the failure to pay the tax.^ 
 
 But for the rule of strictness required by the courts in this 
 class of powers, great injustice would oftentimes be done, and 
 innocent persons lose their estates. The taxes may have been 
 paid, and by accident the evidence of the payment may be lost 
 to the owner. The officer intrusted witli the collection of the 
 tax may have neglected to make a personal demand upon the 
 tax payer. Guardians of the estates of infants ; executors in 
 whom the estate is vested by will, charged with the execution 
 of a power over it ; agents intrusted with the payment of the 
 tax, arid tenants for life, who enjoy the profits of the estate, 
 may fail to pay the taxes assessed ; the collector himself may, 
 by mistake, return one as delinquent who is not so in point of 
 fact. These, and many other cases, which will readily suggest 
 themselves to every person at all conversant with these tax 
 sales, oftentimes happen, and the estates of innocent persons 
 are thus divested without their knowledge. The bare possi- 
 bility that the power to sell may be abused, and injustice done 
 in such cases, ought to require at the hands of the court a 
 strict construction of, and literal compliance with the law. 
 That no statute ought to be so construed as to work injustice, 
 nor 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 
 
 1 Broom's Maxims, Second London Edition, 1848, pp. 3, 4. 
 ^ Mason v. Pearson, 9 Howard (TJ. S.), 248; Counsel arguendo in Kemper v. 
 McClelland, 19 Ohio, 324. 
 
 3 Co. Litt. 360 a; 7 Johnson, 482, and 49.5, 496. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 49 
 
 properly applied in this connection. It is thus laid down by 
 Lord Holt : " Let a statute be ever so charitable, if it give 
 away the property of the subject, it ought to be construed 
 strictly." ^ Let it be remembered that the statute to which 
 Holt applied this rule of construction, was a statute discharg- 
 ing insolvent debtors from imprisonment ; the ordinary rule 
 is, that in cases involving personal liberty, if a statute extends 
 it, you are to construe it liberally ; if it restrains liberty, then 
 construe it strictly .^ If you sell the land of one who has paid 
 the taxes due upon it, you give it away, and have not even the 
 plea of charity as a justification or excuse for your conduct. 
 There is still another rule of law which may be properly 
 applied to powers of this character. Where a statute creates 
 a new power, and at the same time provides the means and 
 mode of executing it, those to whom the power is intrusted 
 can execute' it only in the mode prescribed'.^ 
 
 This rule requires a rigid adherence to the directions and 
 forms wliich the legislature have seen proper to lay down for 
 the government of its agents. The power is purely arbitrary, 
 and this furnishes a strong reason why it should not be exer- 
 cised in an arbitrary manner. If the forms required to be 
 observed are once departed from, there is an end of all legal 
 restraint, and the discretion of the officer is bounded by his 
 will alone. This would be intolerable to a free people. No 
 court would venture to sanction a doctrine which would ope- 
 rate to vest such an unbounded discretion in any officer. Dis- 
 cretionary power is contrary to the genius of our laws and 
 institutions. To sustain a tax sale, where the officer, in the 
 exercise of his discretion, has disobeyed the rule laid down 
 by the statute for his government, is to transfer the legislative 
 power of the State to the collector, and thus allow him to sell 
 land for taxes, not in the manner prescribed by the written 
 
 1 6 Bac. Abr. 389 ; 12 Modem, 513. 
 * 12 Johnson, 373. 
 
 » 6 Massachusetts, 44 ; 14 Massachusetts, 289 ; 1 Blackford, 39 ; 1 Missouri, 428 ; 
 State V. Cole, 2 McCord, 117. • 
 
 5 
 
50 NATtmE OF THE POWER TO SELL LAND 
 
 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 opera- 
 tion of law. The power is created by statute, the officer 
 authorized to make the sale is appointed by law, and the time, 
 place, and manner of sale are prescribed by the law. The 
 estate, therefore, depends upon the law for its validity, and 
 not upon the consent of the former owner. Now, it is difficult 
 to perceive how any one claiming title to land, under a statute 
 which points out the manner of acquisition, can establish that 
 title in a court of justice without proving the existence of all 
 those acts which the law has prescribed as conditions precedent 
 to its validity. The law is the foundation of the title — it is 
 the power of attorney of the officer who makes the ^ale. There- 
 fore, a person claiming under the statute, must not only show 
 the power, but a compliance with all of its terms or require- 
 ments. It is a general principle, applicable alike to all polit- 
 ical organizations, that every citizen is bound to take notice, at 
 his peril, of the law of the land ; that ignorance of its exist- 
 ence is no excuse for disobeying its mandate, and that how- 
 ever ambiguous it may be, consequences arising from an erro- 
 neous construction of it, cannot be averted, either at law or in 
 equity. 
 
 When, therefore, a party claims title under a public law, he 
 is not only bound to know the law, and give it a fair and rea- 
 sonable construction, but he is bound to see tliat all of its sub- 
 stantial requirements have been complied with. " A special 
 authority must be strictly pursued, and every purchaser is to 
 be presumed to know that special authority in all cases where 
 it is conferred and 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 
 
 1 Register v. Bryan, 2 Hawks, 17. 
 
 ''' Deuning v. Smith, 3 Johnson, Chancery, 844. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 51 
 
 could be acquired to land sold for the non-payment of taxes." 
 It was meant to put bidders at a tax sale upon inquiry, whether 
 or not the land was offered for sale according to law. If they 
 do not examine, and shall buy land exposed to sale for taxes 
 against the law, they do so at their own risk ; and it will be 
 presumed against them, that they know that the deeds given 
 under such circumstances, are made in violation of official duty 
 and of the law.^ 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 repsesentative character, to inquire into the extent 
 of his autliority, and they deal with him at their peril.^ The 
 fact that the agent is a public, instead of a private one, and 
 that his authority is conferred by a statute, instead of a 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 chargeable with notice of all 
 defects apparent upon the face of his muniments of title.^ In 
 tax titles, the constitutional provisions regulating the taxing 
 power, the statute levying the tax, and prescribing the manner 
 of enforcing its collection, and the acts of those to whom the 
 execution of the power is intrusted^, are all 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 ir- 
 regularities, which have taken place ill the proceedings under 
 which he claims the estate. He is, therefore, to look to it at 
 his peril. The maxim caveat emptor applies to him with 
 great force. 
 
 Again, the consideration usually paid for a tax title, is 
 gi'ossly inadequate. These sales " are attended ' with greater 
 sacrifice to the owners of land than any others. Purchasers 
 seem to have but little conscience. They calculate upon 
 
 1 Moore v. Brown, 11 Howard (U. S.) 414. 
 
 2 IJ. J. Marshall, 287. 
 
 * Battemore v. White, 2 Gill & Johnson, 444. 
 
52 NATURE OF THE POWER TO SELL LAND 
 
 obtaining acres for cents, and it stands them in hand to see 
 that the proceedings have been strictly regular." i In Moore 
 V. Brown,2 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 di- 
 vested of his title, should be substantially complied with. We 
 see the necessity of this i-ule in the case under consideration. 
 Three hundred and twenty acres of land have been sold for 
 less than twenty dollars. If such sacrifices can be made 
 where there is a departure from the requirements of the law, 
 there is no safety to the owners of real estate." ' 
 
 In Farnum v. BufFum,^ Judge Wilde remarks : " In a sale 
 like this, where a large and valuable property has been sold 
 for a mere trifle, a compliance with all the provisions of the 
 statute should be proved with great certainty in every partic- 
 ijlar." In Reeds v. Morton,* the court, in speaking of the 
 neglect of the tax purchaser to record his certificate, as re- 
 quired by the statute, say : " We do not fedl ourselves called 
 upon to give reasons why this thing should have been done. 
 He who wishes to obtain an estate worth thousands, for less 
 than ten dollars, under and by virtue of the law, is not to be 
 permitted to ask why he should be required to do this, or to 
 do that. It is an answer that it is required by law. Ita lex 
 scripta est. He claims by the law, then by that law let his 
 pretensions be judged." And in Mayhew v. Davis,^ the Court 
 remark : " The defendant claims to hold the land in contro- 
 versy, valued by an assessor at nine hundred and sixty dollars, 
 by virtue of a sale at which he paid less than five dollars for it. 
 This, then, is a claim of strict right, where a court would not 
 grant a new trial, nor would a chancellor enforce such an 
 unequal bargain." 
 
 Not only will a court of eqiiity refuse relief to the purchaser, 
 
 1 Hughey v. Horrell, 2 Hammond, 231 ; s. c. 1-4 Ohio Cond. 335. 
 
 2 4 McLean, 211. 
 « 4 Gushing, 267. 
 • 9 Missouri, 878. 
 5 4 McLean, 213. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 53 
 
 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 author- 
 ized the sale of a leasehold interest in lands for the non-pay- 
 ment 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 pur- 
 chaser applied for a mandamus. The court denied the appli- 
 cation, saying, " Should we compel the execution of the lease, 
 the purchaser's title might be protected ; but we are not in- 
 clined 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, withouf this statutory support, cannot be 
 sustained." i Another reason assigned for this strictness is, 
 that the statutes under which lands are sold for taxes, are 
 highly penal in their character ; so much so that a man may 
 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 impli- 
 cation or intendment.^ That such statutes are strictly penal, 
 will be apparent upon a review of the authorities.^ 
 
 Another view may be taken of this subject. The execution 
 of a power relating to an estate, is the exercise of an act of 
 ownership over that estate. Such acts can only be justified 
 and sustained, where the consent of the owner, either express 
 or implied, has been previously obtained. This consent is evi- 
 denced by a written authority from the owner of the estate, or 
 positive law, to the enactment of which he is presumed to have 
 assented. But the disposition of mankind is to use great cau- 
 tion in permitting strangers to exercise such acts of ownership 
 
 ' People V. Mayor, &c., 10 WendeU, 395. 
 2 Yancy v. Hopkins, 1 Munford, 419, 437. 
 
 ° Smith's Commentaries, ch. 18, sec. 738, p. 854, and cases there cited. 
 5* 
 
54 NATUBB OF THE POWBE TO SELL LAND 
 
 over their estates ; and in almost every instrument or statute 
 conferring such power, restrictions are imposed 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 acknowledgment 
 of the power ; and for the purpose of upholding the act, and 
 preventing an intervening right from attaching to the subjects 
 matter of the power, the act done in .pursuance of the power, 
 relates back to the time when the power itself commenced its 
 existence. 
 
 When, therefore, a person claims- an estate, purporting to be 
 derived under a power, he must prove the existence of the 
 power, and a compliance with all of its requisitions. This rule 
 pervades all classes of powers, and is universal in its applica- 
 tion. In this country especially, all constitutional and stat- 
 utory powers are limited, and every act done by persons assum- 
 ing to act in an official capacity, are nullities, unless the power 
 exists, and the mode of exercising it has been adhered to by 
 the officer. The rule applies to the legislature itself. The 
 Constitution of Illinois confers upon the General Assembly the 
 power to enact laws, but declares that no bill shall become a 
 law until it shall have been read three several times in each 
 house, and received the assent of a majority of all the members 
 elect ; this assent to be manifested by yeas and nays, to be 
 entered of record upon the journals of the respective houses. 
 Where these requirements were not complied with, the act was 
 held not to be a law of the land.i The judicial power is vested 
 in the courts of justice, but they are limited by law as to the 
 subject-matter, &c., and the mode of acquiring jurisdiction is 
 
 1 Spangler v. Jacoby, 14 Illinois, 297. 
 
FOE THE NON-PAYMENT OF TAXES, ETC. 55 
 
 prescribed by law. If they render a judgment or decree 
 against the citizen, in a case over which they have no jurisdic- 
 tion, or without bringing the party into court in the manner 
 prescribed by law, the act is a nullity. The act of every exe- 
 cutive officer, from the President down to a town constable, is 
 void jv^here 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, 
 consists in the deliberation and solemnity which attend them ; 
 and the frequency of their occurrence is a monitor which 
 reminds the officer of the effect of his power, and the necessity 
 of a strict compliance with the terms of it. 
 
 Again, it may be laid down as a general principle, subject to 
 no exceptions, that the validity of every involuntary alienation of 
 land, depends upon a strict compliance with all of tlie substan- 
 tial requisitions of the law by which they are authorized, such 
 as the taking of private property for public use ; ' the extend- 
 ing of an execution upon the land of a debtor, in the New Eng- 
 land States ;^ the sale of land by 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 eveiy requirement 
 of the law should be strictly complied with by the officer, in 
 the sale of land for the non-payment of taxes, is to be found in 
 the fact that " thus the law is written." Where the words 
 of a statute are plain and unambiguous,' there is no necessity 
 for resorting to technical rules of construction, but the legis- 
 lative will, as expressed, must be obeyed.® When there is 
 doubt and ambiguity in the language used, then every thing 
 which serves to assist in ferreting out the intention of the 
 
 1 Flatbush Avenue, 1 Barbour, 286. 
 
 ^ Wellington v. Gale, 13 Massachnsetts, 483 ; Metcalf v. Gillet, 5 Connecticnt, 
 400; Morton v. Edwin, 19 Vermont, 77 ; Sargent v. Peirce, 2 Metcalf, 80. 
 
 ' Young u. Keogh, 11 Illinois, 642. 
 
 * Smith V. Hileman, 1 Scammon, 323 ; Atkins v. Kinnan, 20 Wendell, 241 . 
 
 ' 3 Scammon, 161 ; 2 Peters, 662 ; 3 A. E. Marshall, 489 ; 1 Pickering, 45 and 
 250 ; 9 Porter, 266. 
 
56 NATURE OF THE POWER TO SELL LAND 
 
 maker, may be resorted to. This is the point where interpreta- 
 tion commences. 
 
 There is another rule of law on this subject : that a statute 
 ought to be so construed, that no clause, sentence, or word 
 shall be superfluous, void, or insignificant, if it can be pre- 
 vented.' These two rules, that every word must have effect, 
 and that where the words are plain, there is nothing to con- 
 strue, put an end, in every case, to judicial discretion. The 
 legislature commands, and the judges must obey. It is aston- 
 ishing that these plain, common-sense maxims should ever 
 have been departed from by the courts in the application of 
 statute law, -to cases brought before them for adjudication. 
 The intention of the legislature, it is true, must control in all 
 cases, but that intention is to be collected from the words of the 
 act. A sound construction must always be warranted by the 
 words, and never repugnant to them. Where the legislature 
 have used words of a plain and definite import, it would 
 be dangerous to put upon them a construction which would 
 amount to holding that the legislature did not mean what they, 
 have expressed.^ This would be imputing to the legislature, 
 useless and frivolous conduct, which is never lawful in constru- 
 ing 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 policy 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-waud of the 
 law," i. e., not to construe statutes by equity, but to collect 
 the sense of the legislature by a sound interpretation of the 
 language, according to reason and grammatical correctness.* 
 The most enlightened and experienced judges have, for some 
 time, lamented the too frequent departure from the plain and 
 
 1 6 Bac. Abr. 380. 
 
 ^ 7. Barnewall & Cresswell, 569 ^ 6 Barnewall & Cresswell, 712. 
 
 » 1 Pickering, 482. 
 
 » 2 Dwarris, 703. 
 
FOR THE NON-PAYMENT fiF TAXES, ETC, 57 
 
 obvious meaning of the words of the act by which a case is 
 governed, and themselves holi it much the safest course to 
 adhere to the words of the statute, construed in their ordinary 
 import, than to enter into any inquiiy as to the supposed inten- 
 tion of the persons who framed the act.^ 
 
 " It is safer," says Mr. Justice Ashhurst, " to adopt what the 
 legislature have actually said, than to suppose what they meant 
 to say." 2 In the case of Hardin v. Owings,^ an appeal was 
 taken from the Circuit to the Court of Appeals ; the appeal 
 bond was execiited 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 exe- 
 cuted in the office of the clerk of the inferior court. A motion 
 was made to' dismiss the appeal, because the bond was not exe- 
 cuted 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 unambigu- 
 ous language in which this mode is prescribed by the legis- 
 lature. The legislative body is the supreme power of the State, 
 and whenever it acts within the pale of its constitutional au- 
 thority, the judiciary is bound by it ; and"it is not competent to 
 the latter tribunal to dispense -witli 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 judi- 
 ciary above the legislature by enabling the former to nullify 
 the acts of the latter, or to supersede them by substitutes to 
 which the legislature might not have assented had the proposi- 
 tion 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 
 
 1 10 Barnewall & Cresswell, 527. 
 
 2 1 Term, 52. 
 8 ] Bibb, 214. 
 
58 NATUEB OP THE POWBK TO SELL LAND 
 
 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 court ? One set of judges might think the former 
 would be a sufficient compliance with the legislative intention ; 
 another set, adopting the principle tliat they had a right to depart 
 from the words of the act, might think the latter a sufficient 
 compliance ; and a tliird set, adopting this course of reason- 
 ing, viz : that as the legislature 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, produce 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 ordi- 
 nary capacities are capable of understanding it ; but there have 
 been so many subtle, refined, and artificial rules of construc- 
 tion devised by ingemious lawyers, and adopted by swpple 
 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 abstruse and doubtful part of legal science has arisen 
 from the cause above-mentioned. Witness the various 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 tlie 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 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 59 
 
 itself; and thus have judicial decisions (the evidence of the 
 law) been rendered uncertain and vibrating according to the 
 whim, caprice, or judgment of different men, who all had an 
 equal right to judge. They have made the legislature mean 
 any thing, every thing, and almost nothing, as suited the par- 
 ticular case before them ; and this will ever be the case whilst 
 this arbitrary field of discretion is assumed and exercised by 
 judges, and until the acts of the legislature, according to their 
 plain- and obvious import, 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 judi- 
 ciary, to supply or remedy those defects. In the judiciary, the' 
 exercise of such a power is not warranted by the Constitution, 
 under which we act ; it is contrary to it, and must, therefore, 
 be an unjustifiable assumption of power. 
 
 Opposed to all this reasoning, is the very convenient and 
 pliable 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 lim- 
 itations, 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 intrinsically incorrect, 
 but of the most dangerous tendency, because it renders per- 
 plexed the rules of decision, it enlarges an arbitrary discretion 
 in judges, and encroaches on legislative authority. It is con- 
 genial enough to arbitrary governments, where the judiciary 
 becomes the engine of the court ; in such governments it fur- 
 nishes 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 timer the subject may present itself in a point of view a 
 little varied from the former one ; and finally, the judges may 
 return to the law, and enforce it according to the letter of it, 
 
60 NATURE or THE POWER TO SELL LAND 
 
 and nothing is more natural, and many times notliing is more 
 just, tlian 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 therefore 
 it ought to be circumscribed within a very narrow compass ; to 
 effect which, this court has recently, in several instances, gone 
 great lengths, and probably may find it necessary to go still 
 further. In the present case, the rule prescribed by the 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 negligence, and 
 supply the defect by adopting a perplexed and doubtful system 
 of adjudication, and interposing an illegitimate dispensing 
 power over the acts of the legislatui-e. The legislature, as 
 before premised, has declared that the bond should be exe- 
 cuted in tlie 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 accom- 
 panied with the judicious and sensible remarks of Judge He- 
 bard : " I am not very well satisfied with the summary mode 
 of getting rid of a statutory provision, by calling it directory. 
 If one positive requirement and provision of a statute may be 
 avoided in that way, I see no reason why another may not." ^ 
 Mr. Justice Morton also remarks: "Equitable constructions, 
 though they may be tolerated in remedial, and perhaps, some 
 other statutes, should always be resorted to with great caution, 
 and never extended to penal statutes, or mere arbitrary reo^u- 
 lations of matters of public policy. The power of extending 
 the meaning of a statute beyond its words, and deciding by 
 the equity, and nt)t the language, approaches so near the 
 power of legislation, that a wise judiciary will exercise it with 
 reluctance, and only in extraordinary cases." ^ 
 
 * 15 Vermont, 72. 
 " 22 Pickering, 387. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 61 
 
 This doctrine is daily gaining ground, and it is to be hoped 
 that the day is not far distant, when our courts will adopt the 
 maxim of the Missouri court : " Thus the law is written, and 
 we do not feel called upon to give reasons why it is so." ^ The 
 principle has been repeatedly applied in the construction of 
 statutes authorizing the sale of land for taxes, as will be shown 
 hereafter, in treating of each particular requirement of the 
 revenue, laws. It will thus be seen, that the nature of the 
 power, the character of the proceedings, the spirit of the Con- 
 stitution, the letter of the law, and the true principles of inter- 
 pretation, all concur in requiring strictness in the execution of 
 this class of powers. The officer is the agent of the law, the 
 statute is his warrant of attorney, and he is bound to conform 
 strictly to it. Let this branch of the subject be dismissed with 
 the remarks of the court in Powell v. Tuttle : ^ " It is a familiar 
 rule of law, that a special authority must be strictly pursued. 
 When such authority is prescribed by statute, and when in its 
 exercise it operates to divest the citizen of his property, courts 
 caimot be too sedulous in confining it within the boundaries 
 which the legislature have thought fit to prescribe. At this 
 day, and in this country especially, the protection of private 
 rights demands . this safeguard ; and he who will review the 
 adjudications of our courts involving this principle, will 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 proceed- 
 ings must be " strictly regular." ^ Another, that " a strict 
 compliance with all the prerequisitSS of the statute is consid- 
 ered necessary."* Another, that " gi;eat strictness is required, 
 
 1 Beeds v. Morton, 9 Missouri, 878. 
 
 2 3 Comstock, 401. 
 
 ' Hnghey v. Horrell, 2 Hammond, 231. 
 
 " Isaacs V. Wiley, 12 Vermont, 677 ; Smith v. Bodfish, 27 Maine, 295. And see 
 Parker v. Overman, 18 Howard (U. S.), 143. 
 
62 NATURE OF THE POWER TO SELL LAND 
 
 and every substantial requisite of the law must be shown to 
 have been complied with." i Another, that " it must appear 
 that the provisions of law preparatory to, and authorizing such 
 sale, have been punctiliously complied with."^ Another, that 
 " a minute conformity to every particular of the several acts of 
 the assembly, is necessary to pass the title." ^ Another, that 
 without a " literal performance " of the requirements of the 
 law, the deed is ," mere waste paper." * Another, that " the 
 authority must be strictly pursued from the beginning to the 
 end. ' If any material link in the chain be wanting, the whole 
 proceeding will fall to the ground." « Another, that " In order 
 to make a good title to land under a sale for taxes, great strict- 
 ness has always been required in the observance of statute 
 requirements. It has sometimes been said, that a literal com- 
 pliance with the statute provisions, by all the ofificers connected 
 with the proceedings, is a condition precedent to the passing of 
 any title. Perhaps the term literal, in its confined sense, is 
 rather too strong. A clear and strict compliance has always 
 been held indispensable, even in regard to matters which, but 
 for the statute, would appear to be of no importance." ^ 
 
 Another, that the person invested with the power to sell, 
 " must pursue with precision the course prescribed by law, or 
 his act is invalid." Again, the couj:-se prescribed " ought to be 
 exactly - observed." " Another, that " a tax deed cannot be 
 read in evidence, without proof that the substantial require- 
 ments of the law have been complied with." ^ Another, that 
 " it is a condition precedent to the passing of any title, that 
 the proceedings of the officer should be in strict and literal 
 compliance with the requirements of the statute." ^ And 
 
 1 Blakeney v. Ferguson, 3 English, 277 ; Ronkendorif v. Taylor, 4 Peters, 349. 
 
 '^ Brown v. Veazie, 25 Maine, 362 ; Phillips v. Phillips, 40 Maine, 160. 
 
 " Young V. Martin, 2 Yeates, S12 ; Shearer v. Woodburn, 10 BaiT, 511. 
 
 ' Bush V. Davison, 16 Wendell, 554. 
 
 6 Doughty V. Hope, 3 Denio, 599. 
 
 6 Langdon o. Poor, 20 Vermont, 15. 
 
 ' Thatcher o. Powell, 6 Wheaton, 119. 
 
 8 Games v. Stiles, 14 Peters, 322. 
 
 ' Judevine v. Jackson, 18 Vermont, 472. 
 
FOR THE NON-PAYMENT OF TAXES, ETC. 63 
 
 another, that every, requirement of the law, " having the 
 semblance of benefit to the owner, must be strictly complied 
 with." 1 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 sub- 
 ject-matter before them. The particular objections taken by 
 counsel, and sustained by the court in those cases, will ap- 
 pear in their appropriate places hereafter. 
 
 This general language, however, serves to show " with what 
 uniformity and increasing jealousy the exercise of such a power 
 has been restricted to its own specified limits." ^ The principle 
 fairly deducible from the entire field of discussion upon this class 
 of powers, is, that every requirement of the law, whether sub- 
 stantial or merely formal in its character, and having the sem- 
 blance of benefit to the owner, which the legislature have said 
 shall attend the execution of the power, ought to be strictly 
 observed by the oflBcers intrusted witli its execution, or no title 
 will pass by the sale. In the language of Lord Ellenborough : 
 " If the circumstances be unessential and unimportant, except 
 as they are required by the creators of the power, they can 
 only be satisfied by a strictly literal and precise performance. 
 They are incapable of admitting any substitution, because these 
 reqiiisitions have no spirit in them which can be otherwise 
 satisfied ; incapable of receiving any equivalent, because they 
 are in themselves of no value." ^ Similar language is used by 
 the Supreme Court of Vermont, in reviewing the strictness 
 required in tax sales : " It is enough for us to inquire what 
 the legislature have said, supposing that their intentions were 
 made known by the terms they have used, and not indulge in 
 any fanciful conjectures as to their meaning, or to substitute 
 something else in lieu of what they have enacted." * In 
 
 1 Sharp ». Johnson, 4 Hill, 99 ; Corwin v. Merrltt, 3 Barbour, 343 ; Atkins u. 
 Kinnan, 20 Wendell, 249 ; McDonough v. Gravier, 9 Louisiana, 546. 
 "^Powell V. Tuttle, 3 Comstoek, 401. 
 " Hawkins v. Kemp, 3 East, 410. 
 ' Sumner v. Sherman, 13 Vermont, 612. 
 
64 NATURE OF THE POWER TO SELL LAND. 
 
 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 
 interested in their doings, but it was a departure from the line 
 of duty marked out for them to pursue, which may be regarded 
 as, in strictness, afifecting the authority of the collector to make 
 sale of the premises." i The Supreme Court of Massachusetts, 
 in speaking of one of the requirements of law, say : " If we 
 could discover neither the necessity nor use of this provision 
 of the law, it would not be for us to dispense with it." ^ In 
 Isaacs V. Wiley ,3 the collector failed to give a bond as required 
 by law, and for this defect in the proceedings, the sale was 
 held void ; the court remarking : " We hold the giving of a 
 bond, and such a bond as the statute requires, to be indispensa- 
 ble 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." Perhaps the very strongest 
 illustration of the strictness required in these cases, is to be 
 found in the case of Brown v. Dinsmoor.* There the question 
 was whether, in listing the land for taxation, the name of the 
 owner, or the description of the land, or both, should be in- 
 serted in the list. Such was the language of the statute, that 
 it was susceptible of either construction : and the court held, 
 that the insertion of both the name and description was neces- 
 sary. Thus much with regard to the degree of strictness re- 
 quired in tax sales. 
 
 1 Brown v. Veazie, 25 Maine, 359. 
 
 ^ Thurston v. Little, 3 Massachusetts, 432. 
 
 5 12 Vermont, 677. 
 
 * 3 New Hampshire, 103. 
 
OF THE ONUS PROBANDI. 
 
 65 
 
 CHAPTER III. 
 
 OF THE ONUS PROBANDI. 
 
 In powers of this nature, a series of acts, preliminary in their 
 char9,teter, are required by law to precede the execution of the 
 power. Bach 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 sufficient 
 authority to support it.^ 
 
 The party claiming under the power, is chargeable with 
 notice of every irregularity in the proceedings of the officers. 
 He purchases at his peril, the maxim, " caveat emptor" being 
 rigidly applied to him.^ The reasons are obvious. The law 
 imputes to every purchaser, knowledge of all facts appearing 
 at the time of his purchase, upon the muniments of title, which 
 it was necessary for him to inspect in order to 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 in- 
 
 1 Blakeney v. Ferguson, 3 English, 277 ; Brown v. Veazie, 25 Maine, 362 ; 
 Doughty V. Hope, 3 Denio, 595 ; Varick v. Tallman, 2 Barbour, 114, 115 ; Fitch v. 
 Casey, 2 G. Greene (Iowa), 300. 
 
 '■i Lessee of Holt's Heirs v. Hemphill's Heirs, 3 Hammond, 232 ; s. o. 1-4 Cond. 
 Ohio, 551 ; Denning v. Smith, 3 Johnson, Ch. 344 ; Stead's Executors c. Course, 
 4 Cranch, 403; s. c. 2 Peters, Cond. 151 ; Yancy v. Hopkins, 1 Munford, 431- ; 
 Games v. Stiles, 14 Peters, 322 ; Wright, 53. 
 
 " Battemore v. White, 2 GUI & Johnson, 444. 
 
 6* 
 
66 OF THE ONUS PROBANDI. 
 
 quire and take notice whether that officer, and all others whose 
 agency is required by the law in the conduct of the proceed- 
 ings, have proceeded with regularity in the discharge of their 
 duty.i 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 informa- 
 tion of the terms upon which a title could be acquired to land, 
 sold at public vendue, for the non-paymqpt of taxes in arrear 
 upon it. It was meant to put bidders at a tax sale upto in- 
 quiry, whether or not the land was offered for sale according 
 to law. If they do not examine, but 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 is his warrant of 
 attorney, and the buyer must see to it, that the terms pre- 
 scribed by the legislature — the creator of the power — have 
 been pursued by the agent. We have seen, that the requisi- 
 tions of this class of laws must be strictly pursued, and no 
 purchaser is blameless who buys without seeing that they have 
 been so.^ " A special authority must be strictly pursued, and 
 every purchaser is presumed to know that special authority in 
 all cases where it is conferred and limited by statute." ^ There 
 is no great hardship in this. Experience and observation ren- 
 der it notorious, that the amount paid by purchasers at tax 
 
 1 Yancy v. Hopkins, 1 Munford, 431. [He is boand to prove that tlie person 
 described in the deed as high-sheriff, was such. Hobbs o. Shumates, U Grattan, 
 516.] 
 
 2 Moore v. Brown, 11 Howard (U. S.), 414. 
 ' Allen V. Smith, 1 Leigh, 231. 
 
 » Chancellor Kent in Dennmg v. Smith, 3 Johnson, Ch. 344. 
 
OP THE ONUS PROBANDI. 67 
 
 sales, is uniformly trifling in comparison with the value of the 
 property sold. " Acres for cents," is the maxim, and cupidity 
 the ruling passion, of the speculators who attend tax sales. 
 
 Taxes ought to be paid, and tliat 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 negligent by disposing of their property 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 misfortune, the dishonesty of agents, 
 the neglecfl 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 inno- 
 cent owner be protected under these circumstances ? Reason- 
 able judges will answer the question affirmatively. How pro- 
 tected ? Not by an immunity from his duty to the govern- 
 ment, but by requiring a rigid compliance with the prerequi- 
 sites of the law. The object of the law is, to raise a revenue 
 with the least possible sacrifice to the citizen.^ Every member 
 of society is presumed to have assented to the public law by 
 which his right of property is subjected to the dominion of 
 strangers. The manner in which this power is to be exercised 
 is specified in the law. The same law which creates or confers 
 the power, bridles its execution. You may take my property 
 to pay my debts, but you must ascertain that debt by judgment, 
 and a sheriff must execute the power. You may take my land 
 to build a 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 power, 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 
 
 1 Himnau v. Pope, 1 Gilman, 141. 
 
 2 Jackson v. Esty, 7 Wendell, 148. 
 
68 OF THE ONUS PftOBANDI. 
 
 purchaser, " True, I have been negligent 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 regularity of the proceedings before purchasing ; my 
 title has not been legally divested, and I shall therefore insist 
 upon my right according to the law of the land." 
 
 To use the language of Chancellor Kent: "Sales of real 
 property by public officers, of one description or another, have 
 become so frequent, and have excited such active cupidity, and 
 such a spirit of speculation, that there is very great danger 
 of injustice, unless we support strictly the checks and guards 
 provided by law against abuse." ^ It is far better, when an 
 irregularity occurs in the proceedings, that the purchaser 
 should lose the inconsiderable amount of his bid, than that the 
 owner should forfeit a valuable estate. The purchaser 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 
 censure upon them.* In one case where the counsel, contest- 
 ing the validity of a tax sale, raised many objections, the court 
 in reviewing them and after stating the degree of strictness 
 which the law required in such cases, say : " The counsel for 
 the defendant in this case may, therefore, be excusable, if not 
 
 '■ Denning v. Smith, 3 Johnson, Ch. 344. 
 
 2 Jackson v. Morse, 18 Johnson, 442. 
 
 ' Sumner v. Sherman, 13 Vermont, 613. 
 
 ' Wilson V. Bell, 7 Leigh, 22; Cox v. Grant, 1 Yeates, 164; Counsel for the 
 Plaintiff arguendo in Thames Manufacturing Company v. Lathrop, 7 Connecticut, 
 550. 
 
OF THE ONUS PROBANDI. 69 
 
 commendable, for the astuteness and searching manner in 
 which he has scrutinized the doings of these officers in the 
 instance before us." ^ 
 
 ' Brown v. Veazie, 25 Maine, 362. In McMillan v. Eobbins, .5 Hammond, 28, 
 Judge Hitchcocli 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 satis- 
 factorily, or in such a manner as to do equal and exact justice to all, than to frame 
 1 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 tmder such a sale cannot be supported. 
 Whether coui-ts have done wrong in this, it is not for us to say. The consequences, 
 however, as members of the community, we cannot but regard. That it has a direct 
 tendency to encourage those who dislike to pay a tax, in the neglect of the perform- 
 ance of this duty, there can be no doubt." 
 
 In the dissent of Judge Scates to the decision of the Supreme Court in Hinman v. 
 Pope, I Gilman, 141, 142, he remarks : "The courts have adopted a rule of strict 
 construction in these cases of naked powers, requiring a party to show a strict com- 
 pliance with every prerequisite of law. This vigilance of the law upon naked 
 powers, is a substitute for that vigilance which interest always prompts in those who 
 execute a power coupled with an interest. But technical rules should have their 
 limit subservient to the public good. The government must have revenue, and it 
 must be collected from all ; it must be enforced from the unwilling and negligent by 
 disposing of their property to those who are willing to advance the money. But it 
 will be impossible to do so if technical rules are applied to defeat their rights 
 acquired under sales, upon all and every plausible pretext of error that ingenuity 
 can, from 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 officers, in not complying 
 literally with the law, will be allowed to defeat their rights. Legislation can hardly 
 keep pace with ingenuity, so as to remove or anticipate the grounds of objection. I 
 should allow all substantial departures from the law as valid objections." 
 
 In the case of Atkins v. Hinman, 2 Gilman, 452, 453, 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 
 digression : " 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 con- 
 tribute, in proportion to the value of his estate, towards the support of the govern- 
 ment 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 
 
70 OP THE ONUS PROBANDI. 
 
 Upon whom shall the burden of proof rest under such cir- 
 cumstances? Shall the purchaser at the tax sale, or those 
 
 property is assessed. If he omit to pay, and his land is sold, he has still the right 
 to redeem in two years from the sale. If, after all this delay, he suffers his title to 
 be transferred to the purchaser, the loss must be attributed to his gross disregard of 
 his duties and interests, and not to the fault or injustice of the law. He should not, 
 then, be permitted to defeat the title of the purchaser, by interposing mere technical 
 objections. If allowed to do it, he is enabled to take advantage of his own laches 
 and wrong, not only to defeat the claim of the purchaser, but to avoid altogether the 
 payment of his share of the public burden. Where all the material requisitions of 
 the law have been substantially complied with, courts should not hesitate to sustain 
 rights fairly acquired under them. It is time that the object and design of these 
 enactments should be regarded. Judges should not be on the alert to discover 
 frivolous objections, and resort to mere technical rules to sustain them, in order to 
 defeat the claims of a purchaser. Such objections are generally insisted on, and 
 have, in some instances, been countenanced by 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 obliga- 
 tions of the tax payer, and the rights of the government, are not considered. If the 
 proceedings under these laws are to be subjected to mere technical tests, taxes will 
 remain unpaid, individuals, will cease to bid at sales, and thus the principal object of 
 the laws may be frustrated. But if, on the other hand, by the application of reason- 
 able .rules, some assurance is given that the titles will be sustained, the taxes will be 
 generally paid, the competition at the biddings will be increased, and instead of whole 
 tracts of land being sold to pay the taxes due upon them, small portions only will 
 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 con- 
 test the validity of a tax title but the former owner and those claiming under him 
 and then only when it was shown that no other taxes were due upon the land ; 
 which permitted but four defences to the tax deed, to wit: 1. That the taxes for 
 which the land was sold, had been paid ; 2. That the land was not subject to taxa- 
 tion ; 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 j the lands have become valuable ; they are either in the hands of actual 
 
OF THE ONUS PROBANDI. 71 
 
 claiming under him, be required to establish affirmatively, that 
 the officers acted strictly 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 principle, that 
 the party who sets up a title must furnish the evidence to sup- 
 port it. If the validity of a deed depend upon an act in pais, 
 the party claiming under that deed is as much bound to prove 
 the performance of that act, as he would be bound to prove 
 any matter of record on which its validity might depend. It 
 forms a part of his title ; it is a link in the chain, which is 
 essential to its continuity, and which it is incumbent on him to 
 preserve. These facts should be examined by him before he 
 becomes a purchaser, and the evidence of them should be pre- 
 served 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, wliich views every 
 invasion of the sanctity of property with peculiar jealousy, an 
 authority to divest the title of another is to be strictly pursued, 
 and as the maxim, " omnia rite prcBsumuntwr," is appropriate 
 but to judicial proceedings, no intendment in respect to the 
 
 settlers, or those who are holding them for speculation ; the taxes are more promptly 
 ■ paid ; the delinquent list in each county of the State, instead of requiring an entire 
 newspaper for its publication, has dwindled down until it can be compressed into a 
 single column ; indeed, it may be safely aflSrmed 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 pro- 
 prietors — for decisions necessarily partake of the temper of the times in which they 
 are made — is no longer demanded. It is now safer and wiser, and more in accord- 
 ance with the spirit of the age, to return to those strict and unbending principles of 
 law which were intended for the security of private property, and which the older 
 States know so well how to appreciate. 
 
 1 Williams v. Peyton's Lessee, 4 Wheaton, 77 ; 8.0.4 Peters, Cond. 394 ; Pope 
 V. Headen, .5 Alabama, 433 ; Elliot v. Eddins, 24 Alabama, 509 ; Jackson u. Esty, 
 7 Wendell, 148; Brown v. Wright, 17 Vermont, 97. 
 
72 OF THE ONUS PROBANDI. 
 
 exercise of it, is to be made in favor of what does not appear ; 
 SO that every act, the performance of which is made a condition 
 of the divestiture, must be shown by proof. Presumptions are 
 never made for the purpose of upholding the acts of a special 
 agent, whether appointed for public or private purposes ; nor 
 can such a presumption be made in favor of a ministerial officer, 
 where recourse can be had to the authority under which he 
 acted, and to the thing itself that is done xinder 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 the'se sales have been found to be legal ; the pre- 
 sumption is, in fact, against their validity." ^ 
 
 Presumptions are seldom founded upon State necessity or 
 public policy. They are the result of the general experience 
 of a connection between certain facts or things ; the one being 
 usually found to be the companion or the effect of the other. 
 The connection, however, is not so intimate, nor so nearly uni- 
 versal, as to render it expedient that it should be absolutely 
 and imperatively presumed to exist in every case, all evidence 
 to the contrary being rejected ; but yet so general, and so nearly 
 universal, that the law itself, without the aid of a jury, infers 
 the one fact from the proved existence of the other, in the 
 absence of all opposing evidence. Such is the rule relative to 
 disputable presumptions,^ the only class which it is pretended 
 should be indulged in for 'the purpose of maintaining the valid- 
 ity 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 
 
 1 Huston u. Foster, 1 Watts, 478 ; Hole v. Rittenhonse, 6 Harris, 305 ; Hall v. 
 Collins, 4 Vermont, 316 ; Kinney v. Beverley, 2 Heniug & Munford, 318 ; Waldron 
 V. Tuttle, 3 New Hampshire, 340 ; s. c. 4 New Hampshire, 371 ; Fitch v. Casey, 2 
 G. Greene (Iowa), 300; Jesse v. Preston, 5 Grattan, 120; Alvord ». Collin, 20 
 Pickering, 418 ; Minor v. Natchez, 4 Smedes & Marshall, 627 ; Pitman v. Brownlee, 
 2 A. K. Marshall, 210. 
 
 2 Waldron v. Tuttle, 3 New Hampshire, 340. 
 ' 1 Greenleaf on Evidence, sec. 33. 
 
OF THE ONUS PROBANDI. 73 
 
 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 affirm that tax titles have not been found to be so " gen- 
 erally and nearly imiversall^ " valid, 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 ft" a long posses- 
 sion under a tax deed, that, upon the production of the, deed, 
 proof of the possession under it, and of the performance of some 
 of the acts required by law of the officers, the evidence may be 
 submitted to a jury, with instructions that if, upon the whole 
 case, they are satisfied that it is a reasonable presumption that 
 all of the facts existed which authorized the sale, they might 
 and should so find. These decisions will be examined at large 
 in the chapter entitled " Evidence." 
 
 The recitals in a tax deed are not evidence against the 
 owner of the property, but the facts recited must be established 
 by groof aliunde ; ' nor is the conveyance itself, because of its 
 solemnity, or upon any conceivable principle, primd facie evi- 
 dence that the prerequisites of the law had been complied with 
 by the various officers of the law, who conducted the proceed- 
 ings.2 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 
 
 1 Keith V. Preston, 5 Grattan, 120 ; Jackson c. Esty, 7 Wendell, 148 ; Jackson 
 V. Shepard, 7 Cowen, 88; Hall v. Collins, 4 Vennont, 316; Brown v. Wright, 17 
 Vermont, 97 ; Mussey v. White, 3 Greenleaf, 302 ; Smith v. Corcoran; 7 Louisiana, 
 46. 
 
 2 Nalle V. Fenwick, 4 Randolph, 585 ; Nancarrow v. Weathersbee, 6 Martin, 347 ; 
 Christy v. Minor, 4 Munford, 431 ; Holt v. Hempliill, 3 Hammond, 232 ; Thompson 
 0. Gotham, 9 Hammond, 170; Latimer v. Lovett, 2 Douglass, 204; Emery v. Har- 
 rison, 1 Harris, 317; Wescott v. McDonald, 22 Maine, 402; Phillips v. Phillips, 
 40 Maine, 160; Lessee of Dunn v. Games, 1 McLean, 319. In Kentucky, a 
 tax deed is held primd facie evidence of title, and the onus lies upon the fortner 
 owner to show irregularity in the sale. Currie v. Eowler, 5 J. J. Marshall, 145 ; 
 Blight V. Banks, 6 Monroe, 206 ; Oldham <>. Jones, 5 B. Monroe, 458 ; Bodley v. 
 Hord, 2 A. K. Marshall, 244 ; Allen u. Eobinson, 3 Bibb, 326. [But the recitals, 
 in such deed, of facts which are not essential to the validity of the deed, and which 
 the register'is not presumed to know, are not. evidence of such facts. Morton v. 
 Waring, 18 B. Monroe, 72. See also, Lamb v. Gillett, 6 McLean, 365.] 
 
 7 
 
74 or THE ONUS PROBANDI. 
 
 by step, that every thing has been done which the statute makes 
 essential to the due execution of the power conferred upon the 
 officers. 1 
 
 The rule that the onus is upon those who claim under a tax 
 sale, is confined to controversies between the owner of the tax 
 title and the original owner of the land, or those who claim 
 under him, an(? 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 contract 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 was 
 
 ' Jackson u. Shepard, 7 Cowen, 88 ; Lafferty v. Byers, 5 Hammond, 458 ; Dres- 
 back V. McArtliur, 7 Hammond, 146 ; Scott v. Detroit Young Men's Society, 1 Doug- 
 lass, 119; Latimer v, Loyett, 2 Douglass, 204 ; O'Brien v. Coulter, 2 Blackford, 421 ; 
 Lore V. Gates, 4 Devereux & Battle, 363 ; Jordan u. Rouse, 1 Jones, Law (N. C), 
 119; Harvey o. Mitchell, 11 Poster, 575; Scott o. Babcock, 3 G. Greene,' 133 ; 
 Pope V. Headen, 5 Alabama, 433 ; Elliot v. Eddins, 24 Alabama, 508 ; Watson v. 
 Stucker, 5 Dana, 581 ; Terry v. Bleight, 3 Monroe, 270 ; Bishop u. Lovan, 4 B. 
 Monroe, 116; Allen u. Smith, 1 Leigh, 231 ; Chapman v'. Bennett, 2 Leigh, 329; 
 Jesse V. Preston and Keith o, Preston, 5 Grattan, 205 ; Matthews v. Light, 32 Maine, 
 305 ; Waldron v. Tnttle, 3 New Hampshire, 340 ; Lessee of Dunn v. Games et al., 1 
 McLean 319 ; Minor v. McLean, 4 McLean, 138 ; Mayhew v. Davis, 4 McLean, 213 ; 
 Jackson v. Esty, 7 Wendell, 148 ; Beekman v. Bigham, 1 Selden, 366 ; Hall i-. Col- 
 lins, 4 "Vermont, 316 ; Eichardson v. Dorr, 5 Vermont, 9 ; Bellows v. Elliot, 12 Ver- 
 mont, 569 ; Brown v. Wright, 17 Vermont, 97 ; Frost v. Eoss, 1 Watts & Sergeant, 
 501 ; Dikeman v. Parish, 6 Barr, 210; Morris v. Crocker, 4 Louisiana, 147 ; Reeves 
 V. Towles, 10 Louisiana, 276 ; Baker v. Towles, 11 Louisiana, 432 ; Emery v. Har. 
 rison, 1 Harris, 317; Alvord v. Collin, 20 Pickering, 418 ; Howe v, Kussell, 36 
 Maine, 115 ; Stevens v. McNamara, 36 Maine, 176 ;' Stead's Executors v. Course, 4 
 Cranch,403; s. c. 2 Peters, Cond. 151 ; Williams y, Peyton, 4 Wheaton, 77 ; Ronkeu- 
 dorff t>. Taylor, 4 Peters, 349 ; Games v. Stiles, 14 Peters, 322 ; Early v. Doe, 16 How- 
 ard (U. S.), 610 ; Lyon v. Burt, 11 Alabama, 295 ; Garrett v. Wiggins, 1 Scammon, 
 335 ; Hill u. Leonard, 4 Scammon, 140 ; Pitch v. Pinckard, 4 Scammon, 69 ; Hin- 
 man v. Pope, 1 Gilman, 131 ; Irving v. Brownell, U Illinois, 402. 
 
 2 Bellows V. Elliot, 12 Vermont, 569 ; Huston v. Foster, 1 Watts, 478 ; Foster v. 
 McDivit, 9 Watts, 341 ; Foust v. Ross, 1 Watts & Sergeant, 501 ; Dikeman v. Par- 
 rish, 6 Barr, 210; Dejarnett v. Haynes, 23 Mississippi, 600; Smith v. Bodfish, 27 
 Maine, 289 ; Robinett d. Preston, 4 Grattan, 141 ; Troutman v. May, 9 Casey 
 (Penn.), 455. See Hitchcox v. Rawson, 14 Grattan, 526 ; Crum v. Burke, 1 Casey 
 (Penn.), 377 ; Jennings v. McDowell, 1 Casey (Penn.), 387. 
 
OF THE ONUS PROBANDI. 75 
 
 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 allegation that 
 the land is encumbered by a tax sale, the onus lies upon him to 
 prove that the law under which the sale took place was strictly 
 complied with.^ 
 
 The principle which casts the onus probandi upon the party 
 claiming under a tax title, is applied to all other cases. The 
 rule of the common law is, that he who affirms the existence 
 of a material fact, must prove it, and the opposite party is 
 seldom, if ever, required to prove a negative.^ Where a party 
 sets up title to laud under a sheriff's sale, it is incumbent on 
 him to sliow a judgment rendered by a court of competent 
 jurisdiction, and a valid execution issued thereon, as well as 
 to produce the sheriff's deed ; for it is only in satisfaction of 
 judgments that the law, subjecting land to the payment of 
 debts, authorizes them to be sold. The sheriff derives his 
 authority to sell from the judgment and execution, and not by 
 reason of any interest he has in the property. Not to require 
 the production t)f 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 person should be deprived of his property or, 
 other rights, without notice and an opportunity of defending, 
 them. Not to require the execiition to be produced, is equiv- 
 alent to deciding that the judgment per se divests the title of 
 the owner. Such is not the law. The protection of property 
 against rapacity and fraud would be slight indeed, under the 
 operation of such a principle. To afford this very protection 
 the rule of law was established, that the existence of the execu- 
 tion, and the judgment upon which it rests, are matters to be 
 proved affirmatively by the claimant under a sheriff's deed, 
 
 1 Treat v. Orono, 26 Maine, 217. 
 
 2 Watson V. Stucker, 5 Dana, 581. 
 
 ' Hinman u. Pope, 1 Gilraan, 131 ; Drangnet v. Proudhomme, 3 Louisiana, 83 ; 
 Coatigan v. Mohawk & Hudson Railroad Company, 2 Denio, 609. 
 
76 OP THE ONUS PKOBANDI. 
 
 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 plenary 
 evidence to sustain his title, if he has one.' 
 
 So a person claiming under a decree in chancery, must 
 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 ancestors, before he can recover.* 
 Where one claims title under a power of attorney, he must pro- 
 duce and prove the warrant, as well as the deed executed under 
 it ; and where a party deduces title iinder any special author- 
 ity, the common law requires nim to establish the fact that the 
 terms of the power have been complied with. 
 
 It may be said generally, that in order to sustain a convey- 
 ance executed by an attorney under a power, by an executor 
 under a will, by a sheriff under an execution, by a guardian or 
 administrator under an order of court, by a master or commis- 
 sioner under a decree of a court of chancery, the power of 
 attorney, the will, the judgment, and execution, the order or 
 decree must be produced.* Indeed, all essential links in every 
 chain of title, whether they are evidenced by records or deeds, 
 or rest merely in parol, must be affirmatively proved by the 
 party who sets up the title. The rule imposed upon the tax 
 
 ' Hamilton v. Adams, 2 Murphey, 162 ; Jackson v. Roberts, 11 Wendell, 425,433, 
 440; Natchez u. Minor, 4 Smedes & Marshall, 602, 627, 631 ; s. c. 10 Smedes & 
 Marshall, 246; Smith v. Moreman, 1 Monroe, 154; Dunn v. Meriwether, 1 A. K. 
 Marshall, 158; Terry V. Bleight, 3 Monroe, 270 ; Stevens v. Robertson, 3 Monroe, 
 97 ; Weyand w. Tipton, 5 Sergeant & Rawle, 332 ; Bowen v. Bell, 20 Johnson, 
 338; Hinman v. Pope, 1 Oilman, 131 ; Smith v. State, 13 Smedes & Marshall, 140 ; 
 Dufour V. Camfranc, 11 Martin, 607 ; Wheaton v. Sexton, 4 Wheaton, 503 ; Ware 
 u. Bradford, 2 Alabama, 676; McEntire v. Durham, 7 Ledell, 151. 
 
 2 Jiledsoe v. Doe, 4 Howard (Miss.), 13; Lyerly v. Wheeler, 11 Iredell, 288- 
 Williamson v. Bedford, 10 Iredell, 198. 
 
 ' Tillinghast's Adams on Ejectments, 281, 282, fourth edition, 1854. 
 
 • Jackson v. Roberts, 11 Wendell, 425 ; Tolman v. Emerson, 4 Pickering 160. 
 
OF THE ONUS PROBAND!. 77 
 
 purchaser is, therefore, no departure from the general princi- 
 ples 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 complied with ad 
 unguem (to a nicety). They often buy large and valuable 
 tracts of land for a mere trifle, and they ought always to expect 
 that the owner will attempt to recover them. This is notice, 
 intrinsic in the transaction, that they must be ready for de- 
 fence, and they ought, at once, to collect the proper evidences 
 of compliance with the law ; these documents, being written 
 or printed, can be just as easily preserved as their deed." 
 
 No purchaser is blameless, who fails to preserve evidence so 
 essentialto the validity of his title.^ The evidence upon which 
 he is compelled to rely is usually preserved upon the records 
 and among the files of some public office, and these records and 
 files are always accessible to him. If there is any fact which 
 the officers have neglected to insert in their records or returns, 
 and the purchaser apprehends the death of his witnesses, the 
 law has provided ample means'by which he can perpetuate any 
 fa,ct,^npais, material to the validity of his title.^ If the officers 
 charged with the duty, failed to return or record the proceed- 
 ings, if the records and files become lost or destroyed, or the 
 witnesses to the facts' die, the purchaser has no just cause of 
 complaint against the law ; he stands in the same predicament 
 with all other suitors in courts of justice, who have a clear 
 right, but no evidence to support and establish it. Suppose 
 the burden of proof reversed, and the owner of the land 
 required to prove the negative, in the case put of the neglect 
 of the officers to return or record their proceedings, or of the 
 loss or destruction of the records and files, he would occupy 
 
 1 Allen V. Smith, 1 Leigh, 231 ; WilUams v. Peyton's Lessee, 4 Wheaton, 77 ; 
 Varick v. Tallman, 2 Barbour, 114, 115. 
 " Reeds v. Morton, 6 MisBouri, 77, 78. 
 
 7* 
 
78 OP THE ONUS PKOBANDI. 
 
 the same hard position in which the law now places the pur- 
 chaser. 
 
 Titles acquired under tax sales, depend upon different prin- 
 ciples from those which are derived under government grants. 
 The lawsfor the sale of the public lands provide many guards 
 to secure the regularity of grants, to protect the incipient rights 
 of individuals, and also to preserve the State from imposition. 
 Officers are appointed to superintend the business, and rules 
 are framed prescribing their duty. These rules are, in general, 
 directory, and when all the proceedings are completed by a 
 patent, issued by the authority of the State, a compliance with 
 these rules is presupposed. That every prerequisite has been 
 performed, is an inference properly deducible, and which every 
 man has a right to draw from the existence of the grant itself. 
 It would, therefore, be extremely unreasonable to avoid a 
 grant, in any court, for irregularities in the conduct" of those 
 who are appointed by the . government to supervise the pro- 
 gressive course of a title from its commencement to its consum- 
 mation in a patent. Besides, the government is an inde- 
 pendent source of title, and grants her own lands. The patent 
 is a title of record, and issues under the great seal of State. It 
 is, therefore, properly held, that the patent is the completion of 
 the title, and establishes the performance of every prerequisite. 
 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 case is different 
 with tax titles. The title is a derivative 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 
 
 I 9 Cranch, 87 ; 5 Wheaton, 293 ; 7 Whe^ton, 122 ; 3 Peters, 320 and 340; U 
 Wheaton, 380; 2 Peters, 227; 7 Peters, 222; 10 Peters, 662; 4 Cranch, 421; 5 
 Cranch, 191; 6 Cranch, 148; 9 Cranch, 164; 7 Wheaton, 248; 6 Peters 328 -13 
 Peters, 436 ; 14 Peters, 448 ; 15 Peters, 93 ; 2 Howard (U. S.), 284. 
 
OF THE ONUS PKOBANDI. 79 
 
 upon a variety of acts in pais, the performance of which are 
 essential to the passing of the title of the rightful proprietor. 
 Pot these reasons, a tax deed cannot be read in evidence with- 
 out 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 essentials, the officers have performed the 
 duty enjoined upon them by the law under which the proceed- 
 ing took place. 
 
 It is now proposed to show how far this rule has been 
 changed by legislative enactment in the several States.^ That 
 the legislature possesses competent power to change the com- 
 mon-law rules of evidence, and declare that the tax deed itself 
 shall be received in all courts as primd facie evidence that all 
 of the prerequisites of the law have been complied with, and 
 thiis shift the onus probandi from the shoulders of the pur- 
 chaser to those of the owner, is conceded.^ [And such deed 
 has been held to have the same effect in the courts of another 
 State than where the law was enacted.^] 
 
 But that the legislature has the further power to declare 
 
 1 Boardman u. Ford, 6 Peters, 342; Varick v. Tallman, 2 Barbour, 115, 116; 
 Hulick o. Scovil, 4 Gilmaa, 173, 175. The Supreme Court of Illinois had pre- 
 viously held, that the registry law did not apply to a tax deed, because it was a 
 patent. Graves v. Bruen, 1 Gilman, 172. 
 
 '■^ In Robson v. Osborn, 13 Texas, 298, it was held, that under the Texas act of 
 1848, the purchaser at a tax sale must prove the performance of all acts which are 
 conditions precedent to the power to sell, and after such proof, the burden was upon 
 the adverse party to prove that the requisitions of the law as to the time and mode 
 of Bale had not been complied with. 
 
 ' Pillow f. Roberts, 13 Howard (U. S.), 472 ; Garrett y. Wiggins, 1 Scammon 
 335 ; Steadman v. Planters Bank, 2 English, 424, 428 ; Morton u. Reeds, 6 Mis- 
 souri, 74 ; Dejamett v. Haynes, 23 Mississippi, 600 — in this case the right is 
 doubted ; Bussey v. Leavitt, 3 Fairfield, 378, See Flanagan v. Grimmet, 10 Grat- 
 tan, 421 ; Hand v. Ballou, 2 Kernan, 541 ; Norris v. Russell, 5 California, 249 ; 
 Biscoe V. Coulter, 1 8 Arkansas, 423 ; Delaplaine v. Cook, 7 Wisconsin, 44 ; Lums- 
 den V. Cross, 10 Wisconsin, 289; Turner v. Leomans, 14 Ohio, 207; Stanberg v. 
 Sellon, 13 Ohio State, 571 ; Ray v. Murdock, 36 Mississippi, 692; Shed v. Martin 
 19 Arkansas, 139. 
 
 * Watson V. Atwood, 25 Connecticut, 33. The statute of California making such 
 
80 OF THE ONUS PROBANDI. 
 
 the deed conclusive evidence of. title, is denied. A is the 
 owner, and in possession of a tract of land worth two thousand 
 dollars. It is sold at a tax sale, and B becomes the purchaser 
 for five dollars ; he procures his deed, and brings his action of 
 ejectment against A. The defendant relies upon one of three 
 defences, which ordinarily are conceded to be valid : 1. That 
 the land was not subject to taxation ; or, 2. That it was never 
 listed, valued, and assessed ; or, 3. That the defendant paid the 
 taxes before the sale. Here the legislature steps in and deprives 
 him of his defeiico, by declaring that the. tax deed shall con- 
 clude 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 pretence of 
 regulating remedies, can violate the obligation of contracts, 
 and divest the estate of the citizen ? May the legislature do 
 that indirectly, which it is forbidden to do by direct means ? 
 Can it, under the guise of taxation, or the appropriation of 
 private property to public uses, take the land of A, and give 
 it to B. ? To render the law in question valid, these inquiries 
 must be answered affirmatively. 
 
 The taxing power extends to the levy and collection of the 
 tax. Taxable property only is embraced by it, and the power 
 to collect cannot be extended so as to reach and divest the 
 property of one who has paid his tax promptly. It never was 
 intended that a party who had performed all of his duties to 
 the public, should be deprived of his property in this way. 
 Tlie power of taxation, so far as it relates to the collection of 
 taxes, was designed to operate upon those only who should 
 wilfully or negligently omit the payment of taxes to which 
 they miglit be subject, and which should be legally assessed 
 upon their estates, and not upon those who should promptly 
 perform all of their constitutional obligations. The obligation 
 is reciprocal ; if the citizen performs his duties to the govern- 
 
 deeds prima facie evidence, does not apply to deeds made before its passage. Eeane 
 V. Cannovas, 21 California, 292. 
 
OP THE ONUS PROBANDI. 81 
 
 ment, that government should perform its duties to the citizen. 
 Among the first of these, is protection in liis 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, withoxit any fault or omission of duty on his part. 
 If the land was not liable to taxation by reason of an exemp- 
 tion, if no taxes had been assessed upon it, or if the taxes had 
 been paid, the power of sale never attached to it. To hold 
 that the owner, under such circumstances, is precluded from 
 showing the fact, would be a " monstrous doctrine." ' 
 
 Judge Caton, in Curry v. Hinman,^ in construing a statute 
 which, according to the reading of it by the counsel for the tax 
 purchaser, deprived the former owner of the right to prove that 
 he had paid the taxes for which his land was sold, says : " It 
 would be nothing less,, at least, than a moral fraud to close the 
 door against all defence to a void title, witliout 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 mon- 
 strous 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 legis- 
 lature intended to create a permanent disability, which the 
 party, by no possibility, could remove. That would be doing 
 indirectly, what they could not do directly. To debar an 
 innocent party altogetlier 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 consti- 
 tutionally 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 
 
 1 Eowland o. Doty et al., 1 Harrington, Ch. 3, U ; Jackson v. Morse, 18 John- 
 son, 441 . 
 
 2 11 Illinois, 428, 429. 
 
82 OF THE ONUS PROBANDI. 
 
 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 legislature cannot constitutionally do." This 
 is not the lex terra meant by the Constitution.^ 
 
 Whatever may be the decision upon the question of power, 
 when it properly arises, the moral injustice 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 words of the statute.^ By 
 the act of February 19, 1827, the Illinois Legislature declared 
 that the deed should " vest a perfect title in the purchaser, 
 unless the land shall be redeemed according to law, or the 
 -former owner shall show that the taxes for which it was sold, 
 had been actually paid according to law, or that the land was 
 not legally subject to taxation." 
 
 In Garrett v. Wiggins,^ the Supreme Court of that State, in 
 giving a construction to this statute, state the rule of the com- 
 mon law as to the burden of proof, and the strictness required 
 in this class of cases, concede the power 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 fair construction, warrant the opinion 
 that the auditor, selling land without authority, could, by his 
 conveyance, transfer ttie title of the rightful owner." They 
 
 1 9 Georgia, 354 ; 16 Massachusetts, 330; 5 Paige, 146, 160; 2 Kent's Commen- 
 taries, 340; 2 Peters, 653; 3 Yerger, 41 ; 11 Wendell, 149, 151 ; 19 We'iflell, 659; 
 5 Barbour, 483 ; 18 Wendell, 56, 57 ; 4 Hill, 140 ; 1 Bay, 252 ; 4 Barbour, 71, 75 ; 
 2 G. Greene (Iowa), 26, 27 ; 2 Yerger, 606. 
 
 2 Monlton v. Blaisdell, 24 Maine, 283. 
 8 1 Scammon, 335. 
 
OF THE ONUS PROBANDI. 83 
 
 say that to consummate his authority, the law imperatively 
 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 Test in the purchaser " an absolute estate in fee- 
 simple," &c., and be " conclusive evidence that the sale was 
 regular according to the provisions of this act." On the con- 
 struction of this statute tlie 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 con- 
 ducted by the person and in the manner prescribed by law ; 
 but that it was still inadmissible in evidence, unless accom- 
 panied 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 requirements 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 auction and notice of sale, and does not dispense with 
 proofs of the other prerequisites of the law ; in other words, 
 the deed is evidence of the regularity of the comptroller's sale, 
 but not of his power to sell.^ 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 
 
 1 See also Goewey v. Urig, 18 Illinois, 238. 
 
 2 Scott V. Detroit Young Men's Society, 1 Douglass (Mich.), 121 ; Latimer u. 
 Lorett, 2 Douglass (Mich.), 204 ; Rowland v. Doty, 1 Harrington, Ch. 3. See now 
 Lacey j. Davis, 4 Michigan, 140. 
 
 8 Doughty v. Hope, 3 Denio, 595 ; Tallman v. White, 2 Comstock, 69 ; Striker 
 V. Kelly, 2 Denio, 529, 331 ; Varick v. TaUman, 2 Barbour, 117, 118 ; Beekman „. 
 Bigham, 1 Selden, 366. 
 
84 OF THE ONUS PROBANDI. 
 
 under the statute, where the authority of the officer to sell has 
 been established by proof, that all the requirements of that 
 statute had been fully complied with.i 
 
 The Tennessee statute of 1844 declared a deed made in pur- 
 siiance of a " public sale for taxes," primd facie evidence of 
 the prerequisites of the law. A party claimed under a town 
 corporation tax sale. The Supreme Court of that State held 
 that a corporation tax deed was not within the law. Judge 
 Turley says : " Corporation taxes are not public, but private 
 taxes, and are, therefore, not embraced within the provisions 
 of the act of 1844 ; but are left, as to the remedy for collec- 
 tion, as it existed prior to the passage of the statute, and in 
 case of a sale of real estate for effectuating that purpose, sub- 
 ject to all of the rigid strictness of construction which existed 
 in the cases of sales for the collection of State and county rev- 
 enue, previous' to its passage." ^ The Indiana statute of 1824, 
 provided that the collector's deed " shall be primd facie evi- 
 dence of the regularity of the sale ; " and the Supreme Court 
 of that State decided, in construing this statute, that the deed 
 furnished no evidence that the tax had been legally assessed, 
 or that it had not been duly paid, or that the land was not 
 exempt from taxation, but that the deed was primd facie evi- 
 dence 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 sell.^ 
 
 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 he primd facie evidence," 1. 
 
 1 Jackson v. Morse, 18 Johnson, 441 ; Tallman v. White, 2 Comstock, 69 ; Var- 
 ick V. Tallman, 2 Barbour, 118, 119 ; Eowland v. Doty, 1 Han'ington, Ch. 3. 
 
 2 Shoalwater i;. Armstrong, 9 Humphreys, 217. 
 
 " Parker v. Smith, 4 Blackford, 70 ; Doe v. Himelick, 4 Blackford, 71, note ; s. c. 
 4 Blackford, 494. [A similar construction was given to a similar statute in Wiscon- 
 sin. Bridge v. Brocken, 3 Chandler, 75. The Wisconsin statute enacts that the 
 deed shall be primd facie evidence of the regularity of all the proceedings, from the 
 valuation of the land by the assessors inclusive, up to the execution oTf the deed. Re- 
 vised Statutes, 1849, ch. 15, p. 109 ; ed.of 1858, ch. 18, p. 127 ; Delaplaine u.Cook, 
 7 Wisconsin, 53.] 
 
OF THE ONUS PROBANDI. 85 
 
 That the land was subject to taxation ; that it had been 
 listed and assessed in the time and manner required by law ; 
 3. That the taxes were unpaid ; and 4. That no redemption 
 had taken place. " And shall be conclusive evidence," 1. That 
 the land was advertised in the manner, and for tlie 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 in the manner 
 required by law. The same statute required the collector to 
 demand the tax of the owner, if not paid, to seize his goods 
 and chattels, and sell the same for the non-payment of the tax. 
 If no goods and chattels could be found, the collector was 
 required to report the delinquents to the Circuit Court, and 
 demand a judgment against their lands, giving previous notice, 
 by publication in a newspaper, of tlie time and place of making 
 such application. The Court were directed to enter judgment 
 upon such application, and the law then required the clerk, 
 within five days after the adjournment of the court, to issue a 
 precept to the sheriff or collector, under the seal of the court, 
 which should consist of tlie collector's report, and the order of 
 the court thereon, which the law declared " shall hereafter con- 
 stitute the process on which all lands shall be sold for taxes." 
 The Supreme Court of Illinois, in the case of Hinman v. Pope,^ 
 decide in construing this statute, that a party claiming title 
 under a sale for taxes, must produce a judgment rendered by 
 a court of competent jurisdiction, and a valid precept to the 
 collector, before he can read his deed in evidence ; that the 
 deed is not evidence of these facts, because the law has not so 
 declared. A decision will now be noticed in conflict with these 
 authorities, and unsupported by any fair rule of construction". 
 
 It is the case of Rhiuehart v. Schuyler,^ which was an action 
 of ejectment by the defendant in error, claiming title under an 
 auditor's deed, bearing date November 8, 1883, and purporting 
 to be made in pursuance of a sale for taxes, under the revenue 
 
 J 1 Gilman, 131. _ 
 2 2 Gilman, 473. 
 8 
 
86 OF THE ONUS PROBANDI. 
 
 law of Illinois, approved January 19, 1829, which provided, 
 " That it shall not be necessary for any purchaser of lands so 
 sold for taxes, to obtain, keep, or produce any advertisement 
 of the sale thereof, but his deed from the auditor of public 
 accounts shall be evidence of the regularity and legality of the 
 sale, until the contrary, shall be made to appear." The court 
 held, that the deed was prima facie evidence that all of the pre- 
 requisites of the law had been complied with by the auditor. 
 The only reason assigned for this judgment is, that the lan- 
 guage 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 pro- 
 fession in other States cannot regard it as a precedent. It is 
 directly opposed to the New York, Michigan, Indiana, and Ten- 
 nessee cases above cited ; it is in conflict with the spirit of the 
 decisions of the Supreme Court of Illinois, in the cases of Gar- 
 rett V. Wiggins and Plinman v. Pope ; it is repugnant to the prin- 
 ciple fairly deducible from all of the decisions hereinbefore re- 
 ferred to, inasmuch as they all proceed upon the ground, that 
 the common-law rule must be adhered to, except so far as the 
 very words of the statute may have changed it ; and this upon 
 the principle, that all statutes in derogation 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 legislature beyond the case actually provided for. The 
 provision is, that the deed shall be evidence of the " regularity 
 and legality of the sale," and not of the authority to sell — 
 both of which are necessary to its validity. A sheriff's deed 
 is evidence of the regularity of the sale, and yet the courts 
 invariably require the purchaser to show a judgment and 
 execution. For what purpose? To establish the authority of 
 the sheriff to sell. So in this case, the deed is evidence of the 
 regularity of the sale, but the tax purchaser must also establish 
 the authority of the auditor to sell, by proving those facts, with- 
 out which it has no existence. The grammatical construction 
 of the whole provision sustains this course of reasoning. " It 
 shall not be necessary for the purchaser to produce the adver- 
 
OF THE ONUS PEOBANDI. 87 ' 
 
 tisement of the sale, but his deed shall be evidence of the regu- 
 larity of tlie sale." It does not dispense with proof of the 
 "listing and valuation of the land, and the assessment of the 
 tax, but merely with iSie 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 by whom it is 
 made. 
 
 The Ohio act of March 2, 1846, section 4, provides, that 
 where any lands have been or shall thereafter be sold for taxes, 
 the purchaser may recover possession by action of forcible 
 enti'y and detainer, and that the evidence of the title of the 
 purchaser, &c., shall not be set aside, or impeached by evidence 
 of any irregularity or informality in levying the tax, or in an)"^ 
 of the proceedings previous to such sale. The Supreme Court 
 of that State, in deciding upon the validity of a tax title, in an 
 action of ejectment, refused to be controlled by the statute, 
 saying : " This particular section of the statute has reference 
 to proceedings in forcible entry and detainer, and there is 
 nothing in it which requires that, its principles should be 
 extended to other cases. This is not a proceeding of that kind, 
 and of course this statute has nothing to do with it."^ Another 
 statute of that State prescribed the form of the auditor's deed, 
 and declared that such deeds should be received in all courts 
 as prima facie evidence of a good and valid title to the pur- 
 chaser. In Carlisle v. Longworth,^ 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.,^ 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 
 
 1 Hannel v. Smith, 15 Ohio, 134. 
 
 ^ 5 Ohio, 229. [And this rule was expressly affirmed in Jones v. Devore, 8 Ohio, 
 St. 430.] 
 8 10 Wendell, 398. 
 
88 OF THE ONUS PROBANDI. 
 
 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 
 applied for his lease, which was refused, tjie law not having 
 been complied with. He thereupon moved the court for a 
 mandamus against the officer, which was denied, the court 
 saying : " Should we compel the execution of the lease, the 
 purchaser's title might be protected [referring, of course, to 
 tlie section of tlie law which made the lease coyclusive evidence 
 of title in the purchaser], but we are not inclined to exert this 
 high power of the court to give strengtli and validity to a title 
 which appears clearly defective on the merits, and which, with- 
 out this statutory support, cannot be sustained." Thus the 
 current of authorities runs strongly in favor of the reasonable 
 principles of the common law, and wherever an innovation has 
 been made by statute upon those principles, the courts have 
 discountenanced them so far, at least, as to confine the opera- 
 tion of the statute within the bounds prescribed by its words. 
 They give effect to the intent of the legislature, as manifested 
 by the language used, disregarding the spirit of the rule pre- 
 scribed, 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 purchaser, &c., a good and valid 
 title to the land so sold, and shall be received in all courts in 
 this State, as good evidence of title, &c., nor shall the title 
 conveyed by said deed, be invalidated or affected by any error 
 previously made in listing, taxing, selling or conveying said 
 land." In Gwynne v. Neiswanger,^ it was held by the Su- 
 preme Court of that State, that under this statute the deed 
 raised a conclusive presumption, that all of the proceedings 
 anterior to its execution and delivery, were in strict conformity 
 with the requirements of the statute. 
 
 1 18 Ohio, 400. 
 
OF THE ONUS PKOBANDI. 89 
 
 The Arkansas statute of 1838,^ provided, that the " auditor's 
 deed shall vest in the purchaser all the right, title, interest and 
 estate of the former owner in and to such land, and also all the 
 right, title, interest and claim of the State thereto ; and shall 
 be evidence in all courts of this State, of a good and valid title 
 in such grantee, his heirs and assigns, and that all things re- 
 quired by law to make a good and valid sale, were done both 
 by the collector and auditor." In the case of Steadman v. 
 Planters' Bank,^. which was an ejectment to recover land sold 
 under this statute for the non-payment of taxes, the plaintiff 
 offered his tax deed in 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 Circuit Court, holding that the statute under 
 which the deed was executed changed the common law, and 
 made the deed evidence of the regularity of all the proceedings 
 of the collector and auditor. [And although the language of 
 later statutes in Arkansas is somewhat different from that of 
 1838, the decisions are harmonious that such deed is prima 
 facie, and only prima facie evidence of the regularity of the 
 proceedings ; ^ and although the deed contains recitals of every 
 prerequisite prescribed by the statute, yet if the land was mis- 
 described in the advertisement of the tax sale, the deed is 
 invalid.* The statute also enacts, that a deed in the usual 
 form should be " sufficient evidence of the authority under 
 which said sale was made, the description of the land, and the 
 price at which it was purchased." It was held in Parker v. 
 Overman,^ that the term " sufficient " meant merely prima 
 facie, and was not conclusive. But this clause means, that such 
 deed shall be prima facie evidence that the steps prerequisite 
 
 ' See the late Arkansas statutes on this subject, in Goold's Digest of Arkansas 
 Statutes, ch. 148. 
 
 2 2 English, 424, 428. [And this rule and case was distinctly approved in the late 
 case of Bettison v. Budd,17 Arkansas, 556.] 
 
 ' See Hogins v. Brashears, 13 Arkansas, 242 ; Merrick v'.'B.ntt, 15 Arkansas, 338 ; 
 Roberts v. Pillow, 1 Hempstead,.624 ; 13 Howard (TJ. S.), 472 ; Thomas v. Lawson, 
 21 Howard (TJ. S.), 332. 
 
 * Patrick v. Davis, 15 Arkansas, 363. 
 
 6 18 Howard (U. S.), 142. 
 
 8* 
 
90 OF THE ONUS PROBANDI. 
 
 to the sale, and which constitute tlie authority of the officer to 
 sell, have been regularly taken, as well as of the description of 
 the land, and the price at which it was purchased ; and that the 
 party impeaching the deed must prove irregularities, in order 
 to invalidate the sale.^ By a deed " in the usual form " un- 
 der that act, is meant a deed which substantially recites the 
 material steps which the law requires to constitute a valid tax 
 sale, including a proper description of the land, the price paid, 
 with words granting the land to purchasers, &c., and if it fail 
 to recite any fact material to the sale, the party relying on the 
 deed must prove that fact aliunde? If the deed recites that 
 the owner of the land was a non-resident, it is prima facie 
 evidence of that fact, the deed being regular on its face.^] 
 
 The New York statute of April 10, 1850, declares, that the 
 tax deed " shall be presumptive evidence that the sale, and all 
 proceedings prior thereto, from and including the assessment 
 of the land, and all notices required by law to be given pre- 
 vious to the expiration of the two years allowed to redeem, 
 were regular according to the provisions of this act, and all 
 laws directing or requiring the same, or in any manner relating 
 thereto." 
 
 1 Bonnell u. Eoaae, 20 Arkansas, 114. See M«rrick v. Hurt, 15 Arkansas, 338. 
 
 2 Bonnell v. Roane, 20 Arkansas, 114. 
 
 3 Hunt V. McFadgen, 20 Arkansas, 277. 
 
ELBCTIOir AND QUALIFICATION OP OFFICERS, ETC. 91 
 
 CHAPTER IV. 
 
 OP THE ELECTION AND QUALIFICATION OP THE SEVERAL OFFICERS 
 WHO HAVE ANY THING TO DO AVITH THE EXECUTION OF THE 
 POWER. 
 
 It is a general principle of law, that whenever a right is 
 claimed under the proceedings of one who purports to have 
 acted in an official capacity, the fact that he who did the act 
 upon which the right is based, was a public officer, must 
 appear. This is especially applicable to a case where a title 
 to real estate is to be divested iinder the authority of a statute, 
 and through the intervention of a public officer. The statute 
 being the authority, and the officer the agent to execute it, 
 and no one being empowered to do the act except the person 
 specially designated in the law for that purpose, it follows that 
 a stranger to the power cannot execute it. The power is con- 
 ferred upon the officer, not the man. It is an official, not a 
 personal ti'ust. 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 com- 
 mitted. 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 
 wrongful acts. It may, therefore, be safely affirmed as a gen- 
 eral rule, that the party claiming title under a tax sale must 
 show that the acts required to be done under the statute, in 
 order to divest the title of the former owner, were performed 
 by the officers of the law, and not simply by persons who as- 
 sumed to act in an official capacity. The citizen is entitled 
 
92 OF THE ELECTION AND QUALIFICATION 
 
 to all of the protection against fraud, rapacity, and abuse of 
 authority in the sale of his property, which official responsibility 
 can secure.^ It therefore becomes 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 conflicting. An 
 office is defined to be, a public charge or employment ; and he 
 who performs the duties of that office, is an officer.^ There is 
 no such thing known to the law as an office de facto,^ nor can 
 there exist such an anomaly as an officer d^ 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 dis- 
 tinction between an officer de jure — one who is de facto such — 
 and a mere usurper, is well known and clearly settled, and 
 the consequences naturally arising from these distinctions are 
 equally well settled. An officer de jure has the legal title to, 
 and is clothed with all the power and authoiity of the office. 
 He has a title against the world, to exercise the functions of 
 tlie office, and receive the fees and emoluments appertaining 
 to it. He is responsible to the government and injured parties, 
 when he abuses his trust or transcends his authority. And his 
 acts, when within the scope of that authority, cannot be ques- 
 tioned by the citizen or any department of the government.^ 
 An officer de facto, is one who comes in by the forms of an 
 election or appointment, but in consequence of some informal- 
 ity, omission, or want of qualification, or by reason of the ex- 
 piration of his term of service, cannot maintain liis 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 
 
 ■' Birch V. Fisher, 13 Sergeant & Eawie, 208 ; Paysoa v. Hall, 30 Maine, 319. 
 
 2 United States v. Maurice, 2 Brockenborough, 102 ; s. c, Marshall, Decisions, 470. 
 
 " Hildreth v. Mclntire, 1 J. J. Marshall, 206. 
 
 * Boardmau v. Halliday, 10 Paige, Ch. 223. 
 
 5 McGregor v. Balch, 14 Vermont, 428. 
 
OP THE SEVERAL OFEICERS, ETC. 93 
 
 on the one hand, from a mere usurper, and on the other, from 
 an officer de jure. The mere claim to be a public officer, or 
 the performance of a single, or even a number of acts iu that 
 character, will not constitute an officer de facto : there must 
 be some color to the claim, under an election or appointment, 
 or an exercise of official functions, and an acquiescence on the 
 part of the public for a length of time, which would affiard a 
 strong presumption of a colorable right.^ The definition of 
 Lord EUenborough is probably more accurate and expressive 
 than any other : " An officer de facto is one, who has the repu- 
 tation of being the officer he assumes to be, aud is yet not a 
 good officer in point of law." ^ He who intrudes himself into 
 an office which is vacant, or ousts the incumbent, without any 
 color of title whatever, and 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 distinction be- 
 tween an officer de jure aud one de facto are well settled. An 
 officer de jure is clothed with all the power and authority 
 appertayiing to the office, and his acts, within the limits of his 
 authority, cannot be questioned any where ; while the acts of 
 an officer de facto are valid so far only as the rights of the pub- 
 lic or third persons, having p,n interest in such acts, are con- 
 cerned. Neither the title of such an officer, nor the validity 
 of his acts as such, can be indirectly called in question in a 
 proceeding to which he is not a party. The effect of this rule 
 is, to render the acts of an officer de facto as valid and effectual 
 as though he was an officer de jure. The interests of the com- 
 munity imperatively require the adoption of such a rule. The 
 affairs of society could not be conducted upon any other prin- 
 ciple ; without it, there would be an entire failure of justice. 
 
 1 McGregor v. Balch, 1 4 Vermont, 428 ; Aulanier v. The Governor, 1 Texas, 653 ; 
 Plymoxith u. Painter, 17 Connecticut, 585; Tucker v. Aiken, 7 New Hampshire, 
 140 ; Margate Pier v. Hannam, 3 Barnewall & Alderson, 266 ; s. c, 5 English Com- 
 mon Law, 278 ; Wilcox v. Smith, 5 Wendell, 234. 
 
 2 The King v. The Corporation of Bedford Level, 6 East, 368. 
 * Tucker v. Aiken, 7 New Hampshire, 140. 
 
94 OF THE ELECTION AND QUALIFICATION 
 
 To deny validity to tlie acts of such officers, would lead to con- 
 fusion 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 public officer, before they put 
 faith in his official acts, to go into a minute examination of all 
 the evidences of his title to the office, and see that he has com- 
 plied with all the necessary forins of law. It would constitute 
 every citizen a judge of official titles. He must look to the 
 Constitution to see that the officer was eligible 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 woxild 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 qiu) 
 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 courts as a rati- 
 fication of his acts, which is equivalent to a precedent authority. 
 When the government acquiesce in the acts of such an officer, 
 third persons ought not to be permitted to question them. 
 
 From considerations like these has arisen the distinction 
 between the holding of an office de facto and de jure. It is 
 therefore an established principle in our system of jurispru- 
 dence, that the acts of an officer thus having color of title, in 
 the exercise of the ordinary and accustomed functions of his 
 
ETC. 95 
 
 office, are valid in respect to those persons who may be inte- 
 rested in his acts ; wliile as respects liimself, those acts are 
 
 invalid.^ It will be observed, that the authorities do not pro- 
 ceed upon the ground that the claim of au individual to be a 
 public officer, and his acting as such, is merely prima facie 
 evidence that he is au officer de jure ; but the principle they 
 
 - establish is this ; that an individual coming into office by color 
 of an election or appointment, is an officer de facto, and his 
 acts in relation to the public or third persons are valid, iiutil 
 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 pub- 
 lic mischief which might otherwise be justly apprehended. It 
 gives to the officer de facto no immunities whatever, confers 
 upon him no rights, and shields liim from no responsibility. 
 When sued for moneys received by him colore officii, he cannot 
 avoid liability by showing tliat he was only an officer de facto.^ 
 The same rule applies where an action is brought against him 
 for malfeasance, misfeasance, or nonfeasance in office.'* On the 
 other hand, when he attempts to enforce a legal right which 
 appertains solely to official character, for instance, the fees of 
 office conferred by law, his right as an officer de jure is put in 
 issue, and he cannot recover without proving a legal title to the 
 functions and emoluments of tlie office.^ And when he justifies 
 
 1 Plymouth u. Painter, 17 Connecticut, 585 ; Wilcox v. Smith, 5 Wendell, 234 ; 
 McGregor v. Balch, 14 Vermont, 428 ; Schlencker v. Eisley, 3 Scammon, 483 ; 
 Parker v. Baker, 8 Paige, Ch. 429 ; The People v. Collins, 7 Johnson, 551 ; M'Instry 
 V. Tanner, 9 Johnson, 135 ; Burke v. Elliott, 4 Iredell, 355 ; Gilliam v. Eeddick, 4 
 Iredell, 368 ; Bnish. v. Cook, Brayton, 89 ; Gilmore v. Holt, 4 Pickering, 257 ; 
 M'Kim V. Somers, 1 Pennsylvania, 297 ; Adams v. Jackson, 2 Aikens, 145 ; Hoag- 
 land 0. Culvert, 1 Spencer, 387 ; Farmers and Merchants Bank v. Chester, 6 
 Humphreys, 458 ; Powler v. Bebee, 9 Massachusetts, 231 ; Douglass v. Wickwire, 
 19 Connecticut, 489 ; Pritchett v. The People, 1 Gilman, 529. 
 
 2 Wilcox V. Smith, 5 Wendell, 234. 
 
 ' United States v. Maurice, 2 Brockenborough, 96. 
 * ITetterman v. Hopkins, 5 Watts, 539. 
 " Fetterman v. Hopkins, 5 Watts, 539. 
 
96 OF THE ELECTION AND QUALIEICATION 
 
 an act complained of, purporting to be done in his official ca- 
 pacity, it is necessary for him to aver and prove in his defence, 
 not only that he was an acting officer, but that he was an officer 
 in fact and by right, duly elected or appointed, commissioned 
 and qualified to act as such. The reason is, that the officer 
 himself is bound to know whether he is legally an officer, and 
 if he attempts to exercise the functions of an office, without 
 authority, he acts at his peril.^ 
 
 We have thus seen, that the acts of an officer de facto are 
 vahd, except only in cases of direct injuries to their fellow 
 citizens.2 Such then is the rule, the exceptions, and the rea- 
 sons upon which they are founded. Is there any thing in the 
 nature of the power to sell land for the non-payment of taxes, 
 or in the legal character of those to whom the power is con- 
 fided, which prevents the application of the rule in question to 
 their acts? They exercise a special, statutory power — one 
 not coupled with an interest in the thing upon which the power 
 operates. This is true of every power with which a public 
 officer is clothed. Take the case of a sheriff or coroner selling 
 land under execution. They act under a special authority. 
 Tljeir right to sell depends upon the existence of a judgment 
 rendered by a court having competent jurisdiction, the issuing 
 of a valid execution thereon, and its direction to the proper 
 official personage to whom the law has intrusted the power of 
 sale. Yet, in this class of cases, it has been repeatedly held, 
 that, if the sale is made by an officer de facto, it is valid and 
 effectual to divest the title of the judgment debtor. Are not 
 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 public charge or 
 employment, and he who performs the duties of that office is 
 an officer." There is nothing, then, in the nature of the 
 
 1 Schlencker v. Risley, 3 Scaimnon, 483 ; Blake v. Sturtevant, 1-2 New Hamp- 
 shire, 567; Cummings </. Clark, 15 Vermont, 653; Colburn u. Ellis, 5 Massachu- 
 setts, 427. 
 
 '^ Commonwealth o. Fowler, 10 Massachusetts, 301 ; People v. Collins, 7 John- 
 son, 554. 
 
OP THE SEVERAL OFFICERS, ETC. 97 
 
 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 Buckuam v. Ruggles,^ which was a writ of entry, the 
 validity of a levy on land, made by a deputy-sheriff de facto, 
 was drawn in question ; and the counsel who argued against 
 the validity of the act, attempted to draw a distinction, limiting 
 the rule to the acts of such officers as might be styled political, 
 and who exercise a portion of the sovereign power. To this 
 the court replied : " None of the books will warrant such a 
 limitation. The rule as laid down extends to all public officers ; 
 nor can we discern any reason for restraining it." 
 
 Upon a review of the authorities, it will be seen, that while 
 the geaeral rule is conceded, that the acts of an officer de facto 
 are valid, whenever third persons are interested in the act, yet 
 many of the authorities affirm that the great strictness uni- 
 formly exacted in the divestiture of estates, under the taxing 
 power of the government, demands an exception to the rule, 
 and requires proof that those who purport to act in an official 
 capacity in the conduct of these sales, were officers de jure; in 
 other words, that a regular election or appointment, and a com- 
 pliance with all the conditions precedent, which must be shown 
 by the officer himself when his title is questioned in a quo war- 
 ranto — such as the taking of the oath of office, the execution 
 of an official bond, &c., must be clearly proven by the party 
 claiming title iinder the tax sale ; and that the usual presump- 
 tions cannot be indulged in by the courts when the prooof of 
 official character is wanting.^ 
 
 On the other hand, the Supreme Court of New Hampshire, 
 
 1 15 Massachusetts, 180. 
 
 " Birch V. Fisher, 13 Sergeant & Rawle, 208 ; Pike v. Hanson, 9 New Hampshire, 
 491 ; Ainsworth v. Dean, 1 Foster, 400 ; Proprietors of Cardigan o. Page, 6 New 
 Hampshire, 182 ; Payson v. Hall, 30 Maine, 319 ; Coit v. Wells, 2 Vermont, 318 ; 
 Isaacs V. Wiley, 12 Vermont, 674; Alvord v. Collin, 20 Pickering, 418. 
 
 9 
 
98 OF THE ELECTION AND QUALIFICATION 
 
 in Tucker v. Aiken,' remark, that " the general principle un- 
 doubtedly is, that the acts of an ofiQcer de facto are valid, so 
 far as the public Or the rights of third persons are concerned ; 
 and that the title of such an officer cannot be inquired into in 
 any proceeding to which he is not a party. But proceedings 
 founded upon the assessment and collection of taxes have been 
 supposed to form an exception to this rule ; or rather a differ- 
 ent rule has been siipposed to be applicable to such proceedings. 
 The principle is expressly laid down, that in order to maintain 
 a title to land sold for taxes, or to justify a distress, every sub- 
 stantial regulation of the law must be shown to have been com- 
 plied with. And it seems to have been understood that this 
 principle included and required proof of the due election and 
 qualification of all officers concerned in the assessment and 
 collection of the tax. There seems to be no sound distinction 
 between the acts of a collector de facto in making a dis_tress 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 execu- 
 tion." That such a distinction exists, is practically denied by 
 the authority of other cases.^ 
 
 It jnust 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 
 officers de facto, the sale will be maintained. But where a 
 mere usurper or intruder into an office, connected with such 
 proceedings, executes any part of the authority given by law 
 to officers de jure and de facto, his acts are nuHities, and no 
 title can be acquired under the sale. A minute examination 
 of the adjudged cases will, doubtless, be more acceptable to the 
 profefcision than any general statements of reasons, and conclu 
 sions which may be deduced from them. 
 
 1 7 New Hampshire, 131. 
 
 2 Sheldon o. Coates, 10 Ohio, 278; Downer v. Woodbury, 19 Vermont, 329; 
 Hale V. Gushing, 2 Greenleaf, 218; Spear v. Ditty, 8 Vermont, 419; Adams v. 
 Jackson, 2 Aikens, 145 ; Eonkendorff v. Taylor, 4 Peters, 349. 
 
OF THE SEVBEAL OFFICERS, ETC. 99 
 
 In RonkendorfF v. Taylor,^ where the sale was under the 
 charter and ordinances of a municipal corporation, and in 
 which the court lay down the rule of strictness as the basis of 
 inquiry in this class of cases, it was held, that in order to main- 
 tain the sale, it was not necessary for the party claiming title 
 under it, to prove the appointment of the assessor who listed 
 and valued the land, but the court would presume, from the 
 fact that he acted as assessor, and was recognized by the 
 authorities of the corporation as such, that he was legally 
 appointed. 
 
 In Hale v. Cashing,^ the validity of a tax sale under the act 
 of Congress was questioned. The act required the assistant 
 assessor to be sworn, and a certificate of the fact returned and 
 filed in the collector's office. This was not done, but it was 
 proven by the assessor himself that he was sworn prior to 
 entering upon the duties of his office. The court held the 
 requirements directory, and that an omission to conform to it 
 ought not to prejudice the rights of the purchaser ; and fur- 
 ther, there being no record of the oath, the testimony of the 
 assessor himself was competent evidence to establish the fact 
 that he was sworn. 
 
 On the other hand, in Pike v. Hanson,^ which was an action 
 of trespass — the defendant justified as a collector of taxes, 
 under an assessment and warrant to collect — it 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 
 
 1 4 Peters, 349. 
 
 ^ 2 Greenleaf, 218. 
 
 ' 9 New Hampshire, 491. 
 
100 OF THE ELECTION AND QUALIFICATION 
 
 we cannot dispense with so important a requisition." Tins 
 doctrine was reaffirmed in Ainswortli v. Dean,i and a sale of 
 land for taxes held void because there was no evidence that the 
 assessment was made under the sanction of an oath. And in 
 Birch V. Pisher,^ the evidence showed only that the p«rsons 
 who made the assessment were recognized as officers by the 
 county commissioners, and that they acted as such. The sale 
 was held void. By the court : " Will it be pretended that such 
 an assessment would be valid, or that a sale under it would 
 confer any right ? An assessment by persons neither elected 
 nor sworn, would be an assessment, not by officers de facto, but 
 by intruders, wlio came in without color of authority. The evi- 
 dence offered was the book of the county commissioners, show- 
 ing the names of the assessors ; and the certificate of the clerk, 
 that he had searched the files for the election returns, and the 
 official oaths of the assessors, and found none. The election 
 returns ought to have been produced, or their existence estab- 
 lished 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 require- 
 ment 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 certi- 
 ficate : " March 12, 1822, lawfully posted a true copy of the 
 within articles. 
 
 „ * • 'I Selectmen." 
 
 S. Ogle, j 
 
 The sale was held void. The court say that " when meetings 
 
 1 1 Foster, 400. 
 
 ^ 1 3 Sergeant & Rawle, 208. 
 
 ^ Ainsworth v. Dean, 1 Foster, 400. 
 
OP THE SEVERAL OFFICERS, ETC. \. lOl 
 
 are warned by selectmen, they must make a proper return of 
 their doings. They stand in that business in place of con- 
 stables, and their return must show, not simply that notice has 
 been given, but that such notice as the statute directs, has been 
 given-. Tliey are public officers authorized by law to warn town 
 meetings. It is their duty to make a return of their doings. 
 If they make a false return, they are liable to an action in favor 
 of him who may thereby be injured. And, in our opinion, their 
 return is, in this instance, the only evidence which can be ad- 
 mitted to prove what they have done. In our opinion, much 
 greater mischief will result from giving countenance to the 
 careless and imperfect returns which have already been made, 
 than from holding a legal and sufficient return to be essentially 
 necessary in all cases. It is neither safe nor expedient to leave 
 the title to real estate to depend, in any case, upon the uncer- 
 tain and fading memory of mortal man. It is not the policy of 
 this State to do so. All conveyances, by one man to another, 
 must be in writing ; when an execution is extended upon land, 
 there must be a return in writing, otherwise it is without effect ; 
 when lands are sold for taxes, the former owner ought to be 
 able to learn from the records of the proceedings, whether 'his 
 title has been lost. He ought not to be put to the expense of a 
 lawsuit to learn whether his land has been legally sold. It is, 
 in our opinion, much better that a few titles should now fail for 
 this defect, than that all titles of this description should be left 
 in doubt and uncertainty." ^ 
 
 It was held in Payson v. Hall,^ 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 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 misconduct of a col- 
 lector of taxes, cannot be protected by a resort to his official 
 bond for redress, that being given for the security of the town. 
 
 1 Proprietors of Cardigan v. Page, 6 New Hampshire, 182. 
 
 2 30 Maine, 319. 
 
 9* 
 
102 OF THE ELECTION AND QUALIFICATION 
 
 alone. He must be permitted to avoid the acts of one assum- 
 ing, without lawful authority, to be a collector, or be in many 
 cases without a remedy : if a person without election or legal 
 qualification could act as a collector of taxes, and as such make 
 sale of an estate, and the production of a deed made by him in 
 that capacity were to be considered as effectual without proof 
 of his election and qualification, there would be no effectual 
 security foi* the faithful discharge of his duties. Such was not 
 the intention of tlie legislature. The party is required to pro- 
 duce the collector's deed, not the deed of a person assuming, 
 without right, to act in that capacity. Tlie 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 ,2 which was an action of ejectment, wherein the 
 plaintiff 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 defendant 
 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 received " such a bond 
 as the law requires.'- The statute required that the collector, 
 before entering upon the duties of his office, should give bond 
 with 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 
 
 1 Proprietors of Cardigan v. Page, 6 New Hampshire, 182. 
 ^ Tucker v. Aiken, 7 New Hampshire, 131. 
 8 2 Aikens, 145. 
 ♦ 2 Vermont, 318. 
 
OF THE SEVERAL OFFICERS, ETC. 103 
 
 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 th6 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 saying : " 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, 
 but at the same time is unsatisfactory. We hold the giving of 
 a bond, and such a bond as the statute requires, to be indis- 
 pensable 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 ,2 that 
 the collector's bond was insufficient, because the penalty was 
 not equal to double the amount of the tax originally laid. By 
 the court : " It is difficult to perceive how this irregularity, if 
 it be such, can have any reasonable bearing upon the right of 
 the plaintiff. The object of this bond is not the security of the 
 land-owner, against an illegal enforcement of the tax, but it is 
 to insure a proper accountability for the tax after it is collected. 
 It is not one of those safeguards, interposed between the tax- 
 gatherer and the tax-payer, but has reference to the public 
 
 1 12 Vermont, 674. 
 
 2 8 Vermont, 419. 
 
104 OP THE ELECTION AND QUALIFICATION 
 
 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. Woodbury ^ was 
 an action of trespass against the collector, who, in his plea, 
 alleged that he had given bond, but did not describe or make 
 profert of it. On the trial it was proved that the defendant 
 had acted as collector, and the court presumed that he had 
 given bond as required by law. 
 
 Again, in Hale v. Gushing,^ which was an action of entry 
 sur disseisin, the tenant claimed under a tax deed made by a 
 collector of the direct tax, levied under the act of Congress, 
 and it did not appear that the collector had given bond. Sale 
 held valid. By the court : " The bond was intended for the 
 security of the United States ; but as regards the piircliaser 
 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 col- 
 lector 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 dupli- 
 cate, 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 appoint- 
 ment of a collector had been made by the county commission- 
 ers. Upon this point the sale was sustained. By the court : 
 " In this case, as the bond was executed before any appoint- 
 
 1 19 Vermont, 329. 
 ^ 2 Greenleaf, 218. 
 8 10 Ohio, 278. 
 
OF THE SBVBEAL OFFICEKS, ETC. 105 
 
 ment had been made of a collector, by the county commission- 
 ers, although not within the time prescribed, it would be against 
 the whole current of the decisions of this court, in similar cases,i 
 to hold that the acts of the collector were void or voidable upon 
 that ground." 
 
 1 5 Ohio, 136; 10 Ohio, 51. 
 
106 OF THE LISTING AND VALUATION OF THE LAND. 
 
 CHAPTER V. 
 
 OF 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 proceedings rest. All of our consti- 
 tutions reqiiire, either in express terms, or by necessary impli- 
 cation, that taxes shall be uniform and equal in their opera- 
 tion ; in other words, that each and every citizen shall pay a 
 tax in proportion to the value of his estate. A periodical list- 
 ing and valuation of all the property within the jurisdiction of 
 the taxing power, is therefore absolutely necessary, in order to 
 carry into practical effect this constitutional requirement. To 
 hold otherwise, would be to pronounce the revenue laws uncon- 
 stitutional and void, and deprive the citizen of all manner of 
 protection against unjust and oppressive taxation. The listing 
 and valuation of the property usually precedes the levy of the 
 tax ; indeed, this is universally true whenever the tax is levied 
 by a county, town, or municipal corporation acting under the 
 authority of the legislature. The taxes necessary for the support 
 of the State government are fixed by public law ; but inferior 
 jurisdictions are limited iu their power of taxation. The pur- 
 pose for which the tax is raised is specified in the law, and the 
 maximum rate of the levy is established, beyond which they 
 cannot go. The practical operation of each levy, and the abso- 
 
OF THE LISTING AND VALUATION OF THE LAND. 107 
 
 lute necessity of a list and valuation, 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 assess- 
 ment of five mills, for State purposes, upon each dollar's worth 
 of property embraced in the list. The assessor performs the 
 ministerial duty of charging 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 authorized 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 boimd to contribute accord- 
 ing 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 of the land 
 is the basis of the assessment of the tax, and that each citizen 
 is directly interested in the list. By it alone can the legality 
 of the tax be tested ; this is his only security against an unequal 
 tax. 
 
 Again, in most of the States, a duplicate of this list is de- 
 livered to the collector, and this constitutes his authority to 
 demand the tax, distrain the goods, and sell the land of the 
 delinquent. Besides, the collector is charged with the tax 
 according to the list, and the list is the basis of his settlement 
 with the State and county. Thus the listing and valuation 
 constitute the security of the citizen, the foundation of the 
 assessment, and all the subsequent proceedings, the authority 
 of the ofiicer to collect the tax, and the basis upon which the 
 settlements of the collecting of&cers are made.^ 
 
 • Grayes v. Bruen, 11 lUinois, 431 ; Tibbetts v. Job, 11 Illinois, 453; Schuyler 
 
108 OF THE LISTING AND VALUATION OF THE LAND. 
 
 The ordinary signification of the term list, is a roll or cata- 
 logue. In its technical sense, it means a complete eniimera- 
 tion of the owners of property in a collection district, together 
 with a description and valuation of their property, made peri- 
 odically, with a view to equality and uniformity in the levy of 
 taxes. It is variously called tax list, rate bill, assessment roll, 
 according to the laws and usages of the respective States. 
 
 In Homer v. Cilley,^ a novel state of facts existed, to which 
 this definition was applied. The New Hampshire statute re- 
 quired the collector, on or before a particular day, to make out 
 and deliver to the deputy Secretary of State, a copy of his 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 parcel 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 contended by the counsel who maintained the 
 validity of the sale, that inasmuch as the tax was against a 
 single parcel of land, and not against divers persons and tracts, 
 the collector had no list, and therefore no copy could be pro- 
 duced. 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 particu- 
 lars. There can be no doubt that this collector was as much 
 bound to return a copy of the non-resident taxes, where there 
 
 V. Hull, 11 Illinois, 462 ; Job v. Tibbetts, 5 Gilman, 376 ; Nalle v. Fenwick, 4 Ran- 
 dolph, 591 ; Kinney i>. Beverley, 2 Hening & Munford, 318 ; Lessee of Holt's Heirs 
 V. Hemphill^B Heirs, 3 Hammond, 232 ; s. c. 1-4 Ohio Cond. 551 ; Lessee of Dres- 
 back V. McArthur, 6 & 7 Ohio, 307 j Thurston v. Little; 3 Massachusetts, 429 ; 
 Games v. Stiles, 14 Peters, 322 ; Adam ». Litchfield, 10 Connecticut, 127; Whittel- 
 sey V. Clinton, 14 Connecticut,' 72. 
 ' 14 New Hampshire, 85. 
 
OF THE LISTING AND VALUATION OF THE LAND. 109 
 
 was only one tract taxed as non-resident, as where there were 
 fifty. There was a list of taxes in the first case, within the 
 meaning of -the statute, as much as in the last, and so in the 
 present case." 
 
 As the list is the foundation of all the proceedings, it is the 
 duty of the purchaser at the tax sale, or those claiming under 
 him, except where the onus probandi has been changed by law, 
 to produce the original, or, in case of its loss or destruction, a 
 duplicate or counterpart ; if there should be no duplicate, then 
 an examined or sworn copy ; and if there is no duplicate or 
 examined .copy, then parol evidence may be given of its con- 
 tents.^ Parol evidence, in such a case, is looked upon by the 
 courts with a suspicious eye, and will never be admitted until 
 other means of establishing the truth have failed. Perhaps 
 upon principle, such evidence ought not to be received at all. 
 Independent of the policy of the law, to require a complete 
 record of the proceedings to be raade and preserved, for the 
 protection of the interests of the purchaser and former owner, 
 the temptation to a fraiidulent suppression or destruction of the 
 missing document is so great, and the extreme improbability ' 
 of any one connected with, or cognizant of the proceedings, 
 being able to recollect the distinct facts connected with the 
 listing and valuation of each tract of land, upon a list em- 
 bracing 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 re- 
 quired to be filed, or the original recorded in some public 
 office ; the original or a copy is usually retained by the asses- 
 sors, and another duplicate is invariably placed ia the hands of 
 the collector for the time being ; and it would therefore seem 
 impossible, unless in a case of a general conflagration of the 
 records and files of all public ofiices connected with the pro- 
 ceedings, or- the fraud of one of the parties interested in the 
 
 1 Nalle u.Fenwick, 4 Eandolpb, 591 ; Doe ex dem. KdUy v. Craig, 5 Iredell, 129 ; 
 McCall 71. Lorimer, 4 Watts, 351. 
 
 10 
 
110 OF THE LISTING AND VALUATION OF THE LAND. 
 
 list, that a necessity should ever arise for the introduction of 
 such evidence. However, in support of a long possession, such 
 evidence might very properly be submitted to a jury. 
 
 When the original, its counterpart, or examined copy is pro- 
 duced, the first inquiry will naturally be, is it an official docu- 
 ment ? And this will depend upon the fact, whether the per- 
 son or persons who made it, had authority, under. the law, to 
 take a list and make a valuation of the taxable property within 
 the district where it purports to have been made. When the list 
 is made out by an officer de jure, the official character of the 
 document, of course, cannot be gainsayed. When jnade by a 
 usurper, or intruder into the office, it is equally certain that it 
 is unofficial and void to all intents and purposes. ^ But when 
 made by an officer de facto, especially one who is so regarded, 
 because he has neglected to take the oath of office prescribed 
 by law, i. e., that he will make a true and perfect list of, and 
 fairly and impartially value the lands which are liable to assess- 
 ment 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 divestiture aud acquisition of title — but it would seem 
 that an official valuation, under the sanction of the oath of 
 office, is the only security the tai-payer has against illegal tax- 
 ation. It is conceded, that the authorities are in conffict upon 
 this point, and the subject may be dismissed by a reference to 
 the preceding 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 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 majority 
 will be binding. This is in accordance with -the general 
 principles of law. Where a private authority is delegated to 
 
 1 Birch V. Fisher, 13 Sergeant & Eawle, 208. 
 
OF THE LISTING AND VALUATION OP THE LAND. HI 
 
 several persons, all must join in its execution ; while in mat- 
 ters 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 exercised, as in the valuation of the lands 
 upon the list, the inconvenience in requiring unanimity is ex- 
 treme, and but for the rule which sanctions the act of the 
 majority in sucli 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 Middletown 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 evidence 
 showing that the assessment had ever been seen, heard of, or 
 sanctioned by the board. It further appeared, that the town 
 was divided into districts, and that it was tlie usage of the town 
 for each assessor to act independently of the others. The stat- 
 ute required the board of assessors to act in making tlie assess- 
 ment. This evidence was excluded by the court below, and a 
 verdict rendered accordingly — motion for a new trial in the 
 Supreme Court, and overruled. By the court : " The assess- 
 ment 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 
 
 ' Doughty V. Hope, 3 Denio, 594 ; Ex parte Baltimore Turnpike Company, b 
 Binney, 481 ; Kinney v. Doe ex dem. Laman et al.,-8 Blackford, 350; Middletown 
 V. Berlin, 18 Connecticut 189 ; Powell v. Tuttle, 3 Comstock, 396. 
 
 2 18 Connecticut, 189. 
 
112 OF THE LISTING AND VALUATION OF THE LAND. 
 
 consisted of five persons, and this purports to be the act of one 
 of them only. The rule governing the execution of public and 
 private povrers, has long been settled. A power conferred upon 
 two or more persons, by individuals, for private piirposes, must 
 be executed by all ; but an authority imposed by law for pub- 
 lic 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. As- 
 sessors are the officers of the law, and must obey the law ; and 
 no direction of the town, or long-continued usage, can justify 
 a departure from the law." 
 
 In Kinney v. Doe ex dem. Laman et 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 prove 
 the regularity of tlie proceedings, offered in evidence the assess- 
 ment roll of county taxes for that year, signed by the lister, 
 without proving that the valuation had been made by the lister 
 and two householders, as required by the act of 1820. This 
 evidence was rejected by the Circuit Court, and an exception 
 taken to the ruling. The judgment was affirmed. Blackford, 
 J. : " We think the decision of the court is right. The evidence- 
 was not admissible without proof that the assessment had been 
 legally made. It could not be legally made, so far as the valu- 
 ation of town lots was concerned, except by the lister and two 
 householders appointed by him.^ The assessment roll, there- 
 fore, was inadmissible, &c., without proof that the lots had been 
 valued by the lister and two householders." 
 
 The list must be verified by the official signature of the 
 officer charged by law with the duty of making it. The object 
 of this rule is the identification of the document as an official 
 act, executed by the authority of the law ; and its spirit is 
 answered only, when the official character of the person making 
 
 i 8 Blackford, 350. 
 2 Acta 1820, p. 150. 
 
OF THE LISTING AND VALUATION OF THE LAND. 113 
 
 it is established, and the document appears upon its face to be 
 an official act, attested by the signature of the proper officer. 
 The reasons and illustrations of this rule will more fully appear 
 hereafter. 1 
 
 In Johnson v. Goodridge,^ where the law directed the selec- 
 tion of three assessors, and required them to " make perfect 
 lists under their hands," the facts were, that a list of lands 
 belonging to resident and non-resident proprietors, was made 
 by two of the assessors. It contained several pages, the first 
 and second of which embraced the lands of non-residents ; the 
 residue of the pages contained the lands of residents. The only- 
 authentication of the list was at the commencement of the first 
 page, in these words : 
 
 " To Jonathan Goodridge, collector : Fine tax on the high- 
 ways, for 1832, assessed on the estates of non-residents, by 
 
 Wbntworth Tuttle, I Assessors of 
 Isaac Holt, J -Canaan." 
 
 The listing and assessment were held void. The court say : 
 " All that can reasonably be required is to accomplish the 
 object designed by the statute, which is, that the lists should 
 bear upon them the official sanction of a majority of the asses- 
 sors, evidenced by their signatures. If a majority sign the lists 
 in such a manner as to show that the intention was thereby to 
 give them their official sanction, that may be sufficient, on 
 whatever part of the lists it be made. But the intention or 
 object of the signature must clearly appear. It must be a sign- 
 ing for the purpose of special authentication. It is difficult to 
 say that any more of these lists, than the pages bearing the 
 assessment upon non-residents', are so authenticated. The 
 assessors limit their signatures to taxes on the estates of non- 
 residents, and the words ' non-residents,' being a proper descrip- 
 tion of certain portions of the tax lists, cannot be rejected as 
 words without meaning." 
 
 1 Chapter 18. 
 
 2 15 Maine, 29. 
 
 10* 
 
114 OF THE LISTING AND VALUATION OF THE LAND. 
 
 In Sibley v. Smith,i where the statute required the assess- 
 ment roll to be signed by the assessor, and it was omitted, the 
 sale based upon it was held void. The statute of Maine re- 
 quired the assessors to " make perfect lists of their assessments, 
 under their hands, &c., and commit the same to the collector, 
 with a warrant under their hands and seals, &c." In two 
 cases, the lists were not so signed, but the warrants in the same 
 paper book were ; and the court held, that a signing of the list 
 was an essential requisite, that it must bear upon its face evi- 
 dence of its official sanction, and until thus signed was an 
 incomplete and void act — "an unfinished proceeding." ^ In 
 an action upon the collector's bond, where the lists were in his 
 possession, the court presumed that they had been duly authen- 
 ticated 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 where the assessor had 
 neglected to sign the roll.* 
 
 The power of the assessor is limited and special. It is con- 
 fined to estates lying within his district. It follows, therefore, 
 that if he list and value lands not within his town or county, his 
 jurisdiction is exceeded, and the proceeding, to that extent, is 
 void.^ The Ohio statute,^ made it the duty of the county au- 
 ditor to call on each resident owner of land within his county, 
 and take a list of all his lands subject to taxation within the 
 county ; with a proviso, that " all lands lying within the Virginia 
 Military District, which shall be divided by county lines, so as 
 
 1 2 GibbB (Mich.), 498. [The Michigan act of 1842, unlike the Revised Statutes 
 of 1838, did not require assessment rolls to be signed by the assessor. Their signa- 
 ture to the certificate attached is all the authentication required. Lacey v. Davis, 4 
 Michigan, 141.] 
 
 2 Colby V. Russell, 3 Greenleaf, 227 ; Foxcroft v. Nevens, i Greenleaf, 72. 
 8 Kellar v. Savage, 20 Maine, 199. 
 
 * Townsen v. Wilson, 9 Barr (Penn.), 270. ' 
 ' Thurston v. Martin, 2 Sumner, 497. 
 » 1820, section 9. 
 
0]? THE LISTING AND VALUATION OF THE LAND. 115 
 
 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 failure of the 
 owner to furnish a list, to enter the land from the best infor- 
 mation in his power. 
 
 In the case of the Lessee of Hughey v. Horrell et al.^ which 
 was an ejectment wherein the defendant relied upon a tax title, 
 it appeared that the land in question was divided by the line 
 between Madison and Pickaway counties, and the owner lived 
 upon that 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 Prich- 
 ard, the proprietor in whose name it was listed, resided in the 
 county of Pickaway, the auditor of Madison was not authorized 
 to enter it on his list. It was made the duty of the proprietor 
 to enter it in the county in which he lived, and on his failure 
 to do so, it ought to have been entered by the auditor of Pick- 
 away., It is evident, therefore, that this land has not been en- 
 tered 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 division line of the towns being also the dividing 
 line ^between said lots. The dwelhng-house of the defendant 
 in error was. upon the part of the farm in Cambria, his barn 
 was in the town of Lewiston. The entire farm was assessed 
 
 1 Section \S. 
 
 ^ 2 Hammond, 231 ; 1-4 Ohio Cond. 335. 
 
 8 4 Wendell, 429. 
 
116 OF THE LISTING AND VALUATION OE THE LAND. 
 
 in Cambria in 1826, and the assessor of Lewiston, with a full 
 knowledge of the facts, also assessed that part of the farm 
 lying in his town, upon which a tax was collected. It was held 
 that the last assessment was void. 
 
 Under the curative act of Pennsylvania it was held, that 
 where lands were listed for taxation in the wrong county, the 
 sale was nevertheless valid. ^ This decision does not appear to 
 give a fair construction to the act, the language of wliich was, 
 " that no irregularity in the assessment shall be construed to 
 affect the title of the purchaser." The evident intention of the 
 legislature, as manifested by the words they used, and the 
 spirit of the provision, was to cure a defective assessment, 
 where the assessor had jurisdiction, but proceeded irregularly 
 in the exercise of it, and not to declare that to be an assessment 
 which was a nullity for want of authority to make it. Suppose 
 a mere usurper makes the assessment, and the fiscal agents of 
 the county or town recognize it, and cause the list to be placed 
 in the hands of the collector de jure, who proceeds to collect 
 the taxes and sell the lands of delinquents upon such a list. 
 Could it be pretended that there was any vitality in such a pro- 
 ceeding ? 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, presup- 
 posing 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 dejure, make one, 
 and by judicial legislation pronounce it legal. The same may 
 be said of the case where land is listed which does not lie within 
 the territorial jurisdiction of the assessor. The assessment is 
 said to be in the nature of a judgment and execution- agajnst 
 the delinquent tax payer, and constitutes the warrant of the 
 collector to sell. Yet, in the Pennsylvania case, the court give 
 to a pretended assessment a validity which the judgment of the 
 highest court of the land does not possess. Where a superior 
 
 1 Montgomery v. Meredith, 5 Harris (Perm.), 42. 
 
OF THE LISTING AND VALUATION OF THE LAND. 117 
 
 court of general jurisdiction 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 tlie State should be listed in the county where the 
 owner resided. The act of 1829 declared, that tlie list should 
 be completed by thf first day of July, annually, and by the same 
 act the county clerk was directed to transmit to the auditor 
 of State, a list of all lands in his county which had not been 
 listed there by the fifteenth day of July, and all siich lands thus 
 returned -were to be sold by the auditor as non-resident lands. 
 The statute also, aocording to the decisions of the Supreme 
 Court, made the auditor's deed prima facie evidence, amongst 
 other things, that the land was regularly listed for taxation. 
 
 In Messinger v. Germain,^ it appeared, that the sale was 
 made by the auditor, January 16, 1830, upon the authority of 
 a list returned the preceding year, by the clerk of St. Clair 
 county, where the land in question lay. For the purpose of 
 showing that the land was not legally listed and sold, it was 
 proven, that at the time of the auditor's sale, one of the owners 
 resided in the county of St. Clair, and the other in Jo Daviess 
 county, Illinois. Upon this state of facts, the court held, first, 
 that they would presume that the owners had failed to list in 
 the counties where they respectively resided ; and second, that 
 proof that on the day of sale one of the parties resided in St. 
 Clair, furnished no legal presumption that he resided there 
 when the list of njjn-resident lands was transmitted by the clerk 
 to the auditor. 
 
 In many of the States, the law requires the listers to return, 
 file, or lodge the original, or an attested copy of the list, or an 
 abstract thereof, with some public officer designated, on or 
 before a certain day named. The object of this requirement is 
 to enable the tax payer to inspect the list, and take such steps 
 as he may deem necessary for the purpose of correcting upon 
 appeal, motion, or otherwise, any errors in the listing and val- 
 uation which have taken place to his prejudice. It has been 
 
 1 1 Gilman, 631. 
 
118 OF THE LISTING AND VALUATION OF THE LAND. 
 
 repeatedly held, that a failure on the part of the listers to per- 
 form this duty, renders the list and all of the proceedings 
 founded thereon void. Thus in Kinney v. Beverley,^ where 
 the law required a listing and assessment of the land for taxa- 
 tion, and a return of the list to the auditors, and this require- 
 ment was not complied with, the assessmen* and sale founded 
 thereon were held to pass no title to the purchaser. So where 
 the law required the assessment roll to be accepted in writing 
 on the back thereof by the board of commissioners, signed and 
 attested by their clerk, and the only entry on the back of an 
 assessment roll was that it was " examined by the board, and 
 ordered to be filed with the clerk," this was held not an accept- 
 ance of the roll, and parol testimony of the acceptance being 
 held incompetent, the tax sale was held invalid.^ And the 
 omission of the deed to recite that the assessment roll was 
 accepted, is evidence by implication that it was not accepted, 
 in those States where the recitals in the deed are made prima 
 facie evidence of the existence and regularity of all the prior 
 proceedings.^ 
 
 The statute of Connecticut required the assessors, after com- 
 pleting 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 constituted to hear appeals 
 from the doings of the assessors, and havii;^ 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, <fec., such assessment 
 
 1 2 Hening & Munford, 318-344. 
 
 2 Kaybotn v. Kuhl, 10 Iowa, 92. 
 ' Long V. Bmnett, 13 Iowa, 29. 
 
OF THE LISTING AND VALUATION OF THE LAND. 119 
 
 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 assessment lists, may, not- 
 withstanding, be levied and collected." 
 
 The case of the Thames Manufacturing Company 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 list was duly made out, but an abstract of it was 
 not left with the town clerk until the twentieth day of Decem- 
 ber, 1827. After the first day of that month, the plaintiffs 
 repeatedly called at the clerk's ofBce 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 assess- 
 ment. Tlie defendants also produced the rate bill, based upon 
 
 •the said assessment, in which the plaintiffs were taxed sixty- 
 five dollars and eighty-five cents ; also a warrant to collect the 
 tax, which was delivered to the collector, under which the 
 goods in question were seized and- sold in 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 over- 
 ruled 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 imperative 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 defective assessment 
 lists, but which remained unlevied and uncollected when the 
 law took effect, and to assessments which might thereafter be 
 made. That it could not extend to assessments on which taxes 
 had already been levied and collected, so as to affect actions of 
 
 1 7 Connecticut, 550. 
 
120 OF THE LISTING Ji.ND VALUATION OP THE LAND. 
 
 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 direction is imperative, 
 and is alone alterable by the legislature. The court must take 
 the law as they find it, and cannot say that a return after De- 
 cember the first is valid, unless they assume the character of 
 law makers. The reason of this legislative provision is appa- 
 rent. It is for the general benefit of every inhabitant of our 
 towns, that each may inspect the list of his estate, and if he 
 believes that injustice has been done him, that he may appeal 
 for its correction to the board of review. That a time for the 
 return of the lists should be limited, the general convenience 
 demands ; and that it should be sufficiently early for universal 
 inspection, and preparation for a future hearing before the 
 board of review, is perfectly obvious. On this pi-inciple the 
 legislature fixed the first of December as the ultimate period 
 of return. That the return "should be punctually made, is in-* 
 dispensable. A different principle would nullify the law, and 
 produce the general inconvenience arising from an unlimited 
 return. No person, in such case, could know when he might 
 inspect his list ; and if the return was late, no time, either for 
 reflection or preparation for a review, could be had. If the 
 legislature, in a charter of incorporation, had authorized the 
 laying of taxes upon lists returned to a public office at a speci- 
 fied time, the necessity of a strict observance of the limitation 
 would not admit of a question.^ The case before us is" strictly 
 analogous to the one supposed. The general law is an enabling 
 act to all our towns ; it has prescribed the subjects of taxation, 
 and the mode, and as there is no authority to tax, except what 
 is conferred by the law, it must be strictly 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." 
 
 1 2 Cranch, 127 ; 3 Bamewall & Alderson, 1 ; 5 Taunton, 792 ; 5 Connecticut, 
 560. . 
 
or THE LISTING AND VALUATION OF THE LAND. 121 
 
 A similar decision was made by the Supreme Court of 
 Illinois in the case of Marsh v. Chesnut.i The revenue law 
 required the assessor to complete his assessment, and retui-u 
 the same to the clerk of the county commissioners' court, 
 on or before the first day of May ; and it authorized parties 
 interested to apply, at the ensuing June term of tliat court, foi* 
 the purpose of having the valuation of their property reduced. 
 The list was not returned until June 3, which was the day of 
 the sitting of the court. Treat, C. 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 intention of the legislature, that at least one month should 
 intervene between the return of the assessment and the sitting 
 of the court having the power to revise the doings of the asses- 
 sor. 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 impera- 
 tive. 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 de- 
 clare it to be directory merely. Such a decision would virtu- 
 ally 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 coui't 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 provides that no application to reduce the valuation 
 shall be made after the June term of the court. When this 
 assessment was made, the law- required the county commis- 
 sioners' court to commence its session on the first Monday of 
 June ; and the first Monday of June, 1839 (the year the 
 
 1 14 Illinois, 223. 
 11 
 
122 OF THE LISTING AND VALUATION OF THE LAND. 
 
 assessment was made)^ was the third day of that month, so 
 that the return of the assessor was not, in fact, made until the 
 term of the court had commenced. The defendant had, there- 
 fore, no previous opportunity to inspect the return and prepare 
 an appUcation 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, ren- 
 ders 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 actual knowledge by him of the pro- 
 ceedings 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 principle alone, 
 the direction to the assessor to make his return by a given, 
 day, is compulsory, and its performance is indispensable to the 
 validity of the assessment. Without a valid assessment, the 
 subsequent proceedings necessarily fall for the want of a basis 
 upon which to rest. The case of the Thames Manufacturing 
 Company v. Lathrop, 7 Connecticut, 550, is directly in point. 
 
 Another branch of this case arose iipon the construction of 
 the two following statutes. 1. The act of February 8, 1849, 
 which provided, that all assessments for the year 1848 and 
 prior years, " which were not completed within the time re- 
 quired by law, be, and the same are hereby declared to be as 
 good, valid, and effectual, as if they had been made and re- 
 turned in strict conformity to law." 2. The act of February 
 15, 1851, which declared, that when any assessor had thereto- 
 fore or should thereafter fail " to complete or 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 
 
OP THE LISTING AND VALUATION OF THE LAND. 123 
 
 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 embrace cases like 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 
 assessments that had not been perfected within the time pre- 
 scribed, 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. Detten i arose upon the construction 
 of the 21st section of the act of March 3, 1845, which required 
 the assessment to be completed and returned by the first Mon- 
 day of August, and the 26th section of the same act, wliich 
 authorized an application by the owner for a reduction of' the 
 assessment at the September term, and not afterwards. The 
 assessment in question was for the year 1845, and was not 
 returned until October 30. The defence relied upon the same 
 curative acts above recited, and the special act of February 5, 
 1849, which read thus : " Tliat the assessment of property for 
 taxation in the county of Madison, State of Illinois, for the 
 years 1846, 1846, and 1847, be, and the same are hereby 
 legalized, any neglect or inability on the part of the assessor 
 or assessors of said county to make and return the assessment 
 for either or all of said years within the time required by law, 
 to the dbntrary notwithstanding." The land in controversy 
 lay in the county of Madison. The court held, that this case 
 was distinguishable in no respect from the preceding one, and 
 'rendered judgment against the tax title. 
 
 An accurate and a pertinent description of the land em- 
 braced in the list is essential to its validity.^ The object of 
 this requirement is, to enable the owner to ascertain from the 
 
 1 15 Illinois, 218. 
 
 2 See HulJbell v. Weldon, Hill & Denio, 139. 
 
124 OF THE LISTING AND VALUATION OF THE LAND. 
 
 list itself, that the tax charged against him has been assessed 
 iipon his land, and not upon that of a stranger. Besides, the 
 list is the foundation of all the subsequent proceedings. Each 
 document, wherein the land is designated, must necessarily 
 depend upon the list for the accuracy of its description. A 
 false or mistaken description in the list, runs through the 
 warrant to collect, the advertisement, return, certificate, and 
 deed.i And even when an error is discovered, and corrected 
 in either of the subsequent documents, a defective listing is 
 not cured by the amendment. It follows, that unless a true 
 description is contained in the list, the officer has no guide in 
 advertising, selling, and conveying the land ; the former owner 
 cannot know that his land is in jeopardy, and be able to save 
 it by paying the tax ; nor can the purchaser at the tax sale 
 find and locate the land after his purchase.^ 
 
 In the case last cited the court say : " In an assessment of 
 taxes, it is indispensably necessary that the lands should be 
 designated or described in such a manner, as may lead the 
 owners thereof to a knowledge of their being assessed ; other- 
 wise it is impossible that they can or ought to be considered 
 as knowing, and therefore delinquent, on account of the non- 
 payment of taxes ; since they have no means afforded by the 
 assessors, such as are clearly required by the several acts of 
 assembly on the subject, of knowing or ascertaining that their 
 lands are assessed. To deprive them of the right to their 
 lands, by a sale of them for taxes, without their having the 
 j-equisite means afforded them of knowing and ascertaining 
 .that they have beeji assessed, would not only be urijust, but 
 ■iniquitous in the extreme." A description sufficiently certain 
 to convey land between man and man, and which, if contained 
 in an agreement to convey, would authorize a court of equity 
 to decree a specific execution, will not answer in the proceed- 
 
 1 See Yeuda v. Wheeler, 9 Texas, 408. 
 
 ' Brown u. Dinsmoor, 3 New Hampshire, 103; Tallman v. White, 2 Comstock, 
 66 ; Douglas v. Dangerfield, 10 Ohio, 152 ; Turney v. Yeoman, 16 Ohio, 24 ; Car- 
 rie V. Fowler, 5 J. J. Marshall, 145 ; Dunn v. Kalyea,' 6 Watts & Sergeant, 475. 
 
OP THE LISTING AND VALUATION OF THE LAND. 125 
 
 ings 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 description, parol 
 evidence is resorted to for the purpose of explaining it, and 
 giving to the intention of the parties complete operation ; and 
 where the estate intended to be conveyed, is sufficiently de- 
 scribed in the deed or other writing, the addition of a circum- 
 stance, false or mistaken, will be rejected as surplusage, 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 iindertake to list for 
 him lands lying in one place, for those which lie in another, or 
 have no existence at all, they intend to do what the law under 
 which they profess to act, does not permit.^ The rule is laid 
 down, that a listing is fatally defective and void, if it contain 
 such a falsity in the designation or description of the land 
 listed, as might probably mislead the owner, and prevent him 
 from ascertaining by the notices, that his land is to be sold or 
 redeemed. Such a mistake or falsity defeats one of the obvi- 
 ous 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'descrip- 
 tion of the land in question : " All that certain piece of land 
 situated in the county of Onondaga, &c., being what was taxed 
 and returned to the comptroller's office from the town of Sa- 
 lina, as that part of block twenty-nine,_in the village of Lodi, 
 which is bounded west by David S. Colvin's, thence north to 
 lands of Philo D. Mickles & Co., east by lands of Levi Chap- 
 
 1 Tallman v. White, 2 Comstock, 66; Lessee of Perkins v. Dibble, 10 Ohio, 
 433. The opposite doctrine was asserted in Blakely v. Bestor, 13 Illinois, 708. The 
 list described the locus in quo as " 20 feet on Main street, by 72 feet deep, commenc- 
 
 2 Tallman u. White, 2 Comstock, 66. And see Yeuda v. Wheeler, 9 Texas, 
 408. 
 
 11 * 
 
126 
 
 OF THE LISTING AND VALUATION OF THE LAND. 
 
 man, and south by Foot street." This was a true description 
 of the lot in all respects, except the name of the village where 
 it lay. There was a tract of land three-fourths of a mile dis- 
 tant, called Lodi, laid off into lots and blocks, but never incor- 
 porated as a village, and, in fact, annexed to Syracuse ; and it 
 
 ing 40 feet from the alley, undivided one half lot 6, block 7, Peoria." The follow- 
 ing plan will show the precise location of the land, according to the decision ; 
 
 N. 
 
 ^ 
 
 HARRISON STREET. 
 
 
 
 10. 
 
 9. 
 
 8. 
 
 7. 
 
 
 6 
 
 
 
 fl 
 
 
 
 c 
 
 
 « 
 
 
 6. 
 
 o 
 
 i 
 
 
 
 1 
 
 
 MAIN STREET. 
 
 S. 
 
 All of the subsequent proceedings omitted the depth of the lot, namely, "by 72 feet 
 deep." The sale was held valid; the court saying: "It is the duty of courts to 
 give effect to the intent of parties, if it can be done consistently with the rules of 
 law. In an ordinary deed, when twenty feet of a lot on a particular street is con- 
 veyed, 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 construction, as applied to the execu- 
 tion of naked statutory powers, has no application 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 vrith the cases relied upon in the text. 
 
OF THE LISTING AND VALUATION OF THE LAND. 
 
 127 
 
 was further proved, that there was no lot or block in Lodi 
 which answered to the description in the list and deed. The 
 court held the sale void, saying : " In this assessment there 
 was a fatal falsity in describing the parcel of land to be taxed. 
 It was described as situate in Lodi, whereas it lay in Syracuse. 
 A land owner exercising ordinary diligence in searching the 
 volume of advertisements to ascertain whether his lands are to 
 be sold for taxes, or are to be redeemed after sale, looks under 
 the appropriate head, that is to say, under the name of the 
 tract or, place where his lands lie, and not elsewhere. He 
 might, therefore, be misled and deceived by such a mistake, as 
 was made in this case : because, for land lying in the village of 
 Syracuse, he would look under that head, and not under that 
 of Lodi. If, instead of looking at the advertisement, the owner, 
 in the present case, had addressed a note to the comptroller's 
 office, inquiring whether block number twenty-nine, in the 
 village of Syracuse, was returned for unpaid taxes, and liable 
 to be sold, he would undoubtedly have received an answer in 
 the negative, because the lot in question would not be found 
 returned and entered in its proper place. It is plain that the 
 misdescription would probably mislead, and it is, therefore, 
 fatal to the validity of the assessment." 
 
 In Lafferty's Lessee v. Bjers,^ the land was thus listed : 
 
 Name. 
 
 No. of Entry. 
 
 Original 
 Proprietor. 
 
 Ori^nal 
 Quantity. 
 
 Watercourse. 
 
 Acres. 
 
 Rate. 
 
 Tax. 
 
 Haines, John. 
 
 4401. 
 
 Haines, John. 
 
 170. 
 
 Mad River. 
 
 73 
 
 2 
 
 39.22 
 
 The coiirt 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 motion for a new trial, 
 this ruling was sustained, the court saying : " In this case, the 
 whole original entry was listed by its then owner, Haines, and, 
 perhaps, was sufficiently described by its number and water- 
 course ; but ninety-seven acres had been transferred to another 
 
 1 5 Hammond, 457 ; B. C. 5 Ohio, 290. 
 
128 OF THE LISTING AND VALUATION OF THE LAND. 
 
 name, leaving seventy-three acres still standing to Haines. 
 What seventy-three acres ? In common or separate ? If sep- 
 arate, in what part of the lot does it lie ? The answers to these 
 questions materially affect the price. Without 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 the Lessee of Massie's Heirs v. Long et al.,^ the defendant 
 claimed title to part of out-lot number forty-three, in ihe town 
 of Cliillicothe. 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." Tlie listing was in the name of Edward Long. 
 Parol evidence was offered to show that the " one acre " named 
 in the list was on the north quarter, where Long resided. The 
 evide'nce 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 Treon's Lessee v. Emerick,^ the description in the list, 
 or duplicate, was as follows : " Sixty acres, part of the north 
 half of Section 13, Town. 3, Range 4, &c.," and the sale was 
 held void. 
 
 [In Stewart v. Aten,^ the description upon the duplicate was 
 " 150 acres, part of Section 36, N. W. corner," was held defec- 
 tive, unless the 150 acres were situate in the N. W. cornei: of the 
 section, and in a square form ; and a sale of a rectangular plat 
 in that corner was held invalid. And in Head v. James,* the 
 description " north and west part S. E. i Sec. 4, T. 4, R. 12, 
 acres 50," in the assessment and sale, was considered so en- 
 tirely void as to create no cloud upon the title, and not a sub- 
 ject of proceedings to annul in a court of equity.] 
 
 In Douglas v. Dangerfield,^ the facts were, that Theodoric 
 
 1 2 Hammond, 287 ; s. c. 1-4 Ohio Cond. 364. 
 
 2 6 and 7 Ohio, 161. 
 » 5 Ohio State, 257. 
 * 13 Michigan, 641. 
 » 10 Ohio, 152. 
 
OP THE LISTING AND VALUATION OF THE LAND. 
 
 129 
 
 Bland entered 1333 J acres of laud, on part of military warrant 
 number 209, the number of the entry being 1122. It was 
 entered for taxation .upon the list, thus : 
 
 Present 
 Owner. 
 
 Bland, Theo. 
 Dangerfield,VV. 
 
 No. of 
 Entry 
 
 1122 
 1122 
 
 Original 
 Proprie- 
 tor. 
 
 Bland,!. 
 Same. 
 
 Origi- 
 nal 
 Quan- 
 tity. 
 
 1333J 
 1333i 
 
 Rattlesnake. 
 Same. 
 
 No. of 
 Acres. 
 
 Value, 
 inclu- 
 ding 
 
 $285 
 S513 
 
 Tax, in't 
 & pen'ty. 
 1828. and 
 tax 1829. 
 
 c. M. 
 28 5 
 11 25 
 
 Remarks on the 
 day of sale by 
 the Auditor. 
 
 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 1383J 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 adver- 
 tisement-. It is altogether uncertain. The same remark may 
 be made with respect to the 846 acres, taxed in the name of 
 Dangerfield. The complainants attempt to avoid this difficulty 
 by assuming that this .defect is caused by the sale, alleging, that 
 as both tracts constitute the whole survey, and as both were 
 sold to one person, there can be no difficulty about the loca- 
 tion. If, however, there was error in the duplicate and adver- 
 tisement, that cannot be cured by a subsequent sale and pur- 
 chase. 'The two parcels must have been sold separately, or the 
 sale would be void, and the case must be decided as it would 
 have been had the sales been made to different individuals. 
 This case is like that of Lafferty v. Byers, in which the sale 
 was held void, and upon the authority of that case we hold this 
 sale to be void." 
 
 In Perkins v. Dibble,^ the land was thus listed : 
 
 1 10 Ohio, 433. 
 
130 OP THE LISTING AND VALUATION OF THE LAND. 
 
 Owners. Range. Town. Section. 
 
 Lot. Acres. Tax. 
 
 Jos.Yeomans.| 3 | 18 | 1 UXpagt. | l"" \b!,1 
 
 The map in the county auditor's office showed how the land 
 described in the list was located, and was admitted in evi- 
 dence, subject to objection. The court, after stating that upon 
 the facts there would be no difficulty in finding the laud, had 
 it been conveyed by a similar description in a deed, proceed to 
 say : " But although this description might be sufficiently cer- 
 tain 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, &c., and for that purpose it was made his 
 duty to visit each house in the county, &c. ; and section eleven 
 provided, that the list " shall particularly set forth the name of 
 the owner or owners, the number of acres of land in each par- 
 ticular, tract, lot, section, or subdivision thereof, the range, 
 township, section, quarter section, tract, Jot, or part thereof, or 
 the number of the entry, location, survey, or watercourse, as 
 the nature of the general or particular surveys may require, so 
 as completely to designate or identify the same." The court, 
 in giving to this law a construction, arrived at the conclusion, 
 that the listing of the land in controversy was not' iu confor- 
 mity to the law, and pi'onounced judgment accordingly, say- 
 ing : " The great object here is to have the lists so made out as 
 to designate and identify the land, and the dififerent modes of 
 division in the different parts of the State referred to, whatever 
 that division may be, whether into entries and surveys, or into 
 townships, sections, quarter sections, tracts, or lots ; the num- 
 ber of acres in each division or subdivision must be separately 
 and particularly set forth. If the owner of the land does not 
 furnish a list, it is made the duty of the» assessor to make it 
 
OF THE LISTING AND VALUATION OF THE LAND. ISl 
 
 out ; and having taken these lists, and having affixed a value 
 to the property, it is his duty to return an abstract of the same 
 to the county auditor. Prom this abstract returned, the county 
 auditor was to make out a tax duplicate. That there should 
 be no mistake, the thirty-ninth section of the act describes the 
 forms which shall be made use of by the officers, whose duties 
 are prescribed in the act. These forms show that, both in the 
 list and in the duplicate, tlie precise number of acres in each 
 particular tract, or l(5t, or part thereof, must be particularly 
 set forth. In the case now before us, this was not done ; the 
 description is, one hundred acre? in the north part of two lots. 
 It does not show the number of acres in each particular lot, 
 and is not in this respect in conformity with the law. No case 
 precisely like the one before us has ever been decided by the 
 court, but adopting the principle by which we have been gov- 
 erned 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 bill in chancery for a 
 partition, the facts were that survey numbered 988, calling for 
 one thousand acres, was patented by the United States to Hec- 
 tor McNeal and Josepli and Robert Wilkins, as tenants in 
 common. The plaintiff claimed title to an undivided third of 
 said survey, being the interest of the said McNeal, imder and 
 by virtue of a sale thereof for taxes, made July 8, 1833. The 
 land was listed for taxation as three luindred and thirty-three 
 acres in the original survey of oneihousand, 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 regu- 
 larity 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 
 
 1 16 Ohio, 24. 
 
132 OF THE LISTING AND VALUATION OF THE LAND. 
 
 the description and recitals in the deed, &c. If the description 
 and recitals 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 tlie statute authorizing and prescribing the mode of tax sales, 
 had not been complied with. It merely changes the onus of 
 proof. If the description in the listhig, then, be not sufficient, 
 it may be shown to destroy the deed ; nor can such defect be 
 cured by the description and recitals in the deed, or other 
 proof. The land listed for taxation mi;st be described with 
 sufficient certainty to point out what particular lands, and the 
 description in the deed is limited to the description in the list- 
 ing. 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 sliow- 
 ing that he failed to perform his duty, by giving a wrong or 
 vague description. It would have been well in the first in- 
 stance, perhaps, to have held this doctrine, but the opposite 
 principle has always been observed, and been too frequently 
 asserted to be disturbed, except by legislative interference, 
 which would give it only a prospective effect. The land is not 
 described in 'the listing as land held iu common, not as an 
 undivided interest of 333 acres in the original survey of 1000, 
 but simply as 383 acres somewhere in the original survey of 
 1000, without specifying in what part of such survey. It is 
 precisely the same as the case of Lafferty v. Byers,' which was 
 a listing of 73 acres, in a survey of 170. It was held not to be 
 sufficiently certain ; and numerous decisions support the same 
 principle, and it never has been otherwise decided. We hold, 
 
 1 5 Hammond, 457. 
 
OF THE LISTINa AND VALUATION OF THE LAND. 133 
 
 therefore, that the tax deed is invalid, because the land was 
 not sufficiently listed for taxation." 
 
 . In Hannel v. Smith,i the description was, " 30 feet between 
 Chestnut and Elizabeth streets; value, $210 — tax for 1841, 
 ?f5.25." By the court: "It is admitted, that according to 
 numerous decisions of this court, heretofore made upon tliis 
 subject, this description is defective ; but it is claimed that 
 these decisions are all wrong ; and that this court have been 
 led into error by following the decision of the Supreme Court 
 of the United States, in the case of Stead's Executors v. Course ; 
 'and the opinion of Judge Marshall, in that case, has been com- 
 mented on with no little severity. It may be that the counsel 
 is right, and that the Supreme Court of the United States, and 
 this court, are all wrong. But we generally feel that we are 
 pretty well fortified, if our decisions are sustained by the 
 authority of the highest court in the Union, &c. But aside 
 from the decisions of this court, is the description of the land, 
 as entered upon the duplicate, sufficient ? The law requires 
 ' a pertinent description of the property, so as to identify the 
 same.' The number of the lot is not given. It is not stated 
 whether it is an entire lot, or a part of the lot. It does not 
 appear whether it is thirty feet front, or thirty feet square. 
 And if thirty feet front, it is not stated upon what street it 
 fronts. There is, in fact, nothing in the 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 list described the land as " 56 acres in 
 the southeast quarter of Section 8, Townsliip 12, Range 13 ; " 
 and tlie description was held too imperfect to authorize a judg- 
 ment against the land. 
 
 In Currie i>. 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 watercourse 
 
 1 15 Ohio, 134. 
 
 2 .5 Blackford, 51. 
 
 » 5 J. J. Marshall, 145. 
 12 
 
134 OF THE LISTING AND VALUATION OF THE LAND. 
 
 upon which the land was situated. The land iir-question was 
 entered as lying upon the waters of " Big Boone," while the 
 list described it as lying upon the borders of " Bank Lick;" 
 The court held the sale void. " The design of the law in 
 requiring the owners of the land to state the watercourse 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 pur- 
 chase, to find it by the description, ascertain its value, and 
 regulate their bids accordingly. The sheriff advertised and 
 sold five thousand acres on Bank Lick, and gave his certificate 
 accordingly. When the surveyor thereafter surveyed " Big 
 Boone," and the sheriff afterwards conveyed the land thus sur- 
 veyed, they departed from the law, and so far their acts conveyed 
 no title. We know of no precedent for getting over a variance 
 in the watercourse, and we are not disposed to make one. Bid- 
 ders and purchasers have no right to complain, when they pur- 
 chase land upon one stream, that they must find it there, or 
 not get it at all. We are not disposed to help them out of their 
 speculations, although we will give them full justice by pre- 
 suming 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 any thing 
 known to us, have attended the sale, and paid the taxes for 
 half the quantity claimed by Fowler. It was the sheriff's duty 
 to advertise, however, in pursuance of the auditor's transcript, 
 and to sell accordingly ; the error consists in going to a differ- 
 ent quarter of the country afterwards, to hunt the land." 
 
 [In Lachman v. Clark, ^ a description of the property as " a 
 ranch, commonly known as ' Clark's Ranch,' situated' on the 
 Auburn road, two miles south of Grass Valley, in Nevada 
 county, State of California," was held insufiicient, the statute 
 requiring that land outside of a city or incorporated town should 
 be described by metes and bounds ; the number of acres as 
 
 J 14 California, 131. 
 
OP THE LISTING AND VALUATION OF THE LAND. 135 
 
 nearly as possible, and the locality and township should be 
 given.] 
 
 In Brown v. Dinsmoor,^ the statute provided, " that the 
 selectmen, &c., shall make out in writing under their hands, 
 and deliver the same to the several collectors, <fec., a list of all 
 such assessments, and insert therein the name of the owner, if 
 known, otherwise the name of the original proprietor, and the 
 number of acres taxed, and the number of the lot and range ; 
 - and the proportion of each assessment to each lot or tract of 
 land taxed, shall be set against said lot or tract of land in the 
 list aforesaid ; and if any building of a non-resident shall be 
 taxed, the number of the lot, or other description of the land 
 whereon it stands, shall be mentioned in said list. And if the 
 name of the owner and the original proprietor of any land be 
 unknown, the quantity of land, the number of the range and 
 lot, if lotted, otherwise such description of the land taxed as it 
 is usually known by, being inserted in said list, shall be a suf- 
 ficient 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 contended 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 description of 
 the land, is required to be inserted. The other side contended 
 that not only the name of the owner, or original proprietor, if 
 known, must be inserted, but also the number of acres taxed, 
 and the number of the range and lot. The court, in deciding 
 the question, say, that " such is the language of the statute, 
 that it may be construed either way," and conclude that the 
 name of the owner and a description of the land was the true 
 construction, and the list was held void because the range and 
 lot were not set forth. 
 
 1 3 New Hampshire, 103. 
 
136 OF THE LISTING AND VALUATION OF THE LAND. 
 
 In Ainsworth v. Dean,i the listing and subsequent proceed- 
 ings were held void ; the facts of the case, the statute, and 
 reasoning of the court sufficiently appear in the following 
 extract from the opinion delivered in the cause : " It is defect- 
 ive, because neither the number of the lot, nor of the range, 
 is inserted, though it appears that the land was lotted. The 
 land is described as ' sixty-eight acres, part of the 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. Mersereau,^ there was a sale of 800 
 acres of land, to be laid out in a square form, as nearly as 
 might be, in the northwest corner of 2,401 acres, in township 
 one, assessed to John Garrettson, and described in the assess- 
 ment list as " bounded on the south by Joshua 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, wiiich declares that 
 "no irregularity in the assessment" shall invalidate the-sale, 
 it has been held, that an imperfect description, but one calcu- 
 lated to inform the owner that his land has been assessed, will 
 be regarded as sufficient.^ And in Williston v. Colkett,* a 
 tract of land described in a warrant as containing 999 acres, 
 and which was originally assessed to tlie warrantee, and de- 
 scribed by the number of the warrant, the name of the war- 
 rantee, and the number of acres, was reduced in quantity by a 
 sale to 600 acres. Mann, who was the purchaser from the war- 
 rantee, neglected to list his portion of the tract ; the assessor 
 
 1 1 Foster, 400. 
 
 2 3 Barbour, Ch. 528. 
 
 8 Strauch v. Shoemaker, 1 Watts & Sergeant, 175; Michew v. McCoy, 7 Watts 
 & Sergeant, 390; Dandcn v. Snodgrasa, 6 Harris (Penn.), 151. 
 ♦ 9 Barr, 38. 
 
OF THE LISTING AND VALUATION OF THE LAND. 137 
 
 inserted it in the list as unseated land, and described.it as con- 
 taining 200 acres, and Mann recognized this listing by paying 
 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 quantity for two years, the defect must 
 be regarded as cured by the statute. Where, in the descrip- 
 tion, initial letters, abbreviations, and figures were used, thus : 
 " E. i S. W. 4, section 24, town 8, south of range 7 west, 80 
 acres, &c.," the proceeding was held regular.' 
 
 The validity of the listing oftentimes depends \ipon the char- 
 acter of the land. Bach State being governed by its own pecu- 
 liar 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 wher- 
 ever a confusion of these diiferent 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. 
 
 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 lax 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 
 
 1 Sibley v. Smith, 2 Gibbs (Mich.), 503. 
 12* 
 
138 OF THE LISTING AND VALUATION OF THE LANP. 
 
 land is occupied, and purcliases at his peril.i [But by act of 
 1844, seated lands may also be sold for taxes, actual notice of 
 the sale being given by the treasurer of the county to the 
 owner ; and the latter has one year from such time, in which 
 to redeem.2 But this act did not include road taxes. They 
 are still a personal charge on the owners.^] 
 
 The policy of this system of taxation is thus explained in 
 Burd V. Ramsay : * " The selling of lands for the trilling amount 
 of taxes usually due upon them, is always attended with incon- 
 venience and vexation to the owners, who are often involved 
 in trouble and expense by the sheer neglect of the collectors, 
 who seldom make a personal demand. This, and not the 
 amount to be paid, has been the cause of the repugnance con- 
 stantly evinced to acts of Congress laying a land tax, which 
 have always contained a provision for the sale of the land itself. 
 Our State legislature, on the contrary, have ever bfeen guided 
 by the wise policy of not looking to the land in that class of 
 cases which necessarily afford a reasonable probability of ob- 
 taining the tax from the person or chattels of the owner. They 
 seem to have supposed, that on every tract of land in actual 
 occupancy, sufficient personal property would be found to sat- 
 isfy the demand, by distress, &c." A tract of land ceases to 
 become unseated as soon as it is occupied with a view to per- 
 manent use, and that occupancy may be said to commence 
 with 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 becom- 
 ing a resident, improves and occupies it in such a way as to 
 
 1 Young V. Martin, 2 Teates, 312 ; Owens v. Vanhook, 3 Watts, 260; Patterson 
 V. Blackmore, 9 Watts, 104; Commissioners v. Smith, 10 Watts, 391 ; McKee v. 
 Lamberton, 2 Watts & Sergeant, 107 ; Hockenbury v. Snyder, .2 Watts & Sergeant, 
 240 ; Cranmer v. Hall, 4 Watts & Sergeant, 36 ; Larimer v. McCall, 4 Watts & 
 Sergeant, 133 ; Smith v. McGrew, 4 Watts & Sergeant, 338. 
 
 '^ Miller v. Gorman, 2 Wright (Penn.), 309. 
 
 8 See Arthurs v. Smathers, 2 Wright (Penn.), 40. 
 
 ' 9 Sergeant & Rawle, 109. 
 
 6 Wallace v. Scott, 7 Watts, 248 ; Milliken v. Benedict, 8 Barr 169. 
 
OF THE LISTING AND VALUATION OF THE LAND. 139 
 
 furnish upon the land the means of making and levying the 
 taxes by distress, it must be considered in law as seated, and 
 no longer liable to be assessed with taxes, and sold for them if 
 they remain unpaid. The officers need not inquire, nor are 
 they bound to know, by what authoi'ity he has entered upon 
 and taken possession of the land.^ Kesidence without cultiva- 
 tion, or cultivation without residence, or both combined, will 
 constitute a seating of the land ; ^ and where the land is actu- 
 ally possessed by residence thereon, it cannot be sold for taxes, 
 whether the occupier has personalty sufficient to pay the tax 
 or not.^ One in possession of a portion of a tract of land, hav- 
 ing 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 occu- 
 pied is immaterial, so that the intent is manifest to take and 
 hold possession of the entire tract. ^ [So the improvement of 
 part of a tract of land under a lease, whereby the tenant is to 
 have the use of that part only, will render the whole tract 
 seated, and prevent its being sold for taxes as " unseated " 
 land.^ So a clearing, over the line of a tract, by an intruder, 
 with full knowledge of its position, but without any act indica- 
 ting an intention to claim a part of the tract to the exclusion 
 of the residue, does not destroy the entirety of the tract, but 
 the whole thereby becomes seated ; and its subsequent assess- 
 ment and sale as unseated conveys no title.'] But where one, 
 with or without color of title, takes possession of unseated lands 
 belonging to another, and designates the extent of his claim, 
 
 1 Campbell v. Wilson, 1 Watts, 503 ; Larimer v. McCall, 4 Watts & Sergeant, 
 133 ; s. c, 4 Watts & Sergeant, 351. 
 
 2 Kennedy v. Daily, 6 Watts, 269 ; Wilson v. Watterson, 4 Barr, 214. 
 
 3 Campbell v. Wilson, 1 Watts, 503. 
 
 * Campbell c. Wilson, 1 Watts, 503 ; Larimer v. McCall, 4 Watts & Sergeant, 
 133, 351 ; Ellis v. Hall, 6 Harris (Penn.), 292 ; Mitchell v. Bratton, 5 Watts & Ser- 
 geant, 451. 
 
 s Ellis !). Hall, 6 Harris (Penn.), 292. 
 
 "> Green v. Watson, 10 Casey (Penn.), 332. 
 
 ' Jackson v. Fletcher, 1 Grant's Cases, 459. And see Jackson v. Sassaman, 5 
 Casey (Penn.), 106. 
 
140 OF THE LISTING AND VALUATION OF THE LAND. 
 
 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 beyond 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 suspension of his possession, — no animus revertendi must 
 exist in the mind of the occupant.^ The owner of the claim, 
 or occupant, cannot abandon the possession of a part of an 
 entire tract, which was, prior to the time of the alleged aban- 
 donment, regarded and listed as' seated land : to constitute any 
 portion of it unseated, and authorize its transfer to that list, 
 there must be an abandonment of the entire tract.* It is pre- 
 sumed, however, that where there is a claim to an entire par- 
 cel, 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 posses- 
 sion to all, the reasonable inference is, that when he abandons 
 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 
 
 1 Mitchell V. Bratton, 5 Watts & Sergeant, 451. 
 
 '■' See Arthurs v. Smathers, 2 Wright (Penn.), 44. 
 
 " Harbeson v. Jack, 2 Watts, 124 ; McKibbin v. Charlton, 2 Harris (Penn.), 128 ; 
 Sheaffer v. M'Kabe, 2 Watts, 421 ; Pish v. Brown, 5 Watts, 441 ; MiUiken v. Ben- 
 edict, 8 Barr, 169 ; Keating v. Williams, 5 Watts, 382; Kennedy v. Daily, 6 Watts, 
 269. 
 
 * Patterson v. Blackmore, 9 Watts, 104. 
 
 6 Wilson V. Watterson, 4 Barr, 214 ; Gibson ». Robbins, 9 Watts, 156; Forster 
 V. McDevit, 5 Watts & Sergeant, 359. 
 
OP THE LISTING AND VALUATION OE THE LAND. 141 
 
 are uniform as to the consequences of an abandonment. It 
 discharges the owner and his personalty from liabihty, renders 
 the land unseated, 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 qxiestion as to the inten- 
 tion of the intruder ; if he entered upon the adjoining tract 
 for the purpose of acquiring a right in hostility to the owner, 
 he would become seated upon the land ; if he encroached 
 under a mistaken belief as to the extent of his boundaries, his 
 entry could not give character to the land encroached upon, as 
 seated.^ It is evident that the qiiantity occupied is immaterial, 
 where the intention is manifest to take possession of the entire 
 tract.* Where one is possessed of a part, claiming title to the 
 whole, and the tract is divided afterwards by the organization 
 of a new county, and the vacant part of the tract is in the new 
 county, this does not change the character of the land as 
 seated.^ Where the original tract contains four hundred acres, 
 a portion of which is occupied and listed as seated lands, and 
 afterwards the owner sells one hundred acres of the tract, over 
 which his occupancy did not extend, the portion sold loses its 
 character of seated land.* But where an unseated tract de- 
 scends to several heirs, and some of them sell and convey their 
 undivided interest in the land to a stranger, who enters and 
 
 1 Harbeson v. Jack, 2 Watts, 124 ; McKibben v. Charlton, 2 Harris (Penn.), 128 ; 
 Sheaffer v. M'Kabe, 2 "Watts, 421 ; Fish v. Brown, 5 Watts, 441 ; Gibson v. Robbins, 
 9 Watts, 156 ; Forster v. M'Devit, 5 Watts & Sergeant, 359; Wilson v. Watterson, 
 4 Barr, 221 ; Kennedy v. Daily, 6 Watts, 273. 
 
 2 Fish V. Brown, 5 Watts, 441 ; Campbell v. Wilson, 1 Watts, 503. 
 
 8 See Forster v. M'Devit, 5 Watts & Sergeant, 359; Jennings v. McDowell, 
 Barr, 387. 
 
 * Ellis V. Hall, 6 Harris (Penn ), 292. 
 6 Bills V. Hall, 6 Harris (Penn.), 292. 
 » Campbell v. Wilson, 1 Watts, 503. 
 
142 OF THE LISTING AND VALUATION OF THE LAND. 
 
 occupies, the whole of the tract will be regai'ded as unseated.^ 
 The question whether lands are seated or unseated, is a ques- 
 tion 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 sustained.^ Where un- 
 seated land is assessed upon the seated list, it cannot be sold.* 
 And where the laud is cultivated, it cannot be assessed as 
 unseated, though the owner does not reside on it. And the 
 assessor is not authorized to return it as such, if there be 
 marks of cultivation without residence, which puts him upon 
 inquiry ; without the clearest signs of abandonment.^ [And 
 absence from the land for a little more than a year, has been 
 held an insufficient abandonment to render the land taxable as 
 unseated land.^] So, if a tract of land, which is, in point of 
 fact, unseated, be assessed as seated land, with the knowledge 
 and assent of the owner and the commissioners of the county, 
 it must be taken as seated so far as regards the assessment and 
 collection of the taxes ; and a sale of it for taxes, as unseated, 
 would be void. Land which is, in fact, unseated, and which 
 has been assessed [as seated, by an arrangement with and] 
 with the knowledge and consent of the owner, and the commis- 
 sioners of the county, may, whenever it suits the interests or 
 convenience of the county, upon giving reasonable notice to 
 the owner, be transferred from the seated to the unseated list ; 
 but the assessor has no right to transfer such lands to the 
 unseated list without reasonable notice to the owner, and if he 
 do so, a sale of it for taxes will be void.^ [But, ordinarily, 
 where the owner has abandoned the possession or occupation 
 of land so that it has in fact become unseated, it may be trans- 
 
 ' Erwin v. Helm, 13 Sergeant & Eawle, 151. 
 '^ Kosenburger v. SchuU, 7 Watts, 3S0. 
 
 " Robinson v. Williams, 6 Watts, 281 ; Murray v. Guilford, 8 Watts, 548. 
 * Milliken v. Benedict, 8 Barr, 169. 
 s Wilson V. Watterson, 4 Barr, 214. 
 s Arthurs v. Smatliers, 2 Wright (Penn.), 44. 
 
 ' Milliken v. Benedict, 8 Barr, 169. And see Commercial Bank v. Woodslde, 2 
 Harris (Penn.), 404. 
 
OF THE LISTING AND VALUATION OF THE LAND. 143 
 
 ferred to the unseated list, without notice to the owners ; since 
 they must be already aware of the fact.^ And it has been 
 expressly declared, that an abandonment must be entire, un- 
 limited, intentional, and so long and so clear as to show there 
 is no ground to suppose an intention to resume the occupation, 
 before a town lot, once seated, is liable to be treated as un- 
 seated ; unless taxed as such, with notice to the owner.^] 
 
 The same rule of strictness, in relation to the listing of lands 
 according to the legal character assigned to them by law, is 
 adopted by the courts in Maine, and it is held, that unless 
 they are listed in conformity with the law, the sale is void. 
 Thus, in Barker v. Hesseltine,^ where the law required " unim- 
 proved lands of non-resident proprietors " to be assessed accord- 
 ingly, and ■ the land in question was listed as the property of 
 " a non-resident proprietor unknown," 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 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 only, 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 de- 
 cision 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 
 
 1 Arthurs v. Smathers, 2 Wright (Penn.), 44; Laird v. Hiester, 12 Harris, 452, 
 explaining the remarks reported in some of the earlier cases. 
 
 2 Negley v Breading, 8 Casey (Penn.), 325. 
 
 3 27 Maine, 354. 
 
 * 9 Shepley, 402; 11 Shepley, 283, 386. 
 5 Messinger v. Germain, 1 Gilmau, 631. 
 « Lunt V. Wormell, 19 Maine, 100. 
 ' Rising V. Granger, 1 Massachusetts, 48. 
 
144 OF THE LISTING AND VALUATION OF THE LAND. 
 
 others the law only directs the name of the owner to be 
 inserted, when known. The spirit of this requirement is, to 
 give to the owner additional means in the examination of the 
 tax list, to ascertain whether his land has been assessed ; the 
 law presuming that every sane person will remember his name, 
 if he is unable to distinguish his land by the description con- 
 tained in the list. In Louisiana, where the statute required 
 the name of the owner to be inserted, and the list stated that 
 he was " unknown," it was held defective and void.^ 
 
 Under a similar statute in New York, it was held, that 
 where the land was described in the list as belonging to " the 
 widow and heirs of A. B., deceased," this was a sufficient 
 compliance. So the use of the firm name, where the land was 
 owned by partners. But in the same case the court said, that 
 where the land belonged to a single individual, it was proper 
 and necessary that the name of that individual should be in- 
 serted in the list.^ [In Noble v. Indianapolis,^ an assessment 
 " to the heirs of N." was held good, although they had made 
 partition of the estate, and some had been sold to third parties, 
 but the deeds had not been recorded. So an assessment "to 
 the estate of J. B. Coles." *] In Coombs v. Warren,^ which was 
 a writ of entry, the demandant claimed under a mortgage, and 
 the tenant under a tax title. The statute reqiiired the land to be 
 listed in the name of the " owner or possessor." The land in 
 question was listed in the name of the demandant, a mortgagee 
 of the premises, who never was in possession. The court held, 
 that the mortgagor was- tlie owner, and that as the property 
 was not listed in his name, the proceedings were void. 
 
 The Virginia statute required the commissioners of taxes to 
 " take an account, in writing, of the quantity of land belonging 
 to all persons within their counties, and also the name of the 
 
 1 Carmichael v. Aiken, 13 Louisiana, 205. See Yeuda u. Wlieeler 9 Texas 
 408. 
 " Wheeler v. Anthony, 10 Wendell, 346. 
 » 16 Indiana, 56. And see 4 Peters, 349. 
 * State V. Jersey City, 4 Zabriskie, 108. 
 s 34 Maine, 89. 
 
OF THE LISTING AND VALUATION OF THE LAND. 145 
 
 proprietor or proprietors thereof, and ascertain the vahie 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.i 
 
 So, where the statute of Massachusetts directed an assess- 
 ment 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 constru- 
 ing the act of Congress levying a direct tax, that an assessment 
 in the name of a person in possession under a parol contract, 
 instead of the rightful proprietor, was void.^ In Alvord v. 
 Collin,* under the peculiar phraseology of the 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 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 un- 
 known, the presumption is that the officer did his duty, and 
 that the owner was in point of fact unknown ; but where it is 
 shown that the name of the original owner was known to the 
 officer, the list will be held invalid, because the statutes ex- 
 pressly declare that the name of the owner shall be inserted 
 when it can be done.^ 
 
 I Taney v. Hopkins, 1 Munford, 419. 
 ^ Martin v. Mansfield, 3 Massachusetts, 419. 
 ' Johnson v. Mclntire, 1 Bibb, 295. 
 * 20 Pickering, 418. 
 
 [* But calling his name Packard, instead of Packer, has been held not material. 
 Pierce v. Richardson, 37 New Hampshire, 307.] 
 
 ^ The Proprietors of Cardigan v. Page, 6 New Hampshire, 182 ; Nelson v. Pierce, 
 
 13 
 
146 
 
 OF THE LISTING AND VALUATION OF THE LAND. 
 
 Where an entire tract of land is assessed to one who owns 
 only a portion of it, the listing is illegal. Thus in Barker v. 
 Blake,! it appeared that one Treat, in the 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 Bald- 
 win, 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 Barker, and 
 the assessment was held void. By the court : " It is qiiite 
 clear that the assessors had no right to assess to him his neigh- 
 bor'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.2 Thus in Shimmin v. Inman,^ 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. 
 
 No of 
 lots. 
 
 Range or 
 Division. 
 
 No. of 
 acres. 
 
 Value. 
 
 State & 
 
 County 
 
 Tax. 
 
 Town 
 Tax. 
 
 Total. 
 
 Wm. Shimmin, 
 
 or 
 
 Unknown. 
 
 16 
 17 
 18 
 
 On Pen- 
 obscot 
 River. 
 
 240 
 
 $240 
 
 $ 0. 
 
 61 
 
 $3 22 
 
 $3 83 
 
 The court held the list illegal, saying : " A fair construction of 
 
 6 New Hampshire, 194; Ainsworth v. DUn, 1 Foster, 400 ; Brown v. Veazie, 25 
 Maine, 359 ; Merrittw. Thompson, 13 Illinois, 716 ; Shimmin v. Inman, 26 Maine, 
 228. 
 
 1 36 Maine, 433. 
 
 [2 In Russell v. Werntz, 12 Harris (Pei^n.), 337, it was held, that the assessment 
 of two contiguous tracts, owned by the same person as one tract, would not ayoid the 
 sale.] 
 
 8 26 Maine, 228. 
 
OF THE LISTINS AND VALUATION OF THE LAND. 
 
 147 
 
 the statute requires, that each lot should be valued and assessed 
 separately. The lots may be owned by different persons ; and 
 if a joint valuation and assessment were allowed, one owner 
 could not ascertain the amount of tax on his own land, or pay 
 it, or redeem the land when sold, without paying the tax on all 
 the other lands assessed with it. Although, in this case, the 
 several lots appear to have been owned by one person, that fact 
 cannot dispense with the law, or excuse a deviation from it." 
 
 And in Willey v. Scoville's Lessee,^ the land was thus listed, 
 taxed, advertised, and sold : 
 
 CLEVELAND TEN-ACKE LOTS. 
 
 Owner's name. 
 
 Range. 
 
 Town. 
 
 Lots. 
 
 Acres and Rate. 
 
 Tax. 
 
 Unknown 
 heirs. 
 
 12 
 
 7 
 
 (32 34 35) 
 1 38 39 40 > 
 (Al 42 43 ) 
 
 Second Rate 
 90 
 
 $ c. m. 
 4 83 5 
 
 Grimke, J. : " The proceedings in this case show a defect 
 which is very common in tax sales. Lot 32 (the one in con- 
 troversy) was listed and advertised for sale, with eight others 
 of the same ten-acre lots, by the following description ; the 
 first and second columns contain the range and township, the 
 third enumerates the nine lots by their number, and the fifth 
 contains an apportionment in gross of the tax for which they 
 were delinquent. The law requires that the auditor should so 
 list and advertise the land, as to furnish the owner with a 
 description of the land subject to taxation, and that the sale 
 shall be advertised and conducted in conformity with that rule. 
 In this instance there was an assessment in gross of the whole 
 amount of the tax chargeable upon the nine lots, and yet each 
 lot was put up and sold to pay the tax on it separately. The 
 land is not treated as an entire tract in the list, advertisement, 
 or sale, but is so treated in the apportionment of the tax. Now 
 
 ' 9 Ohio, 43. 
 
148 OF THE LISTING AND VALUATION OF THE LAND. 
 
 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 assessment of 
 the tax in the advertisement as one aggregate sum would have 
 been correct, the description of the land would itself be erro- 
 neous, 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 statixte of Illinois provides, that each tract of land shall . 
 be listed, valued, and assessed separately. This does not mean 
 that an entire tract must be subdivided into the smallest legal 
 sub-divisions of which 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. 1-2 Sec. 5, T. 3 N., R. 4 W.," i and 
 " S. W. and S. E. Sec. 9, T. 8 N., R. 8 E.," ^ were held respect- 
 ively to be a compliance with the statute. 
 
 Lastly, to mate a complete and perfect list, the land must be 
 valued in the manner and upon the principles prescribed by 
 law. It has already been shown, that where the law required 
 the lister to join with him two householders in 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 Illinois provided, that the mode of levying 
 a tax should be by valuation, so that every person should pay a 
 tax in proportion to the value of his property. The revenue 
 law of February 19, 1827, provides, that lands " are hereby 
 declared subject to taxation, and for that purpose are hereby 
 
 • Atkins u. Hinman, 2 Gilman, 443. 
 
 ■■' Spellman v. Curtenius, 12 Illinois, 410. 
 » Kinney v. Doe, 8 Blackford, 350. 
 
 * Fitch I/. Pinckard, 4 Scammon, 69. 
 
OF THE LISTING AND VALUATION OF THE LAND. 149 
 
 divided into classes, valued 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 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 ofiice, 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 annually upon such classification, till the owner furnished 
 a new list. If the owner failed to list, the auditor was author- 
 ized 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 con- 
 stitutionality of this law was maintained by the Supreme Court 
 of Illinois, upon the ground of necessity, expediency, and co- 
 temporaneous construction, all of which were doubtful and 
 dangerous reasons to assign in favor of the validity of a legis- 
 lative valuation of land for the purposes of taxation. ^ If such 
 a principle is adhered to, there is an end of equality and 
 uniformity in the operation of the taxing power under our con- 
 stitutions, except so far. as representative responsibility may 
 secure them.^ The law which authorized this classification 
 
 1 Rhinehart v. Schuyler, 2 Gilman, 473; Bruce v. Schuyler, 4 Gilman, 221. 
 
 * The legislature of Maryland imposed a tax of a specific sum upon each county 
 in the State, without basing the assessment upon any actual valuation of taxable 
 property. The constitutionality of this law was questioned, but the Supreme Court 
 of that State held, that before such a law could be pronounced unconstitutional, it 
 must appear clearly that the persons taxable were not made to contribute according 
 to their actual worth in real and personal property ; that in the absence of evidence 
 they would presume that the tax was laid according to the provisions of the consti- 
 tution, 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 
 
 13* 
 
150 
 
 OF THE LISTING AND VALUATION OF THE LAND. 
 
 and the amendments thereto, made the deed prima facie evi- 
 dence of title, or at least the courts so held.^ 
 
 Upon the strength of these cases, affirming the constitution- 
 ality of the law of 1827, and that the deed was prima facie evi- 
 dence of title, numerous recoveries were had in the courts of 
 Illinois, upon deeds acquired under that and similar laws ; at 
 length efforts were made to prove that the lands sold under 
 those laws had never been listed for taxation in conformity with 
 the legislative classification or valuation. The first attempt 
 was made in Graves v. Bruen.^ The defendant in error relied 
 upon a tax deed made in pursuance of a sale for the taxes of 
 1832. The plaintiff in error offered in evidence the deposition 
 of the auditor for the time being, with a diagram of the listing 
 attached as a part thereof, of which the following 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." 
 
 Abstract. 
 
 
 Present 
 Owners. 
 
 ,', 
 
 Section. 
 
 en 
 
 CTl 
 
 O 
 
 ^ 
 
 <N 
 
 CO 
 
 T*. 
 
 in 
 
 CO 
 
 Patentees. 
 
 IS 
 
 Township. 
 Range. 
 
 CI 
 
 CO 
 
 CM 
 
 oo 
 
 oo 
 
 2 
 
 2 
 
 CO 
 
 CO 
 
 2 
 
 s 
 
 2 
 
 
 
 
 
 
 
 
 
 
 r/i 
 
 M 
 
 
 
 
 
 
 
 o 
 
 ,-, 
 
 ^ 
 
 m 
 
 W 
 
 P 
 
 
 c 
 
 d 
 
 R.L. J.Austin 
 
 M. Bruen. 
 
 xN.E. 
 
 131 S.7 W. 
 
 <£> 
 
 
 r- 
 
 S 
 
 (N 
 
 < 
 
 g 
 
 < 
 
 % 
 
 The auditor deposed that the land in question was listed in 
 
 as guided tlieir judgment in that particular. (Waters v. State, 1 Oilman, 302.) The 
 constitution of Florida required " the General Assembly to devise and adopt a system 
 of revenue, having regard to an equal and uniform mode of taxation, to be general 
 throughout the State." Under this clause the legislature passed an act dividing the 
 land into three classes, and required the owner to list it in the class to which it 
 belonged, and the law was held constitutional. (Levy v. Smith, 4"Florida, 154.) 
 
 1 Maxcy v. Clabaugh, 1 Oilman, 26; Vance v. Schuyler,. I Oilman, 160; GriR^es 
 .,. Bruen, 1 Oilman, 167 ; Messinger v. Germain, 1 Oilman, 631 ; Thompson v. 
 Schuyler, 2 Oilman, 271 ; Ehinehart v. Schuyler, 2 Oilman, 473 ; Bruce v. Schuy- 
 ler, 4 Oilman, 221 ; Job v. Tebbetts, 5 Oilman, 376 ; Irving v. Brownell, 11 HUnois, 
 402. 
 
 =< 1 Oilman, 167. 
 
OF THE LISTING AND VALUATION OP THE LAND. 151 
 
 the manner shown in the diagram, for the year 1832, and that 
 there was no other evidence of its having been listed in any 
 other manner ; that it did not appear whether it was listed by 
 the owner or auditor ; that there was no distinction made in 
 the diagram between the lands of residents and non-residents ; 
 that it was his belief that the land in question was listed in the 
 second class. E. H. Buckley, Esq., was called as a witness for 
 the plaintiff in error, for the purpose of explaining the diagram, 
 who deposed that the diagram was correctly copied from a large 
 book shown to him by the auditor, as a tax book for the Illinois 
 Military Bounty Land District ; that the caption was correctly 
 copied from the first page of the book ; that the heading of the 
 columns, and entries opposite said tract of land, were copied 
 from the page on vhich the land was entered, and which was 
 many pages from the first ; that there was no heading to the 
 fifth column of the diagram, oii the page from which he copied 
 it ; that he was not certain that there was none at the com- 
 mencement of the book, but thought there was not. It will be 
 perceived, on examination of the diagram, that the quantity, 
 quality, or class of the land, does not appear, and that the rate 
 of taxation is not uniform, so that the valuation is nowhere 
 ascertained hy inspection of the list, even by inference. This 
 evidence was rejected by the court below, and the judgment 
 afiirmed in the Supreme Court. Scates, J. : " Although the 
 diagram shows that some of the columns are blank, yet non 
 constat, but the proper heading would be found in all cases by 
 tracing the columns back to the first heading. The entries of 
 dates, numbers, quantity, &c.,^are not necessarily repeated. 
 The blank in the column refers back to the first entry, and the 
 loose and indefinite proof ofiered, 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. Tebbetts.i 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 
 
 1 5 Gilman, 376. 
 
152 OF THE LISTING AND VALUATION OF THE LAND. 
 
 of his office, and the columns were traced back to the first page, 
 and the class, quantity, or value, nowhere appeared. The Su- 
 preme Court reversed the judgment, holding that the deposi- 
 tion was competent. Treat, C. J. : " Whether it (the deposi- 
 tion) established what the defendant sought to prove, we do 
 not undertake to say, but in our opinion, the proof was perti- 
 nent to the point in issue, and should not have been excluded 
 from the jury. The case of Graves v. Bruen, although an 
 extreme case, is not in point. There the deposition was partial 
 and incomplete in its 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 deposition, or in the 
 case, to show that anything material is withheld. If it does 
 not, in fact, furnish all the evidence in the office, the deficiency 
 can be supplied in another deposition, <x by transcripts of the 
 record." 
 
 In Graves v. Bruen,i which came before. the court a second 
 time upon additional evidence, which explained the fifth col- 
 umn, and showed that no other Usting of the land had ever 
 been made, and gave all of the evidence to be-had upon the 
 question, in the auditor's office, the court held : 1. That the 
 listing and valuation was a prerequisite which must exist. 2. 
 That the evidence showed no classification of the land, and is 
 sufficient to rebut the 'prima facie character of the deed. 
 
 The same principles, upon a similar £tate of facts, were re- 
 affirmed by the court in Schuyler v. Hull : ^ and the case of 
 Job V. Tebbetts,^ having been remanded for a new trial, upon 
 similar evidence, and the jury having found against the tax 
 title, Tibbetts prosecuted an appeal, bht the Supreme Court 
 sustained the verdict.* These decisions made void every tax 
 
 1 11 Illinois, 431. 
 
 2 11 Illinois, 462. 
 ' 5 Oilman, 376. 
 ♦ 11 IllinoiB, 453. 
 
OF THE LISTING AND VALUATION OF THE LAND. It 
 
 title in Illinois, from the formation of the State governme] 
 down to and inclusive of the year 1838. It may be laid do^ 
 as a general rule, that a valuation being essential, the statu 
 must be strictly pursued in making and returning it, or tl 
 proceedings based upon it will be illegal and void.^ [In Mic 
 igan the certificate of the assessors of taxes must state that tl 
 property has been estimated at its " true cash value," or tl 
 sale is invalid.^] Usage can in no case justify a departu: 
 from the requirements of the law in this respect, where th( 
 are plain and unambiguous.^ The assessment of a tax by oi 
 corporate body, based upon a valuation made under the a- 
 thority of another, is unauthorized and void.* 
 
 ' Thurston v. Little, % Massachusetts, 429 ; Thayer v. Steams, 1 Pickering, 4f 
 
 * Clarke a. Crane, 5 Michigan, 151. 
 
 ' Thurston v. Little, 3 Massachusetts, 429. 
 
 * Granger v. Parsons, 2 Pickering, 392. 
 
154 OF THE LBVT OF THE TAX. 
 
 CHAPTER VI. 
 
 OF 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 essen- 
 tial 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 public benefit is 
 definitely fixed ; and to it he is compelled to resort, for the 
 purpose of ascertaining how much money he must pay to that 
 public, as his share of a common burden, and thus prevent a 
 sale of his property. It is the authority upon which the col- 
 lector proceeds to demand and enforce the collection of the tax 
 — he has no other means of ascertaining the sum assessed 
 against an estate — and in this respect it may be regarded as 
 analogous to an execution, issuing upon a judgment. It is the 
 guide of the owner and ofiicer in redeeming the land after the 
 sale. Again, it is evident that the tax must be due and un- 
 . paid, 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 and manner prescribed by law. When such 
 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. ^ 
 
 1 Pentland v. Stewart, 4 Devereux & Battle, 386 ; Eeeres v. Towles, 10 Lonis- 
 iana, 276 ; Baker v. Towles, H Louisiana, 432 ; Carmichael v. Aiken, 13 Louisiana, 
 205 ; Nancarrow v. WeathersbSe, 6 Martin, La. 347 ; Winchester v. Cain, 1 Bobia- 
 
OF THE LEVY OF THE TAX. 155 
 
 The onus probandi is upon the par^y claiming under the 
 sale.i Nor is there any diflaculty in making proof of this fact, 
 if it ever existed. The state tax is fixed by a public statute ; 
 the list will show the valuation of the land, and by computing 
 the 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 cor- 
 poration, 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 Hamp- 
 shire, that the levy of a tax, at a town meeting not legally 
 warned, is illegal and void.^ In North Carolina, the justices of 
 the county constitute the county court, with power to levy 
 taxes. The number of justices corresponds with the number 
 of districts in the county, except where their number has been 
 reduced by death, resignation, or otherwise. The law required 
 a majority of the whole body to be present when a tax was 
 levied. In a case where the record showed that twenty-two 
 were present, the court intended they were a majority.* 
 
 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 
 
 son, La. 421 ; Nalle v. Fenwick, 4 Bandolph, 591-594 ; Lessee of Holt's heirs v. 
 Hemphill, 3 Hammond, 232 ; 8. c. 1-4 Ohio Cond. 551 ; Lessee of Dresback i<. 
 McArthur, 6 and 7 Ohio, 307 ; Garrett v. White, 3 IredeU, Eq. 131 ; Smith v. Cor- 
 coran, 7 Louisiana, 46 ; Bratton v. Mitchell, 1 Watts & Sergeant, 310 ; Conrad v. 
 Darden, 4 Yerger, 307. * 
 
 1 Mason v. Boe ex dem. Woods, 5 Blackford, 98 ; Nalle v. Tenwick, 4 Eandolph, 
 594 ; Pentland v. Stewart, 4 Derereux & Battle, 386 ; Mayhew v. Davis, 4 McLean, 
 213; Mix v. Whitlock, 1 Tyler, 30. 
 
 " Nalle V. Fenwick, 4 Randolph, 594 ; Doe ex dem. Weed v. McQuilkin, 8 Black- 
 ford, 335 ; The Proprietors of Cardigan v. Page, 6 New Hampshire, 182 ; Spear v. 
 Ditty, 8 Vermont, 419. 
 
 ' The Proprietors of Cardigan v. Page, 6 New Hampshire, 182 ; Nelson v. Pierce, 
 6 New Hampshire, 194 ; Lisbon v. Bath, 1 Foster, 319. 
 
 » State V. Mcintosh, 7 Iredell, 68. 
 
156 OF THE LEVY OP THE TAX. 
 
 municipal act, and is discretionary within the limits prescribed 
 by law, and the order of the tribunal levying the tax, cannot 
 ordinarily be reviewed on certiorari, or " otherwise. If the 
 assessment be made in violation of law, it is a void act, the 
 collector, in enforcing its collection, is a trespasser, and the 
 purchaser acquires no title at the sale.^ 
 
 The Illinois statute of February 26, 1839, authorized and 
 empowered the county commissioners' court to levy a tax for 
 county purposes, not to exceeed one-half per cent, iipon every 
 one hundred dollars' worth of real or personal property, and 
 then provided, " which tax shall be levied by said county com- 
 missioners at their June term, in each and every year." ^ In 
 several instances the county commissioners failed to levy the 
 tax until the December term following. In such cases is the 
 tax legal* This will depend upon the question, whether this 
 provision is imperative — a limitation, in point of time, upon 
 the power of the commissioners — or merely directory. Under 
 a directory statute, a duty should be performed at the time 
 specified, for the sake of uniformity, and because the legislature 
 have so ordered it, but it may be valid if performed afterwards ; 
 while under a peremptory law, the act must be done at the pre- 
 cise time specified, or it is Yoid.^ The general rule undoubt- 
 edly is, that where a statute directs a court or officer to perform 
 a duty, or exercise a power, at or within a specified time, with- 
 out 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 arisQ by implication, from a view of all the provisions 
 of the statute, maJftesting an intent, on the part of the legis- 
 lature, to restrain and limit the execution of the power, or 
 
 1 Marr v. Enloe, 1 Yerger, 452 ; County Court of Obion v. Marr, 8 Humphreya, 
 634. 
 
 * Laws, 1838-9, p. 11, sec. 20. 
 
 8 Webster v. French, 12 Illinois, 302. 
 
 * Pond V. Negus, 3 Massachusetts, 230 ; 6 'WendeU, 486 ; St. Louis County 
 Court V. Sparks, 10 Missouri, 117 ; Walker v. Chapman, 17 Alabama, 126. 
 
OF THE LEVY OP THE TAX. 157 
 
 the performance of the duty, in point of time.^ Look at the 
 provisions of the act in question. At the March term of 
 tlie court, tlie commissioners were required to appoint asses- 
 sors and collectors for the ensuing fiscal year.^ The assess- 
 ment 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 his county, imme- 
 diately after the June term of his court annually, and by 
 the first day of July.^ On the second Monday of August, an- 
 nually, or as soon tliereafter as the collector should be sworn 
 into office, the assessment roll was to be delivered by the clerk 
 of the county commissioners' court, to the collector.^ The col- 
 lectors were required, as soon as the lists of taxable property 
 were thus delivered to them, to proceed and collect the taxes, 
 by demand of the owner, and distress of his goods.^ A lien 
 upon the goods of the delinquent was created after demand and 
 refusal, but not to continue to exist " longer than to the expi- 
 ration of the year for which the taxes are due." ^ Personal 
 property was not to be seized until twenty days after the de- 
 mand of the tax, and no sale to take place until fifteen days' 
 notice of the time and place, when and where it was to be 
 made.^ If the first distress was insufficient, a second seizure 
 and sale was authorized, upon giving like 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 collected during the preceding 
 month. ^^ ■ The collector was made responsible for all State and 
 county taxes charged upon his list, unless he used diligence to 
 collect them, and failed in his efforts.^^ The law required final 
 settlements to be made with the auditor and county commis- 
 
 1 Marsh !J. Chesnut, 14 Illinois, 223 ; Billings v. Detten, 15 Illinois, 218 ; Thames 
 Manufacturing Co. v. Lathrop, 7 Connecticut, 550. 
 
 2 Sees. Sand 12. « Sec. 11. « Sec. 12. 6 gee. 13. 
 « Sec. 14. 7 Sec. 16. » Sec. 16. » Sec. 17. 
 
 i» Sec. 17. " Sec. 20. " Sec. 21. " gee. 24. 
 
 14 
 
158 
 
 OF THE LEVT OF THE TAX. 
 
 sioners' court, in March, annually.^ And the collector was re- 
 quired to report the delinquent list, and demand judgment 
 against the lands embraced in it, at the first term of the Circuit 
 Court to be held after his settlement was made.^ 
 
 It would seem, upon a review of these various provisions, 
 that the statute was imperative, and not merely directory, in 
 requiring the county commissioners' court to levy the county 
 tax at their June term. 1. The tax- list could not be placed in 
 the hands of the collector on the second Monday in August, if 
 there was a failure to levy the tax at the June term, because 
 the next term of the county commissioners' court would not be 
 held until September. In consequence of this neglect, less 
 time would be allowed to the collector to enforce the payment 
 of the taxes upon his list, against delinquents, than was con- 
 templated by the legislature, and yet he would be held respon- 
 sible for a failure to use the utmost diligence. He is entitled 
 to the full time designated in the law. 2. If the time given 
 the collector sliould prove insufficient, the State would, never- 
 theless, lose her lien upon the goods and chattels of the delin- 
 quent. 3. The county would be deprived of its monthly re- 
 sources, by reason of the neglect of the commissioners to levy 
 the tax in season. 4. The State might be delayed in the col- 
 lection of her revenues, inasmuch as they were required to be 
 collected along with the county levy, or separate lists for the 
 State and county taxes must be delivered to the collector, which 
 would be contrary to the requirements of the statute. 5. 
 There would be no uniformity in the revenue system, and 
 embarrassment to all concerned would be the consequence. 
 Lastly, as the basis of the county levy is the assessment roll, 
 which the law requires to be completed and returned to the 
 clerk of the court, on or before the first day of May, and which 
 is held to be imperative,^ no reason can exist for delaying the 
 levy after the June term. 
 
 The power to levy the tax is a limited one, and if the limits 
 
 1 Sees. 21, 22, 23. 2 Sec. 25. 
 
 " Marsh v. Chesnut, 14 HUnois, 223 ; Billings v. Detten, 15 Illinois, 218. 
 
OF THE LEVY OF THE TAX. 159 
 
 prescribed ,by the law are transcended, the levy is void.^ In 
 Kemper v. McClelland,^ which was an ejectment by the defend- 
 ant in error against the plaintiff in error, the latter claimed 
 title under a tax sale. The land in controversy lay in Hardin 
 county ; the statute attached ' Hardin to Logan county " for all 
 the purposes of taxation," and limited the power of the county 
 commissioners in fixing the amount per centum which they 
 might levy, and made the amount depend upon the aggregate 
 value of all the property listed for taxation. Thus, when the 
 aggregate Value was one and a half million of dollars or up- 
 wards, the road tax should not exceed one mill upon the dol- 
 lar ; when less, it should not exceed three mills iipon the 
 dollar of such valuation ; and where the aggregate value should 
 be fi,ve hundred thousand or more, and less than one million, 
 the county tax should not exceed three mills on the dollar ; and 
 when less than five hundred thousand, such tax should not ex- 
 ceed five mills upon the dollar. Avery, J. " When the power 
 of the commissioner is so limited, a tax of any greater amount 
 is unauthorized and void. In every case, where an individual 
 tax is upon trial shown to be greater than the amount author- 
 ized, a sale of the land for the payment of such tax will be 
 deemed void ; and certainly a general tax must be void when 
 no power exists for levying it. It only remains to look at the 
 proof and see if the present is such a case. The proceedings 
 of the commissioners show that a tax of four and a half mills 
 was imposed for county purposes ; the certificate of the auditor 
 of Logan County sliows that the valuation for the two counties 
 for the year 1830 was upwards of five hundred and thirty-seven 
 thousand ; that it was over five hundred thousand is taken for 
 granted in the argument. The tax could not, therefore, legally 
 exceed three mills. As it was in this case four and a half mills, 
 the tax sale in controversy, and the deed made in pursuance of 
 it, were void." 
 
 Where the inhabitants of a school district voted to raise a 
 
 1 West School District of Canton v. Merrills, 12 Connecticnt, 437. 
 •■« 19 Ohio, 324. 
 
160 OF THE LEVY OF THE TAX. 
 
 tax of $250, and the assessors charged upon the list a tax of 
 f 285. 01, the proceeding was held illegal.^ 
 
 In Mason v. Roe, ex. dem. Woods,^ which was an action of 
 ejectment by the defendant in error against the plaintiff in error, 
 for a lot in Oonnersville, 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 ; aiid unless they did determine it, there was no legal 
 tax on the lot in dispute. The defendant therefore failed to 
 prove any legal claim to the lot." In Doe ex. dem. Weed et 
 al. V. McQuilkin,3 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 
 $1.60, costs 58, total 14.48, but offered no proof of the levy of 
 the county tax by the board of commissioners, and the court 
 held that his title was not proved to be valid. 
 
 If land be sold for the non-payment of divers taxes, one of 
 which is illegal, and the residue legal, the sale is void : the land 
 must be liable for all the taxes for which it was sold. In such 
 cases all of the proceedings to collect are necessarily void, as it 
 is impossible to separate and distinguish, so that the act should 
 be in part a trespass, and in part innocent.* In Elwell v. Shaw, 
 
 1 Joyner v. Third School District in Egremont, 3 Gushing, 567. 
 
 ^ 5 Blackford, 98. 
 
 3 8 Blackford, 335. 
 
 « Elwell V. Shaw, 1 Greenleaf, 335 ; Torrey v. Millbury, 21 Pickering, 70 ; Bangs 
 I). Sndw, 1 Massachusetts, 188, 189 ; Drew v. Davis, 10 Vermont, 506 ; Thurston «. 
 Little, 3 Massachusetts, 429, 433 ; Dillingham v. Snow, 5 Massachusetts, 547 ; Stet- 
 
OF THE LEVY OF THE TAX. 161 
 
 it appeared that there were five distinct taxes assessed, and 
 committed to the collector in. separate bills, 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 thir- 
 teen 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 Colman v. Anderson,^ but 
 the assessment there objected to, was made prior to the statute 
 limiting the overlayings to five per cent. Anterior to this stat- 
 ute a practice had arisen, which' had been universally acquiesced 
 in, to exceed, in the aggregate of the assessment, the entire 
 amount authorized ; partly to obviate the perplexity to which 
 assessors were subjected, in consequence of the fractions in the 
 assessment of taxes upon the polls and estates of the inhabitants 
 of the respective towns, and partly to meet abatements and mis- 
 takes, and to insure the collection of the whole sum ordered to 
 be assessed. With a view to sanction, and to limit this discre- 
 tion, tlje legislature at length interposed, and gave to assessors 
 a latitude fully adequate, to enable them to discharge with ease 
 the duties imposed upon them. To suifer them to exceed this 
 limit, would be to subject the citizens to the payment of taxes, 
 to the imposition of which they had never assented, and to create 
 uncertainty in the amount, in violation of the manifest provis- 
 ions of the statute." 
 
 A still stronger case in support of the rule laid down, is that 
 of Huse V. Merriam.2 
 
 There the assessment was, $226 62 
 
 The levy was, > $215 00 
 
 Overlayings, 5 per cent. 10 75 225 75 
 
 Excess, , $ 87 
 
 son V. Kempton, 13 MaBsachusetts, 283 ; Libby w. Bumham, 15 Massachusetts, 144 ; 
 Doe V. McQuilkin, 8 Blackford, 335 ; b. c. 8 Blackford, 581 ; Hayden v. Foster, 13 
 Pickering, 492; Alvord w. Collin, 20 Pickering, 418; Kemper r. McClelland, 19 
 Ohio, 324 ; Lacey v. Davis, 4 Michigan, 140. 
 
 1 10 Massachusetts, 115. 
 
 " 2 Greenleaf, 375. 
 
 14* 
 
162 OF THE LEVY OF THE TAX. 
 
 It was insisted that the proceeding was void, because t] 
 assessor had exceeded the levy and overlayings authorized 1 
 statute, eighty-seven cents. The answer was, " de minimis m 
 curat lex." Mellen, C. J. : " It is contended that the sum 
 eigh,ty-seven cents, over and above the five per cent., is such 
 trifle sis to fall within the range of the maxim, ' de minimis, 8fc 
 but if not, that still this small excess does not vitiate the asses 
 ment. The maxim is so vague in itself,. as to form a very u 
 certain ground of proceeding or judging ; and it may be almc 
 as difBcult to apply it as a rule in pecuniary concerns, as to t; 
 interest which a witness has in the event of a cause ; and 
 such case it cannot apply. Any interest excludes him. Ti 
 assessment was, therefore, unauthorized and void. If the lii 
 which the legislature has established, be once passed, we knc 
 of no boundary to the discretion of assessors." 
 
 Where the tax is less than the amoimt authorized by law 
 be levied, it would seem clear that the sale ought to be mai 
 tained, as the error does not prejudice the owner in any respe( 
 In the Lessee of Hollister v. Bennett,^ it was objected that t 
 much tax was charged. The court made an estimate, and 
 appeared that the tax really due was 81i cents, while it w 
 charged with only 81 cents and 2 mills, being half a mill le 
 than was due. The court then say : " To the amount of tax 
 and penalties should have been added the interest, which w 
 not done, so that the lot, instead of being charged with t 
 much, as was supposed by counsel, was charged with t 
 little." 
 
 If a tax is levied for an illegal purpose, it cannot be sustaine 
 The power of taxation is one of the highest attributes of sove 
 eignty. It cannot be enforced against the citizen unless it 
 clearly and distinctly authorized by law. It is important th 
 it should be known, that the power of the majority over t 
 property, and even the persons of the minority, is limited 
 law to such cases as are clearly provided for and defined 
 the statute which confers the taxing power. Hence, whenev 
 
 ' 9 Ohio, 83. 
 
OF THE LEVY OF THE TAX. 163 
 
 money is raised by taxation, tlie purpose for wliich it was levied 
 ought to appear upon the face of the proceeding, 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 purchaser can acquire no title to the property seized 
 . and sold to satisfy it. Thus the levy of a tax for the support 
 of a ministry, or to defend the town against a public enemy, is 
 not warranted by a law 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 col- 
 lected, ought to 'be kept separate, and not blended together. 
 The reason is obvious. They are imposed by different author- 
 ities, and for different objects. One tax may be levied by com- 
 petent 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 wliere the different taxes are confounded, 
 together, and the identity of each is thus destroyed. A con- 
 fusion of the several taxes cannot take place without invali- 
 dating the entire assessment.^ 
 
 The State has a lien upon land for taxes actually levied, and 
 also for such as vrere properly chargeable upon the land, but by 
 reason of the neglect of the officers intrusted 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 as- 
 sessed and collected with the taxes of the current year, although 
 the land upon which they are chargeable has passed into the 
 hands of a bona fide purchaser. 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 un- 
 
 1 Lisbon u. Bath, 1 Foster, 319; Bussey v. Gilmore, 3 Greenleaf, 191 ; Stetson 
 V. Kempton, 13 Massachusetts, 272. 
 
 2 State V. Palkinburge, 3 Green, L. 320 ; Camden & Amboy E. E. Co. u. Hil- 
 legas, 3 Harrison, U. 
 
164 OF THE LEVY OF THE TAX. 
 
 paid, and regard the land as a pledge — perpetual in its char- 
 acter — to pay the debts and current expenses of the govern- 
 ment. 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 ex- 
 pressly 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, shaU be made not only 
 of taxes for the current, but for " the preceding year or years." 
 Where such is the language of the law, the right to collect back 
 taxes is clear.^ * 
 
 The legislature have power to delegate to municipal corpo- 
 rations, and other local tribunals or bodies, authority to levy 
 and collect taxes for specified purposes, and to determine the 
 extent of territory which shall constitute a tax district.^ While 
 this doctrine is unquestionable, a municipal corporation or other 
 inferior organization possesses no power to levy taxes not ex- 
 pressly authorized by its act of incorporation.^ Where they are 
 thus authorized, they must, in the exercise of the power, con- 
 form to the principles and requirements of the constitution.* 
 And where, by charter, such corporation had power to " assess 
 and collect taxes according to law," the general law in force at 
 the time of the assessment and 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 excluded from a participation in the improvements 
 
 ' Parham v. Decatur Co. 9 Georgia, 352 ; Swan v. Knoxville, 11 Humphreys, 130 j 
 State V. Pemberton, Dudley, 1 5 ; Paden v. Akin, 7 Watts & Sergeant, 456 ; Curry 
 V. Fowler, 3 A. K. Marsh. 504 ; Edward c;. Beard, Breese, 41 ; Madison Co. ». 
 Bartlett, 1 Scammon, 70, 71 ; Hayden v. Foster, 13 Pickering, 492. 
 
 2 Shaw V, Dennis, 5 Gilman, 405 ; Fitch v. Pinckard, 4 Scammon, 69 ; Thomas 
 V. Leland, 24 Wendell, 65 ; Norwich v. Co. Commissioners, &c., 13 Pickering, 60 ; 
 Sawyer v. City of Alton, 3 Scammon, 127 ; Vanderbilt v. Adams, 7 Cowen, 349 ; 
 Trustees of Paris v. Berry, 2 J. J. Marshall, 483 ; Hope v. Deadrick, 8 Humphreys, 1. 
 
 " Asheville v. Means, 7 Iredell, 406. ' 
 
 * Hope V. Deadrick, 8 Humphreys, 1 . 
 
OF THE LEVY OF THE TAX. 165 
 
 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 payment is not voluntary, but com- 
 pulsive, and an action will lie against the collector to recover 
 it back, unless he has paid it over to his superiors, in which 
 event the action must be brought against the corporation.^ But 
 the fact that a tax is unconstitutional, or otherwise illegal, is 
 no defence to a collector who refus(7s to pay over the tax after 
 he has collected it.^ 
 
 It is said, that a statute authorizing the levy and collection of 
 tatxes, if ambiguous or uncertain as to the amount of the levy, 
 should be liberally construed by the courts, and the leaning 
 should be in favor of the larger sum.* On the other hand, the 
 rule is laid down, that statutes imposing taxes or burdens upon 
 the citizen, must be strictly construed, and the subjects of tax- 
 ation, 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 un- 
 ambiguous 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, tlie intention of the legislature must be explicitly and 
 distinctly shown." This would seem to be the safer rule to 
 adopt. Upon this point Chief Justice Ruffin remarks : " I do 
 not think that a strained construction is allowable of an act 
 which levies money from the citizen. The amount of the levy, 
 
 1 Ontario Bank v. Bunnell, 10 Wendell, 186. 
 
 * Sumner v. Dorchester, 4 Pickering, 361 ; Joyner v. Third School District of 
 Egremont, 3 Gushing, 567 ; Dakotah v. Parker, 7 Minnesota, 273. 
 
 » Waters v. State, 1 Gill, 302; Moore v. Alleghany City, 6 Harrij (Penu.), 
 55. 
 
 * Martin v. Tax Collector, 1 Speer's Law, 343 ; Bleight v. Auditor, 2 Monroe, 27 ; 
 Burger v. Carter, 1 McMullen, 421. 
 
 6 Dwarris on Stats. 749; Butler, arguendo in Ontario Bank v. Bunnell, 10 
 Wendell, 186; Sewall v. Jones, 9 Pickering, 414; Savannah v, Hartridge, 8 
 Georgia, 30. 
 
166 
 
 OF THE LEVY OF THE TAX. 
 
 ict of it, and the method of raishig it, ought to be so 
 Dinted out as to avoid all danger of oppression by an 
 i interpretation ; and where there is a fair doubt, the 
 v.j.i,iz,cii oiiould have the benefit of it." ^ It is also laid down as 
 a rule in the construction of this class of laws, that they ought 
 not to be so construed as to subject the property of any person 
 or corporation to double taxation, unless it is clearly authorized 
 by the words of the law.^ 
 
 ♦ 
 
 ' State V. Bank of Newbern, 1 Devereax & Battle, Eq. 218. 
 " Bank of Georgia v. Savannah, Dudley, 132. 
 
OF THE AUTHORITY TO COLLECT THE TAX, 167 
 
 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 
 hoth powers. When tjie 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 de- 
 mand 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 delirtquents to some other officer, or himself to proceed, 
 in conformity with the law, to make sale of the lands embraced 
 in his list, upon which the taxes remain due and unpaid. This 
 authority is variously denominated the " list," " duplicate," 
 " invoice," or " warrant to collect," according to the peculiar 
 legislation or usage of each State. It has already been shown 
 that the listing, valuation, and levy of the tax, which usually 
 appear upon one document, called the list, is in the nature of 
 a judgment.^ Upon the same principle, it may be said that a 
 copy of the list, duplicate, invoice, or warrant to collect, is 
 analogous to an execution, and constitutes the .only authority of 
 the officer to proceed and collect the tax, by a demand, or 
 seizure of the body or goods, in case payment is not made of 
 the tax charged.^ Without a legal document of this nature, 
 
 1 See also, Aldrich v. Aldrich, 8 Metcalf, 102. 
 
 2 Pentland o. Stewart, 4 Derereiix & Battle, Eq. 386. 
 
168 OF THE ADTHORITT TO COLLECT THE TAX. 
 
 delivered by the officer of the law designated for that purpose, 
 the collector has no authority to proceed to enforce paymenl of 
 the taxes. His demand, seizure of the body or goods, his re- 
 turn, and all of his other acts, will be nullities, and lay no 
 foundation for the advertisement and sale of the land, by the 
 officer intrusted by law with those duties.^ It must not only 
 be made and delivered by the proper officer, but it must be 
 placed in the hands of the collector de jure or de facto, and not 
 .in those of a mere usurper.'^ However, if an officer de facto 
 seize the body or distrain the goods of the tax-payer, he will be 
 liable as a trespasser ; and every citizen against whom a tax has 
 been assessed has such an interest in the tax list as will author- 
 ize him to become a relator, in an information in the nature of 
 a quo warranto, to inquire by what authority the intruder ex- 
 ercises the powers, and performs the duties of the office of col- 
 lector.^ 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 assessment roll, or the warrant to collect, 
 must be duly authenticated, with a view to their identity as 
 official documents.* 
 
 The statute of North Carolina required the clerk of the 
 county court to record the annual return of delinquents, and 
 to deliver to the sheriff a fair and accurate copy of the returns, 
 in alphabetical order, designating, in such copy, the separate 
 
 ' Hannel v. Smith, 15 Ohio, 134; Holt's Heirs v. Hemphill, 3 Hammond, 232; 
 State V. Woodside, 8 Iredell, 104; Barnard v. Graves, 13 Metcalf, 85; Homer v. 
 Cilley, 14 New Hampshire, 85; Chandler v. Spear, 22 Vermont, 388 ; Dennis v. 
 Shaw, 5 Gilman, 405 ; Allen v. Scott, 13 Illinois, 80 ; Bassett v. Porter, 4 Cash- 
 ing, 487; Chase v. Sparhawk, 2 Foster, 134; Moore «. Alleghany City, 6 Han-is 
 (Penn.), 55; Abbott u. Yost, 2 Denio, 86 ; Downing v. Roberts, 21 Vermont, 
 441; Sheldon J). Van Buskirk, 2 Comstock, 473 ; Downer v. Woodbury, 19 Ver- 
 mont, 329 ; Brackett v. Whidden, 3 New Hampshire, 19 ; DiUingham v. Snow, 5 
 Massachusetts, 558 ; Wheeler v. Anthony, 10 Wendell, 346 ; Hathaway v. Good- 
 rich, 5 Vermont, 65 ; King v. Whitcomb, 1 Metcalf, 328 ; Upton v. Holden, 5 Met- 
 calf, 360. 
 
 ' Vide Chapter 4. Burgess v. Pue, 2 Gill, 11 ; Hartley v. State, 3 Kelly, 233. 
 
 8 Commonwealth v. Browne, 1 Sergeant & Kawle, 382 ; Blake v. Sturtevant, 12 
 New Hampshure, 567 ; Schlencker v. Risley, 3 Scammon, 483. 
 
 * Vide Chapter 18. Chase v. Sparhawk, 2 Foster, 134. 
 
OF THE AUTHORITY TO COLLECT THE TAX. 169 
 
 amount of taxes accruing from each species of property, and 
 extending the aggregate due from each individual. In Doe ex 
 dem. Kelly v. Craig,i tlie plaintiff claimed title to the prem- 
 ises 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 authen- 
 ticated as a copy of the tax list, by a certificate of the clerk, 
 or otherwise. The evidence was admitted, and upon inspec- 
 tion it appeared, that the land in controversy was not con- 
 tained 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 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 office, the original tax list, or in the hands 
 of his own predecessor, a paper purporting to be a copy of that 
 tax list, made out by the clerk, in which the lot in question 
 was listed by the owner, 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 siuce 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 tax- 
 able property for 1836, or they would disregard it ; but if they 
 were so satisfied, it was immaterial whether the list was the orig- 
 inal, or the record thereof by the clerk, or an ofi&cial copy, as 
 either was sufiicierit. 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 Euffin said : " The tax list is the war- 
 rant of the sheriff to collect the taxes, and it should be au- 
 thenticated by the ofiicial certificate of the clerk, as a true copy 
 
 1 5 Ireaell, 129. 
 
 15 
 
170 OP THE AUTHORITY TO COLLECT THE TAX. 
 
 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 inspec- 
 tion, to the citizens, to be official evidence of their liability. 
 It would seem of necessity that a mere copy of the list, not 
 purporting to state what it is, nor whence it comes, nor by 
 whom, made, would not answer the purposes intended by the 
 legislature, but that the nature of the document should be 
 stated under the hand of the clerk at least ; but at all events 
 it was not sufficient here, as it was not authenticated by either 
 the certificate of the clerk, or by the oath of a witness, as a 
 copy ; nothing more appearing but 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 col- 
 lector 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, vip 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 pro- 
 ceed in the collection of the taxes.^ The statute of Vermont re- 
 quired a recital of the title, and time of passing the act under 
 which the tax was levied, in the warrant to collect ; where the 
 time was misrecited, the warrant was held void^^ 
 
 Such are the adjudications upon the question of authority to 
 collect, treated as a distinct fact in the series of acts which q,re 
 regarded as essential to the validity of the proceedings. In 
 
 1 The Proprietors of Cardigan v. Page, 6 New Hampshire, 182. 
 
 2 The Proprietors of Cardigan v. Page, 6 New Hampshire, 182. 
 " Brown v, Wright, 17 Vermont, 97. 
 
OF THE AT3TH0KITY TO COLLECT THE TAX, 171 
 
 the chapter relating to_the authority of the officer to sell the 
 land as delinquent, the subject will be renewed, and more fully 
 explained and illustrated by the authorities. Tliis chapter 
 might be regarded as useless, but for the fact, that in some of 
 the States, the power to sell the land is vested in the hands of a 
 different officer from the collector. In all such cases, it is ap- 
 parent that the power to collect, and the power to sell, are dis- 
 tinct acts, each of which must exist, or the entire proceedings 
 must fall to the ground. 
 
172 OF THE DEMAND OF THE TAX. 
 
 CHAPTER VIII 
 
 OF THE DEMAND OF THE TAX. 
 
 The mere assessment of a tax upon land does not create a 
 debt against the owner. It cannot be garnisheed, attached, or 
 seized in execution at the suit of a creditor of a municipal cor- 
 poration.^ Nor is it a " judgment or contract " which may be 
 set off against the claim of a creditor of a city, within the 
 meaning of the Massachusetts statute.^ [In the absence of 
 any statutory provision allowing interest, it does not draw in- 
 terest, even after a demand. s] It may be laid down as an uni- 
 versal rule in the collection of a tax assessed upon the land of 
 resident owners, that the person or personal estate of the de- 
 linquent is the primary fund out of which the tax must be 
 paid. A sale of the land itself is a dernier resort. The tax 
 is never so far regarded as a debt, in order to charge the body 
 or goods of the person against whom it was assessed, until a 
 demand has been made, upon the person taxed, by the col- 
 lector.* 
 
 In Thompson v. Gardner,^ which was an action of assump- 
 sit by a collector to recover a tax assessed against the defend- 
 ant, the plaintiff proved a regular assessment of the tax, but 
 failed to prove that he had ever demanded it of the defendant. 
 The court gave judgment for the defendant, saying : " a de- 
 
 1 Egertou w. Third Municipality, 1 Louisiana An., 435. 
 
 2 Peirce v. City of Boston, 3 Metcalf, 520; Camden u. Allen, 2 Dutcher, 398. 
 8 Shaw V. Peckett, 26 Vermont, 482. 
 
 * Bott V. Perley, 11 Massachusetts, 169 ; Bonnell !>. Roane, 20 Arkansas, 114 ; 
 Green v. Craft, 6 Cushman (Miss.), 70; Eathbun u. Acker, 18 Barbour, 393. 
 5 10 Johnson, 404. 
 
OF THE DEMAND OP THE TAX. 173 
 
 fault in not paying on demand was necessary to be shown. It 
 would be an alarming doctrine to say that a collector of taxes 
 might sue immediately every person upon his assessment roll, 
 without first demanding payment of the taxes." It would be 
 equally alarming to permit the collector to seize and imprison 
 the body, or distrain and sell the 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 extraordinary powers, with 
 which the collector is armed, are resorted to. He cannot be 
 in default until he is notified of the tax, and has an opportu- 
 nity of paying it. If, after a notification is given and a de- 
 mand made, he neglects or refuses to satisfy the tax, then the 
 power of coercion attaches, and not before. A condemnation 
 without a hearing, or an opportunity of one, would be contrary 
 to natural justice; and it ought not to be presumed that the 
 legislature intended that the 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 ex- 
 ercised by the officer charged with their collection. 
 
 [In Jones v. Burford,' it was held, that if a tax payer once 
 duly tenders payment of his tax, and the collector declines to 
 receive it because he has been enjoined by a court of chan- 
 cery from collecting the taxes of that year, in a suit to which, 
 the tax payer is not a party, if the injunction be subsequently 
 dissolved, the collector cannot proceed to sell the land, without 
 making a new demand for the tax, after such dissolution of 
 the injunction.] 
 
 In Ives V. Lynn,^ it was objected to a tax sale, that personal 
 notice, or other reasonable and sufficient warning of the as- 
 sessment of the tax had not been given, and that no demand 
 of payment was made. The statute required the collector to 
 
 1 26 Mississippi (4 Cushman), 194. 
 
 2 7 Connecticut, 505. 
 
 15» 
 
174 OF THE DEMAND OF THE TAX. 
 
 appoint a time and place for receiving taxes ; and in case of 
 failure, to distrain the goods of the delinquent. The contem- 
 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 com- 
 plied with in this case, and the court maintained the sale. 
 
 The principles to be extracted from all of the decisions upon 
 this subject, may be thus stated : 1. Where the statute, under 
 which the proceeding takes place, expressly requires a notifica- 
 tion and demand, the requisition must be complied with. 2. 
 Where the statute is silent iipon the question of notice and de- 
 mand, it must be construed according to the principles of nat- 
 ural justice, which enjoins a personal demand before the per- 
 son assessed can be regarded as in default. 3. Where the 
 statute does not expressly require a demand of the tax, but au- 
 thorizes the collectors to appoint a time and place for the pay- 
 ment of the taxes upon his list, and give general notice there- 
 of 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 requireiiient of the law in this re- 
 spect, will render a sale of land for taxes void.^ 
 
 Under the Illinois statute, the provisions of which have al- 
 ready been recited,^ it has been held, that a report of the de- 
 linquent list by the collector, to the circuit court, in the form 
 prescribed by law, is evidence of a demand, and authorizes the 
 rendition of a judgment upon the list, though the form is silent 
 as to whether a demand was or was not made, and the collector 
 failed to state the fact in relation to a demand.^ The con- 
 trary was held by Judge Pope, District Judge of the United 
 States Court in Illinois, upon the construction of the same 
 
 1 Johnson v. Mclntire, 1 Bibb, 295 ; Thompson c;. Rogers, 4 Louisiana, 9 ; 
 Parker v. Rule's Lessee, 9 Cranch, 64 ; Jackson v. Shepard, 7 Cowen, 88 ; Purd 
 V. Eamsay, 9 Sergeant &Rawle, 109 ; Thompson v. Gardner, 10 Johnson, 404 ; Ives 
 0. Lynn, 7 Connecticut, 505 ; Mayhew v. Davis, 4 McLean, 213. 
 
 2 Ante, p. 26. 
 
 8 Taylor v. People, 2 Gilman, 349 ; Job et al. v. Tibbets, 5 Gilman, 382. 
 
OE THE DEMAND OF THE TAX. 175 
 
 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 evidehce of 
 a demand, but it has been generally supposed that the judg- 
 ment would conclude the former owner. [The deed need not 
 recite a demand of payment of the tax. That fact may be 
 proved aliunde.^'] 
 
 1 Mayhew v. Davis, 4 McLean, 213. 
 
 2 Gossett V. Kent, 19 Arkansas, 602. 
 
176 OF THE SEIZURE OF THE BODY 
 
 CHAPTER IX. 
 
 OF THE SEIZURE OF THE BODY, OR GOODS AND CHATTELS OF THE 
 DELINQUENT, TO SATISFY THE TAX. 
 
 Where the person against whom a tax has been legally as- 
 sessed, 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 satisfaction 
 of the tax.i In one case last cited,^ under a statute which re- 
 quired the body of a resident proprietor 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 coUecled out 
 of the personal estate of the delinquent, if a sufficiency can be 
 found to satisfy it.^ In South Carolina, the statute thus mar- 
 shals the remedies : 1. A distress of the personal estate of the 
 delinquent. 2. The sale of the land. 3. The seizure and im- 
 prisonment of the body.* A violation of the order of remedies 
 
 1 Bassett v. Porter, i Gushing, 487 ; Daggett v. Everett, 19 Maine, 373 ; Bising 
 V. Granger, 1 Massacliusetts, 48 ; Appleton v. Hopkins, 5 Gray, 530. 
 "■ Kising V. Granger, 1 Massacliusetts, 48. 
 ' Vide cases cited supra, note 4, p. 172. 
 * Kingman v. Glover, 3 Richardson, 27. 
 
OK GOODS, TO SATISFY THE TAX. 177 
 
 thus prescribed, invariably renders the act of the officer 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 parsonal estate of the delinquent is regarded as the 
 primary, the land the dernier resort. The tax never becomes 
 a charge upon the land, until the other remedies have been ex- 
 hausted. In this respect the power of the collector is limited ; 
 the remedies prescribed, and the order in which they are di- 
 rected 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 proceedings. 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 satis- 
 faction of the tax. A sale of the land under siich circumstances 
 is illegal and void.^ 
 
 The strongest case upon this point, is that of Scales «. Alvis.^ 
 The statute of Alabama provided, that " where the delinquent 
 has no goods and chattels within the county, then the lands 
 and tenements of said delinquent may be sold by the collector, 
 &c." The facts were, that the delinquent had a yoke of oxen 
 in the county, of value sufficient to satisfy the tax, but they 
 were exempt by law from execution for the debts Of the owner. 
 The court held the sale of the land void under these circum- 
 • stances, and, in their opinion, say: "It will thus be seen 
 
 1 Yancey v. Hopkins, 1 Munford, 419, 437 ; Jackson v. Shepard, 7 Cowen, 91 ; 
 Parker v. Smith, 4 Blackford, 70 ; Scales v. Alvis, 12 Alabama, 617; Baltimore v. 
 Chase, 2 Gill & Johnson, 376 ; Dallam v. Oliver, 3 Gill, 445 ; Burd u. Ramsey, 9 
 Sergeant & Eawle, 109 ; Cox o. Grant, 1 Yeates, 164 ; Francis v, Russell, 5 Hay- 
 wood, 294 ; Hamilton v. Burum, 3 Yerger, 355 ; Doe ex dem. Gladney v. Deavors, 
 11 Georgia, 79 ; Gouvernear v. New York, 2 Paige, Ch. 434 ; Stead's Executors v. 
 Course, 4 Cranch, 403 ; s. 0. 2 Peters, Cond. 251 ; Parker v. Rule, 9 Cranch, 64 ; 
 s. c. 3 Peters, Cond. 271 ; Thatcher v. Powell, 6 Wheaton, 119 ; s. c. 5 Peters, 
 Cond. 28. 
 
 2 12 Alabama, 617. 
 
178 OF THE SEIZURE OF THE BODY 
 
 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 for cases where the 
 collector is unable to find, or the delinquent is unwilling to 
 surrender goods. The power exists only where there are no 
 goods ; and conforming 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 ex- 
 empted 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 act to incorporate the city of Washington, 
 passed May 16, 1820, amended by the act of 1824, it is not a con- 
 dition to the validity of the sale of unimproved land for taxes, 
 that the personal estate of the owner should have been first ex- 
 hausted by distress. The authority given to the collector by 
 section twelve, declaring that he " shall have authority to col- 
 lect the tax by distress and sale of the goods of the person 
 chargeable therewith," is not compulsory, but cumulative 
 merely.^] 
 
 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 laud taxed, 
 it was held, that unless the fact affirmatively appeared upon 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 Elinois 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 
 
 1 Thompson v. Carroll, 22 Howard (U. S.), 422; And see Martin v. Carron, 2 
 Dutclier, 230. 
 
 2 Francis u. Eussell, 5 Haywood, 294 ; Hamilton v. Burnm, 3 Terger, 355 ; 
 Thatcher v. Powell, 6 Wheaton, 119 ; s. c. 5 Peters, Cond. 28. 
 
OR GOODS, TO SATISFY THE TAX. 
 
 179 
 
 to find any personal property of such person in his county, 
 whereon to levy, of value sufficient to pay said taxes and costs, 
 it shall be the duty of the collector to make report thereof, to 
 the circuit court of his county, at the first term in each year, 
 for the preceding year or years, which report shall be in the 
 following form : 
 
 ■ " List of lands and other, real estate, situated in the County of 
 
 , and State of Illinois, on which taxes remain due 
 
 and unpaid, for the year herein set forth." 
 
 
 
 <D 
 
 
 »< 
 
 ,c 
 
 
 
 
 
 
 
 
 
 
 
 § 
 
 
 
 -S 
 
 It 
 
 
 
 
 
 
 ■si 
 
 o 
 
 S 
 
 o 
 
 1 
 
 g 
 
 g 
 
 ■B 
 
 II 
 
 •1 
 
 t2 
 
 ft, 
 
 a 
 
 iz 
 
 
 & 
 
 
 -< 
 
 •^ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 The law also required the collector to give notice of his in- 
 tention to apply to said court for a judgment against the lands 
 embraced in said report, by publication in a newspaper, &c., 
 and he was also directed to file a copy of said advertisement, 
 together with a certificate of the printer, showing the due pub- 
 lication of the same. It was then made the duty of the coiirt 
 .to hear and determine the application, in a summary way, witli- 
 out pleadings, and unless some valid objection was interposed 
 by those interested in the list, to render judgment against said 
 lands. Upon this judgment, the clerk was directed to issue 
 and deliver to the collector, a precept, commanding him to sell 
 the lands against which judgment 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 prescribed by the statute, it will be presumed that the 
 delinquents reported had no personal property ; that this pre- 
 
180 OE THE SEIZURE OF THE BODY OR GOODS, ETC. 
 
 sumption may be rebutted by proof, upon objection taken to 
 the rendition of the judgment ; but if the owner makes no de- 
 fence, and suffers a judgment to be entered against the land, 
 the judgment thus rendered becomes conclusive in all collateral 
 actions, and cannot be impeached by showing that the report of 
 the collector, in this respect, was false ; and, on error, the court 
 will, by intendment, support the judgment where the record 
 does not affirmatively show that the owner had goods. ^ The 
 contrary principle was maintained by Judge Pope in the United 
 States Court for the district of Illinois.^ 
 
 1 Taylor v. People, 2 Gilman, 349 ; Job v. Tebbetts, 5 Gilman, 376. 
 ' Mayhew v. Davis, 4 McLean, 213. 
 
01' THE RETURN OF THE DELINQUENT LIST. 181 
 
 CHAPTER X. 
 
 OP THE RETURN OF THE DELINQUENT 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 delinquents to his superior, in a certain prescribed form, 
 authenticated or verified in a particular manner, and within a 
 limited time. When such is the requirement, it is regarded as 
 imperative, and not directory, and an exact compliance is de- 
 manded.2 This return is the only evidence of delinquency — 
 of the fact that a demand was made, by the collector, upon the 
 person against whom the tax was charged — and that the body 
 of such person could not be found within the district of the col- 
 lector ; 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 of the sale is in- 
 trusted, the return constitutes his authority to sell — if he is 
 directed to issue a warrant or order to some third person to 
 make sale of the lands emb;'aced 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 
 
 1 Ante, Chapter?. 
 
 ^ See Hill v. Mason, 38 Maine, 461 ; Huntington v. Brantley, 33 Mississippi, 451 ; 
 Pitts V. Booth, 15 Texas, 453 ; Hopkins v. Sandige, 31 Mississippi, 668. 
 
 16 
 
182 OF THE RETURN OF THE DELINQUENT LIST. 
 
 York, and New Hampshire.' A neglect, therefore, 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. Stock- 
 well,^ 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 tlie 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 offi- 
 cers do not possess it." The court then proceed to examine" the 
 statutes of Ohio, relative to the powers and duties of county au- 
 ditors, and thus conclude : " We therefore find no authority in 
 any of the statutes enabling the auditor to administer oaths, 
 except in certain specified cases, and the instance before us is 
 not one of them. The grant of authority in those specified 
 cases sufficiently implies that he possessed it in no others. The 
 return of the collector, therefore, was not made xmder the se- 
 curities and sanctions which the law required ; and this omis- 
 sion is fatal to a title held under such strict principles as a tax 
 sale, and supersedes the necessity of looking further into the 
 case." 
 
 Under another statute of Ohio, the county treasurer was 
 empowered to collect the taxes ; and in case he was unable to 
 do so, he was required to make a return of the delinquents to 
 the county auditof , and to sign and testify to its correctness 
 
 ' Kevised Laws Illinois, 1833, p. 524, Sec. 3, and p. 528, Sec. 1 ; Messenger v. 
 Germain, 1 Gilman, 631 ; Harmon v. Stockwell, 9 Ohio, 93 ; Hannel v. Smith, 15 
 Ohio, 134 ; Doe v. Whitlock, 1 Tyler, 305 ; Winder v. Sterling, 7 Hammond, 190 
 (Part 2) ; Jackson v. Morse, 18 Johnson, 442 ; Tallman v. White, 2 Comstock, 66 . 
 Homer v. Cilley, 14 New Hampshire, 85. 
 
 2 9 Ohio, 93. See Ward v. Barrows, 2 Ohio St. 245. 
 
OP THE RETURN OF THE DELINQUENT LIST. 183 
 
 iinder oath or affirr sd by the county 
 auditor. The count make a complete 
 record of this retur ,^ the record of- 
 fered in evidence die. ^ -hat the oath had 
 
 been taken by the treasurer, but a transcript of the record did. 
 The sale in question was held void, because the oath was essen- 
 tial to the validity of the return, and it must appear upon the 
 record ; no inferior evidence being admissible for the purpose 
 of supplying the defect. In IlHnois, 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 Tennes- 
 see^ and Ohio.* 
 
 [Upon the same principle as above stated, if the law requires.' 
 the tax collector, after a sale, to return the certified list fur- 
 nished by the register of lands, with a note to each tract or lot, 
 showing the disposition made of it ; if sold, to whom, and the 
 amount paid by the purchaser, or if not sold, the amount for 
 which it was offered for sale, and bid in for by the State, this 
 return is essential to a deed by the register ; and if the collector 
 merely write against a tract a person's name, this does not fulfil 
 the law ; and the register's deed, based upon such a return, is 
 invalid. And although the purchaser could not control this 
 omission, he nevertheless buys subject to all the requirements 
 of law.s] 
 
 3 4 McLean, 138. 
 
 2 Spellmau v. Curtenius, 12 Illinois, 409. 
 
 3 Thatcher v. Powell, 6 Wheaton, U9. 
 ' Wilkins v. Huse, 9 Ohio, 154. 
 
 ^ Donohoe vt Hartless, 33 Missouri, 335. 
 
184 OF THE PROCEEDINGS WHERE A 
 
 CHAPTER XI. 
 
 OF THE PROCEEDINGS WHERE A JUDICIAL CONDEMNATION IS 
 REQUIRED. 
 
 It has beea observed already, that in some of the States, 
 the power to sell land for the non-payment of taxes, does not 
 arise until the delinquency of the owner has been judicially as- 
 certained.i The character, requisites, and effect of these pro- 
 ceedings, vary according to the peculiarities of the local law 
 under which they are carried on. There are, however, some 
 general principles, which are regarded as landmarks, and uni- 
 formly adhered to. It is a familiar principle, that a judgment 
 is conclusive upon parties and privies, where the court had ju- 
 risdiction to render 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 ad- 
 vance the position, that a judgment of a court of general ju- 
 risdiction cannot be questioned in a collateral action, for want 
 of jurisdiction over the. parties ; ^ but this doctrine seems to be 
 at war with the fundamental principles of our institutions. 
 There is no such thing as unlimited power in this country, and 
 no power which can be exercised arbitrarily. No such principle 
 exists, as that the courts can do no wrong. The acts of every 
 tribunal acting under the authority of law, may be questioned 
 and tried by the law of its organization. The legislature it- 
 
 1 Ante, p. 26. 
 
 2 2_ American Leading Cases, 737. 
 
JUDICIAL CONDEMNATION IS EEQTJIKED. 185 
 
 self is limited by the Constitution. Judicial power can rest 
 upon no broader foundation. No man shall be condemned with- 
 out notice and an opportunity of being heard. Such is the man- 
 date 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 legislature,, divesting a 
 man of his estate, or depriving him of his liberty. The great 
 objection to such legislation is that it is ex parte. If the courts 
 can thus proceed without notice, why may not the legislature ? 
 It is a simple choice of tyrannies. If such a principle once 
 gains a foothold, the dominion of a mob would be a merciful 
 substitute for such a power. The only reason why a judg- 
 ment is regarded as conclusive, is, that an end may be put to 
 litigation. Public policy demands repose under such circum- 
 stances ; but there is neithei' justice nor sound policy in clos- 
 ing the courts against one who has never litigated his rights, or 
 had an opportunity of doing so. An estoppel is regarded as 
 odious, because it shuts out the truth ; but it would be the es- 
 sence of injustice 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 done to the party complaining. Therefore, to 
 constitute a valid judgment, it must have been rendered by a 
 tribunal having jurisdiction over the subject-matter of the liti- 
 gation, and over the parties to it. A court has jurisdiction of 
 the subject-matter, where by law, authority has been con- 
 ferred upon it, to hear and determine the particular cause of 
 action in controversy between the parties ; and it has jurisdic- 
 tion over the person of the defendant, when he voluntarily 
 appears to the action, or has been actually served with process, 
 or has had constructive notice of the pendency of the suit, in 
 the manner prescribed by law. 
 
 This principle is applicable to all courts. The only differ- 
 ence between courts of general, and those of special jurisdic- 
 tion, is this : to suppoi't the act of the former, it is not neces- 
 
 16* 
 
186 OF THE PROCEEDINGS WHERE A 
 
 sary 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.i 
 On the other hand, where the court is one of special jurisdic- 
 tion, the fapts 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 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 judg- 
 inents in tax proceedings. In Thatcher v. Powell,^ Chief 
 Justice Marshall says : " In summary proceedings, where a 
 court exercises an extraordinary power, under a special stat- 
 ute prescribing its course, we think that course ought to be 
 exactly observed, and those facts especially which give juris- 
 
 1 Grignon's Lessee v. Astor, 2 Howard (TJ. S.), 319; Doe ex dem. Obert u. 
 Hammel, 3 Harrison (N. J.), 73; Kempe v. Kennedy, 5 Cranch, 173; Ray- 
 mond %,. Bell, 18 Connecticut, 87, 89 ; Propst v. Meadows, 13 Illinois, 168, 169 ; 
 Kenney v. Greer, 13 Illinois, 433; Foot u. Stevens, 17 Wendell, 483; Peacock v. 
 Bell, 1 Saunders, 73 ; Hart v. Seixas, 21 Wendell, 40 ; Voorhees v. U. S. Bank, 10 
 Peters, 449 ; Young v. Lorrain, 11 Illinois, 636, 639 ; Wyman v. Campbell, 6 Porter, 
 236, 243 ; Doe v. Wise, 5 Blackford, 402 ; M'llvoy v. Speed, 4 Bibb, 85 ; Fridge v. 
 State, 3 Gill & Johnson, 103; Van Wormer u. Mayor of Albany, 15 Wendell, 
 262; Paine u. Mooreland, 15 Ohio, 444, 445. 
 
 '■^ Vide Cases cited ante, p. 39. 
 
 ' Rex V. Croke, Cowper, 26. 
 
 * Williamson et al. v. Berry, 8 Howard (U. S.), 540, 541 ; Glass et at. v. Sloop 
 Betsey, 3 Dallas, 7 ; Rose v. Himely, 4 Cranch, 241 ; Elliott v. Peirsol, 1 Peters, 
 328 ; Wilcox v. Jackson, 13 Peters, 499 ; Shriver v. Lynn, 2" Howard (U. S.), 59 ; 
 ■Hickey «. Stewart, 3 Howard (U. S.), 750; Rogers v. Dill, 6 Hill (N. Y.), 415; 
 Latham v. Edgerton, 9 Cowen, 227 ; Horner et ux. v. Doe, Smith (Ind.), 10 ; s. c. 1 
 ■Carter, 130; 2 American Leading Cases, 733, 736. 
 
 6 6Wheaton, 119. 
 
JUDICIAL CONDEMNATION IS KEQUIKBD. 187 
 
 diction ought to appear, in order to show that the proceedings 
 are coram judice." And it makes no difference whether this 
 power is conferred upon a special tribunal created for the sole 
 and only purpose of trying tax causes, or whether the power 
 is superadded to a court of general common law and chancery 
 jurisdiction. When this special power is conferred upon such 
 courts, to be exercised in a summary way, they are treated in 
 the exercise of this particular power as courts of special juris- 
 diction. ^ 
 
 In Indiana fhe rule is much more strict. Not only must 
 the jurisdiction affirmatively appear, but the evidence upon 
 which the court acted must be set forth at large in the record ; 
 in other words, a complete record of all the tax proceedings 
 anterior to the judgment must be made and preserved.^ This 
 is in accordance with the general principles applicable to sum- 
 mary proceedings.* But it must be remembered that all of 
 these cases were decided upon writs of error, and did not arise 
 collaterally. The true rule undoubtedly is, that if the juris- 
 diction appears by recital or otherwise upon the record, the 
 judgment will Ue sustained, although the evidence upon which 
 they acted is not spread upon the record.* The effect thus 
 given to this class of judgments, where their jurisdiction is 
 once established, is substantially the same given to a judgment 
 rendered by a court of general jurisdiction proceeding accord- 
 ing to the course of the common law. The reversal of such 
 judgment will not defeat the title of a purchaser acquired 
 while the judgment was in full force ; and the judgment itself. 
 
 1 Young V. Lorain, 11 Illinois, 636, 637. 
 
 2 Dentler v. State, 4 Blackford, 258 ; Smith o. Staite, 5 Blackford, 65 ; Williams 
 V. State, 6 Blackford, 36. 
 
 * Judsonu. State, 1 Minor, 153; Yancey v. Hopkins, 1 Munford, 419 ; Bates v. 
 Planters and Merchants Bank, 9 Porter, 376 ; Crawford v. State, 1 Minor, 143 ; 1 
 Chandler, 29 ; Harfyraan i>. Titus, 3 Missouri, 302 ; Zurcher v. Magee, 2 Ala- 
 bama, 253 ; Bates v. Branch Bank of Mobile, 2 Alabama, 689 ; Brown v. Wheeler, 
 3 Alabama, 287 ; Bettis v. Taylor, 8 Porter, 564. 
 
 * Chesnut v. Marsh,. 12 Illinois, 173; Eogers v. Park, 4 Humphreys, 480; Mc- 
 CarroU v. Weeks, 5 Haywood, 246 ; Taylor v. People, 2 Gilman, 349. 
 
188 OF THE PROCEEDINGS WHERE A 
 
 SO long as it remains in force, cannot be impeached collater- 
 ally, unless it be absolutely void.^ 
 
 The Tennessee statute required the collector to make the 
 money out of the goods and chattels of the person in whose 
 name the land was listed ; if the owner failed to pay on demand, 
 or had no goods and chattels, the collector was required to re- 
 port a Ust of the deUnquents to the county court ; the court was 
 directed to cause an advertisement to be published in a news- 
 paper, stating that application was made for a judgment against 
 the lands, and upon the day named in the notice'it was the duty 
 of the court to render judgment upon the list. In the con- 
 struction of this statute, it has been decided that the following 
 jurisdictional facts must appear in the record, or the judgments 
 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.^ [And under the act of 
 1844, c. 92, it has been held,, that the Circuit Court cannot 
 condemn land unless the description of the tract contained the 
 name of the party to whom the land was granted, or by whom 
 entered, and in case of town lots, the number of the lot.^ But 
 after a judicial condemnation and sale under that act, the owner 
 cannot defeat the sale, unless he proves that the taxes were 
 duly paid before the judgment or order of sale was rendered. 
 The judgment is conclusive upon all other questions.*] 
 
 The Indiana statute of 1832 required the collector to deliver 
 
 1 Lessee of Wilkins' Heirs v. Huse, 9 Ohio, 154 ; Chesnut v. Marsh, 12 Illi- 
 nois, 173; Spellman v. Curtenius, 12 Illinois, 409. 
 
 ^ Thatcher v. Powell, 6 Wheaton, 119 ; McClung v. Boss, 5 Wheaton, 116 ; s. c. 
 5 United States Cond. 602 ; Francis v. Russell, 5 Haywood, 294 ; McCarroU v. 
 Weeks, 5 Haywood, 246 ; Campbell v. Mclrwiu, 4 Haywood, 60 ; Anderson v, Pat- 
 ton, 1 Humphreys, 369 ; Rogers v. Park, 4 Humplireys, 480 ; Hamilton v. Burum, 3 
 Terger, 355. 
 
 8 Ex parte Thacker, 3 Sneed, 344. 
 
 * Sharp V. Hart, 2 Sneed, 569. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 189 
 
 to the school commissioners a description of the lands upon 
 which taxes were due and unpaid, and in case the owners failed 
 to redeem the same, within three years from the time of the 
 delivery of said lists, the law provided that they migl^t be sold 
 in such manner as the legislature might thereafter prescribe, for 
 the benefit of the school fund. In 1835 an act was passed, pre- 
 scribing the manner in which such lands might be forfeited and 
 vested in the State for the use of the said school fund. Tliis 
 statute required, among other things, that a list of the lands 
 should be advertised, and that the notice should express that 
 unless the taxes were paid by the next ensuing term of the cir- 
 cuit court, a motion would be made for a judgment of forfeiture, 
 &c. In one case it did not appear that the notice of the motion 
 contemplated had been given, but the record recited that " the 
 court was satisfied that all the proceedings required by law had 
 taken place, &c." The court held that this recital amounted 
 to nothing. The record must show what those proceedings 
 were, in order that the appellate court may have an opportu- 
 nity to determine whether they were all that tlie statute re- 
 quired 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 collector'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 ren- 
 dition of a judgment, by the Common Pleas C<)urt, after notice, 
 upon the delinquent list, and declared the tax deed, made in 
 pursuance of it, to be evidence of the regularity of the proceed- 
 ings, and that the title thereby conveyed should not be " in- 
 validated or afiected by the reversal of such judgment, or any 
 error therein, or by any error in the proceedings previous to 
 the rendition of such judgment, relating to the charging or col- 
 lecting of taxes on such lands, or the obtaining of such judg- 
 ment." The law further required, that a list of the lands against 
 which judgment was pronounced, should be certified by the 
 
 1 Dentler v. State, 4 Blackford, 258 ; s. p. Smith v. State, 5 Blackford, 65. 
 
 2 "Williams v. State, 6 Blackford, 36. 
 
190 OF THE PROCEEDINGS WHERE A 
 
 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 laud, 
 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 prere- 
 quisites to a valid sale and conveyance were, 1. A judgment 
 rendered by a court of competent jurisdiction ; 2. A precept to 
 the county auditor directing a sale ; 3. Due notice of the time 
 and place of sale ; 4. A sale in pursuance of such notice ; 
 5. A return of the proceedings ; 6. A confirmation of the sale, 
 and an order for the execution of the deed to the purchaser ; 
 and, 7. A deed executed in pursuance of the order. When 
 these facts exist, the effect of the judgment is to conclude the 
 rights of all concerned ; no informality, no irregularity, no 
 errors in any of the previous proceedings, can vitiate it. A mis- 
 description of the land in the assessment roll cannot be taken 
 advantage of. The only objections which can be made to the 
 judgment is a want of jurisdiction. ^ 
 
 The statute of Illinois of February ^6, 1839, contains the 
 following sections : 
 
 " Assessors shall finish taking in the list of taxable property 
 on or before the first day of May, annually ; and each assessor 
 shall, on or before the said first day of May, deliver to the clerk 
 of the commissioners' court of his county the abstract of lands 
 furnished him by the clerk, together with the original list of 
 taxable property within his district, also a copy of said list ; the 
 copy shall contain the names of all persons owning taxable prop- 
 erty 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 hereinafter provided." ^ 
 
 1 Eennick v. Wallace, 8 Ohio, 540 ; Lessee of Wilkins' Heirs v. Huse, 9 Ohio, 154. 
 ^ Sec. II. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 191 
 
 . " On the second Monday of August annually, or so soon there- 
 after as collectors shall have been Sworn into office, the clerks 
 of the county commissioners' courts shall deliver to the collec- 
 tors of their respective counties, the alphabetical lists of taxable 
 property returned to them by the assessors, and take duplicate 
 receipts of the same, in which shall be specified the amount of 
 taxes to be collected upon the lands contained in the lists, and 
 the amount to be collected upon the personal property ; one of 
 which receipts shall be filed by the several clerks of the county 
 commissioners' courts in their office, and the other shall be de- 
 livered 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 delivered to them, proceed to col- 
 lect the taxes charged upon said lists, by calling upon each and 
 every person residing in their respective counties, at his or her 
 usual place of residence, and requiring payment 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 taxation ; and a lien is hereby 
 created and declared to exist, in favor of the State, upon every 
 article of personal property owned by any person charged with 
 taxes, from and aft^r the taxes shall have been demanded by 
 the collector ; and no sale or transfer of the same shall afiect 
 the claim or lien of the State, but the said property shall be 
 liable to be seized by the collector, in whosesoever hands or pos- 
 session the same may be found, and sold to satisfy such taxes, 
 and all cost and charges attending the collection of the same : 
 Provided, The lien aforesaid shall not contihue to exist longer 
 than to the expiration of the year for which the taxes are or 
 may be due. If any person charged with taxes shall be absent 
 from home when the collector shall call upon him or her for 
 payment thereof, the collector shall leave a written notice at the 
 
192 OF THE PKOCBEDINGS ■WHBEE A 
 
 from such person, and requiring him or her to •make payment 
 of the same at some time alter the expiration of ten days from 
 the date of the notice, and at a place to be specified in the no- 
 tice ; 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 de- 
 manded by the collector, or within twenty days after such 
 demand, the collector is authorized and required to seize and 
 levy upon any personal property of such person, of value suf- 
 ficient to pay the taxes and costs, and to advertise and sell the 
 same at public vendue ; he shall give fifteen days' notice of the 
 time and place of sale, by posting one. advertisement on the 
 door of the court-house of his county, and at three public places 
 in the neighborhood of the place of sale ; and if the property 
 seized shall not sell for a sum sufficient to pay the taxes and 
 costs, the collector may seize and sell any other personal prop- 
 erty 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 fqjl to pay the taxes assessed thereon, and the collectors 
 shall be unable to find any personal property of such person in 
 his county, whereon to levy, of value sufficient to pay said taxes 
 and costs, it shall 'he 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 : 
 
 ' Sec. 16. 2 Sec. 17. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 
 
 193 
 
 " List of lands and other real estate, situated in the County of 
 , and State of Illinois, on which taxes remain due 
 
 and unpaid, for the year herein set forth 
 
 " I 
 
 ca 
 
 
 hose name 
 atented. 
 
 
 >i 
 
 •s 
 
 
 
 
 o & 
 
 i 
 
 o 
 
 a 
 
 t 
 
 OS 
 
 o 
 c 
 
 5 6 
 
 II 
 
 3 
 
 g 
 
 ■ t 
 
 ©o 
 
 
 !3 
 
 m M 
 
 C.1 
 
 
 o 
 
 a 
 
 H 
 
 a 
 
 
 a 
 
 i^ 
 
 > 
 
 o 
 
 ;2; 
 
 
 
 <5 
 
 >H 
 
 
 
 
 " Before making the application to the circuit court provided 
 for in the preceding section, the collector shall publish an adver- 
 tisement 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 advertise- 
 ment 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 taxes, interest, and costs thereon, 
 and for ah order to sell the said lands for the satisfaction there- 
 of ; and shall also give notice, that on the second Monday next 
 succeeding the said term of the said circuit court, all the lands 
 against which judgment shall be pronounced, and for the sale 
 of which such order shall be made, will be exposed to public 
 sale, at the court-house of the said county, for the amount of 
 said taxes, interest, and costs due thereon ; and the advertise- 
 ment, published according to the provisions of this section, shall 
 
 1 Sec. 25. 
 
 17 
 
194 OP THE PROCEEDINGS WHERE A 
 
 be deemed and taken to be sufficient and legal notice, both of 
 the aforesaid intended application by the collector to the circuit 
 court for judgment, and also of the sale of said lands, under 
 the order of said court." ^ 
 
 " The collector shall obtain a copy of the said advertisement, 
 together with a certificate of the due publication thereof, from 
 the printer or publisher of the newspaper in which the same 
 shall have been published, and shall file the same with the 
 clerk of the said circuit court, at the said term thereof, together 
 with the said report provided for in the twenty-fifth section of 
 this act." 2 
 
 " The clerk of the circuit court, upon the filing of such re- 
 port and certificate of publication by the collector, 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 proceed- 
 ings of the court in relation thereto, and shall keep and pre- 
 serve the same as a part of the records of his ofl&ce ; and the 
 said clerk shall place the said report and certificate of said col- 
 lector at the head of the common-law docket for said term, in 
 the following form, to wit : 
 
 State, of Illinois ) 
 
 V. ( Suit for Taxes." ^ 
 
 John Doe and others. ) 
 
 " It shall be the duty of said court, upon calling the com- 
 mon-law docket of said term, if any defense be offered by any 
 of the owners of said lands so reported, or by any person hav- 
 ing a claim or interest therein, to hear and determine the same 
 in a summary 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 following form, to wit : 
 
 State of Illinois, ) 
 
 ^ ' [ set. 
 county, V 
 
 1 Sec. 26. "Sec. 27. » Sec. 28. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 195 
 
 " 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 collector's return, 
 and that the respective owner or owners have no goods and chat- 
 tels within this county on which the said collector can levy for 
 the taxes, interest, and costs due and unpaid on the following 
 described lands, to wit : [Here follows the list.^ 
 
 " And whereas, due notice has been given of the intended 
 application for a judgment against said lands, and no owner 
 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 (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 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 iinder the seal of 
 said court, a copy of the collector's report, together with the 
 order of the court thereon , which shall hereafter constitute the 
 process on which all lands shall be sold for taxes, and deliver 
 the same to the sheriffs of his county ; and the sheriff shall, 
 thereupon, cause the said lands to be sold on the day specified 
 
 1 Sec. 29. 2 Sec. 30. 
 
196 OF THE PKOCEBDINGS AVHERB A 
 
 in the notice given by the collector for tlie 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, adver- 
 tised for sale as aforesaid, may pay the taxes, interest, and costs 
 due thereon, to tlie collector of the county in which the same 
 are situated, at any time before the sale thereof." ^ 
 
 " Lands and real estate, which, at the time of sale, belonged 
 to infants, femes covert, or lunatics, may be redeemed upon 
 the terms specified in the preceding section, at any time within 
 one year from the time the disabilities of such person shall 
 cease to exist ; and if there be several infants owning a joint, 
 or joint and several interest in any lauds 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 pro- 
 visions 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 proposed to be redeemed, are subject to 
 redemption under the provisions of this section, or any other 
 law of the State, he shall file the affidavit so presented, and 
 permit the lands to be redeemed, upon the conditions which 
 are or may be required bylaw; and such redemption shall 
 operate to restore to tlie owner or owners of the land, his, her, 
 or their heirs or assigns, all rights which he, she, or they had 
 in and to the same at the time of sale : Provided, however. 
 That the certificate of redemption shall not be evidence of any 
 other fact than that the redemption money was paid." ^ 
 
 1 Sec. 31. 2 Sec. 32. 8 ge(,_ 39_ 
 
JUDICIAL CONDEMNATION IS REQUIRED. 197 
 
 " Immediately after the expiration of the term of two years 
 from the date of the sale of any land for taxes under the pro- 
 visions 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 cer- 
 tificate of purchase. Deeds executed by sheriffs shall bo in 
 the following form : 
 
 Know all men by these presents, that whereas, at 
 
 term, of 18 — , of the cirbuit court of county, a judg- 
 ment was obtained in said court, in favor of the State of Illi- 
 nois, against the [here insert the description of the land] for 
 
 the sum of dollars and cents, being the amount 
 
 of taxes, interest, and costs, assessed upon said tract of land 
 
 for the year 18 — , and whereas, on the day of , 
 
 18 — , I, A. B., sheriff of the county aforesaid, by virtue of a 
 precept issued out of the circuit court of the county afore- 
 said, 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 ren- 
 dered as aforesaid ; and whereas, at the time and place afore- 
 said, C. D., of the county of , and State of , hav- 
 ing offered to pay the aforesaid sum of dollars and 
 
 cents, for — — - which was the least quantity bid for, the said 
 tract of land was stricken off to him at that price. Now, 
 therefore, I, A. B., sheriff as aforesaid, for and in 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^ have 
 granted, bargained, and sold, and by these presents do grant, 
 bargain, and sell, unto the said C. D., his heirs and assigns, the 
 
 . [_Here follows the description.] To have and to hold, 
 
 unto him, the said C. D., his heirs and assigns, forever ; sub- 
 ject, however, to all the rights of redemption provided by 
 law. In witness whereof, I, A. B., sheriff as aforesaid, by vir- 
 
 17* 
 
198 OF THE PROCEEDINGS WHERE A 
 
 tue of the authority aforesaid, have hereunto subscribed my 
 
 name, and affixed my seal, this day of , 18 — . 
 
 , Sheriff." i 
 
 " Deeds executed by the sheriff, as aforesaid, shall be prima 
 facie evidence, in all the controversies and suits in relation to 
 the right of the purchaser, his heirs or assigns, to the land 
 thereby conveyed, of the following facts : 
 
 1. That the land conveyed was subject to taxation at the 
 time the same was advertised for sale, and had been listed and 
 assessed in the time and manner -required by law. 
 
 2. That the taxes were not paid at any time before the sale. 
 
 3. That the lands conveyed had not been redeemed from the 
 sale at the date of the deed. And shall be conclusive evidence 
 of the following facts : 
 
 1. 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 iu the manner required by 
 law ; and in controversies and suits involving the title to land 
 claimed and held under and by virtue of a deed executed by 
 the sheriff as aforesaid, the person claiming title adverse to the 
 title conveyed by such deed, shall be required to prove, in order 
 to defeat the said title, either that the said land was not sub- 
 ject to taxation at the date of the sale — that the taxes had been 
 paid — that the land had never been listed and assessed for tax- 
 ation, or that the same had been redeemed according to the 
 provisions of this act, and that such redemption was bad or 
 made for the use and benefit of persons having the right of 
 redemption under the laws of the State ; but no person shall 
 be permitted to question the title acquired by a sheriff's deed, 
 without first showing that he or she, or the person under whom 
 he or she claims title, had title to the land at the time of the 
 sale, or that the title was obtained from the United States or 
 
 ' Sec. 42. 
 
JUDICIAL CONDEMNATION IS EEQUIRBD. 199 
 
 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, certified by clerks of either 
 of the courts aforesaid, shall be deemed sufficient evidence to_ 
 prove the judgment and sale of any land for taxes, or the 
 redemption of the same, or the payment of taxes thereon." ^ 
 
 " Persons paying taxes upon lands advertised for sale for 
 taxes, or after judgment has been obtained, and previous to 
 sale, shall be required to pay the cost of suit, and of advertis- 
 ing the same, and all other costs which may have accrued on 
 said land under the provisions of this act, up to the time of 
 such payment." ^ 
 
 In construing this statute, the Supreme Court have arrived 
 at the following conclusions : 
 
 First. That in order to confer jurisdiction upon the court, 
 it is essential that the collector should, 1. Make the report re- 
 quired by section twenty-five ; and, 2. Give notice of the appli- 
 cation for judgment as prescribed in 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 substantially com- 
 ply with the form prescribed by section twenty-five, or it will be 
 void, and the court acquire no jurisdiction to render judgment 
 upojj it. Thus, in Pickett v. Hartsock,^ a report in the follow- 
 ing form was held void : " State of Illinois, Greene County, col- 
 lector's office, August 8, 1843. To the Honorable Judge of the 
 Circuit Court of Greene County : The collector of public reve- 
 nue do ask of your Honor judgment on the following lands and 
 
 • Sec. 43. ^ Sec. 44. s ggc. 46. 
 
 *■ Atkins V. Hinman, 2 Gilman, 437 ; Chesnut v. Marsh, 12 Illinois, 173 ; Spell- 
 man V. Curtenius, 12 Illinois, 409 ; Pitkin v. Yaw, 13 Illinois, 251 ; Manly v. Gibson, 
 14 Illinois, 136. 
 
 6 15BUnois,279. 
 
200 OF THE PROCEEDINGS WHERE A 
 
 town lots, situated in said county, for the year 1842 : J. Val- 
 entine, 80 acres, E. i S. E. i 33, 11, 10, valuation $820, tax 
 $1.44, costs 22 cents. David Pinkerton, collector of Greene 
 County." This report, it will be seen, does not purport to fol- 
 low the statute form ; and it is nowhere stated for what year 
 the taxes were assessed. The court therefore held it insufficient 
 " to invest the circuit court with jurisdiction." [So in Morgan 
 V. Camp,i it was held, that the collector's report should show on 
 its face in which county the lands are situated, and the year for 
 which the taxes are assessed.] Hpwever, formal defects in the 
 report will not affect the jurisdiction of the court. In Spellman 
 V. Curtenius,^ the concluding words of the caption, viz. : " for 
 the year herein set forth," were omitted, and in lieu thereof, 
 the words " for the year 1843," were 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 judgment 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 au- ' 
 thorizing 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 question where the judgment comes collaterally in 
 issue." 
 
 The twenty-fifth section of the above recited act, was amended 
 by the act of February 1, 1840,3 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 silent 
 
 1 16 Illinois, 175. 
 " 12 Illinois, 414. 
 * Sec. 4. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 201 
 
 as to the day when the report was made, it will be presumed to 
 have been /nade in conformity with the statiite, and where the 
 requirement has been, disregarded, it has been held directory. 
 The jurisdiction of the court does not depend xipon a literal 
 compliance 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 show upon its face that a de- 
 mand 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 pre- 
 scribed by the statute, in which case, the demand, and fact that 
 no goods could be found, will be presumed.^ 
 
 Third. It will be perceived that section forty-three does not 
 make the deed conclusive (or even prima facie') evidence that 
 due notice of the application for judgment had been given, but 
 simply " that the land was advertised for sale in the manner 
 and for the length of time required by law." The consequence 
 is, that the jurisdiction of the court, as far as it depends upon 
 the publication of the notice prescribed in section twenty-six, is 
 open to attack. The recital in the form of the judgment,^ 
 " And whereas, due notice has been given of the intended ap- 
 plication for judgment," is prima facie evidence of this juris- 
 dictional fact.- This was the evidence of the jurisdiction in 
 Chesnut v. Marsh,* although the report of the case is imperfect 
 in this respect. Of course it may be impeached, and this was 
 attempted in Jaqkson v. Cummings.^ The question theremade, 
 was as to the sufficiency of the certificate of publication required 
 by section twenty-seven. The advertisement consisted of the 
 usual caption, the list of lands, &c., the notice of the intended 
 application for a judgment, and the time and place of sale, fol- 
 lowed by a certificate of the printer, " that the foregoing was 
 duly published on the 15th of January, 1845, in the ' Peoria 
 Democratic Press,' published in Peoria county, Illinois, and 
 
 1 Atkins V. Hinman, 2 Gilman, 450; Jackson v. Cummings, 15 Illinois, 449. 
 
 ^ Taylor v. People, 2 Gilman, 349 ; Job v. Tebbetts, 5 Illinois, 382. 
 
 s Sec. 29. 
 
 ' 12 Illinois, 173. 
 
 ' 15 Illinois, 449. 
 
202 OF THE PROCEEDINGS WHERE A 
 
 that the number of transcripts so published corresponds with 
 the number of newspapers printed and distributed for that 
 week." The objections to this certificate were, 1. That it did 
 not appear that the " Press" was a newspaper, that it might be 
 a book, a monthly periodical, or a handbill. 2. That the words, 
 " number of transcripts so published," might refer to other ad- 
 vertisements of copies, and not the tax list. To which the court 
 reply : " We may read the advertisement and certificate so, as 
 critical scholars, but knowing the statute under which such 
 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,i viz. : " f ," for dollar, " c." " ct." " cts.-" 
 for cent or cents, " m." for mills, " Lt." for lot, " Bk." for 
 block, " Tx." for tax, " VI." for valuation, " T." for township, 
 " R." for range, " Sec." for section, " qr. sec." for quarter sec- 
 tion, and " pt." for part, &c. 
 
 Fourth. The form of the judgment is prescribed in section 
 twenty-nine.2 Where it has been departed from, the courts 
 have sustained the judgment, upon the principle, that when it 
 has been rendered by a tribunal of competent jurisdiction, it 
 must be regarded as valid in all collateral actions, however 
 erroneous it may be ; that no irregularity or informality can 
 justify a court in pronouncing it void.^ Perhaps the strongest 
 case illustrative of this rule, is that of Chesnut v. Marsh.* The 
 judgment in that case read thxis : " It is considered and ad- 
 judged by the court, that the State of Illinois do severally re- 
 
 1 Goodall V. Harrison, 2 Missouri, 1 24 ; Long v. Long, 2 Blackford, 293 ; 
 Stevens v. Hollister, 18 Vermont, 293 ; Atkins v. Hinman, 2 Gilman, 444 ; Blakeley 
 V. Bestor, 13 Illinois, 714 ; Eey. Stat. Illinois, 1845, p. 446, sec. 62. 
 
 2 [The judgment must show clearly the amount of tax for which it is rendered. 
 The figures " 248 " without some mark indicating for what they stand, in a column, 
 at the head of which is the word " Tax " is not sufficient. Lawrence v. Fast, 20 
 Blinois, 338.] 
 
 8 Chesnut v. Marsh, 12 lUinois, 173 ; Atkins v. Hinman, 2 Gilman, 437 ; Merritt 
 V. Thompson, 13 Illinois, 716. 
 4 12 Illinois, 173. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 203 
 
 cover of the several owners of the lands, described in the report 
 and list aforesaid, the taxes due upon each of said lots of land, 
 being the same set down in figures opposite to each lot of land, 
 together with the interest and costs due thereon, and the costs 
 of this proceeding ; and it is further considered and adjudged, 
 that each of said lots of land described in the list aforesaid, or 
 so much thereof as will be sufficient, be sold to satisfy and pay 
 this judgment and the costs of sale, and this judgment is to be 
 entered as a several judgment against the owner of each lot of 
 land described in the report and list, and the land itself, for the 
 taxes, interest, 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 execu- 
 tion against their land to satisfy it, witli a direction to the clerk 
 to enter it up as a several judgment against the owner and the 
 land. The statute contemplated a judgment in rem.^ This was 
 a judgment in personam, and to that extent at least, was 
 conceded to be void. Three questions arose upon these facts. 
 1. Is the judgment 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 confessed- 
 ly void as to the owners ? And 3. Is it not substantially a judg- 
 ment against the land ? The first and second questions were 
 answered in the negative, 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 be impeached 
 collaterally, however informal or irregular ; that this was sub- 
 stantially a judgment in presenti against the land, and not a 
 mere direction to the clerk Jo enter up one in the future ; and 
 that, inasmuch as no effort was made to enforce it as a judg- 
 ment in personam, but against the land alone, that part which 
 affected the owners might be treated as surplusage. 
 
 In Atkins v. Hinman,^ the judgment did not recite the day 
 of the date of the collector's return, and omitted the words 
 
 1 Olcott V. State, 5 Gilman, 481. 
 
 2 2 GUman, 437. 
 
204 OP THE PROCEEDINGS WHERE .A ' 
 
 " and that the taxes thereon remained due and unpaid, on the 
 day of the date of the said collector's return." Both o£ 'these 
 recitals are contained in the. statute form of the judgment. 
 With these exceptions the form was strictly pursued. Besides, 
 the report, which was in the form prescribed by law, was copied 
 into the judgment, and thus became a part of it. The judgment 
 was sustained upon two grounds. 1. That inasmucji 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 eq"uivalent 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 
 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 judg- 
 ment is valid.^ The law does not reqiiire 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, consequently their omission is 
 immaterial.'* 
 
 On the other hand, it was held in Pickett v. Hartsock," that 
 a judgment rendered for taxes, on a day prior to the day named 
 in the notice of the collector, is void. In that case, the notice 
 stated that the collector would apply for judgment, on the first 
 Monday of April, which was the seventh day of that month. 
 The judgment was rendered April 4. Treat, C. J. : ^' The 
 
 1 Spellman v. Curtenius, 12 Illinois, 414 ; Merritt'i;. Thompson, 13 Illinois, 723. 
 ^ Merritt v. Thompson, 13 Illinois, 723, 725. 
 ' Merritt v. Thompson, 13 Illinois, 723, 725. 
 • Spellman v. Curtenius, 12 Illinois, 412. 
 5 15 Illinois, 279. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 205 
 
 tax judgment of April 4, 1845, was clearly void. It was ren- 
 dered prior to tlie day named in the notice of the collector. 
 The action of the court was premature and unauthorized. It 
 had no jurisdiction over the case before the 7th of April. Up 
 to that day, owners had the right to pay the taxes charged 
 against their property, or to make preparation to resist the 
 application for 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 can- 
 not be aided by oral evidence. Thus in Young v. Thompson,^ 
 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 taxes of 
 1847 ; the book in which judgments against delinquent lands 
 were recorded, showed on inspection^ that tlie judgment immedi- 
 ately preceding the one in question, was upon the tax lists of 
 1845 and 1846, but was also silent as to the time of its rendi- 
 tion ; 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 author- 
 ized by the statute. The judgment to be valid, must have been 
 rendered at the May term, 1848. Treat, 0. J. " In our opin- 
 ion, 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 pre- 
 sented a fatal objection to the plaintiff's title. The rule is, 
 that a record imports absolute verity, and must be tried by 
 itself. If deficient or imperfect, it cannot be aided by evidence 
 
 1 14 Illinois, 380. 
 
 18 
 
206 OF THE PROCEEDINGS WHERE A 
 
 dehors the same.^ This record failed to show such a judgment 
 as was described in the sheriff's deed, and the deed must fall 
 for want of a foundation on which to rest." 
 
 The description of the land contained in the judgment must 
 be so certain that a definite locality can be given to it, or it will 
 be void.2 But words, figures, and abbreviations, may be used 
 for the purpose of designation.^ Examples of this rule will be 
 found in the cases cited in the margin.* To authorize a 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 wiU 
 be treated as a nullity. In addition to section thirty-one, as 
 herein before set forth, the ninth section of the act of Febru- 
 ary 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 repeal- 
 ing clause was itself repealed March 6, 1843, and the provis- 
 ion, requiring a copy of the collector's report to be delivered 
 to the sheriff, reenacted.^ In Hinman v. Pope,^ a judgment 
 in the form prescribed was read in evidence, without objection. 
 A precept was then offered and rejected, which was in this 
 form, namely : 
 
 1 Commercial Digest, Title Kecord, B. & E. ; Croswell v. Byrnes, 9 Johnson, 
 287 ; Elliott v. Peirsol, 1 Peters, 328 ; Lessee of James v. Stookey, 1 Washington, 
 C. C. 330. 
 
 ^ Olcott V. State, 5 Gilman, 481. 
 
 8 Olcott V. State, 5 Gilman, 481. 
 
 ' Hinman v. Pope, 1 Gilman, 133 ; Atkins v. Hinman, 2 Gilman, 443 ; Spellman 
 V. Curtenius, 12 Illinois, 410. 
 
 ^ Pitkin V. Taw, 13 Illinois, 251 ; Spellman v. Curtenius, 12 Illinois, 409 ; 
 Atkins V. Hinman, 2 Gilman, 437. , 
 
 6 Laws 1840, p. 5. 
 
 ' Laws 1842, 1843, p. 237, sec. 28. 
 
 8 1 Gilman, 131. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 
 
 207 
 
 '■'■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. 
 
 s ■ 
 
 e 
 
 ii 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 ^1 
 
 o 
 
 
 DeEcription. 
 
 1 
 
 ■3 
 
 Tax. 
 
 Cost. 
 
 County. 
 
 §PM 
 
 m 
 
 s „ 
 
 
 1> 
 
 
 
 
 "R 
 
 a 
 
 S5 
 
 
 
 
 
 
 Gideon Bmnk. 
 
 
 1839 
 
 160, N. B. 22, 1 S., 4 W.- 
 
 »1120 
 
 560 
 
 16 
 
 Brown. 
 
 Andrew Gerold. 
 
 
 1840 
 
 160, N. B. 30, 1 N., 2 W. 
 
 $640 
 
 448 
 
 16 
 
 do. 
 
 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 Illinois, 
 Brown County, 
 
 ss. 
 
 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 
 
 r -I affixed the seal of the Brown Circuit Court, at 
 
 '^ Mt. Sterling, this 20th day of April, A. D., 1841. 
 
 Jambs Brockman, Clerk.'" 
 
 It will be perceived, on a comparison of this document with 
 the thirty-first section of the act of 1839, that it does not con- 
 form to the requirements of that sectioij, 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 sheriff, &c. It does not recite that 
 any judgment had ever been rendered by the court. It is a 
 mere mandate of the clerk to sell certain tracts of land for 
 taxes, to be found in a collector's list appended to the paper. 
 
208 OF THE PROCEEDINGS WHERE- A 
 
 All execution, to be valid, must sliow on its face that such a 
 judgment has been rendered by a competent court as will jus- 
 tify emanation. It was contended, that the repealing clause in 
 the act of February 9, 1840, made the precept in this case 
 valid, but the court held, that the only effect of this clause was 
 to dispense in the precept with the collector's report, but that 
 in all other respects the process must conform to the requisi- 
 tions of the thirty-first section of the act of February 26, 1839, 
 which required the precept to consist of a copy of the judg- 
 ment, certified under the seal of the court ; whereas, in this 
 case, the precept did not purport to be such copy, either in form 
 or substance. 
 
 In the case of Job v. Tebbetts,^ the validity of the 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 sher- 
 iff, but omitted the list and description of the lands against 
 which the judgment was pronounced. It was insisted by the 
 counsel opposing the title derived under this precept, that the 
 judgment, according to the form prescribed in section twenty- 
 nine, contained the list of lands, and that a copy of the judg- 
 ment order would necessarily contain 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 deliv- 
 ery to the sheriff of two complete lists of lands against which 
 judgment was pronounced, would be required, one of which 
 would be utterly useless, and be attended with much expense. 
 The court however held, that although the question was not 
 free from difficulty, the construction contended for was not 
 admissible ; that under the law of 1839, but one list was 
 necessary, and that was dispensed with by the act of 1840, and 
 consequently the precept should not recite the lands embraced 
 
 1 5 Gilman, 380. 
 
JUDICIAL CONDEMNATION IS REQUIRED. 209 
 
 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. GibsoUj^ it was held, that where the list of lands 
 embraced in the collector's report was delivered to the sheriif, 
 with the order of the court thereon, duly authenticated, the 
 precept was sufficient, though the formal parts of the collecjt- 
 or's report were omitted. Those omissions and informalities 
 in the judgment which do not render it void, will not invali- 
 date the precept, because the latter is a mere copy of the 
 former ;* nor will a clerical mistake in the recital of the time 
 when the collector made his report, render the precept void.^ 
 And it has also been decided, that the precept is not a " writ 
 or process," within the meaning of the constitution, which 
 requires all process, &c., to run in the name of the " People of 
 the State of Illinois." ^ A material variance between the pre- 
 cept and judgment upon which it is based, is fatal to its valid- 
 ity. Thus in Pitkin v. Yaw,^ where the judgment was for 99 
 cents, and the precept recited a judgment for fl.25, it was held 
 to be a material, and therefore a fatal, variance. The precept 
 described a judgment more than one-fourth larger than the 
 one actually rendered. Trifling variances may be disregarded, 
 
 1 Job V. Tebbetts, g Oilman, 382. 
 '' 2 Gilman, 444, 445. 
 = 14 Illinois, 137. 
 
 * Chesnut v. Marsh, 12 Illinois, 173; Atkins v. Hinman, 2 Gilman, 451. 
 6 Chesnut «. Marsh, 12 Illinois, 173. 
 
 5 Cnrry v. Hinman, 11 Illinois, 420 ; Scarritt v. Chapman, 11 Illinois, 443. 
 I 13 Illinois, 251. * 
 
 18* 
 
210 OF THE PROCEEDINGS WHERE A 
 
 but one which destroys the legal identity of the proceedings 
 cannot be sustained. 
 
 Sixth. In the construction of this statute it is held, not only 
 that the judgment and precept are essential to the validity of 
 a sale for taxes, but that the burden of proving their existence 
 rests upon the purchaser, or those claiming under him ; the 
 court holding the analogy between these and ordinary sherifif 's 
 sales, complete in this respect.^ 
 
 Seventh. The deed must substantially conform to the re- 
 quisitions 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 afore- 
 said, shall be " prima facie evidence of some, and conclusive 
 evidence of other facts, particularly enumerated in section forty- 
 three. It surely was never intended to give to the deed a con- 
 clusive effect against the rights of a third person, when the of&cer 
 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 ,2 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 presumption then arises, that all of the requisitions 
 of the law have been complied with by all of the ofBcers who 
 had any thing to do with the proceedings, and the onus probandi 
 
 1 Hinman v. Pope, 1 Gilman, 131 ; Atkins v. Hiiiman,2 Gilmau,437 ; Spellman 
 i). Curtenius, 12 Illinois, 409; Pitkin v. Yaw, 13 Illinois, 251. 
 
 2 13 Illinois, 251. , 
 
JUDICIAL CONDEMNATION IS REQUIRED. 211. 
 
 is thrown upon the party contesting the validity of the tax 
 title.i 
 
 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 construing this section, it has 
 been decided substantially, 1. That any one may attack the 
 validity of the judgment, precept and deed, without putting 
 himself " in position," as it is called. 2. But if, after the per- 
 son claiming under the tax title, has made out a prima facie 
 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 contesting the tax sale was in possession, claiming 
 title to the land at the time of the sale, is sufficient evidence of 
 title within the meaning of this statute.^ And if it appears 
 that no taxes are due to the State upon the land, this satisfies 
 the other requirement of the statute, although the taxes were 
 not paid by the party who desires to contest the validity of the 
 tax title.* 
 
 Tenth. Where the party resisting the validity of the tax sale 
 has thus put himself " in position," he may defeat the sale by 
 establishing these defences : 1. That the land was not subject 
 to taxation at the date of the sale ; ^ 2. That the taxes, for 
 
 1 Manly ». Gibson, 14 Illinois, 136 ; Lusk v. Harber, 3 Gilman, 158 ; Hinman 
 U.Pope, 1 Gilman, 131 ; Atkins u. Hinman, 2 Gilman, ,437. 
 
 ■' Hinman v. Pope, 1 Gilman, 138 ; Bestor v. Powell, 2 Gilman, 119 ; Atkins v. 
 Hinman, 2 Gilman, 453, 454 ; Lusk v. Harber, 3 Gilman, 158 ; Curry v. Hinman, 11 
 Illinois, 420; Spellman v. Curtenius, 12 Illinois, 409; Hope v. Sawyer, 14 Illinois, 
 254. 
 
 ' Lusk V. Harber, 3 Gilman, 158 ; Curry v. Hinman, 11 Illinois, 420. 
 
 * Curry v. Hinman, IJ Illinois, 420 ; Hope v. Sawyer, 14 Illinois, 254. 
 
 6 Sec. 43. 
 
212 JUDICIAL CONDEMNATION. 
 
 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; 2 4. That the sale had been redeemed from ; 3 5. That the 
 sale was made on a day different from that designated in the no- 
 tice, or the law ; * and, 6. The party may go behind the judgment 
 and show that any of the material prerequisites of the law have 
 not been complied with.^ There are, doubtless, other defences 
 which may be successfully made to a tax sale under this statute, 
 but no decisions have settled them, and it is unnecessary to 
 anticipate the action of the courts. It is proper to add in con- 
 clusion, that the laws of Illinois, now in force, are substantially 
 like the act of 1839, and their construction is governed by the 
 same principles laid down in this chapter. 
 
 1 Sec. 43 ; Curry v. Hinman, 11 Illinois, 420. 
 
 ' Marsh v. Chesnut, 14 Illinois, 223 ; Billings v. Detten, 15 Illinois, 218. 
 
 ' Sec. 43 ; Chapin v. Curtenius, 1 5 Illinois, 432. 
 
 * Hope V. Sawyer, 14 Illinois, 224; Polk v. Hill, 15 Blinois, 130. 
 
 ' Lusk V. Harber, 3 Gilman, 161, 162. 
 
ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 213 
 
 CHAPTEE XII. 
 
 OE THE ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 The maxim is familiar, " That notice is of the essence of 
 things required to be done." ^ And it is a fundamental rule, 
 that in all judicial, or quasi judicial proceedings, aifecting the 
 rights of the citizen, he shall have notice and an opportunity 
 of a hearing before the rendition of any judgment, decree^or 
 order against him. In other words, he must be warned, and 
 have his day in court. And in the application of this rule, it 
 is immaterial whether the. tribunal exercising authority over his 
 rights proceeds regularly or summarily — according to the due 
 course and process of the common law — or in pursuance of a 
 general or special statute. It would be a violation of one of 
 the first principles of justice and judicial proceedings, to try, 
 and decide upon, the rights of an individual, civilly or crimi- 
 nally, without notice, and consequently an opportunity of de- 
 fending himself. 
 
 So strict is the rule, that where a proceeding of a judicial 
 nature is authorized, and the statute is silent as to notice, the 
 adjudication will be void unless notice is given to the party in 
 interest.^ Where the proceeding is before a special tribunal, 
 exercising a summary authority, contrary to the course of pro- 
 ceeding in the common-law courts, the evidence that due no- 
 
 1 1 Burr, 447 ; 3 Denio, 595. 
 
 2 Chase B. Hathaway, 14 Massachusetts, 222 ; Eddy u. People, 15 Illinois, 386; 
 Holliday v. Swailes, 1 Scammon, 515; Shutn-way v. Shumway, 2 Vermont, 339; 
 Smith V. Burlingame, 4 Mason, 121 ; Corliss v. Corliss, 8 Vermont, 389 ; Kinder- 
 hook V. Claw, 15 Johnson, 537 ; Brown v. Wheeler, 3 Alabama, 287 ; State Bank 
 V. Marsh, 2 English, 390; Owners v. Mayor of Albany, 15 Wendell, 374. 
 
214 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 tice was given must indisputably appear upon the face of the 
 record. Even a recital of the notice is insufficient ; it must be 
 set fortli at large in the. record, that it may be seen on inspec- 
 tion whether the notice was legal and siifficient.^ If such is 
 the law of notice in judicial proceedings, it applies with much 
 greater force to the exercise of ministerial power, where the act 
 is not only summary, but the notice merely constructive ; where 
 the proceeding is in the nature of a judgment, and terminates 
 in the divestiture of a title to real estate. 
 
 The law in relation to sheriffs' sale would seem to be an 
 exception to this principle. An advertisement of the time and 
 place of sale is usually required, but in this respect the statute 
 is regarded as merely directory to the officer. "Without doubt, it 
 is his duty to comply with its directions ; and for a breach of 
 hi%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 pro- 
 ceedings in the cause, particularly in reference to the execution, 
 which, to use the language of Lord Coke, is the " life of the 
 law."^ But even in this case, if the purchaser is aware of 
 the fact that the officer has failed to advertise the sale, in con- 
 formity with the requirements of the law, the sale may be 
 avoided. This would amount to a constructive fraud. It is 
 only bona fide purchasers who are protected in this class of 
 cases, and not those who have actual notice of a substantial 
 irregularity .8 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 legis- 
 
 1 Rex V. Croke, 1 Cowper, 26 ; Cheatham v. Howell, 8 Yerger, 311 ; Gwin v. 
 Van Zant, 7 Yerger, 143. 
 
 '•i Minor v. Natchez, 4 Smedes & Marshall, 602 ; s. c. 10 Smedes & Marshall, 246 ; 
 2 Bibh, 401 ; 3 Ohio, 187 ; 9 Ohio, 19. 
 
 » Hayden v. Dunlap, 3 Bibb, 216; Webber v. Cox, 6 Monroe, 110. 
 
ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 215 
 
 lation 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 publi- 
 cation, the number of newspapers in which it shall be inserted, 
 the number of issues which shall contain it, the circulation of 
 the paper, and the mode of proving and perpetuating the fact 
 of publication. 
 
 It may, however, be laid down as a general rule, that the 
 advertisement of the- sale, in the time and manner prescribed 
 by the law, is a prerequisite to the validity of a tax title. The 
 ofiicer derives his power of sale, in part, from the advertise- 
 ment of it. Power is conferred upon him to be exercised on 
 certain contingencies, and these contingencies must have hap- 
 pened, and the conditions on which he can act must have been 
 performed, before his act can be valid. His power does not 
 attach until every prerequisite of the law has been complied 
 with. 
 
 One object of advertising tax sales is to give full notice to 
 the proprietor, and furnish him with every facility for the vol- 
 untary payment of the tax, before a resort is had to coercive 
 means ; and another, equally beneficial to him, is to ci'eate 
 ■ competition at the sale, and prevent his entire estate from being 
 sacrificed for a trifling sum compared with its real value, when 
 the sale of a less quantity might have been made, if a spirited 
 competition had existed. The longer the notice is publislied, the 
 wider the circulation of the paper, and the more full the infor- 
 mation conveyed in the advertisement, so much greater will be 
 the competition at the biddings. It follows 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 «. Kule's Lessee, 9 Cranch, 64 ; Williams v. Peyton, i Wheaton, 77 ; 
 
216 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 A particular examination of the cases, in which these prin- 
 ciples have been applied, will show how rigid the courts are in 
 
 Garrett v. Wiggins, 1 Scammon, 335 ; Fitch v. Pinckard, 4 Scammon, 69 ; Eon- 
 kendorff v. Taylor, 4 Peters, 349 ; Pope v. Headen, 6 Alabama, 433 ; Elliot v. 
 Eddins, 24 Alabama, 508 ; Miles v. Walker, 4 Michigan, 641 ; Stiles v. Weir, 26 
 Mississippi, 187 ; Hughey u. Horrel, 2 Hammond, 232; Moulton v. Blaisdell, 24 
 Maine, 283 ; Brown v. Veazie, 25 Maine, 359, Tarnum v. BuiSim, 4 Gushing, 260 ; 
 Nalle V. Fenwick, 4 Randolph, 594, 595 ; Kinney v. Beverley, 2 Henning & Mun- 
 ford, 318, 344 ; Lessee of Holt v. Hemphill, 3 Hammond, 232 ; s. c. 1-4 Ohio 
 Cond. 551 ; Allen v. Smith, 1 Leigh, 231 ; Wistar v. Kammerer, 2 Yeates, 100 ; 
 Luffborough v. Parker, 16 Sergeant & Rawle, 351 ; Delogny et al. v. Smith et al. 3 
 Louisiana, 418 ; Early v. Doe, 16 Howard (U. S.), 610; Games v. Stiles, 14 Petei-s, 
 322; Minor v. Natchez, 4 Smedes & Marshall, 602; s. c. 10 Smedes & Marshall, 
 246 ; Washington v. Pratt, 8 Wheaton, 681 ; Rafferty's Heirs v. Byers, 5 Hammond, 
 457 ; Thompson v. Gotham, 9 Ohio, 170; Lessee of Wilkins' Heirs u. Huse and 
 Swindler, 10 Ohio, 139. 
 
 A difierent rule prevailed in North Carolina at one time. Their statute required 
 notice of the sale to be published in the State Gazette, and by posting a copy at the 
 door of the court-house, in the county where the land lay. In Stanley v. Smith 
 (1 Carolina Law Repository, 511, Bateman's Edition, 124), where the question was 
 as to the onus probandi, Hall, J., in delivering the opinion sustaining the sale, says : 
 " In both cases, it is made the duty of the sheriff to advertise ; but few persons 
 would become purchasers if it was incumbent on them to prove that the sheriff had 
 done his duty in that respect. We think it better to say, that as the law has made it 
 his duty to do so, persons who bid for the land, may take it for granted that he has 
 discharged that duty, — otherwise they would be deterred from bidding, and the mis- 
 chief 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 Mar- 
 tin V. Lucey (1 Murphy, 311), the plaintiff claimed under a grant, and the defend- 
 ant 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 in -the North Carolina Journal, the State 
 Gazette, and Fayettville Minerva, for the space of one month, and also in the county 
 in which they are situated, in manner as heretofore required by law ; which adver- 
 tisement shall mention the situation of the lands, the streams near which they lie, 
 the estimated quantity, the names of the tenants, the reputed owners, &c." And 
 the law of 1792 further provided, that " such conveyance shall be good and valid in 
 law, the land so sold being first advertised for such length of time as is required in 
 cases of execution." The court answered the question certified in the negative. 
 Wright, J., "It is believed that this act (1796) was intended to impose additional 
 duty on the sheriffs, and that the provisions of this, as well as the other act (1792), 
 are merely directory to them of their duty ; and that, although a failure in the per- 
 formance of any part of it might subject them to an action, in which they would 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 217 
 
 requiring a strict compliance with the requirements of the stat- 
 ute in this particular. 
 
 1. The advertisement is an official act, and to be valid, must 
 be published by the officer to whom the duty has been assigned, 
 and purport upon its face to be his official act, and be attested 
 by his official signature. It has been shown in a subsequent 
 chapter that the act of an officer de facto is valid. This rule 
 will undoubtedly apply to the publication of the delinquent 
 
 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 ho sells. This construction appears to be in conformity with the decis- 
 ions in cases of sales made of land by sheriffs, under writs of execution, which are 
 analogous m 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 tlirow 
 so many difficulties in the way of persons willing to bid a fair price for the land, 
 that they would not be willing to purchase ; for it would not only be necessary to 
 prove these facts on any particular pccasion, 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 laud would 
 become a subject of speculation merely, to those wlio would, by purchasing at very 
 reduced prices, be willing to encounter the inconveniences 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 com- 
 menting upon the two statutes above referred to, he remarks : " These acts were 
 intended for salutary purposes, and should receive a liberal construction. After 
 every precaution 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 per- 
 sons resident in other States, and in many instances by foreigners. Those persons 
 had no personal property in the counties 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 pro- 
 duce occasional hardship and inconvenience, otherwise they will never answer the 
 purpose for which they were intended." In one case, one million and seventy-four 
 thousand acres of land were sold, in a body, to satisfy the tax. (Love v. WU- 
 bourn, 5 Iredell, 344.) 
 
 19 
 
218 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 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.i It must appear on the publication, by what power, 
 and in what capacity the person acts ; and where the official 
 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 sale void. The court said : "The adver- 
 tisement in this case was not signed by Spaulding as collector, 
 nor did it in any way so import, and the landholders were 
 therefore no way informed .that the signer of that advertise- 
 ment had any more right than any other man to give such notice, 
 nor that he had such power as he undertook to exercise. It is 
 not true that every man is presumed to be clothed with and to 
 be exercising an official authority, because it seems to be needed 
 for what he is attempting. Such a principle would sweep away 
 all official signatures and designations. Every known public 
 officer must add his official signature to every official docu- 
 ment. Besides, in this case, the statute form contained such 
 official designation, and its omission is fatal. The form in such 
 cases must he 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 regarded as immaterial. Thus, in Isaacs v. Wiley ,^ 
 where the name of the collector appointed was Luther H. 
 Brown, and the name attached to the 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 credulity to admit the construction that one 
 man was appointed to this office, and that another intruded him- 
 
 1 Langdon v. Poor, 20 Vermont, 13. 
 
 2 Spear v. Ditty, 9 Vermont, 282. 
 " 12 Vermont, 674. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 219 
 
 self into his place, and assumed the burden of his duties. We 
 think it more rational to treat the name as being the same, but 
 capriciously varied to suit the taste or' whim of tlie 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 pubUshed in a particular county, or 
 in a particular paper named in the statute, the advertisement 
 must be so published, or it is a nullity. Though the reason of 
 the law's preference may not appear, the letter of the law must 
 be complied with. Probably the strongest case in support of 
 this rule, to be found in the reports, is that of Bussey v. Leav- 
 itt.2 The law required a notice to be published, three months 
 prior to the day of sale, by three successive weekly insertions 
 in the newspaper of the public printer of the State. Two pub- 
 lications were inserted in the " Portland Advertiser and State 
 Gazette," which was the newspaper of the public printer ; but 
 before the third insertion, the legislature, by a resolve, declared 
 it to be no longer the " State paper." The court decided the 
 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. Biit the addi- 
 tion 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, 
 
 ^ Franklin v. Talmadge, 5 Johnson, 84. 
 
 2 3 Fairfield, 378.' 
 
 2 Isaacs t'. Shattuck, 12 Vermont, 668. 
 
220 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 and if the identity can be established, it is certain enough, though 
 a variance may exist. It very often happens that a newspaper, 
 after being published for a long series of years by the same 
 proprietor, at the same place, and under the same name, is 
 transferred to a stranger, the name changed, but its publication 
 is continued, and the paper is still taken by the patrons of its 
 predecessorr Now, if the legislature were to direct the publi- 
 cation of the tax list in the paper by its original name, and it 
 was so published for several years after the passage of the law, 
 and the name was then changed, under the circumstances above 
 indicated, would there be any doubt of the legality of continuing 
 the publication of the tax list in such a paper ? The spirit of 
 the law would be complied with, and a failure of justice would 
 take place if the right so to publish was denied. 
 
 3. It is also well-settled that if the statute requires the adver- 
 tisement to be inserted in several newspapers, published at dif- 
 ferent places, the notice is illegal unless inserted in all of the 
 papers thus designated. i Thus, the statute of Ohio required the 
 county auditor to publish the delinquent list in some newspaper 
 printed at the capital of the State, and also in a newspaper printed 
 in the county where the sale was to take place, or if no paper 
 should be printed in that county, then in some newspaper hav- 
 ing a general circulation in such county. It appeared upon 
 the trial of a tax title acquired under this statute, that the no- 
 tice was published in a newspaper at Columbus, the seat of 
 government, but in no other. It further appeared that no paper 
 was printed in the county where the sale was to take place, that 
 the papers then published at Springfield and Chillicothe had a' 
 partial circulation in such county, but the Columbus papers 
 had the most general 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 gen- 
 
 1 [So whore the notice is to be inserted in the newspaper " nearest to the county," 
 that is held to be the one published nearest the county line. Wcer u. Hahn 15 
 Illinois, 298.] 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 221 
 
 eral circulation in that county, it was not necessary to publisli 
 the notice in any other. The law does not admit of any such 
 construction. The publication must- be made in two papers, 
 one printed at Columbus, and the 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 gov- 
 ernment, 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 
 competition 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 calculate 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 collect, or the 
 delinquent list to be delivered to the collector, which consti- 
 tutes his authority to proceed ; and after the warrant or list 
 comes to his hands, 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 seiz- 
 ure is to be made, and before which time has expired, the col- 
 lector 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. Tlie authority of the 
 collector to advertise a sale of the land of the delinquent does 
 not attach, until the time thus limited for-the exercise of these 
 collateral remedies has expired ; and if he proceed to advertise 
 before the time fixed, the act is illegal, and the sale founded 
 thereon void. The reason is apparent. The authority to pro- 
 ceed against the land depends upon the fact that the collateral 
 
 1 Lessee of Hughey v. Horrell, 2 Hammond, 231 ; b. c. 1-4 Ohio Cond. 335. 
 19* 
 
222 ADVERTISEMENT OP THE TIME AND PLACE OF SALE. 
 
 remedies are unavailing, and this cannot be certainly known 
 until the time has expired within which they may be pursued. 
 
 Besides, the officer has no right to increase the burden of the 
 delinquent by the costs of an advertisement, until the law arms 
 him with the power. The statute of New Hampshire required 
 the collector, on or before a particular day, to make out and 
 deliver to the deputy secretary of State, a copy of his tax list, 
 which the deputy was to retain, and receive payment of the taxes 
 for a limited time, when it was to be returned to the collector. 
 It has been held, in construing this act, that until the redeliv- 
 ery of this list, the collector has no authority to advertise and 
 sell.i 
 
 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 ofiice.^ 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 property belonging to the 
 delinquent of value sufficient to satisfy the taxes.^ 
 
 The act of Congress, relating to the taxing power of the city 
 of Washington, provided " that real property, whether improved 
 or unimproved, &c., on which two or more years' taxes shall 
 have 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 unpaid for two or more years after the same 
 shall have become due, may be sold, &c." In Eonkendorff 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 as- 
 eessments, and also for a special paying 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 ad- 
 
 1 Cambridge u. Chandler, 6 New Hampshire, 271 ; Homer v. Cilley, 14 New- 
 Hampshire, 85. 
 '■' Hannel v. Smith, 15 Ohio, 134. 
 ' Bevised Statutes 1845, p. 444, sees. 46 and 47. 
 * 4 Peters, 364. 
 
ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 223 
 
 vertisement was first inserted 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 and special taxes ; that prop- 
 erty might be sold to pay the general tax as soon as two years' 
 taxes became due ; but in 'the case of special taxes it could not 
 be sold until the expiration of two years after the tax became 
 due ; tliat 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 necessary to render the lot liable to be sold 
 for the special tax, before the advertisement was published ; 
 that the owner of the lot, by paying the tax at any time before 
 January 1, 1823, would save it from the liability of being sold ; 
 and that until this liability had attached, he could not be charge- 
 able with the expense of notice, nor could it be legally given. 
 5. Next, as to the form 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 invalid ; and in this re- 
 spect 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 certainty, is sufficient ; and 
 in judging of these matters, the court js to be governed by such 
 rational rules of construction as direct them in other cases.^ 
 These two principles are best illustrated by the cases relative to 
 the form of the advertisement. Where the form is prescribed 
 by the statute, tliat form must be strictly and literally followed ; 
 the court will not admit the substitution of a different one. 
 
 Thus, the statute of Vermont directed the name of the place 
 
 ' Chandler v. Spear, 22 Vermont, 388 ; Brown v. Hutchinson, 1 1 Vermont, 569. 
 
224 ApVBRTISEMBNT OF THE TIME AND PLACE OF SALE. 
 
 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, namely : " Whereas the legislature of 
 
 Vermont, at their session, at , in the year , assessed a 
 
 tax, &o." ; and the statute enacted, that " the blanks in the 
 form of the advertisement, herein before directed, shall be filled 
 with the place of the session of the legislature where the tax 
 was assessed." The collector omitted to comply with this re- 
 quisition. At the time of the passage of the statute, the seat of 
 government of the State of Vermont was ambulatory, biit when 
 the collector made out his advertisement, the legislature had, 
 by law, permanently located the capital at a fixed place, and the 
 law assessing the particular tax recited in the advertisement, was 
 passed at the place thus fixed. The clerk had also omitted, in 
 making a record of the advertisement, to state the place where 
 one of the newspapers in which it was inserted, was published, 
 as required by the statute. For these defects the advertisement 
 was declared illegal, and the sale void. The court discussed 
 the two questions together, saying : " That the collector should 
 have followed the form, and the clerk made the statement of 
 the place where the paper was printed a part of the record, are 
 positive requirements of the statute ; and a compliance with 
 these requisitions must be regarded as a condition precedent to 
 the conveyance of a good title, by the vendue deed. Where 
 property is effected, or the title divested, by the provisions of a 
 special act of the legislature, the requirements of the act must 
 be strictly followed. In the present case the operation of the 
 special statute was ta di-siest 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 ofiicers required 
 to collect the tax, and record the proceedings. The perform- 
 ance of these acts is the condition on which the property was 
 divested, and it is not for the court to inquire whether the pro- 
 visions of the statute were reasonable, whether a compliance 
 with them might not be dispensed with, without injury to the 
 defendant — but whether they have been made; and if so, 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 225 
 
 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 stat-- 
 ute form, and the sale, was held irregular, upon the groimd 
 that the statute form ought to be strictly followed.^ 
 
 On the other hand, where no form is given, but the statute 
 declares what the contents of the advertisement shall be, each 
 fact required by the statute must appear in the advertisement, 
 or it will be void ; thus, the time and place of sale, a descrip- 
 tion of the lands to be sold, the amount of tax due, the name 
 of the owner ,^ his delinquency, that no goods of his can be 
 found out of which to satisfy the tax, the year for which the 
 tax was due, a recital of the piirpose for which the tax was lev- 
 ied, and such other facts as the, particular statute under which 
 the notice is given, may have rendered essential. Any omis- 
 sion 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 woiild sell, on a particular 
 day, all lands on which the taxes remained due for the spaqe of 
 nine months from the date of the assessment, and & delin- 
 quency for this length of time was not stated in his notice, it 
 was held void. The court saying : " The manifest purpose of 
 this requirement was not oijly 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 whicli the tax was based. Witliout 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 leg- 
 islature have provided, that he is exposed to the costs which 
 will arise from an attempt to obtain the tax from the land 
 
 1 Culver V. Ilayden, 1 Vermont, 359. 
 ■■i Spear v. Ditty, 9 Vermont, 282. 
 
 s Styles V. Weir, 26 Mississippi (4 Cushman), 187 ; Sutton v. Calhoun, 14 Lon- 
 isiiina, An. 209. 
 
226 ADVERTISEMENT OP THE TIME AND PLACE OP SALE. 
 
 itself."! In another case, the notice recited a tax " for the pur- 
 pose 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 insuificient.^ 
 
 [So where the advertisement described the tax only as a 
 " money tax," when in fact it was a " State, county, and school 
 tax," it was held insufficient.^ 
 
 So where a statute required the advertisement to state " the 
 name of the person as whose property it was taxed," an adver- 
 tisement merely stating that it "was entered" by Edward 
 Whitehead, is not sufficient. It does not aver that it was 
 assessed as his property, or that he was chargeable with the 
 taxes in arrears thereon.*] 
 
 In describing the land, the collector in his advertisement 
 must give a particular and certain description, so that the 
 owner may know that it is his land, and bidders may ascertain 
 its locality with a view to the regulation of their bids.^ 
 
 T4ie statute of Massachusetts required the advertisement, 
 among other things, to state the names of the owners, if known, 
 and when unknown, to give " a substantially accurate descrip- 
 tion of the rights, lots or divisions of the real estate to be 
 sold ; " the description given was, " Moses Butfum, house and 
 land, and Loring Emerson, house, barn, and 115 acres of 
 land." The cQurt say : " This we consider a very uncertain 
 description, and altogether insufficient. The owner's name not 
 appearing in the notice, a full and clear description of the prop- 
 erty to be sold should be given." ^ In another case, where the 
 plaintiff claimed under a tax sale, the advertisement contained 
 the following description, namely : 
 
 ^ Hohbs V. Clements, 32 Maine, 67. 
 
 ' Langdon v. Poor, 20 Vermont, 13. 
 
 " Pierce v. Richardson, 37 New Hampshire, 314. 
 
 * Styles V Weir, 26 Mississippi (4 Cushman), 187. 
 
 5 Brown v. Veazie, 25 Maine, 359 ; Tallman v. White, 2 Comstock, 66 ; Carmi- 
 chael V. Aiken's Heirs, 13 Louisiana, 2U5 ; Parnum v. Buffum, 4 Gushing, 260 ; See 
 Yeuda v. Wheeler, 9 Texas, 408 ; Patrick v. Davis, 15 Arkansas, 363. 
 
 s Parnum v. Buffum, 4 Gushing, 260. 
 
ADVERTISEMENT "OF THE TIME AND PLACE OE SALE. 
 
 227 
 
 Name. 
 
 No. of Entry. 
 
 Original 
 Propria tor. 
 
 Original 
 Quantity. 
 
 Watercourse 
 
 Acres. 
 
 Rate. 
 
 Tax. 
 
 Haines, John 
 
 mi 
 
 Haines, Jno. 
 
 170 
 
 Mad Kiver. 
 
 73 
 
 2 
 
 3.92.2 
 
 The circuit court instructed the jury, tha^ the description was 
 so imperfect that no valid sale for taxes could be made under 
 it. On error, the court say : " The law in requiring an adver- 
 tisement 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 a manner that the land may be sold for its 
 fair market price. To attain these objects, it is necessary that 
 the description should be such that the owner may know that 
 the tax on his land ^is iinpaid, and that purchasers may learn 
 the precise tract intended, and be enabled to estimate its actual 
 value. In this cage, the whole original entry was taxed to its 
 then owner, Haines, and perhaps was sufficiently described by 
 its nuraber 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' separate, in what part of the lot does it lie ? The ansVers 
 to these questions materially affect the price. Without them 
 no such information is communicated to the public as is calcu- 
 lated 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 insuffi- 
 cient." 1 In another case the description was, " R. 4, T. 3, Sec. 
 13, p. N. half, 60 acres." By the court : " The tax title set up 
 by the defendant cannot be sustained. The description in the 
 duplicate and advertisement is too vague and uncertain. ' Sixty 
 acres, part of the N. i of section 13.' Which sixty acres ? is 
 an inquiry natural to be made. In Lafferty v. Byers,^ it is held 
 that such a description is too general. The tax sale must be 
 held void." 3 
 
 1 Lafferty's Lessee v. Byers, 5 Hammond, 458. 
 
 2 5 Ohio, 458. 
 
 " Treon v. Emerick, 6 & 7 Ohio, 161. 
 
228 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 [In Williams v. Harris,^ the judgment of condemnation, order 
 of sale, advertisement, and sheriff's deed, all stated that the 
 land lay in A. county. In fact two-thirds of it lay in B. county. 
 It was held the sale was void, as to any lands lying in B. 
 county.] 
 
 In Douglass v. Da^gerfield,^ the advertisement followed the 
 description in the list (which has already been given) ,3 and it 
 was held void. Where the watercourse, upon which the land 
 was situate, was misdescribed, the advertisement was held 
 illegal.^ 
 
 The Tennessee statute required the collector " to specially 
 and particularly describe the land, and the number of the grant 
 or entry." In Gardner v. Brown,^ the land was thus described : 
 " Caleb Cross' heirs, 64 a., No. 1328, lying' in the 12th district, 
 in the first range, 9th section." The land did not in fact belong 
 to Cross's heirs, but was granted in 1827 to Jesse Bjown, under 
 whom the plaintiff claimed title. The number in the descrip- 
 tion was that of the entry. The court held the description 
 insufficient. " The land is not particularly and specially de- 
 scribed in the advertisement. It is described by the number of 
 the entry, and not by the number of the grant. The words of 
 the section, indeed, are, that it shall be described by a reference 
 to the " grant or entry," the meaning of which is, that if the 
 land be granted, the number of the grant shall be referred to, 
 and if it be not granted, that the number of the entry shall be 
 referred to ; and not that in case of granted land, a reference 
 may be made by the officer, at his election, to the number, 
 either of the grant or entry." In Jacques v. Kopman,^ this 
 description was held void, namely : " A lot of ground in 
 Faughbourg Livaudais, Parish of Jefferson, designated by the 
 number 8, square 45." 
 
 1 4 Sneed, 332. 
 
 2 10 Ohio, 152. 
 
 8 Ante, 128, 129. 
 
 * Currie v. Fowler, 5 J. J. Marshall, 145. 
 ^ 1 Humphreys, 354. 
 
 * 6 Louisiana, An. 542. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 229 
 
 In RonkeiidoriF v. Taylor,^ the description and otlier partic- 
 ulars in the advertisejuent were as follows : 
 
 To whom assesBed. 
 
 No. of square. 
 
 No. of lot. 
 
 Amount. 
 
 James N. Taylor. 
 Paymg tax int., 10 per ct. 
 Henry Toland's heirs. 
 
 491 
 491 
 
 iof 4. 
 iof 4. 
 
 $16.80 
 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 description of the property se- 
 lected for sale, to be stated in the advertisement." The circuit 
 court instructed the jury " that the advertisement did not suf- 
 ficiently designate what half of the said lot was charged with 
 the said taxes, and was to be sold for the same, and did not 
 purport to be an advertisement of an undivided moiety." This 
 ruling was sustained by the Supreme Court of the United 
 States. McLean, J. : " Congress had two objects in view in 
 requiring this notice to be given ; 1. To apprise the owner of 
 the property ; and 2. To give notice to persons desirous of pur- 
 chasing. 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 equ^l if not greater importance, that the prop- 
 erty 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 advertisement as would 
 enable the person desirous of purchasing, to ascertain the situ- 
 ation of the property by inquiry. And, if the purchaser at 
 the sale had been informed of every fact necessary to enable 
 him to fix a value upon the property, yet the sale would be 
 void, unless the same information had been communicated to the 
 public in the notice.. Its defects, if any exist in the descrip- 
 tion of the property to be sold, cannot be cured by any com- 
 munication made to bidders on the day of sale by the auc- 
 
 1 4 Peters, 349. 
 20 
 
230 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 lioneer. 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 adver- 
 tised at the same time, under the same description, as belong- 
 ing to Toland's heirs. What would be understood by such a 
 description ? Suppose half a square had been advertised, it 
 having been divided into lots ; would it convey that certainty 
 to the public, as to the precise property about to be sold, that 
 would enable any one to form an opinion of its value ? No 
 one could suppose that an undivided half of the square was to 
 be sold under the notice ; and which half was offered could not 
 be determined from the advertisement. Would this be a notice 
 under the requisites of the law ? The value of a lot, or half 
 lot, 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 difference in value may 
 be still greater, if the lot be situated near the middle of the 
 square, fronting the street, and it be divided so as to cut off 
 one-half of it from the street. It will thus be seen, that it is 
 not a matter of small importance, to a person who wishes to 
 purchase, to know which half of a lot is ofifered 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 undivided moiety ? In all cities, half lots 
 are as common as whole ones ; and when a half lot is spoken 
 of, we" understand it to be a piece of ground half the size of an 
 entire lot, and of as definite boundaries. The illustrations 
 given show how great a difierence in value may exist between 
 halves of the same lot. And would not the preferable half be 
 oi much higher value than an undivided moiety of the entire 
 lot ? In every point of view in which this notice can be con- 
 sidered, under the act of Congress, 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 
 
ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 231 
 
 loss as to its situation and value. The instructions of the cir- 
 cuit court on this point are not erroneous." 
 
 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 advertisement, will be fatal. 
 
 Thus, in the Corporation of Washington v. Pratt,' where the 
 act of Congress required the collector to state in his advertise- 
 ment of the sale " the amount of taxes due thereon," and further 
 provided, that such lots only upon which " two years' taxes re- 
 main due and unpaid," shall be sold, the facts were, that several 
 lots were separately assessed to the same person, and the adver- 
 tisement stated the aggregate amount of taxes due upon all of 
 them ; and the sale was held illegal. Johnson, J. : " The ques- 
 tion 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 sufficient to state in the advertise- 
 ment the aggregate amount of taxes due on all the lots so belong- 
 ing to the same person ? This may be a very immaterial ques- 
 tion practically, and it may not be very easy to assign a sufficient 
 reason of policy for the one or other alternative. But what 
 have we to do witli such inquiries in- cases of positive enactment ? 
 The law must be pursued whatever be the previous steps re- 
 quired. The difficulty here presented is grounded on the use 
 of the words in the eighth section, " amount of taxes." This, 
 in its ordinary import, expresses an aggregate of taxes. But it 
 is obvious that we cannot here apply that, aggregate idea to a 
 sum made up from the taxes of many lots, since this would also 
 support the sufficiency of a publication exhibiting nothing more 
 than the amount of tasfes upon the whole list of lots advertised, 
 whoever be the proprietors. Some more appropriate significa- 
 tion must, therefore, be sought for it, and this is easily found ; 
 for, when it is considered that the taxes of each are made sev- 
 eral liens upon each, it follows that this aggregate idea can 
 
 i 8 Wheaton, 681. 
 
232 ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 
 
 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 be the test 
 of its own policy. The duty is easily complied with, and the 
 performance of it may not be destitute of practical utility. [So, 
 where the advertisement stated the tax to be four dollars and 
 twelve cents, when it was in fact only three dollars and thirty 
 cents, the sale was held void.^] 
 
 But in Ronkerdorff v. Taylor,^ where two years' taxes were 
 due upon the land, namely : for the years 1820 and 1821, the 
 advertisement, in describing the tax for which the land was to 
 be sold, stated that the lot was to be sold ■' for taxes due thereon 
 up to the year 1821." The circuit court instructed the jury 
 that the advertisement was defective, as it " does not purport 
 to advertise the said lot for two years' taxes unpaid and in 
 arrear ; " but the supreme court held the instruction erroneous ; 
 that the designation of the tax " was sufficient ; for if the'taxes 
 were due, and the property was liable to be sold for them, it can 
 be of no importance to the purchaser to have a more technical 
 description of the tax than the notice contained." It may be 
 remarked upon this case, that if a specific and certain designa- 
 tion of the tax due upon the land is necessary at all, it is be- 
 cause the owner is interested in knowing from the advertisement 
 itself how much money he is bound to pay in order to prevent 
 the sale of his land ; the purchaser has but little interest in 
 the 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 tlve year 
 1821. On the contrary, back taxes prior to the year 1821, 
 were alone intended, as far as the language used possesses any 
 
 1 Alexander v. Pitts, 7 Cashing, 503. 
 
 2 4 Peters, 349. 
 
ADTBRTISBMBNT OF THE TIME AND PLACE OF SALE. 233 
 
 meaning. Besides, it must be remembered that the act of Con- 
 gress only permitted a sale of land " on which two or more years' 
 taxes shall remain due and unpaid," and it would seem that 
 the advertisement ought, upon its face, to notify owners and 
 bidders that a power of sale had actually attached at the time of 
 its publication. But, on the other hand, in a proprietary tax, 
 where an equal sum is assessed upon each proprietor, it is suf- 
 ficient to state in the notice the gross sum due upon the whole 
 tract held in common.^ 
 
 It is also essential that tlie advertisement should name the 
 time certainly when the sale will take place.^ 
 
 It should also state the place where the sale is to be made. 
 But where the advertisement, in describing the place of sale, 
 said, " at the court-house in Warren," but omitted the words 
 " Trumbull County," it was held sufficient ; the court taking 
 judicial notice of the fact, that at the date of the advertise- 
 ment there was no town of Warren in Ohio, except that in 
 Trumbull County.^ [Where a statute required the auditor 
 general to publish each year a statement of the lands liable to 
 be sold for taxes, and a notice of their sale " at such public and 
 convenient place, at the seat of justice of the county, as the 
 county treasurer may select," and the auditor-general's advert 
 tisement followed the words of the statute, without fixing any 
 locality, but the place of sale was posted in public places 
 by ithe county treasurer, this was held sufficient, except in the 
 cities, where it was held such notice should be published in^the 
 newspapers.*] 
 
 Where the statute is silent as to the form and contents of 
 the advertisement, but directs generally that the collector shall 
 give notice, the statute is to receive such a construction as will 
 enable the delinquent to ascertain whether his land is adver- 
 tised, the amount of the tax charged upon it, and the time and 
 place when and where the sale will take place. 
 
 1 Wentworth v. Allen, 1 Tyler, 226. 
 
 2 WilkiQS V. Huse, 10 Ohio, 139. 
 
 ° Sheldon v. Coates, 10 Ohio, 278; Blalock v. Gaddis, 33 Mississippi, 452. 
 * Clark V. Mowyer, 5 Michigan, 462, and see id. 501. 
 20* 
 
234 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 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 fo.r 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, &e.," and 
 section 4 of the act of 1815 provided, that " the secretary of the 
 treasury shall establish regulations suitable and necessary for 
 carrying this act into effect." The notice, in fact, published, 
 was in this form, namely : " Notice is hereby given that the 
 subscriber has received lists of the direct tax of 1816, remain- 
 ing due upon property in the following counties 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 notification was in 
 the form prescribed by the secretary of the treasury. The ad- 
 vertisement 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 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 inserted in the notifi- 
 cation. But what is a notification of a tax ? Can anybody 
 suppose that a mere publishment of the figures that express the 
 sum assessed would be a notification of the tax, within the 
 meaning of the statute ? We think not. It seems to us to be 
 implied in the very terms ' notification of the taxes,' that notice 
 was to be given to each owner that the tax on his land remained 
 unpaid." ^ 
 
 Where the law requires the collector to state in the adver- 
 
 1 Eastman v. Little, 5 New Hampshire, 290 ; Michiel v. Mullen, 5 Haywood, 90. 
 
ADVERTISEMENT OF THE TIME AND PLACE OP SALE. 235 
 
 tisement the names of the owners, if known, an omission to 
 do so will invalidate the sale.^ If the name of the owner is un- 
 known, then a more accurate and certain description of the 
 lands will 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 ac- 
 curate description of the land.^' Tlie evident object of the stat- 
 ute is to give the owner every facility, in the ascertainment of 
 his delinquency, which his own name and a description of his 
 property can afford to him, upon an inspection of the notice ; 
 and the courts ought to be as strict in requiring the statute to 
 be fully complied with in this respect, as in reference to any 
 other prerequisite. It has been held, however, in one case, 
 that a misnomer of the real owner will not invalidate the sale.^ 
 This case does not seem to be consistent with principle, or in con- 
 .formity with the adjudged cases. [But in this case the name 
 of the real owner was not known, and the statute provided how, 
 in such ease, the land should be described, which was fully 
 complied with ; and the court said : " As the notice would be 
 good without any name, we cannot perceive that the insertion 
 of the name of the former owner can. vitiate it." But in a 
 later case before the same court, when the land was taxed to 
 William S. Homer, and in the advertisement of the sale, he 
 was called Henry S. Homer, the sale was held invalid, neither 
 of said persons being either the legal owner, or the tenant in 
 possession.* Where the statute requires the name of the owner 
 to be given, to whom the property is assessed, and that is duly 
 fulfilled, the sale is valid, although such person was in fact dead 
 when the tax was levied ; the statute having provided that a 
 
 1 Shimmin v. Inman, 26 Maine, 228 ; Corporation of Washington v. Pratt, 8 
 Wheaton, 681. 
 
 " Famum v. BufFam, 4 Gushing, 260, 266. And see Sutton v. Calhoun, 14 Louis- 
 iana, An. 209. 
 
 ' Alvord V. Collin, 20 Pick'ering, 418. See Saxgeut v. Bean, 7 Gray, 125 ; Daily 
 V. Newman, 14 Louisiana, An. 580. 
 
 * Sargent v. Beanj 7 Gray, 125. 
 
236 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 mere failure to assess the tax in the name of the lawful owner, 
 shall not make the sale void.^] 
 
 The notice must be published the full length of time 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 undis- 
 charged 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 ofiicers 
 appointed to make the sale, or disregard of them, the law dis- 
 countenances. 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 ci-y for sale is made, if it be done be- 
 fore a bona 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 in- 
 sertion was on August 26, 1848, and tlie time fixed for the sale 
 was November 15, in the same year, the sale was held illegal, 
 only eighty-one days intervening.^ So, where the law required 
 four weeks' notice, and the proof was the publication eleven 
 days prior to the sale, it was held illegal.* So, where the law 
 required " ninety days' notice," and the advertisement was 
 dated November 1, and on that day handed to the publisher of 
 the newspaper, and was inserted therein weekly, from Novem- 
 ber 6 until the 29th day of January following, and the sale |;ook 
 place on the third day of February ensuing, being the day fixed 
 
 ' Holroyd v. Pumphrey, 18 Howard (U. S.), 69. 
 
 ' Early v. Doe, 16 Howard (U. S.), 610. 
 
 8 s. c. 16 Howard, 610. 
 
 * Nalle V. Fenwick, 4 Randolph, 594, 595. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 237 
 
 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, 
 excltiding, as the court did, the first, and including the last 
 day.i 
 
 Another statute of Alabama required three months' notice of 
 the time and place of selling resident lands, by publication in a 
 newspapert In Scales v. Avis,^ it appeared that Ihe collector 
 advertised, on January 4, that a sale of the resident lands would 
 take place on February 1 ensuing ; discovering the error, he 
 changed the .time of sale to April 1, altered his advertisement, 
 after it had been published one month, and gave notice to the 
 delinquent, who consented to the irregularity ; yet the sale was 
 held void. 
 
 The Provincial Act of 26 Geo. II., required forty days' no- 
 tice 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 
 iliade in 1780, and the question as to the regularity of the sale 
 arose in 1833. Th,e court, with every desire to uphold a trans- 
 action so ancient, held the sale void, as it was utterly impossi- 
 ble that the notice required could have" been given under these 
 circumstances.^ 
 
 The charter of New Orleans required tliree months' notice 
 of the sale by several insertions in a newspaper, but was silent 
 as to whether the notice should be published three months imme- 
 diately preceding the sale. The advertisements were inserted in 
 the montlis of December, February, and March, omitting alto- 
 gether a notice in the 'mouth of January. The sale took 
 place April 7, in pursuance of the notice ; but it was declared 
 void, the court holding, that the statute evidently meant that 
 the notice should be inserted during the three months imme- 
 
 ' Pope V. Headen, 5 Alabama, 433. See Elliot v. Eddins, 24 Alabama, 509. 
 ' 12 Alabama, 617. 
 
 8 Farrar v. Eastman, 1 Fairfield, 191 ; s. c. 5 Greenleaf, 345, and 9 Greenleaf, 
 191. 
 
238 ADVBETISEMENT OF THE TIME AND PLACE OF SALE. 
 
 diately preceding 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 Bussey v. Leavitt,^ where 
 the statute required " three successive publications in a news- 
 paper 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, before the day of sale (which was fixed 
 on the last Monday in December) mentioned in such notice, 
 record in a book to be provided for that purpose, such delin- 
 quent list and notice, copying the same from the paper in which 
 they shall be published, and shall certify at the foot of said re- 
 cord the name of said paper, and the length of time such list 
 and notice were published therein." 
 
 In Kellogg V. McLaughlin," the plaintiff, in support of his tax 
 deed, offered in evidence the record of the list and notice, with 
 the certificate of the auditor attached thereto, which latter-stated 
 •that the list and notice had been published " four weeks between 
 the first Mondays of October and December." He also offered 
 parol evidence to show that the advertisement was published 
 between the first days of those months. But the court held, 
 1. That the record was insufficient upon its face to prove a 
 legal advertisement ; and, 2. That parol evidence was inadmis- 
 sible to aid it. This latter ruling is in conformity with the 
 principle established by all the authorities, that an advertise- 
 ment in this class of cases, must be valid upon its face, and 
 that if otherwise, extrinsic evidence cannot be admitted to 
 explain or help it.* " The object of giving notice," remarks 
 Judge Scates, in the last named case, " I think would be com- 
 pletely defeated, if such evidence could be admitted to correct 
 
 1 Delogny v. Smith, 3 Louisiana, 418. 
 
 2 3 Fail-field, 378. 
 8 8 Ohio, 114. 
 
 * Alvord V. Collin, 20 Picliering, 418; Fitch v. Pinckard, 4 Scammon, 69. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 239 
 
 the mistake (in the date of the advertisement), unless the 
 party would bring that explanation Ijome to each person in 
 interest, and also show that the public were apprised of the 
 mistake, and did attend the sale, so as to insure competition at 
 the biddings. Sales might be conducted under such defective 
 notice, and the party be able to show it to be a mistake, and what 
 the true intention was, still the public might not be apprised of 
 it ; the purchaser might, as is said by the court in Ohio,^ obtain 
 acres for cents without competition, the tax payer have his land 
 sacrificed for a trifle, and yet the purchaser sustain his pur- 
 chase by showing what tlie collector intended, or that the 
 printer had made a mistake. There is too much uncertainty ; 
 the mischief would be irreparable. The object is to secure 
 competition, for the benefit of all concerned ; and if the notice 
 is so defective as not to give the proper information, the sale 
 will be voici. This secret information or intent of the publi- 
 cation cannot aid it." 
 
 The statute of Indiana provided, that a " county auditor 
 shall on the first day of October annually, make out and record 
 a list of delinquents, and cause a copy of such list to be imme- 
 diately published four weeks successively in some newspaper 
 having a general circulation in his county, if any there be, 
 otherwise by three notices to be posted up 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 Strong 
 V. Plagler,^ the facts were, that tlie publication was not made 
 until November 20 ; a mistake was then discovered, and an 
 amended notice inserted November 27, and this last list was 
 published in the Bvansville Journal, on November 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 substantial compliance with the law, but 
 the court held the proceedings void ; that ttie term " immedi- 
 ately," meant a publication as soon after October 1, as the same 
 
 ' 2 Ohio, 233. 
 2 1 Carter, 542. 
 
240 ' ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 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 delinquents until October 1, 
 to pay their taxes, and directed the State auditor to advertise 
 the delinquent list three weeks successively, the last publication 
 to be at least sixty days before the day of sale. Where the 
 sale was made on December 9, 1823, it was held void.^ In all 
 cases where it appears upon the face of the tax deed, when 
 taken in connection with the law, that the full notice required 
 has not been given prior to the sale, the deed is held void for 
 all purposes.^ 
 
 In Ronkendorfff. Taylor,^ where the law required the adver- 
 tisement 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 places on the lat- 
 ter day. These periods embraced the time the notice was 
 required to be published, but it appeared on inspection of the 
 newspaper in which the notices were published, that between 
 three of the publications there was an interval of eight, ten, 
 and eleven days, respectively. It was contended by the coiin^ 
 sel for the former owner that " once a week " meant once in 
 every seven days. On the other hand it was insisted that when 
 a time is fixed for the performance of an act, the whole time is 
 allowed within which to do it, even to the last minute ; that 
 the requisition to publish once a week gave the whole week 
 succeeding the first insertion for the second publication ; that 
 the law did not designate on what particular day in the heb- 
 domadal division of a week the advertisement should appear ; 
 that the name of the day of the week on wliich the advertise- 
 ment 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 rega;rded as the space of a 
 
 1 Moore v. Brown, 4 McLean, 211 ; s. c. 11 Howard (TJ. S.), 414. 
 
 2 Moore v. Brown, 11 Howard (TJ. S.), 414; Farrar v. Eastman, 1 Fairfield, 191. 
 5 4 Peters, 349. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 241 
 
 ■week ; and in this case, as there was no period of fourteen days 
 in which the notice of the sale was omitted, the advertisement 
 was regular. Judge McLean, in delivering an opinion sustain- 
 ing 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 itfatalto omit the publication until tlie Tuesday 
 week succeeding? The object of the notice is as well an- 
 swered by such a publication as if it had been made on the 
 following Monday. A week is a definite period of time, com- 
 mencing on Sunday and ending on Saturday. By this con- 
 struction, the notice in the case must be held sufficient. It was 
 published Monday, January the 6th, and omitted until Satur- 
 day, January the 18th, leaving an interval of eleven days ; still 
 the publication on Saturday was within the week succeeding 
 the notice of the 6th. It would be a most rigid construction 
 of the act of Congress, justified neither by its spirit nor its 
 language, to say that this notice must be published on any par- 
 ticular day of a week. If published once a week, for three 
 months, the law is complied with, and its object effectuated." 
 
 [In Cass V. Bellows,^ tlie statute required the advertisement 
 to be published " tliree weeks successively." The first publi- 
 cation was on Saturday, November 2d, that being the usual day 
 of pubhcation ; which was subsequently changed to Tuesday, 
 and the second publication was on Tuesday, November 12th, 
 that being the next issue of the paper, and the third publica- 
 tipn was on the following Tuesday, November 19th. It was 
 held, that the statute was substantially complied with.J 
 
 Where the law requires the advertisement to be published in 
 several languages — for instance, in English and French, or 
 English and German — the neglect of the collector to comply 
 with this requisition will render the advertisement illegal, and 
 the sale founded thereon void.^ 
 
 Sometimes the law requires the notice to be published in a 
 
 1 U Foster, 501. And see Bachelor v. Bachelor, 1 Massachusetts, 256. 
 
 2 Young V. Martin, 2 Yeates, 312; Delogny v. Smith, 3 Louisiana, 418. 
 
 21 
 
242 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 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 is essential to the vaUdity of the adver- 
 tisement. 
 
 Thus, in the Lessee of Hughey v. Horrell,i the statute of Ohio 
 declared that the county auditor, on receiving the delinquent 
 list, " shall forthwith cause the same to be advertised six weeks 
 successively in some newspaper printed at the seat of govern- 
 ment in this State; and also, in a newspaper 'printed in his 
 proper county, if any such there be, and if not, in some news- 
 paper in most general circulation in said county." The facts 
 were, that the notice was published in a newspaper at Colum- 
 bus, the seat of government, and in no other. It appeared in 
 evidence that the newspapers of Chillicothe and Springfield 
 had a partial circulation in the county where the land lay, but 
 that the Columbus papers had the most general circulation 
 there; and it further appeared that there was no newspaper, 
 printed in the county of the sale. The court held the notice 
 illegal. " It is contended," say the court, " by the defendant, 
 that as there was no paper printed in the county of Madison, 
 and as the Columbus paper was in general 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 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 dis- 
 pensed with.". 
 
 In Pierce v. Sweetser,^ the law required the county auditor to 
 publish the notice four weeks prior to the first Monday in Jan- 
 
 1 2 Hammond, 231 ; s. c. 1-4 Ohio Cond. 335. 
 * 2 Carter, 649. 
 
ADVBBTISEMBNT OF THE TIME AND PLACE OF SALE. 243 
 
 uary, the day of the sale, in some newspaper having general 
 circulation in his county, if any such there be, " else by posting 
 notices, at some public place, in each county commissioner's dis- 
 trict, &c." The facts were, that there was no paper printed in 
 the county of the auditor, where the delinquent land lay ; and 
 the evidence of ' the required notice was a certificate of the 
 county auditor, which was competent to prove the facts con- 
 tained in it under the laws of Indiana, in these words : " Octd- 
 ber 23, 1844. I, John Gilbert, county auditor, &c., do hereby 
 certify, that I wrote three copies of the foregoing delinquent 
 list and notice ; that I put one of them on the court-house door, 
 and handed the other two to the sheriff, requesting him to put 
 up one in each of the remaining commissioner's districts, &c. 
 I further certify, that said advertisements were put up publicly, 
 more than four weeks prior to the first Monday in January, 
 1845, &c." The sale was held illegal. By the court : "It 
 does not follow, because no paper was published in the county 
 where the land lay, that none had a general circulation there." 
 
 A publication in extra sheets, which are circulated with the 
 paper designated by law, is a legal notice ; but where it appears 
 that the extra sheets were not, in fact, sent to all of the sub- 
 scribers of the paper, the advertiteement will be regarded as 
 void.i Such was the practice in Illinois from 1823 to 1830, but 
 as the notices were all illegal in other respects, this question 
 was never judicially determined. But there seems to be no 
 plausible objection to a publication in extras, if the circulation 
 of them is as extensive as the newspaper itself, in which the 
 notice is required to be published. The extra would have, 
 under such circumstances, the same publicity as the regular 
 sheet. No one could be prejudiced by it ; and, for the purposes 
 of preservation and reference, the extra sheet, containing 
 nothing but the delinquent list, would be more convenient to 
 all concerned. 
 
 The strictness required in regard to the notice of the sale, is 
 
 1 Davis i;. Simms, 4 Bibb, 465. 
 
244 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 very strongly illustrated by the case of Porter v. Whitney,^ 
 which was a writ of entry, where the tenant claimed under a 
 tax sale, made twelve years prior to the trial. The facts were, 
 that the sale was made by the collector of Brownfield, for the 
 non-payment of taxes assessed by that town, that the land de- 
 manded was formerly 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 tliis commonwealth, Within three 
 years next preceding such advertisement, he (the collector) 
 shall express, not only the present name, but the name by which 
 the same was last known." The sale was held illegal. Mellen, 
 C. J. : " The object which the legislature evidently had in view, 
 in this enactment, was to give effectual notice to all concerned, 
 and prevent any misconception by such an alteration in the 
 name of the place, as would essentially alter its description. 
 We ought, therefore, to give such a construction to the law as 
 to attain, as far as may be, the object in view. The advertise- 
 ment described the land as situate in Brownfield ; it should 
 have been more particular, and stated that it was situate in that 
 part of Brownfield, which was formerly a part of Porter, and 
 which had been annexed to Brownfield. This would have put 
 the proprietor on his guard, and prevented all mistake and 
 damage." Where the law requires the advertisement to be in- 
 serted 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 possi- 
 ble amount of notoriety to be given of the time and place of 
 sale, with a view of giving full notice to the delinquent, and for 
 the further purpose of insuring a greater competition at the 
 biddings.^ 
 
 The statute of New Hampshire required notices of the sale to 
 
 1 I Greenleaf, 306. . 
 
 2 Hughey v. Honell, 2 Hammond, 231 ; Allen v. Smith, \ Leigh, 231. 
 
ADVERTISEMENT OF THE TIME AND PLACE QP SALE. 245 
 
 be posted in public places, for at least eight weeks prior to the 
 day of sale, and an affidavit of the fact that the law had been 
 •complied with in this respect, but was silent as to who should 
 make the affidavit, and as to the contents of it. In Nelson v. 
 Pierce,! the 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. Tlie certificate was 
 in these words : " Bethlehem, January 7, 1829 : I hereby cer- 
 tify that the advertisement of non-resident lands for the year 
 1828, hereto annexed, has remained posted up in my bar-room, 
 in said Bethlehem, more than eight weeks prior to this date. 
 W. Kenney." The notice was held not to be sufficiently proved. 
 1. Because it was 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 how he 
 computes time in such a case. The affidavit should state the 
 day when the advertisement was put up, and then we can see 
 whether it was put up in due season." 
 
 The statute of Connecticut , authorized the notice to be given 
 by posting it on the sign-post of the town — a place where it is 
 lawful, by the custom of that State, to post all legal notices — a 
 place where all persons interested are in the habit of resorting 
 for information in cases where a legal advertisement. is required 
 to be given. ^ 
 
 In other States, the law requires a notice to be posted in a 
 " Public Place." 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.^ 
 
 1 6 New Hampshire, 194. 
 ^ Ives V. Lynn, 7 Connecticut, 505. 
 
 3 Pierce v. Sweetser, 2 Carter, 649 ; Cambridge v. Chandler, 6 New Hampshire, 
 271 ; Tidd v. Smith, 3 New Hampshire, 178. 
 
 21* 
 
246 ADVERTISEMENT OF JHB TIME AND PLACE OP SALE. 
 
 In Cambridge v. Chandler, the town where the land lay was 
 unorganized and uninhabited, and the advertisement 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 mean- 
 ing of the law. And in Tidd v. Smith, the notice was posted 
 on the 11th day of January, 1820. The sale was fixed for 
 March 9, 1820. The law required three successive weeks' 
 notice. The notice remained up for the requisite time. "When 
 first posted, the place where it was put up was a public place, 
 namely : a tavern — but on the 18th day of that month it ceased 
 to be a tavern, but the innkeeper remained in the building, and 
 carried on the business of a shoemaker, in the identical room 
 where the notice was posted ; and the proof was that many per- 
 sons 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 conse- 
 quently 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 complied with, 
 the sale has been held void.i 
 
 There is a statute in North Carolina^ which requires that 
 " the sheriff shall, at the term of the county court next preced- 
 ing the day of the sale for taxes, return a list of the land iipon 
 which the taxes are unpaid, and which he purposes to sell for 
 taxes, therein mentioning the .owner of each parcel, and if the 
 owner be unknown, the name of the last reputed owner, and 
 the amount of the tax due thereon ; and that the list shall be 
 read aloud in open court, a copy recorded by the clerk upon the 
 minutes of the court, and that a copy shall be set up by the 
 clerk during the term in the court-room." In Doe ex dem. 
 Kelley v. Craig,^ these reqiiirements were not complied with, 
 and the sale held void. Ruffin, C. J. : " It seems to us that 
 
 1 Moulton V. Blaisdell, 24 Maine (11 Shepley), 283; Brown v. Veazie, 25 Maine 
 (12 Shepley), 359 ; Williams v. Peyton, 4 Wheaton, 77 ; 4 B. Monroe, 116. 
 
 2 1819. 
 
 3 5 Iredell, 129. 
 
ADVERTISEMENT OF. THE TIME AND PLACE OF SALE. 247 
 
 this provision is not merely directory, but that it is to be ob- 
 served by the sheriiF as a part of his duty, and as far as respects 
 the making of the return and having it recorded, it is essential 
 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 pur- 
 chaser proving the advertisement at remote periods, and of the 
 necessity, nevertheless, of supporting fair purchases, the courts 
 had held,^ that sales made without advertisement, and without 
 the knowledge of the owner, should stand, notwithstanding the 
 prejudice that might arise to the owner. The intention of the act 
 of 1819 was to provide a more certain or probable notice to the ' 
 owner, of the intended sale of his land, and of the reason there- 
 for, 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 by private contract, or was not made at the court-house, or 
 on a wrong day' of the week ; in all which cases, the wrongful 
 conduct of the officer must be known to the bidder, and there- 
 fore 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 
 reason to dispense with the one as the other. The legislature 
 meant to give the citizen an effectual protection against surprise 
 in the sale of his land for taxes, but at the same time to do so 
 without exposing bidders to the danger of paying their money, 
 
 1 Ante, pp. 216, 217. 
 
248 ADVEETISEMENT OP THE TIME AND PLACE OF SALE. 
 
 and not getting the benefit of their purchases, provided they 
 would take the reasonable and not inconvenient precaution, of 
 availing themselves of the means provided for informing them- 
 selves, whether the sheriff had a right to sell or not. No per- 
 son can be hurt by this construction, but one who wilfully keeps 
 his eyes shut against the light the law supplies to him. We 
 think the sale to the lessor of the plaintiff was therefore radi- 
 cally defective, and passed no title." 
 
 This was a peculiar statute, and its provisions, in one respect, 
 somewhat analogous to the proclamations of a fine, under the 
 old English statute; and the fact that the court required a 
 strict compliance with its provisions, is one of the very strong- 
 est illustrations of the degree of strictness, exacted in the giv- 
 ing of every notice of sale, which the legislature have seen 
 proper to prescribe in this class of cases. Proof of the adver- 
 tisement depends upon the same general principles which relate 
 to the other prerequisites of the law. -The onus probandi rests 
 upon the purchaser at the tax sale, or those claiming under 
 him.^ The deed is not prima facie evidence that the sale was 
 duly advertised.'^ Where the law requires the advertisement 
 to be recorded, the record alone can be resorted to for the pur- 
 pose of determining its existence and sufficiency. Parol evi- 
 dence is inadmissible 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 requisitions of 
 the law, as to the contents of the record ; it must conform to 
 the statute in all respects. 
 
 . In those States where the law requires the advertisement to 
 be recorded, this strictness is maintained, upon the ground that 
 the evident object of the law is to perpetuate the evidence of 
 the notice by matter of record, for the common benefit of the 
 purchaser and former owner ; that the introduction of -^arol 
 evidence in aid of the record thus required to be made, would 
 
 ^ Ante, chapter 3. 
 
 2 Garrett v. "Wiggins, 1 Scammon, 335 ; Kinney v. Beyerley, 2 Henuing & Mun- 
 ford, 531. See Elliott v. Eddins, 24 Alabama, 508. 
 
ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 249 
 
 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 iipon the face of the record the jurisdiction of the 
 court, and to perpetuate the evidence that the sale was duly 
 advertised. It concerns the former owner and the purchaser 
 at the tax sale, and it would seem upon principle, and author- 
 ity, that such a requirement can in no sense be regarded as 
 merely directory to the clerk ; but that it is one of those per- 
 emptory provisions which cannot be dispensed with without 
 invalidating the entire proceedings — defeating the jurisdiction 
 of the court, and the power of the collector to sell the land. 
 Ordinarily, no presumption will be indulged in, for the pur- 
 pose of supplying the omission of proof in relation to tlie pub- 
 lication of the advertisement.^ Though in support of an ancient 
 possession, it may be permitted. This, however, will be exam- 
 ined more at large hereafter. But the law is not only well set- 
 tled, but apparent to' every one, that no presumption can be 
 indulged in to supply a defect which appears upon the face of 
 the advertisement.* It may be stated as a general rule,. that 
 where an advertisement is illegal in any respect, the con- 
 sent of the owner, having notice of the irregularity, cannot 
 confer authority upon the officer to proceed with the sale. He 
 derives his power from the law — arid not from the owner of 
 
 J Culver V. Hayden, 1 Vermont, 359; Coit v. Wells, 2 Vermont, 318 ; Clark v. 
 Tucker, 6 Vermont, 181 ; Spear v. Ditty, 9 Vermont, 282; Isaacs p. Shattuck, 12 
 Vermont, 668; Carpenter v. Sawyer, 17 Vermont, 121; Judevine w. Jackson, 18 
 Vermont, 470; Langdon v. Poor, 20 Vermont, 13; Taylor v. rrench, 19 Vei-mont, 
 49; Kellogg v. McLaughlin, 8 Ohio, 114. 
 
 2 Ante, p. 194, sec. 27. 
 
 3 Allen V. Smith, 1 Leigh, 231. 
 
 * Farrar v. Eastman, 1 Fairfield, 191 ; Porter v. Whitney, 1 Greenleaf, 306. 
 
250 ADVERTISEMENT OF THE TIME AND PLACE OF SALE. 
 
 the land — and he mxist strictly conform to all its requisitions.^ 
 The date of the advertisement \a 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 reason- 
 ing in support of this decision of the court, has already been 
 given.* 
 
 ' Scales V. Avis, 12 Alabama, 617. 
 '^ Langdoa v. Poor, 20 Vermont, 13. 
 ^ 4 Scammon, 81. 
 * Ante, p. 238, 
 
OF THE AUTHOEITT OF THE OFFICER TO SELL. 251 
 
 CHAPTER XIII. 
 
 OF THE AUTHORITY OF THE OFFICER TO SELL. 
 
 •The power of sale does not attach until every prerequisite of 
 the law has been complied with.i The regularity of the ante- 
 rior proceedings is the basis upon which it rests. Those pro- 
 ceedings must be completed and perfected, before the authority 
 of the officer to sell the land of the delinquent, can be regarded 
 as consummated. The land must have been duly listed, val- 
 ued, and taxed — the assessment roll placed in the hands of 
 the proper officer, with authority to collect the tax — the tax 
 demanded — all collateral remedies for the collection of the tax 
 exliausted — the delinquent list returned — a judgment ren- 
 dered where judicial proceedings intervene — the necessary 
 precept, warrant, or other authority, delivered to the officer 
 intrusted 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 ques- 
 tion ; otherwise, there is no authority to sell, and the whole 
 proceeding will be treated as a nullity.'' 
 
 Whether a special authority, directly commanding a sale of 
 the lands embraced in the delinquent list, is essential, where all 
 of the previous proceedings ai-e regular, depends upon the 
 peculiar legislation of each State. In some instances the officer 
 
 1 Minor v. Natchez, 4 Smedes & Marshall, 627, 628. 
 
 ^ Lessee of Holt's heirs v. Hemphiirs heirs, 3 Hammond, 232 ; s. c. 1-4 Ohio 
 Cond. 551 ; Bishop v. Lovan, 4 B. Monroe, 116 ; Garrett v. White, 3 Iredell's Eq. 
 131. 
 
252 OP THE AUTHOKITT OF THE OFPICEB TO SELL. 
 
 derives his power of sale from the law itself, which is his war- 
 rant, commanding him, without the intervention of any other 
 agency, to sell, and fixing the time, place, and manner of sale.i 
 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 some- 
 times there is superadded a command or direction to proceed 
 
 and sell. 
 
 In Illinois, under the acts of 1827 and 1829, lands not listed 
 in the county of their locality, were required to be returned by 
 the county clerk to the auditor of State, on or before July 15, 
 annually, and in case the taxes remained unpaid for a limited 
 time, the auditor was authorized to advertise and sell the land. 
 Until this list is returned by the clerk to the auditor, his power 
 of sale does not attach.^ Under the law of 1833, which trans- 
 ferred the sale from the auditor to the county clerk, the author- 
 ity of the clerk to sell depended upon the delivery to him of a 
 list of delinquents by the auditor.* 
 
 The law of North Carolina required the owner to list his 
 land with the justice of the peace in his precinct ; if he neg- 
 lected to do so, the justice was authorized to appoint a free- 
 holder to value the land on oath, and make a return thereof to 
 the justice ; which return the justice was directed to add to his 
 list, and transmit the whole to the clerk of the county court. 
 In case of failure by the owner and justice, the sheriff was 
 required to list the land, and summon a freeholder to value it," 
 in which case the freeholder was required to send a transcript 
 of the list and valuation to the clerk of the county court, before 
 the next succeeding term of that court, and the clerk was di- 
 rected to incorporate that with the list returned by the justice ; 
 the tax lists thus returned were directed to be recorded by the 
 clerk. 
 
 1 McCoy V. Turk, 1 Pennsylvania, 499. 
 
 2 Hinman i>. Pope, 1 Gilman, 131 ; Leasee of Wilkins v. Huse, 9 Ohio, 154. 
 " Eevised Laws 1833, p. 524, sec. 3; Messenger v. Germain, 1 Gilman, 631. 
 * Revised Laws 1833, p. 528, sec. 1 ; 
 
OF THE AUTHORITY OF THE OFFICER TO SELL. 253 
 
 In Pentland v. Stewart,' the court say : " These records, it 
 seems to us, are in the nature of judgments against each indi- 
 vidual 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 warrant of distress or execution against the property of 
 each individual, for the satisfaction of the money due on them." 
 The court, therefore, held, that as " in ordinary cases, where a 
 party claims under a sheriff, he is compelled to prodijce a judg- 
 ment and execution against the debtor, as well as the sheriff's 
 deed," so in deducing title under a tax sale, tlie purchaser must 
 produce the record of the lists in lieu of a judgment, and the 
 copy of it delivered to the sheriff as a substitute for an execu- 
 tion, otherwise, the sheriff has no power to sell and convey the 
 land. 
 
 The statute of Ohio, of March 14, 1831, required the audi- 
 tor of State to transmit to the county auditor a list of all lands 
 which had been forfeited to the State for the non-payment of 
 taxes assessed thereon, said list to be certified and signed by the 
 auditor of State, and to have thereto affixed his seal of office, 
 " which list shall set forth the name or names of the person or 
 persons to whom such lands stand charged with taxes, the 
 amount of taxes due thereon for each year, and -for what years ;" 
 and the law further provided, that unless the taxes due upon 
 the lands embraced in the list were paid by October 15, the 
 county auditor should advertise and sell the same. 
 
 In Hannel v. Smith,^ the evidence offered, to show that such 
 list was transmitted to the county auditor, was a letter dated 
 
 1 i Devereux & Battle, 386. 
 
 2 15 Ohio, 134. 
 
 22 
 
254 OF THE AUTHORITY OF THE OFFICER TO SELL. 
 
 June 5, 1843, signed " Jno. Brough, auditor of State, by J. B. 
 Thomas," stating tliat such list was enclosed, and authorizing 
 the county auditor to proceed and sell. The court held the au- 
 thority insufificient and sale void upon three grounds : 1. The 
 list 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 authen- 
 ticated 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 upon and sell the land of a judgment debtor. 
 The court, after reciting the statiite, 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 shei'iff, without an execu- 
 tion, sell lands to satisfy a judgment, as a county auditor under- 
 take to sell without this list." 
 
 The statute of New Hampshire required the assessors to de- 
 liver the tax list to the collector, on or before the thirtieth day 
 of May annually ; the collector was directed to deliver a copy 
 of the list to the deputy secretary of State, on or before the 
 eighth day of the next ensuing session of the general court ; this 
 copy was to be kept by the deputy until September 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 con- 
 tinued 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 as- 
 certaining whether the owilers were delinquent : the taxes may 
 have been paid to the deputy secretary, and this may have been 
 the very reason why no return was made.^ 
 
 In Louisiana, the sheriff is authorized to demand the tax, 
 
 1 Homer v. CiUey, 14 New Hampshire, 85 ; Iron Manufacturing Co. v. Barron, 
 3 New Hampshire, 36. 
 
OF THE AUTHORITY OP THE OFFICER TO SELL. 255 
 
 and if not paid, he may proceed and sell the land of the delin- 
 quent ; if the person against whom the tax is assessed is a non- 
 resident, or absent from the collection district, so that a demand 
 cannot be made, the collector is required to make a return of 
 all such persons to the State treasurer, and this return consti- 
 tutes 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 tlie 
 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 person shall 
 appear to discharge the taxes duly assessed on lands belonging 
 to non-residents, " within nine months from the date of the as- 
 sessment, the collector shall make a true copy of so much of 
 the assessment as relates to the taxes due upon such real es- 
 state, and certify the same to the treasurer of the town or plan- 
 tation." The power of sale was vested in such treasurer. 
 
 In Flint v. Sawyer,^ it .appeared that the assessment was 
 dated August 14, 1844, and the return of the non-resident list 
 was made by the collector to the treasurer, May 13, 1845. The 
 sale was held void. By the court : " When a statute requires 
 an act to be performed in a certain time from the date of some 
 transaction, the day of such date is excluded in the computation 
 of the time. The collector should have waited during all of 
 the business hours of the 14th day of May, 1845, for the owner 
 of the land to pay the tax upon it, before he made his certificate 
 to the town treasurer. The owner of the land was entitled to 
 the full term of nine months, in which he could make his pay- 
 ment without costs. Besides, the taxes may have been paid on 
 the 14th, within the nine months allowed therefor, and the cer- 
 tificate 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. 
 
 ' Thompson v. Rogers, 4 Louisiana, 9. 
 
 ^ Proprietors of Cardigan v. Page, 6 New Hampshire, 182. 
 
 3 30 Maine, 226. 
 
256 OF THE AUTHORITY OF THE OFFICEK TO SELL. 
 
 Taft,i 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 seizure be made within two years from the date 
 of the warrant, the analogies of the law authorized the sale to 
 be completed afterwards ; that the sale had relation to the 
 seizure ; that in case of a sale under execution, if the levy 
 was made in the lifetime of the execution, the sale miglit take 
 place afterwards. The court, however, held the sale void. 
 
 Where the statute is silent as to the verification of the list, or 
 other document, which constitutes the authority of the officer 
 to sell, by the oath of the officer who is required to make it, no 
 such oath is necessary. The oath of office, and the liability of 
 the officer to parties injured by a false list, constitute the only 
 security of the citizen in such cases.^ 
 
 The statute of Ohio required the county treasurer, who was 
 ex officio collector, to return a list of delinquents, under oatli 
 or affirmation, to be administered by the county auditor, and 
 the latter was directed to record the return in a book to be kept 
 for .that purpose. The power of sale was vested in the auditor, 
 and a legal return was the basis of his authority. The record 
 failed to show the administration of the oath to the county 
 treasurer, as required by the law ; but a certified copy of the 
 return contained the oath. It was held, that without a sworn 
 return, the county auditor had no power to sell, that this fact 
 miist appear 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 col- 
 lector, under oath," but omitted to direct by what officer the 
 oath should be administered. In Harmon v. Stockwell,* it ap- 
 
 1 33 Maine, 199. 
 
 ^ HoUister v. Bennett, 9 Ohio, 83. 
 8 Minor v. McLean, 4 McLean, 138. 
 * 9 Ohio, 93. 
 
OP THE AUTHORITY OF THE OFFICER TO SELL. 257 
 
 peared that the oath was administered by the county auditor, 
 and tlae sale was held void. By the court : " As the penalties 
 of perjury were intended to be imposed for a false return, it is 
 clear that the oath must be administered by competent authority. 
 If the auditor, at that time, possessed no such power, the list 
 wants an essential requisite, which invalidates the tax sale. 
 The power to administer oaths is incidental to no office except 
 the judicial. It must be conferred by statute, either directly, 
 or by implication, or ministerial officers do not possess it." The 
 court then examine the several statutes of Ohio, relating to 
 the power and duties of the county auditor, and thus conclude : 
 " "We therefore find no authority in any of these statutes, en- 
 abling the auditor to administer oaths, except in the specified 
 cases. The grant of authority in those specified cases, suf- 
 ficiently implies that he possessed it in no other. The return 
 of the collector, therefore, was not under the securities and 
 sanctions which the law required ; and this omission is fatal to 
 a title held under such strict principles as a tax sale, and super- 
 sedes the necessity of looking further into the case." The pre- 
 cept, warrant, or list, must contain an accurate description of 
 tlie lands to be sold, or the sale will be void.^ 
 
 In Kingman v. Glover,^ wliich was an action of trespass to 
 try title, the plaintiff having deduced upon the trial a regular 
 claim of title, the defendant claimed a seven years' lease under 
 a sale for taxes. The substantial provisions of the law were, 
 that every person should make return of his property for taxa- 
 tion under oath, that if the taxes were not paid when they be- 
 came due, the collector was authorized to issue a warrant under 
 his hand and seal, directed to a constable, 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, &c. The form of the warrant, as prescribed by the 
 statute, was as follows : 
 
 1 Stewart v. Graffies, 8 Sergeant & Kawle, 344 ; Spiller v. Baumgard, 4 Louis- 
 iana, 206. 
 
 2 3 Eichardson, 27-. 
 
 22* 
 
258 OF THE AUTHORITY OF THE OFFICER TO SELL. 
 
 "A. B., tax collector of, &c., to , constable, &c. 
 
 Whereas hath been assessed by me, the subscriber, 
 
 &c., in tlie sum of dollars and cents, for defraying 
 
 the charges of, &c., which sum the said hath neg- 
 lected to pay. Therefore, you are commanded, &c." 
 
 The act also provides that if lands are levied on under the 
 warrant, the constable shall advertise and sell an interest " not 
 exceeding the term of seven years." The tax execution in 
 question 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 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 obliga- 
 tions to the State, for the payment of his portion of the common 
 charge of the government, or who exercises the most ordinary 
 vigilance over his property. Very strict and technical adher- 
 ence to forms should not be required from a class of public 
 functionaries, whose duties are not commonly supposed to re- 
 quire any peculiar qualifications, and the term of whose ofBce is 
 so short and precarious, that few derive a knowledge of its duties 
 from experience. If the process which the tax collectors are 
 authorized to issue, does in substance and effect comply with 
 the provisions of the law, and afford to the owner of property 
 the notice which may be necessary for its' protection, formal 
 and technical exceptions may without inconvenience or danger 
 be disregarded." Judges Evans and Wardlaw dissented from 
 this opinion. 
 
 The law of South Carolina, under which the decision was 
 made, seems to describe a most rigorous and summary proceed- 
 ing to enforce the collection of the tax, authorizing even the 
 
 ' Richardson, Frost and O'Neall. 
 
OF THE AUTHORITY OF THE OFFICER TO SELL. 259 
 
 imprisonment 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 intestate ? If the former, who were the devisees ? 
 It might be that she made a will and devised her property to 
 executors or trustees to sell, for the benefit of some third per- 
 son. 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 dvent that no goods or land could have been 
 found, whose body would be liable to seizure under such a war- 
 rant ? 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 stiictness, in this class 
 of cases, is " wholesome discipline ; " but the rule laid 
 down in Kingman v. Glover, is a bounty upon ignorance, 
 a license to depart from the requirements of the law, and 
 converts every tax collector into a petty legislator — arming 
 him with -a dispensing power in cases where it is incon- 
 venient for him to follow the letter of the law. It will not 
 be pretended that even an ordinary execution against " the es- 
 tate 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 reasons detract greatly from the authority of 
 Kingman v. Glover, and sustain the opinion of the dissentient 
 judges in that case. It has already been shown, that the deed 
 is not evidence of the authority of the officer to sell, and that 
 the onus probandi rests upon the party alleging the existence 
 of the g.uthority.1 
 
 1 Chapters 2 and 3 ; vide also, Doe ex dem. Morris v.'Himelick, 4 Blackford, 471, 
 note ; s. c. 4 Blackford, 494. 
 
260 CONDITIONS PKBOEDENT AND DIBECTOEY REQUIREMENTS. 
 
 CHAPTER XIV. 
 
 OE THE DISTINCTION BETWEEN CONDITIONS PRECEDENT AND 
 DIRECTORY REQUIREMENTS. 
 
 Courts do not sit for the purpose of granting favors to par- 
 ties, but to administer justice to tliem, according to the law of 
 the land. While this general 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 known distinction between circumstances which are of the 
 essence of a thing required to be done by an act of parliament, 
 and clauses merely directory." ^ No case, however, attempts 
 to point out what that distinction is, so as to establish a general 
 rule of construction wliich can be relied on, except in relation 
 to the time within which an act may be done. In such cases, 
 the general rule undoubtedly is, that where a statu-te specifies 
 the time within which a public officer is to perform an official 
 act regarding the rights and duties of others, it;. will be consid- 
 ered 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 
 
 ^ Mussey v. White, 3 Greenleaf, 290 ; State Bank v. Buckmaster, Breese, 133 ; 
 Vance v. Schuyler, 1 Gilman, 160 ; Day u. Graham, 1 Gilman, 435 ; Taylor v. Brown, 
 5 Cranch, 234 ; Craig v. Bradford, 3 Wheaton, 594 ; Stringer v. Young, 3 Peters, 
 320 ; United States v. Kirkpatrick, 9 Wheaton, 720 ; United States v. Vanzandt, 11 
 Wheaton, 184; Striker v. Kelly, 7 Hill, 9 ; Allen w. Parish, 3 Ohio, 187; Law- 
 rence V. Speed, 2 Bibb, 401 ; Hayden v. Dunlap, 3 Bibb, 216 ; BeaUs «., Guernsey, 
 8 Johnson, 52 ; Wiggin u. Mayor of New York, 9 Paige, 16 ; State u. Click, 
 2 Alabama, 26 ; Hooker v. Young, 5 Cowen, 269 ; Marchant v. Langworthy, 6 Hill, 
 646. ' 
 
 2 1 Burr. 647. 
 
CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 261 
 
 upon the power of the officer. 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 
 limitation, it may be exercised after the day fixed. By a di- 
 rectory statute, it is not to be understood that no duty is imposed 
 to do the act at tlie time specified, in the absence of a satisfac- 
 tory reason for not then doing it, but simply that the act is valid 
 if done afterwards ; while a peremptory law requires the act to 
 be done at the time specified, and at no other. ^ This mode of 
 getting rid of a statutory provision by calling it directory, is 
 not only unsatisfactory, on account of the vagueness of the rule 
 itself, but it is the exercise of a dispensing power by the courts, 
 which approaches so near legislative discretion that it ought to 
 be resorted to with reluctance, and only in extraordinary cases, 
 where great public mischief will otherwise ensue, or important 
 private interests demand the application of the rule. There is 
 no more propriety in dispensing with one positive requirement 
 than another ; a whole statute may be thus disposed of when 
 in the way of the caprice or will of a judge. It is usually much 
 easier to do the act than hunt up reasons for its omission. Be- 
 sides, it vests a discretionary power in the ministerial officers 
 of the law, which is dangerous to private rights ; and the public 
 inconvenience occasioned by a want of uniformity in the mode 
 of exercising a power, is a strong reason for bridling this dis- 
 cretion.^ It is (^ngerous to attempt to be wiser than the law, 
 and when its requirements are plain and positive, the courts 
 are not called upon to give reasons why it was enacted.^ 
 
 1 People V. Allen, 6 Wendell, 486 ; Pond v. Negus, 3 Massachusetts, 230 ; St. 
 Louis County v. Sparks, 10 Missouri, 117 ; Walker v. Chapman, 17 Alabama,126 ; 
 Webster v. French, 12 Illinois, 302 ; Marsh v. Chesnut, 14 Illinois, 223 ; Billino-s 
 I'. Detten, 15 Illinois, 218; Thames Manufacturing Co. i^. Lathrop, 7 Connecticut 
 550 ; People v. Peck, 1 1 Wendell, 604 ; Ex parte Heath & Eoome, 3 Hill, 42 ; 
 People V. Holley, 12 Wendell, 480 ; Colt v. Eves, 12 Connecticut, 243, 255; Mead 
 V. Gale, 2 Denio, 232 ; Rex v. Sparrow, Strange, 1123 ; Hex v. Leicester, 7 Bame- 
 wall & Creswell, 6. 
 
 2 Fide ante, 55, 61. 
 
 * Dillingham v. Snow, 5 Massachusetts, 557 ; Reeds v. Morton, 9 Missouri, 878. 
 
262 CONDITIONS PRECEDENT AND DIEECTORT REQUIREMENTS. 
 
 The remarks of Judge Pope, in Mayhew v. Davis,i are worthy 
 of a place in this connection. In commenting upon the re- 
 quirements 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 \ipon himself to say that what the legislature have 
 required is unnecessary. He may not see the necessity of it, 
 still it is not safe to assume that the legislature did not have a 
 reason for it ; perhaps it only aimed at uniformity. In that 
 case, the judge cannot interfere to defeat that object, however 
 puerile it may appear. It is admitted there are cases where the 
 requirements may be deemed directory. But it may be safely 
 affirmed, that it can never be where the act, or the omission of 
 it, can by any 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 conditions precedent, 
 and what may be treated as directory, must depend upon a 
 sound construction of the nature and objects of each regula- 
 tion.2 No general rule can be laid down for the government 
 of eveiy possible case which may arise. The peculiar phrase- 
 ology of each statute, the course of legislation upon the partic- 
 ular subject-matter, the local policy 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 legislative power 
 to the sheriff, and so allow him to sell land for taxes, not in the 
 manner prescribed by the written law, but according to his pri- 
 vate notions of what is right, and would place at his discretion 
 the property of every citizen of the State." * 
 
 • 4 McLean, 213. 
 
 2 Hayes v. Hanson, 12 New Hampshire, 284. 
 ' Monk V. Jenkins, 2 Hill, Ch. 12. 
 
 * Kegisteri). Bryan, 2 Hawks, 17. 
 
CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS. 263 
 
 In Culver v. Hayden,^ the court say : " Where property is 
 aifected, or the title to be devested, by the provisions of a special 
 statute, the requirements of the act must be strictly followed. 
 The performance of these acts is the condition on which the 
 property is to be devested ; and it is not for the court to inquire 
 whether the provisions of the statute are reasonable, whether a 
 compliance with them may not be dispensed with without injury 
 to the owner of the estate, but whether they have been made, 
 and if so, they must be literally pursued." 
 
 And in McDonotigh v. G-ravier,^ the court say : " TouUier, 
 in his commentaries on the civil law of France, in treating of 
 the nullities of contracts, divides the subject into, 1. Acts done 
 contrary to law ; and, 2. Omissions to pursue the formalities 
 required by its provisions. This latter branch is subdivided 
 into substantial and accidental formalities. When the formality 
 prescribed is founded on natural equity, it is said to be substan- 
 tial, and its omission carries with it nullity of the act. In our 
 opinion it is of the essence of justice and natural equity, that 
 when a forced sale of property is made under statutes, all for- 
 malities, 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 Torrey v. Millbury,* indorsed by Sibley v. Smith,^ 
 lays down the following rules, relative to the construction of 
 this class of statutes : " In considering the various statutes 
 regulating the assessment of taxes, and the measures prelim- 
 inary thereto, it is not always easy to distinguish which are 
 conditions precedent to the legality and validity of the tax; and 
 which are directory, merely, and do not constitute conditions. 
 One rule is very plain and well settled, that all those measures 
 which are intended for the security of the citizen, for insuring 
 
 1 1 Vermont, 359. 
 ^ 9 Louisiana, 546. 
 
 » Sharp V. Johnson, 4 Hill, 99 ; Corwin v. Merritt, 3 Barbour, 343 ; Atkins v. 
 Kinnan, 20 Wendell, 249 ; ante, pp. 61, 64. 
 * 21 Pickering, 64. 
 s 2 Gibbs, 498, 499. 
 
264 CONDITIONS PRECEDENT AND DIRECTOET REQUIREMENTS. 
 
 an eqiiality 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 in- 
 tended to promote method, system, and uniformity, in the 
 mode of proceeding, the compliance or non-compliance with 
 which does, in no respect, affect the rights of tax-paying cit- 
 izens ; these may be regarded as directory. Officers may be 
 liable to legal animadversion, perhaps to punishment, for not 
 Gbserving them, but yet their observance is. not a condition 
 precedent to the validity of the tax." 
 
 The Vern^ont rules upon this subject are thus laid down in 
 Chandler 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 pre- 
 scribes 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 invalid ; and in this respect the statute must be 
 strictly, if not literally, complied with. 2. But in determining 
 what is required to be done, the statute must receive a reason- 
 able construction ; and when no particular form or manner of 
 doing a thing is pointed out, any mode which effects the object, 
 with reasonable certainty, is sufficient ; and in judging of these 
 matters, the court is to be governed by such rational rules of 
 construction as direct them in other cases." And in Spear v. 
 Ditty ,^ Judge Phelps remarks : "^ Great nicety has prevailed in 
 relation to these titles ; and in cases of doubt the inverted 
 maxim seems to have obtained, ut res magis pereat quam valeat. 
 They are said to be stricti juris — a proceeding in invitum, &c. 
 This is true. Still, some degree of reason and sense is to be 
 exercised in determining what right is ; and although there 
 may be no equitable consideration to aid such title, still every 
 
 1 22 Vermont, 388. 
 
 2 8 Vermont, 419. 
 
CONDITIONS PRECEDENT AND DIRECTOET REQUIREMENTS. 265 
 
 statute should have a rational interpretation, and a reasonable 
 effect. We ought not to discard those aids which guide ns in 
 other cases ; nor by an unreasonable and senseless nicety, 
 defeat a solemn act of the legislature. It is, however, admit- 
 ted, that in interpreting these statutes, we should consider the 
 title to be acquired under them as stricti juris, and should re- 
 quire a full and complete compliance witli the requisitions of 
 the statute. Before the title of the owner is divested by such 
 a proceeding, we should insist upon every thing tending to the 
 security of the owner, which is either prescribed by the terms 
 of the act — brought within it by a rational and strict construc- 
 tion — or which, in the nature of the transaction, is necessary 
 to give ample effect to every safeguard which the legislature 
 have endeavored to throw around the subject. But it is not 
 our duty to legislate — to create artificial and unreasonable 
 difficulties ; nor by over-nice and unmeaning technicality, with- 
 out any rational purpose, to convert the proceeding into an idle 
 ceremony ." 
 
 This seems to be the safer and most equitable rule to adopt*, 
 a requirement which tends to the security of the owner, or 
 which possesses the semblance of benefit to him, should be 
 faithfully complied with ; while those which possess no intrin- 
 sic merit, and the omission of which works no manner of injury 
 to the owner of the estate, ought not to defeat the title of the 
 purchaser. Such seems to be the true principle to' be deduced 
 from the decided cases, if it be once conceded that any provis- 
 ion of a statute may, under any circumstances, be regarded 
 as directory. The application of that principle to the facts of 
 each particular case, are shown in those parts of this work 
 which treat of the different requirements ;. the design of this 
 chapter being simply, to lay before the profession those general 
 rules, which seem to aid in the investigation of questions of 
 this nature. 
 
 23 
 
266 OF THE SALE OF THE LAND. 
 
 CHAPTER XV, 
 
 OF THE SALE OF THE LAND. 
 
 The general principles relative to the power of sale halve 
 already been fully explained. It has been shown, that the au- 
 thority 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 
 pel-son, or where the proper officer makes the sale before his 
 power attaches in point of time,^ or where he exercises the 
 ^ower 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 intrusted with the conduct of it, 
 which constitute the subject-matter of this chapter. 
 
 1. The sale must be a public, and not a private 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 impli- 
 cation, require the sale to be at public vendue. A sale made 
 in violation of the letter or policy of the law, in this particular, 
 is void. 
 
 1 See Scott v. Babcock, 3 G. Greene (Iowa), 133, that by the law of R)wa, of 1844, 
 lands were not subject to sale, unless the taxes had been due and unpaid for three 
 years ; qualifying the case of Noble v. The State, 1 G. Greene, 225. 
 
 2 Ante, Chapter 2, p. 34 ; Chapter 3, p. 65 ; Chapter 13 ; Hughey v. HorreU, 2 
 Hammond, 231 ; Thompson u. Rogers, 4 Louisiana, 9 ; Usher v. Taft, 33 Maine, 
 199. 
 
 ' See Cutler v. Brockway, 8 Casey (Penn.), 45. 
 
OF THE SALE OF THE LAND. 267 
 
 In Keene v. Houghton,^ the statute required the collector to 
 sell non-resident lands to the highest bidder, at public auction, 
 after giving due notice, &c. The land in question was struck 
 off to Isaac Tyler, for the taxes and costs, he being the highest 
 bidder. Afterwards, and before the proceedings were returned 
 and recorded, in pursuance of the statute, the defendant 
 Houghton was substituted as a purchaser in lieu of Tyler ; 
 and the sale was so returned. A deed was executed and ten- 
 dered 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, therexipon sued Houghton for the pur- 
 chase 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 provisions, 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 conformity to the provisions of the statute, could 
 not give a title. The bill of exceptions states that Isaac Tyler 
 was the purchaser at the sale ; • and it does not appear that he 
 refused to comply with the conditions of sale, or that he acted 
 as the defendant's agent, or assented to the transfer of his bid 
 to the defendant ; and tlie plaintiff had no right to substitute 
 the defendant for Tyler as the purchaser." In this case it 
 appeared that the defendant was not present at the sale ; if he 
 had been there, and declined bidding, and afterwards, by agree- 
 ment with Tyler and tlie collector, been substituted as pur- 
 chaser, the transaction would liave been a fraud upon the law. 
 
 1 19 Maine, 368. 
 
268 OF THE SALE OF THE LAND. 
 
 as its direct tendency would have been to destroy competition 
 at the sale. 
 
 2. Tlie sale must take place at the precke time fixed by the 
 law, or notice, otherwise it ivill be void.^ 
 
 The twenty-sixth section of the revenue law of Illinois, of 
 February 26, 1839,^ contemplates a notice of the application 
 for a judgment upon the delinquent list, and of the sale, in the 
 same advertisement, and fixes the day of sale " on the second 
 Monday next succeeding the said term of the said circuit 
 court," at which the application is made, and in which the 
 judgment is rendered ; and the law further provides, " that it 
 shall be the duty of the clerk, within five days after the a:d- 
 journmeut of said court, to make out \inder the seal of said 
 court, a copy of the collector's report, together with the order of 
 the court thereon, which shall hereafter constitute the process 
 on which all lands shall be sold for taxes, and deliver the same 
 to the sheriff of his county ; and the sheriff shall thereupon 
 cause the said lands to be sold on the day specified in the 
 notice, given by the collector, for the sale of the same, &c. ; " ^ 
 and the statute further declares, that the deed of the sheriff 
 shall be conclusive evidence " that the sale was conducted in 
 the manner required by law." In the more populoiis counties 
 of the State, the session of the court continued from two to six 
 weeks; in the smaller counties the court did not sit longer 
 than a week, and in some only for a few days. 
 
 The question necessarily arose upon the construction of this 
 statute, whether the words " second Monday next 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 certainly 
 
 1 Eonkendorfif v. Taylor, 4 Peters, 349 ; Conrad y. Dai-den, 4 Yerger, 307 ; 
 Essington v. Neill, 21 Illinois, 139; Moore v. Brown, 11 Howard (U. S.), 414. 
 See Noyes v. Haverhill, 11 Gushing, 338 ; Pierce v. Benjamin, 14 Pickering, 356; 
 
 •■^ Ante, pp. 193, 194. 
 
 8 Ante, p. 194, sec. 27. 
 
OF THE SALE OF THE LAND. 269 
 
 known to all persons interested in the proceeding. But where 
 the law authorized the court to continue the term beyond the 
 period of one week, if the time was cqjnputed 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 
 counties, the sale wotild be on the second Monday succeeding 
 the commencement or end of the term — (the term invariably 
 commencing on Monday, or some intermediate day of the 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 sheriff, within five days ^fter the adjournment of the 
 court, it seemed to many that the day of adjournment was the 
 time for the commencement of the computation. There seemed 
 to be strong reasons for either construction ; for holding that 
 the sale would be legal on the second Monday succeeding the 
 commencement of the term, or on the second Monday after its 
 adjournment. The ambiguity in the language of the law gave 
 rise to a diversity of practice under it ; and the day of sale 
 floated between these conflicting opinions, until the passage of 
 the act of 1845,i which fixed " the fourth Tuesday succeeding 
 •the common cement*, of the term," as the day of sale. The 
 varied practice, however, under the old law, gave rise to litiga- 
 tion, and the question at length came before the supremo court, 
 at the December term, 1845, in the case of Bestor v. Powell.^ 
 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 was in ses- 
 sion ; and the sales commenced on the 26th and ended on the 
 
 1 Revised Statutes, 444, sec. 47. 
 = 2 Gilman, 119. 
 23* 
 
270 OF THE SALE OF THE LAND. 
 
 29tli 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 gr«und that by fiction of law the term con- 
 stituted but one day, and that every act of the court had rela- 
 tion to that day ; but that without resorting to that fiction, the 
 adjournment might be presumed to follow immediately after 
 the entering of the judgment iipon the tax list, as far as that 
 proceeding was concerned ; the court in the exercise of this 
 special and summary power, being regarded for the purposes 
 of this question, quoad hoc a special tribunal, the powers of 
 which ceased upon the rendition of the judgment, except so far 
 as it was necessary for the issuing of the precept to enforce the 
 judgment 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. Sawyer,^ the question whether such a sale could 
 be sustained, was directly before the court, upon this state of 
 facts : the judgment was rendered on the third Monday of Sep- 
 tember, 1841, being the day of the commencement of the 
 term of the circuit court, the precept issued October 18, 1841, 
 and the sale took place October 19, 1841, which was the second 
 Monday succeeding the adjournment of the court. The sale 
 was -held void. Treat, 0. 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 opin- 
 ion was expressed, in the case of Bestor v. Powell, that the 
 former day was the one intended by the legislature ; and upon 
 a further consideration of the question, we are well satisfied 
 that such is the proper interpretation of the statute. It was, 
 however, intimated in that case, that a sale made on the latter 
 day would be vaUd. We cannot assent to such a conclusion. 
 
 ^ 14 Illinois, 254. 
 
OF THE SALE OF THE LAND. 271 
 
 It was evidently the design of the legislature to prescribe an 
 tiniform'mode for the sale of land for taxes. The time desig- 
 nated for the sale was to apply to all cases. The sale was to 
 be made on the second Monday after the rendition of the judg- 
 ment. The collector was not vested with any discretion, as to 
 the day of sale. The law fixed the time, and it was his duty to 
 pursue it. If he could properly make sales on both of the days 
 indicated, it would be very difficult to hold that he might not 
 sell on any other day. In requiring the sale to take place on 
 the second Monday after the commencement of the term, the 
 day of sale was made certain. The time when a term of the 
 court shall commence, is a matter of positive law ; and the 
 public would, .therefore, know to a certainty when the sale 
 would be made. Owners and bidders would have specific infor- 
 mation of the day of sale. Sales for taxes vrould uniformly 
 follow within two weeks from the rendition of the judgments. 
 A different 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 re- 
 mains in session for two or three days only ; in others for as 
 many weeks ; and in others for a still longer perioji. The 
 object of the collector's notice was to apprise owners of the pro- 
 ceedings 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 direction to the clerk to issue the pre- 
 cept 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 
 
272 OF THE SALE OF THE LAND. 
 
 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 adjournment may be presumed to 
 follow immediately upon the entering this judgment, as to this 
 proceeding.' The revenue law imposed this new and peculiar 
 jurisdiction on the court, and required it to be exercised before 
 the court proceeded to other business. It was clearly the design 
 of the law that the judgment should be entered on the first 
 day of the term. In legal contemplation, it is entered on that 
 day ; for all the purposes of the revenue law, the court may 
 well be 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 reaffirmed in Polk v. Hill,^ where the judg- 
 ment was entered May 13, and the sale took place on the third 
 day of June thereafter. The Ohio statute of January 30, 
 1820,2 provides, " that previous to the sale of any land, &c., it 
 shall be the duty of the auditor to advertise, <fec., which adver- 
 tisement shall set forth the time and place of sale, &c., and the 
 auditor shall attend at the time and place of sale, and proceed 
 to sell, &c., and if any person or persons to whom the same 
 may be struck off, shall refuse to pay, &c., the auditor shall 
 proceed to offer the same from time to time, for the space of 
 three days in succession, unless previously sold." 
 
 In the Lessee of Wilkins' 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 tlje auditor, it appeared that the land was 
 in fact sold, June 2, 1824, and no reason was assigned in the 
 
 ' 15 Illinois, 130. 
 
 2 Sec. 7. 
 
 » 10 Ohio, 139. 
 
OP THE SALE OF THE LAND. 273 
 
 return, why 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 plaintiff, and the defend- 
 ant moved for a new trial upon the ground of a misdirec- 
 tion of the judge, upon the point of law relative to the legality 
 of the sale. The motion was overruled, the court holding the 
 sale illegal. Hitchcock J. : " The objection made in the present 
 case, is to a proceeding (ujider the law of Ohio, requiring a judg- 
 ment) after judgment. Whether this objection is well made, 
 depends upon the seventh section of the before-recited act, and 
 more particularly upon the construction of the last clause of the' 
 section. ' Now the question arising, is as to the intention of this 
 last clause. Is it to give the auditor three days in which to sell 
 all the lands against which judgments are rendered, should so 
 much time be necessary ? or must he offer all which he does 
 offer, upon the day appointed for the sale, and if there is not 
 time to sell the whole, suspend the proceedings as to those 
 which cannot be ofifei'ed for want of time, except as to such as 
 have been struck off, but upon which bids have not been paid ? 
 I must confess that my mind inclines strongly to the former 
 construction. This, however, is not the most obvious construc- 
 tion. 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 advertise- 
 ment. 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 pre- 
 viously 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 
 laud was sold on a day different frotti that named in the adver- 
 tisement, some reason consistent with the law must be shown, 
 why it was so sold, and this should appear from the return of 
 the ofiicer 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 competition. The object is 
 
274 OF THE SALE OF THE LAND. 
 
 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,i ^jjg de- 
 fendants relied upon tax titles, derived under the statute of 
 Ohio, of 1822, which required a judgment, precept, advertise- 
 ment, 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 was dated December 
 12, 1824. The sale and order of confirmation were hdld void. 
 Lane, 0. J. : " This mistake in the description of the time of 
 sale, appears to us a fatal defect in the defendant's title. Al- 
 though it is argued that no other sale was made, except that on 
 the 10th day of November, and the time is probably misde- 
 soribed through the inadvertence of the clerk, yet, as the order 
 stands, it affords no evidence that the sale of November 10 was 
 ever acted upon by the court." 
 
 3. It is equally important that the sale should 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 where to go in 
 order to arrest the sale by the payment of the tax, and that those 
 desiring to purchase should know where to find the officer ex- 
 ercising the power of sale, as it is that the time named in the 
 advertisement should be literally adhered to in the making of 
 the sale. There are no express adjudications upon this ques- 
 tion, but it is conceded by a respectable authority ,2 and indeed 
 seems a self-evident proposition. [If the statute requires the 
 sale to be made " before the court house door," a sale made 
 
 1 n Ohio, 359. 
 
 2 Doe ex dem. Kelly v. Craig, 5 Iredell, 129. 
 
OF THE SALE OF THE LAND. 275 
 
 inside the court-house is not good.^ In Georgia it has been held 
 that a sale should be had in the county where the property is 
 situated.^] 
 
 4. Where the officer intrusted with the power of sale, is au- 
 thorized 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 expressly delegaBed to him, upon the principle that 
 all of the ministerial duties of an officer may be performed by 
 deputy.^ 
 
 5. It-is presumed, that without express authority, conferred 
 by statute, to adjourn a sale from day to day, the officer must 
 sell all of the lands embraced in his list on the day named in 
 the advertisement, or suspend the sale, so far as those which 
 remain are concerned. Still, it is difficult to perceive any sub- 
 stantial 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 -an- 
 other 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 in- 
 jury could possibly accrue to the owners of the land, if the ad- 
 journment was publicly announced by the officer, at the close 
 of the first day's sale. 
 
 1 Rubey v. Huntsman, 32 Missouri, 501. And see Keene v. Barnes, 29 Missouri, 
 377. 
 
 ^ Bice V. Johnson, 20 Georgia, 639. 
 
 ' Cliapman u. Bennett, 2 Leigh, 329. 
 
 * Mitchell V. Maxwell, 2 Florida, 594; Witherspoon v. Dunlap, 1 McCord, 546 ; 
 12 Coke, 130, 131 ; 9 Bacon, Abr. 220, ed. 1846 j lOPeters, 161 ; 18 Johnson, 418 ; 
 2 Cowen, 199, 233, 235 ; 1 Kent, 465, note ; 2 Scammon, 79, 83. 
 
276 OF THE SALE OF THE LAND. 
 
 But in the case of Sibley w. Smith,i it was held, that this prin- 
 ciple of taking power by implication, was not applicable in the 
 construction of this class of statutes ; that beiiig in derogation 
 of the common law, and authorizing proceedings, the effect of 
 which is to divest the citizen of his title to real estate, sucli 
 statutes should be construed strictly, although made for the 
 public beuefit ; that their provisians cannot be enforced further 
 than they are clearly expressed ; that the officers acting under 
 them can take no power that is not expressly delegated to them ; 
 that they can assume no power by implication, and that when 
 their acts are not clothed with the authority of the statute, 
 they are of no validity whatever. The same principle is 
 affirmed in other cases.^ In Pennsylvania the statute au- 
 thorized the adjournment of the tax sale "from day to day," 
 and a sale made on an adjourned day, without a day interven- 
 ing 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 col- 
 lector for the land put up, the largest sum of money. This is 
 the rule in l^ennsylvania ; 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 tjie 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, aud 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 quantity of it.^ ■ There is no way of 
 securing competition at a sale but by selling the entire parcel 
 
 1 Gibbs, 490. 
 
 2 "Dae V. Chunn, 1 Blackford, 336, 338 ; Van Horn's Lessee v. Dorrance, 2 Dallas, 
 304 ; 4 Hill, 99. 
 
 8 BurBS i>. Lyon, 4 Watts, 363. 
 
 * Supra, Chapter 17. 
 
 s See Lovejoy v. Lunt, 48 Maine, 377. 
 
OF THE SALE OF THE LAND. 277 
 
 upon which the tax is assessed, to the person who will pay the 
 highest amount of money for it, or pay the arrears upon the 
 land for the least quantity of it. A violation 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 re- 
 duced in amount ; and in the other, a greater quantity of his 
 land is sold to pay the tax than the law contemplates. 
 
 A statute of New Hampshire required the officer who con- 
 ducted the sale, to make out and return a complete record of 
 his proceedings. "Where the officer failed to state in his re- 
 turn that he sold the land " to the highest bidder," the sale 
 was held void.^ And -oral evidence would undoubtedly be in- 
 admissible for. the purpose of supplying the omission.^ The 
 form of the deed prescribed by the law of Illinois, and" used in 
 that State up to 1839, contained the recital : " And whereas, 
 at the time and place aforesaid, A. B. offered to pay tlie afore- 
 said sum of money for (the whole tract or a part thereof, as the 
 case be,) which was the least quantity bid for." ^ The same 
 recital is substantially contained in all the forms prescribed 
 and used since that time.* 
 
 Similar recitals are required in the forms of deeds used in 
 other States. A failure to recite the fact that the grantee in 
 the deed was the highest bidder, would render the deed void ; 
 and especially would it be deprived of its legal effect as evidence, 
 in those States where a deed executed in the form prescribed is 
 declared to be prima' 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 reason ; 
 under a statute which required a sale to the person who would 
 pay the taxes for the least quantity of the land upon which it 
 was assessed, the owner is not prejudiced by such a sale, inas- 
 
 } Proprietors of Cardigan v. Page, 6 New Hampshire, 182 ; Bean v. Thompson, 
 19 New Hampshire, 290. 
 ' Kellogg V. McLaughlin, 8 Ohio, 114. 
 8 Laws 1826, pp. 78, 79. 
 
 * Ante, 198. 
 
 * Per Judge Tucker in Kinney v. Beverley, 2 Heuning & Munford, 531 ; Maxcy v. 
 Clabaugh, 1 Gilman, 26. 
 
 24 
 
278 OF THE SALE OF THE LAND. 
 
 much as he is only bound to pay the tax, interest and cost due 
 upon the land when lie redeems from the sale.^ And under the 
 same statute it has been held, that where the whole amount of 
 the tax due upon the land was not bid, the sale though void in 
 the hands of the original purchaser, will be sustained in favor 
 of a bona fide grantee, claiming title under such purchaser, with- 
 out notice of the irregularity in the sale.^ 
 
 7. The sale must be for cash ; if credit is given to the pur- 
 chaser it is absolutely void? Thus, in Gushing v. Longfellow,* 
 where the proof was, that the officer who made the sale, gave 
 credit to the purchaser for the amount of his bid, the sale was 
 held invalid. By the court : " This he was not authorized by law 
 to do. He should have sold for ca'sh down. Public agents au- 
 thorized to make sales, in the absence of any express authority 
 to the contrary, can do no otherwise. Those who deal with them 
 are bound to take notice, that such is the case, and they become 
 privy to the erroneous proceedings. If one deals with a private 
 agent even, who has not an express or implied authority to sell 
 on credit, the title to any article purchased of such agent will 
 not vest in the vendee as against the principal. Public agents 
 can seldom, if ever, derive authority from implication." 
 
 The same principle was applied in Illinois v. Delafield,^ where 
 the State of Illinois authorized a loan, and appointed agents to 
 sell the bonds " at not less than their par value." A sale was 
 made nominally at par, the State bonds drawing interest from 
 the date of their sale, the proceeds of the' sale to be paid to the 
 State by instalments. The sale was held void upon two grounds. 
 1. The bonds did not bring their par value. 2. They were sold 
 upon credit. 
 
 And in Dickenson v. Gilliland,^ it was held that a sheriflF, in 
 permitting a redemption by a judgment creditor, of land sold 
 
 1 Peters v. Heasely, 10 Watts, 208. 
 
 ^ Devinney v. Reynolds, 1 Watts & Sergeant, 328. 
 
 8 See Donnel v. Bellas, 10 Casey (PeuD.), 157. 
 
 » 26 Maine, 306. 
 
 6 8 Paige, C. R. 527 ; s. c, 2 Hill, 159. 
 
 " 1 Cowen, 498. 
 
OP THE SALE OF THE LAND. 279 
 
 Tinder 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 he give 
 credit for the redemption money to the person who desires to 
 redeem. Even the power of a factor to sell upon credit depends 
 upoii 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 ad- 
 judged cases, that an ofScer 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 agreement, before the sale, between the officer 
 and bidder, that a credit sliall be given for the whole or any 
 portion of the bid, and after the sale the purchaser pays a part 
 of the purchase-money, and gives to the officer his note or other 
 obligation for the payment of the residue at a future time, the 
 sale will be maintained. Such were the facts in Longfellow v. 
 Quimby,2 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 account- 
 able for the whole sum for which the land was sold, and the 
 taking of the note for a portion of the purchase-money was a 
 matter between the purchaser and himself. In his private charac- 
 ter." 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 satisfaction 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 
 
 1 Forrestier v. Bordman, 1 Story, 43 ; Van Alen v. Vanderpool, 6 Johnson, 69 ; 
 McKinstry «. Pearsall, 3 Johnson, 319; Robertson v. Liyingston, 5 Cowen, 473; 
 Hapgood V. Batcheller, 4 Metealf, 573 ; Greely v. Bartlett, 1 Greenleaf, 172 ; Scott 
 V. Surman, "Willes, 409 ; Goodenow v. Tyler, 7 Massachusetts, 36 ; Burrill v. Phil- 
 lips, 1 Gallison, 360 ; Houghton v. Matthews, 3 Bosanquet & Puller, 489 ; Myers 
 1/. Entriken, 6 Watts & Sergeant, 44. 
 
 2 29Maine»196. 
 
280 OF THE SALE OF THE LAND. 
 
 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 toto. Thus, in Moiilton v. 
 Blaisdell,! the law required the collector to advertise and sell 
 unimproved lands of non-resident proprietors, and improved 
 lands of resident proprietors ; and in case of improved lands 
 belonging to a resident of the State, but who resided out of the 
 town in which the land was situate, the collector was directed 
 to give an additional notice, in writing, to the owner of the land 
 before making the sale. The facts of the case were, that the 
 land in question belonged to a person who did not reside in the 
 town where the land lay, and the tax was assessed ; a part of 
 which was improved, and the rest unimproved. There was no 
 proof of a notice in writing to the owner. The whole parcel of 
 land was taxed and sold as one estate. By the court: "The 
 whole, both improved and unimproved, being sold at auction 
 for one integral 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 additional notice mentioned in the 
 statute ; that the fact that a portion only of the tract' in ques- 
 tion was improved, made no difference. The owner may have 
 been prejudiced by the sale, and the law will presume that he 
 was. The advertisement was simply a constructive notice. If 
 the actual notice contemplated had been given to the owner, he 
 would probably liave 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 Hayden v. Foster .^ So, 
 where divers taxes are assessed, some of which are legal, and 
 the residue illegal, the sale cannot be upheld pw rata, but the 
 entire sale falls to the ground.^ The rule is, that where a 
 
 1 24 Maine, 283. 
 
 2 13 Pickering, 492. 
 ^ Ante, p. 160. 
 
OF THE SALE OF THE LAND. 281 
 
 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 often- 
 times repeated, that " the statute law is like a tyrant ; when he 
 comes he makes' all void ; but the common law is a nursing 
 mother, making only void where the fault is, and preserving 
 the rest." ^ But even the common-law rule, which puts such 
 a construction upon a transaction as to sustain the legal, and 
 reject the illegal part, is only applicable to cases where, from 
 the nature of the act, a severance of the good from the bad part, 
 can be made. A severance is impossible in the case of an ille- 
 gal tax. 
 
 The same principle was applied in Wallingford v. Piske,^ 
 where several parcels of land lying in one township were as- 
 sessed together as one tract, for the year 1813, and assessed 
 separately for the years 1814, 1815, 1816,. and 1817, and the 
 whole were sold en masse for the five 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 proceedings, or it cannot be 
 sustained? Especially must it conform to the list, as that con- 
 stitutes the basis of all the subsequent proceedings. The course 
 pursued must be consistent with itself throughout the entire 
 proceeding. Any variance in this respect will be fatal to the 
 validity of the sale. The reason is obvious ; the authority of the 
 officer to sell is derived from the existence and regularity of 
 the anterior proceedings. If those proceedings are irregular, 
 
 1 Dwarris Stat. 739 ; Hobart, 14 ; 2 Wilson, 351 ; 1 Saunders, 66, a ; 8 East, 
 231,236; 11 East, 165 ; 13 East, 87; 15 East, 440; 7 T. R. 201; 8T. E. 411 ; 
 5 Taunton, 727 ; 5 New Hampshire, 196 ; 6 New Hampshire, 225 ; 1 Johnson, C. 
 B. 339; 8 Johnson, 253; 14 Johnson, 458, 465; 5 Cowen, 162, 548; 15 Massa- 
 chusetts, 159 ; 3 Bibb, 500. 
 
 2 24 Maine, 386. 
 
 P In Clarke v. Strickland, 2 Curtis, C. C. 439, it was said that, under a power 
 to sell land, a sale of all " the right, title and interest " of the party is not the same 
 thing.] 
 
 24* 
 
282 OF THE SALE OF THE LAND. 
 
 he possesses no authority at all ; if regular, the law confers 
 upon him uo power to change them. He acts at his peril in 
 making a sale if they are irregular, and if regular, they consti- 
 tute 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. Willey v. Scoville was a case where nine ten-acre 
 lots were assessed en masse, instead of severally ; the sale, on 
 the contrary, was a several one, for the tax due upon each lot, 
 and it was held void. In Andrews v. Senter,^ it appeared that 
 two lots were listed and advertised for sale separately, but the 
 collector — as it appeared from his return of the sale — sold 
 them together for the aggregate sum due. upon both, and the 
 sale was held void. The same principle was sustained in Mor- 
 ton V. Harris.^ 
 
 And in Wallingford v. Fiske,* which was a writ of entry, 
 wherein the defendant claimed under a tax sale, it appeared 
 that all of the several parcels of land lying in township number 
 three were listed and assessed in the names of the several owners. 
 The warrant stated the gross sum due upon the whole township, 
 the return of sale showed a sale of the entire township 
 to three persons for the sum of $68.53, and the execution and 
 delivery 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 incon- 
 venience should arise from advertising and selling in gross, dif- 
 ferent 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 
 
 1 Pitkia V. Taw, 13 Elinois, 253 ; Willey v. Scoville, 9 Ohio, 43. 
 
 ■■^ 32 Maine, 394. 
 
 » 9 Watts, 319. See also, Woodbura v. Wireman, 3 Casey (Penn.), 18. 
 
 « 24 Maine, 386. 
 
OF THE SALE OF THE LAND. 283 
 
 avoiding the disputes which would grow out of a claim for con- 
 tribution, where one tract was burdened with the taxes upon 
 itself and others also.' Each right, number of lot, or division, 
 must be advertised and separately sold at public auction." It 
 is also held, that the fact that the several lots, tracts, or parcels, 
 belong and are assessed to the same person, does not dispense 
 with the law, or excuse a deviation from it.^ The law contem- 
 plates a sale in legal sub-divisions, 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 .thiis destroy 
 the legal identity of a parcel of land, known to the law only 
 by specific metes and bounds. 
 
 10. Where a tract of land is assessed against tenants in com- 
 mon, and one of them pays the tax on his undivided share, the 
 interest of the other may be sold to satisfy the residue of the 
 assessment.^ 
 
 11. The question has been raised in several cases, but not de- 
 cided,* whether, where the law is silent as to the mode of locat- 
 ing the land sold, it is competent for the officer to sell and con- 
 vey 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 residue ; and 
 also, whether a sale of the undivided moiety can be sustained." 
 There would seem to be no difficulty in answering these ques- 
 tions. The only instance where a tenancy in common can be cre- 
 ated by mere operation of law, is wliere 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 
 
 I 1 13 Pickering, 492. 
 
 ■ 2 Shimmin v. Inman, 26 Maine, 228. 
 
 ^ Eonkendorff v. Taylor, 4 Peters, 362 ; Payne v. Danley, 18 Arkansas, 441. 
 
 [* But it has recently been held, that if the deed describes the land merely as so 
 many acres of a certain lot, which contains much more land, it passes an undivided 
 interest in such lot, equal to the proportion which the number of acres sold bears to 
 the whole number of acres in such lot. Sheafe v. Wait, 30 Vermont, 735. See 
 Gibbs V. Swift, 12 Gushing, 393.] 
 
 6 Currie v. Powler, 5 J. J. Marshall, 145 ; Waldron v. Tattle, 3 New Hampshire, 
 340. 
 
284 OF THE SALE OF THE LAND. 
 
 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 with the 
 general principles of law relative to the origin of such rights, 
 but because, as we have already seen, the officer who executes 
 the power of selling land for taxes can exercise no implied 
 power whatever. He acts in hostility to the owner of the es- 
 tate, and not as his agent, and he must pursue his authority 
 literally. 
 
 There is, however, no statute regulating this class of sales 
 which is so ambiguous as to present such a question. The au- 
 thority usually conferred is to sell the land upon which the tax 
 is due ; or so much thereof as may be necessary to satisfy the 
 charge ; or to sell a certain interest less than a freehold out 
 of the estate ; or to sell to one who will bid the least quantity 
 to be located on a particular side of the tract, or in 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 pos- 
 sibly arise in the construction of the power of sale under the 
 character of statutes above indicated. All of them evidently 
 contemplate a sale of the entire tract, or interest of the party 
 against whom the tax is assessed, or a particular portion to be 
 designated by metes and bounds, or other certain description. 
 
 This question was directly decided in Loud v. Penniman.^ 
 The act of Congress of 1815 provided that where property, lia- 
 able to the direct tax, should not be divisible, so as to enable 
 the collector by a sale of a part thereof to raise the whole 
 amount of the tax, with all costs, &c., the whole should be sold, 
 and the surplus paid to the owner. The land in question was 
 susceptible of such a division as to bring the amount due, but the ■ 
 collector sold an undivided half of the tract ; and the sale was 
 held void. By the court : " The collector should have sold a 
 
 1 2 Blackstone Com. 192, 193. 
 
 2 19 Pickering, 539. 
 
OB THE SALE OF THE LAND. 285 
 
 part of the land, by metes and bounds, sxifficient 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 division, 
 the officer had no authority to sell an undivided part of it, but 
 only so much as would be sufficient to pay the tax, &c., to be 
 set off separately from the rest." It is not in the power of any 
 officer, acting under a special statute, to thrust a co-tenant upon 
 the owner of an estate in severalty against his will.^ 
 
 12. Where several parcels of land, belonging- to the same 
 person, are separately assessed, each parcel is liable for its own 
 specific tax and no more? Tlie Ijen 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 tliem 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 
 dependent 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. 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 as- 
 sessed in the name of Lane. The aggregate tax was f 33.95, 
 
 1 Hodge V. "Wilson, 12 Smedes & Marshall, 498. 
 
 [^ And the purchaser is entitled to a deed which so states the sale. Donahoe !;. 
 Bichardson' 21 Missouri, 420.] 
 
 P Bat even this is allowed by statute in some States. See Powers v. Barr, 24 Bar- 
 bour, 142.] 
 
 * 13 Pickering, 492. 
 
 ' 24 Mississippi, 431. 
 
286 OF THE SALE OF THE LAND. 
 
 for wliich 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, al- 
 though assessed to Lane, for the purpose of paying taxes due 
 by and assessed to Lane for other and different 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 officer de- 
 pends upon the phraseology of each particular statute. 
 
 The statute of New Hampshire required that so much of the 
 delinquent's estate should be sold, " as will be sufficient to pay 
 the taxes and incidental charges " upon it. In Ainsworth v. 
 Dean,^ the whole tract was offered and struck off to the first 
 bidder. The court held the sale void, saying : " No regard ap- 
 pears 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 considered as sufficient. The whole lot was 
 advertised and sold for the taxes and costs." [A similar decision 
 was made under a statute of Maine.^] 
 
 But in Ives v. Lynn,^ where it did not appear affirmatively 
 in the deed, or return of sale, tliat 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 presumption 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 
 concerned.* [The revised statutes of Massachusetts provided ^ 
 that the collector shall sell " so much of the real estate, as shall 
 
 1 1 Foster, 400. 
 
 2 Loomis V. Pingree, 43 Maine, 299. 
 ' 7 Connecticut, 505. 
 
 * See also, Tweed v. Metcalf, 4 Michigan, 579. 
 ' Ch. 8, § 28, 29. 
 
OF THE SALE OF THE LAND. 287 
 
 be sufficient " to discharge the tax and charges ; but if in the 
 opinion of the collector " any parcel of real estate cannot be 
 conveniently divided, and a part thereof set off, without injury 
 to the residue, he may sell the whole of the land itself," &c. 
 Under these provisions it was recently held, that the collector 
 could adopt only one of two courses ; either sell just enough to 
 pay the tax and charges, or, if in his opinion not capable of 
 division, sell the entire tract taxed ; he could not adopt a mid- 
 dle course and sell more than sufficient to pay the tax and 
 charges, but less than the whole lot taxed, unless it also ap- 
 peared that the lot actually sold could not be again divided 
 without injury to the residue.^] 
 
 The statute of Georgia provided that the collector should 
 sell the land of the defaulter, or " so mxich 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, Chig f 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 unquestionably 
 exceeded his authority." [And in Doane v. Chittenden,^ it 
 was held, that a sale of two tenements on one lot, owned and oc- 
 cupied by different persons, to satisfy a tax on the lot, less than 
 one-tenth of the value of one tenement, is an abuse of the dis- 
 cretion of the levying officer and is void.] 
 
 And where the statute was silent as to the quantity which 
 might be offered and sold to pay the taxes, the Supreme Court 
 of Indiana held, that upon general principles, a sale of a greater 
 
 1 Crowell V. Goodwin, 3 AUen, 535. But this rule was changed by the Gen. Sts. 
 ch. 12, § 33, it then being left entirely to the collector's option to sell the whole or 
 any part of the estate. 
 
 2 4 Cranc6, 403. 
 
 8 25 Georgia, 103. 
 
288 OF THE SALE OF THE LAND. 
 
 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.i 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 for the 
 purpose. It rests upon principles of obvious policy, and uni- 
 versal justice." This is clearly the correct rule of law. It was 
 held in Woddye v. Coles,^ that where a sherifiF, under an exe- 
 cution for five shiUings, seized and sold five oxen, each of the 
 value of five pounds, he became a trespasser ab initio. 
 
 And it has been repeatedly decided, in this country, that an 
 excessive levy and sale of personal property subjects the of&cer 
 to an action .3 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 principle 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 derived from a statute, without the 
 intervention of judicial proceedings, and where the greatest pos- 
 sible degree of strictness has always been regarded as " whole- 
 some 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 suc- 
 cessors in office." In the case of Register v. Bryan,^ the plain- 
 tiff claimed a whole tract, under a tax sale made in violation 
 of this law, and his title was held to be absolutely void; 
 
 1 O'Brien v. Coulter, 2 Blackford, 421. 
 
 " Noy, 59. 
 
 ' 8 Johnson, 333 ; 18 Johnson, 562 ; 1 Johnson, 502. 
 
 * Isaacs V. Gearheart, 12 B. Monroe, 231 ; Tiernan v. Wilson, 6 Johnson, Ch. 411. 
 
 6 2 Hawks, 17. 
 
OP THE SALE OF THE LAND. 289 
 
 not only against the governor, but also as against the former 
 owner. 
 
 The statute of Mississippi declared that the collector " shall 
 not sell, in any one lot, more than the eiglith of a section ; but 
 if one lot will not sell for the amount of the taxes due, and the 
 costs and charges that have accrued, as many lots of that quan- ^ 
 tity may be sold as will be sufficient to pay the amount due, 
 &c." In Hodge v. Wilson,i 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 re- 
 versed in the High Court of Appeals. The judges, though con 
 cnrring in the reversal, did not jigree upon all the points arising 
 in the case. On this point they all agreed, namely : "That the 
 collector should have designated the particular eighth which 
 was first offered. He cannot sell an undivided interest, and 
 make the purchaser a tenant in common with the original 
 owner; nor- can he, by so selling, give the purchaser choice 
 of the tract or parcel purchased. He is directed to sell in sep- 
 arate lots of an eighth of a section, and not an undivided in- 
 terest ; 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. If 
 one will not sell, another must be offered, and so on until the 
 whole has been offered in separate lots." The opinion of Judge 
 Thacher upon this point was, that " if the first eighth will not 
 sell, it is to be offered with the next eighth, and so on until the 
 amount of the tax is bid." And the conclusion at which Judge 
 Clayton arrived on this question was, that " when the first part 
 is sufficiently designated, and is not sold, then the part so offered 
 and refused may be added to the next, and so on, until a sale 
 is effected, or the sheriffmay offer each sub-division separately." 
 
 1 12 Smedes & Marshall, 498. 
 
 25 
 
290 OF THE SALE OF THE LAND. 
 
 The reasoning of the Chief upon this debatable point " was de- 
 signed to prevent the sale of more land than was actually neces- 
 sary, or in other words, to collect the taxes by the sale of as 
 little as possible, observing the legal sub-divisions of sections. 
 It is founded on 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 injustice or 
 oppression. It must protect, and not sacrifice, their rights ; 
 and all its exactions must be made with the least possible en- 
 croachment on individual rights. But for this law, the collector 
 would have been left free to exercise his discretion ; but this 
 law prescribes a limit." In Boisgerard v. Johnson,i the princi- 
 ple established in Hodge v. "Wilson was re-affirmed, and on the 
 debated point, the opinion of Thacher was sustained.^ 
 
 The act of Congress of May 4, 1812, for the government of 
 Washington City, provided " that unimproved lots in th^ city of 
 Washington, on which two years' taxes remain due and unpaid, 
 or so much thereof as may be necessary to pay such taxes, 
 may be sold, at public sale, for such taxes due thereon." In 
 case of the Corporation of Washington v. Pratt,^ tliis question 
 was made upon the statute : "Whether, where several lots 
 belonged, and were assessed to one person, and two years' taxes 
 were due on every one of them, it would be lawful to sell one 
 of the lots to pay the taxes due upon all, or each lot would 
 be- liable only to be sold to pay the tax due on itself." To 
 which Judge Johnson responded : " This question, thus stated, 
 does not admit of a general answer. That each lot stands 
 encumbered with no more than its own taxes, and the lieu upon 
 each is several and distinct, results, not less from the provis- 
 ions 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 purchaser from him 
 
 1 23 Mississippi, 122. 
 
 2 See further upon this question, Baskins v. Winston, 24 Mississippi, 431 ; Doe v. 
 Strong, 1 Tyler, 191. 
 
 8 8 Wheatou, 686. 
 
OF THE SALE OF THE LANB. 29 L 
 
 would not, by the act of transfer, hold his purchase disencum- 
 bered of its own particular taxes, either absolutely, or upon 
 the contingency of the remaining lots of his rendor being 
 adequate to the satisfaction of the taxes due on the whole. 
 Nor would the purchaser of a single lot hold his purchase en- 
 cumbered with the taxes due on the whole mass of lots held by 
 the vendor : each would have the right to redeem upon paying 
 the taxes assessed on his own particular purchase, and would 
 hold his purchase subject to such .taxes. The provisions of the 
 act are clearly intended to raise the tax of each lot from itself ; 
 the words are, so much thereof, not so many, as they must 
 have been after speaking of ' unimproved lot^,' had it been 
 intended to authorize the sale of some for the taxes of others ; 
 and not the sale of each one, or ' so much ' as is necessary of 
 each one, for the payment of its own taxes. Applying the 
 enacting words to the case of an owner of a single lot, and the 
 effect of the word ' much ' can only be to authorize a sale of 
 part of a lot, whenever circumstances 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 num- 
 ber, subsequent to the date of the assessment, from the owner 
 in whose name they were all assessed, holds his lot or lots 
 unencumbered with the taxes due on the other lots, the title to 
 which remains in his vendor. 2. And where all of the lots, 
 thus assessed to one proprietor, remain in his hands until the 
 sale takes place, if the sale of one or more of the lots, and less 
 than the whole number, produces enough money to satisfy the 
 tax due upon the whole, the collector will not be justified in 
 proceeding to sell the residue. Another statute was enacted, 
 relating to the same city, on May 15, 1820, providing " that 
 improved or unimproved property, or so much thereof, not less 
 
292 OF THE SALE OF THE LAND. 
 
 than one lot, as may be necessary to pay the taxes, &c., maybe 
 sold, &c. ; " and still another act, passed May 26, 1824, pro- 
 vided " that it shall be lawful for the said corporation, where 
 there shall be a nnmber of lots assessed to the same person or 
 persons, to sell one or more of such lots for the taxes and ex- 
 penses due on the whole ; and also to provide for the sale of 
 any part of a lot, for the taxes and expenses due on said lot, 
 or other lots assessed to the same person, as may appear expe- 
 dient, according to such rules and regulations as the said cor- 
 poration may prescribe." 
 
 In Mason ■;;. Fearson,i -^^rhich 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 ap- 
 praised at $1,783 ; the tax assessed upon them was $64.94 ; they 
 were all sold separately, the entire proceeds of the sale were 
 $705 ; and the lots first 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 Corporation of Washington v. Pratt, and the language 
 of the act of 1824, not only permitted the collector to stop the 
 sale when the bids covered the taxes and expenses due upon 
 all of the lots, but that it was his 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 discretion, 
 the sale of all can be vindicated as legal ; that the intention 
 was not to give a power which the city must, but which they 
 might exercise ; and that the owners might have saved their 
 property by redeeming from the sale." To which the court 
 
 1 9 Howard (TJ. S.), 248. See Thompson v. Carroll, 22 Howard (U. S.), 422. 
 
OF THE SALE OP THE LAND. 293 
 
 reply: " 1. That it was the design of Congress to prevent sac- 
 rifice and speculation. 2. That what a public corporation or 
 officer is empowered to do for others, and it is beneficial to them 
 to have done, the law holds ought to be done ; the word ' may,' 
 in such cases, is imperative, and not permissive merely. 3. 
 That the argument that the owners might have preserved their 
 rights by redemption, is entitled to but little force, when the 
 same oversight, accident, or misfortune which prevented the 
 seasonable payment of the tax, would probably defeat a redemp- 
 tion ; and when the argument, if sound, would apply to every 
 other defect in a tax sale ; if such views were to prevail, the 
 only remedy of the owner, against an illegal sale of his prop- 
 erty, would be to redeem from it. But instead of such a loose 
 constructive leniency towards a purchaser 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 purchaser setting up a 
 new title in hostility to the former owner, is not to "be favored, 
 and should have looked into- it with care before buying, and not 
 expect to disturb or defeat old rights of freehold, without show- 
 ing 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 tlieir validity, when the pro- 
 ceedings were manifestly irregular, namely, that the " govern- 
 ment must collect her revenue," — "let the owner pay his 
 taxes promptly, or redeem from the sale." 
 
 No one denies that the necessities of the State demand a 
 periodical and adequate supply of revenue ; that she possesses 
 the power to assess it ; that it is the duty of the citizen to pay 
 it, and that promptly ; that if he fails in the performance of 
 this duty, the State has a right to resort to adequate coercive 
 
 25* 
 
294 OF THE SALE OF THE LAND. 
 
 remedies ; that the sale and conveyance of the land of the 
 deUnquentto one who is willing to advance the tax, is a legit- 
 imate exercise of sovereign power ; that such a sale and con- 
 veyance will, if regularly made, vest an absolute title in the 
 grantee, as complete and perfect in all respects, as a grant by 
 the Federal government of a part of the public domain. But 
 the great difficulty is that the State, in the exercise of her sov- 
 ereign 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 authorities — have so held ; 
 and the ignorance or negligence of the officers intrusted with 
 the execution of the power, has thus far defeated the manifest 
 design of the law. The remedy is obvious. Let the revenue 
 laws be plain and simple — dispense with all useless and un- 
 meaning forms and technicalities which encumber the present 
 system. Give to the officers who execute the power, informa- 
 tion, to enable them to perform their duties ; and when the 
 law is once perfected, and the officers have become familiar 
 with the routine of their duties under it, let it stand upon the 
 statute book, and abandon the system of annual changes in the 
 details of the law. When these suggestions are acted upon, or 
 some more feasible plan adopted, then will a tax title cease to 
 be a by-word among land-owners and land-dealers. Then will 
 courts no longer remark, in opening the discussion of a tax 
 cause, " this title is of that kind almost proverbially known as 
 a collector's title, as expressing a case of doubt and difficulty." ^ 
 Then no court will declare a tax title prima facie void, and 
 become " astute " in searching for defects in them. Then lib- 
 eral principles will prevail in testing their validity, and the or- 
 dinary presumptions made to sustain them. And then, and 
 not till then, will land-owners look to it at their peril that their 
 
 ^ 10 Massachusetts, 105. 
 
OP THE SALE OF THE LAND. 295 
 
 taxes are promptly paid, or (if by oversight they suffer the day 
 of sale to pass by) be vigilant in effecting a redemption. As 
 things now stand, a tax title is no title at all. Out of the nu- 
 merous sales made under the acts of Congress between the 
 years 1800 and 1818, not a single one has been sustained ; and 
 not exceeding ten, under the laws of the several States, out of 
 at least twelve hundred which 'have found their way to the 
 superior courts of the country. Experience seems to have 
 thrown but little light upon the subject, and the legislature 
 have been unable to keep pace with the ingenuity of the bench 
 and bar in discovering defects in tax sales. 
 
 14. Where, after au assessment is made, the county in which 
 the proceeding was had is divided, the collector of the old 
 county has power to sell land lying in the territory embraced 
 in the newly created county .^ This is in conformity with the 
 general principles of law in analogous cases.^ 
 
 The law relative to fraudulent sales and the location of the 
 land sold, will be examined in subsequent chapters. 
 
 1 Devor v. McClintock, 9 Watts & Sergeant, 80. 
 
 " 5 Watts, 87 ; 16 Ohio, 466 ; 17 Ohio, 135-U3 ; 16 Massachusetts, 86 ; 4 Mas- 
 sachusetts, 389 ; 6 J. J. Marshall, 147 ; 4 Halstfad, 357. 
 
296 OF THE CBKTIFICATE OF SALE. 
 
 CHAPTER XVI. 
 
 OF THE CERTIFICATE OF SALE. 
 
 When a sale is made, the officer usually executes and deliv- 
 ers 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 
 owiier shall within twelve months from the time of the sale, 
 pay or tender to the purchaser, &c., the purchase-money and 
 twelve per cent, interest thereon, such deed shall be void, and 
 shall be delivered up to the person paying or tendering the 
 money, &c."^ 
 
 In other States, the officer, immediately upon the receipt of 
 the purchase-money, is authorized to execute and deliver to the 
 purchaser a deed conveying the land to him, which vests an 
 absolute estate in the purchaser on condition that the owner 
 does not redeem the same within the time prescribed by law. 
 In all of these cases the purchaser acquires only a contingent 
 interest in the estate purchased, liable to be defeated in the 
 
 1 Rice V. White, 8 Ohio, 216 ; People ex rel. Seaman v. Hammond, 1 Douglass, 
 276 ; Reeds v. Morton, 9 Missouri, 878 ; Bruce v. Schuyler, 4 Oilman, 221 ; Silli- 
 man v. Frye, 1 Gilman, 664. 
 
 " Ives V. Lynn, 7 Connecticut, 505. 
 
OF THE CERTIFICATE OF SALE. 297 
 
 event of a redemption, and if no redemption is made, an abso- 
 lute and indefeasible title becomes vested in him. 
 
 In the cage of the People v. Hammond, ^ which was a pro- 
 ceeding by mandamus, the facts were, that the relator purchased 
 a parcel of land, at a tax. sale held October 5, 1840, and re- 
 ceived 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 redeeming from the first sale 
 had expired, the land was again sold for taxes, aud bid off by 
 a stranger for a sum largely exceeding the taxes, interest, and 
 costs chargeable thereon, which surplus was by law required to 
 be deposited with the State treasurer, " to the credit of the 
 proper owner or claimant " of the land. The auditor-general, 
 upon this state of facts, refused, on the application of the 
 relator, to draw a warrant on the treasurer for the surplus. 
 The court refused to award a peremptory mandamus. Ransom, 
 C. J. : " In that statute (1833), whenever mention is made of 
 the person who buys lajid at a tax sale, he is denominated 
 the purchaser, and no title whatever to the land sold vests iu 
 him. until at the expiration of two years he receives the treas- 
 urer's deed, ' which conveyance,' says the statute, ' shall vest 
 in the person who receives it an absolute estate in fee-simple.' 
 Prior to that conveyance he has only a lien upon the land for 
 the repayment of the amount of the tax paid, 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 
 
 1 1 Douglass, 276. 
 
298 OF THE CERTIFICATE OF SALE. 
 
 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 purchase 
 was thereupon executed, and delivered to him by the collector, 
 in due form of law, that before the execution of the deed, 
 Wetmore died intestate, and his executors assigned the certifi- 
 cate to Edwin Wetmore, 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 equitable title to the land, and 
 enables the purchaser to call in the legal title. And it savors 
 so strongly of the realty, that, in our opinion, it descends to 
 the heir, and is not assets in the hands of the executor. The 
 act prescribing the duties of the county auditor, provides that 
 such certificate shall be assignable in law, and vest in the 
 assignee, or his legal representatives, all of the right and title 
 of the original purchaser. The words ' legal representatives,' 
 used as they are in connection with the certificate of purchase, 
 or evidence of realty, we construe to be the heir to whom the 
 realty descends. It follows, then, that the heir only could 
 legally transfer the certificate of purchase, and, consequently, 
 no legal title is vested in the plaintiff's lessor by the deed, 
 which is predicated upon a void assignment." This decision is 
 undoubtedly correct ; the certificate of purchase at a tax sale, 
 stands upon the same footing with a certificate of entry, under 
 the laws of the United States, or a certificate of purchase, exe- 
 cuted by the sheriff, upon a sale of land under execution ; and 
 it has uniformly been held, that they vest in the purchaser an 
 
 1 8 Ohio, 216. 
 
OF THE CERTIFICATE OF SALE. 299 
 
 equitable interest in the land itself, and do not simply consti- 
 tute a chose in action, or a chattel interest. On the death of 
 the holder, they descend to his heirs. And the construction 
 which the Supreme Court of Ohio place upon the words " legal * 
 representative," is in conformity with the decisions in analo- 
 gous cases. 1 
 
 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 con- 
 tract between the State and the purchaser, repeal the authority 
 of the officer to ezecute and deliver a deed to him.^ Nor can 
 the legislature extend the time of redemption, after the rights 
 of the purchaser have attached. Those rights attach when his 
 bid is accepted, and he pays the purchase-money, and the stat- 
 ute then in force constitutes the law of his contract ; by it , 
 alone are his rights and duties to be determined.^ The certifi- 
 cate vests such an interest in the purchaser, that when the time 
 fixed for redemption has expired, and the officer improperly 
 refuses to clothe the purchaser with the legal title, a mandamus 
 will be awarded at the instance of the purchaser, to compel the 
 execution of a deed.* Where the law requires the purchaser 
 to record his certificate or lodge his deed in a particular office, 
 with the evident design of giving notice of the sale to the 
 former owner, the requisition must be strictly complied with.^ 
 In most of the States, the certificate of purchase is made as- 
 signable in law, and the officer authorized to convey, is directed 
 to execute and deliver the deed to the assignee. 
 
 The nature and extent of the interest of one who purchases 
 land at a tax sale, prior to the time limited for a redemption, 
 present some highly important questions, and may be apprppri- 
 
 ' Delaunay v. Burnett, 4 Gilman, 454 ; Grand Gulf Railroad & Banking Co. v. 
 Bryan, 8 Smedes & Marshall, 234 ; 4 Missouri, 333 ; 5 Missouri, 147 ; 9 Missouri, 
 714 ; 3 Vesey, Jr., 486 ; 1 Yeates, 213 ; 2 Yeates, 585 ; 2 Dallas, 205 ; 6 Sergeant 
 & Eawle, 83. 
 
 2 Bruce v. Schuyler, 4 Gilman, 274, 278. 
 
 ' Dikeman v. Dikeman, 11 Paige, Ch. 484. 
 
 * Maxcy v. Clahaugh, 1 Gilman, 26. 
 
 '• Eeeds v. Morton, 9 Missouri, 878 ; Ives v. Lynn, 7 Connecticut, 505. 
 
300 OF THE CERTIFICATE OF SALE. 
 
 atelj considered in this connection. The general principles 
 which control estates, granted with conditions subsequent an- 
 nexed to them, are of occasional application in tliis class of 
 cases. A conditional estate is one which depends for its exist- 
 ence upon the hai^pening or not happening of some uncertain 
 event, whereby the estate may commence, be enlarged or de- 
 feated. Such an estate may 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 pre- 
 cedent 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 may be defeated. The usual practice 
 on the making of the sale, is to deliver to the successful bidder 
 a certificate of purchase, with a proviso attached thereto, that 
 unless the sale is redeemed from, within the time limited by 
 law in that behalf, the purchaser will be entitled to a deed for 
 the land. But in several of the States, instead of this certifi- 
 cate, a deed is immediately executed and delivered to the pur- 
 chaser, conveying to him a present estate, with a redemption 
 clause annexed. And in all cases, the right of redemption is 
 preserved to married women, infants, lunatics, and others la- 
 boring under special disabilities. In each of these instances 
 the estate may be said to be granted in prcesenti, but liable to 
 be defeated upon a 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 
 estates becomes ipso facto discharged of the condition ; if the 
 sale is redeemed from, the estate of the tax purchaser is de- 
 feated. Until a -redemption takes place, the grantee under the 
 tax sale (after the delivery of the deed to him) may be re- 
 garded as the owner of the estate, at least so far as strangers 
 are concerned. He may m.aintain 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 es- 
 tate ; and generally, do'any act consistent with the nature of his 
 title. It is presumed, however, that he cannot himself commit 
 
OF THE CERTIFICATE OF SALE. 301' 
 
 wastei, 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, for the complainant, in Such a case, 
 to bring into court with his bill, the amount necessary to redeem 
 the estate.. On the other hand, the tax purchaser may sustain 
 a bill to enjoin the former owner, or those acting under his 
 license, from the commission of similar acts of waste or de- 
 struction ; 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 maintain an action of tres- 
 pass quare clausum f regit against the former owner for cutting 
 timber upon the estate, is, to say the least, a debatable point. 
 Until the redemption takes place, he is the owner of the estate 
 undoubtedly. But has he all of the rights incident to an owner- 
 ship in fee ? Has he a right to take possession, and make im- 
 provements upon the land ? If timber land, may he clear, fence, 
 and cultivate it ? These and similar questions are somewhat 
 embarrassing. One thing, however, is certain ; his possession 
 would not be adverse to the true owner until the time of re- 
 demption expired ; and consequently the statute of limitations 
 would not run in his favor. He is in without the consent of the 
 true owner, and against his will ; but he holds the possession 
 in subordination to the title of the original proprietor, in case 
 a redemption is seasonably made. If the owner does not re- 
 deem, the possession may be regarded as adverse, and having 
 relation back to the date of his entry, even as against the former 
 owner. But suppose a redemption takes place within the time 
 limited, is the possessor under the tax title entitled to compen- 
 sation in equity for his improvements, or is he to be regarded as 
 having made them at his peril ? Is the former owner entitled to 
 an account of the rents and profits of the estate while in the 
 occupancy of the tax purchaser ? Has he any remedy for 
 waste, spoil, or destruction ? When the redemption takes place, 
 can it have any retrospect, so as to make the tax purchaser a 
 trespasser under any circumstances, or does it operate like the 
 
 26 
 
802 OF THE CEKTIFICATB OF SALE. 
 
 performance of any other condition subsequent annexed to an es- 
 tate ? These questions must necessarily arise in the investigation 
 of the rights acquired under the taxing power of every State ; 
 and without attempting the solution of them, or anticipating 
 the decision of the courts when they do arise, it may be re- 
 marked, that the analogy is complete between an estate at com- 
 mon law, with a condition subsequent attached to it, and the 
 title of a tax purchaser after the delivery of the deed to him, 
 and prior to the time when the right of redemption, by those 
 laboring under disabilities, has expired ; and it would seem that 
 the same principles are applicable to each. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 303 
 
 CHAPTER' XVII. 
 
 OF 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 tliqse acts which the law requires to be performed after 
 the sale has been made, in order to vest the estate in the pur- 
 chaser. In the language of Judge Cowen, these conditions, 
 " if looked to in their chronological order, are indeed conditions 
 subsequant ; but for the purpose of giving effect to the deed, 
 they are conditions precedent, to all intents and purposes, and 
 without showing affirmatively the literal performance of them, 
 the deed is mere waste paper." ^ 
 
 The statutes of several of the Stat.es require either that the min- 
 isterial officers of the law, or the purchaser, shall, within a lim- 
 ited time after the sale has taken place, perform certain duties 
 or acts intended for the protection of the former owner, the non- 
 performance of wliich 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 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 re- 
 deem, actual or constructive, to the former owner. Of each of 
 these in their order. 
 
 1 Bush V. Davison, 16 Wendell, 554. 
 
 P In Michigan it has been held, that the sale was not Toid merely because the town 
 treasurer failed to make a statement under oath of all money collected by him, and 
 file the same with the county treasurer. Tweed v. Metcalf, 4 Michigan, 579.] 
 
304 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 Where the law requires the officer who made the sale, to re- 
 turn a history of his proceedings, it must be done at the time 
 and in the manner prescribed', or the sale is invalid.i The re- 
 turn must show the description of the land, the name of the 
 purchaser, the time of the sale, and all-other particulars con- 
 nected with it which the law requires. The object of this leg- 
 islation is to perpetuate the facts' attending the transaction, to 
 enable the owner to learn from the record the fact that his land 
 has been sold, and to guide the officer intrusted with the power, 
 in the execution and 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 officer, to ascertain with certainty the fact of sale, and 
 protect his interest in the premises by a redemption, or at his 
 peril contest the validity of the proceedings. And the officer 
 intrusted with the power of making the conveyance, is. 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 analogous to the return upon 
 an execution, and stands upon an entirely different footing. 
 There the authority of the officer is derived from the judgment 
 and execution, and no neglect in advertising, no irregularity in 
 the sale, or subsequent 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 evi- 
 dence of it. Such are the principles which govern the sales of 
 shei'iffs under executions.^ It- is very different as regards the 
 retiirns of collectors, under the revenue laws. There are no 
 parties to the proceeding but the State, officer and purchaser. 
 The owner is neither a party nor privy. The proceeding is 
 
 ^ See Lane v. James, 25 Vermont, 481 ; Green v. Craft, 28 Mississippi, 70. 
 J' 4 Wlieaton, 500; 2 Binney, 401 ; 1 Cowper, 18; 10 East, 73; 8 Johnson, 52. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 305 
 
 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 i"n selling and 
 making his return, and the owner in determining whether he 
 will redeem, or contest the title of the purchaser, as shown by 
 the return. The return is essential to enable the owner to de- 
 termine upon his course of action, and as it is beneficial to 
 him that a return should be made, that return becomes an im- 
 portant prerequisite, and unless it is made within the time, and 
 in the mode prescribed by law, no title can pass to the purchaser 
 at the sale. Besides, the proceeding is stricti juris, and, upon 
 general principles, the law gives an action against the officer 
 for making a false return, and unless that return is made, the 
 owner is 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 particulars connected with it, except in 
 those States where a register of the sale is made and kept by 
 the officer in whom the power of sale is vested, or by his legal 
 assistant. 
 
 Thus, the Illinois statute of February 27, 1833, requires the 
 sale to be made at the time and place designated, by the clerk of 
 the county commissioners' court, assisted by the sheriff, as 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 described 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 redeem such land, the date of re- 
 demption, and tjie amount of the redemption money," i and 
 transmit to the auditor of State a transcript of the same.^ And 
 under the act of Febriiary 26, 1839, where the sale is made by 
 
 1 Laws 1833, p. 530, sec. 6. 
 '^ Laws 1823, sec. 7. 
 
 26* 
 
306 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 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.i It is evident that the registry and return 
 are of importance to the former ovrner and purchaser, and also 
 to the officer who executes the deed, and through whom a re- 
 demption is effected. By reference to the register the owner can 
 be informed as to the time when the sale was made, the amount 
 for which the land sold, who made the sale, when and where 
 it was made, the quantity of his land sold, and every other fact 
 necessary to enable him to redeem or contest the regularity of 
 the proceedings. On inspection, the 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 
 officer ; thus ascertaining the legality of the transaction, and 
 the extent of the officer's liability to him. The registry, or re- 
 turn, is also the guide of the officer, when he executes his deed, 
 or the owner applies to redeem, and when the purchaser calls 
 upon him for the payment of the redemption money. And under 
 these statutes, the transcript of the sale, directed to be returned 
 to the auditor, was evidently intended for the benefit of non- 
 resident owners, by giving to them additional means of inform- 
 ing themselves of the fact of sale, and the particulars of it. In 
 every view of the subject, it is manifest that the return, or a reg- 
 istry of the sale, is beneficial to all parties in interest, and there- 
 fore becomes a substantial 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 
 
 1 Laws 1838, 1839, p. 15, sec. 36. 
 
 [« Andrews v. Senter, 32 Maine, 394 ; Pinkham v. Morang, 40 Maine, 588 ; Lane 
 V. James, 25 Vermont, 482. And in Maine, if tlie wliole tract is sold, the return 
 should state that it was necessary to sell the whole, or the sale is not valid. Lovejoy 
 <y. Lunt, 48 Maine, 377. And see Loomis v. Paissee, 43 Maine, 311.] 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 307 
 
 even if made in the time prescribed, it was void, for want of a 
 specification of the land ; " the owner could not ascertain from 
 it whether any, or what land of his had been sold." Under the 
 statute of New Hampshire, it was held, that the return must 
 show that the sale was made to the highest bidder. ^ 
 
 The Maine statute made it the duty of the collector " to re- 
 turn to the town clerk liis particular doings in the sale of un- 
 improved lands of non-resident proprietors, within thirty days 
 after the day of sale." In Shimmin v. Inman,^ the return was 
 in this manner : 
 
 "^HowLAND, February 6, 1836. 
 
 Charles Davis bought of Daniel Wood, collector, lots of land 
 as follows, namely : 
 
 Watercourse. 
 
 No. of the Lots. 
 
 Range. No. Acres. 
 
 Taxes and charges. 
 
 On Penobscot River. 
 
 16, 17, 18. 
 
 
 
 230. 
 
 $5.52. 
 
 Howland, February 10, 1836. 
 
 Daniel Wood, 
 Collector of Howland for the year 1835." 
 
 "Wiis return was held void because the description of the land 
 was indefinite. By the court : " The soundness of the argument 
 .cannot be admitted, that the neglect of the 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 Ante, p. 277. 
 
 2 26 Maine, 228. 
 
 * The only authority opposed to the doctrine of the text is that of Hollister v. 
 Bennett, 9 Ohio, 83. The statute of Ohio provided, that after malting the sale, the 
 collector should, on or before the first Monday in January then next following, trans- 
 mit to the auditor of the county " a list of all lots or parts thereof sold, also the pur- 
 chaser's name, &c." A further provision vi'as, that the collector should give a certifi- 
 cate 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 re- 
 turn was or was not made. By the court : " Whether this return was made in the 
 
308 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 The Connecticut statute required the collector " to give to 
 the piirchaser a deed of warranty thereof, to be lodged in the 
 ofiice of the town clerk, where the land lies, there to remain 
 unrecorded twelve months ; and if the owner shall, within 
 twelve months from the time of sale, pay or tender to the pur- 
 chaser, &c., the purchase-money and twelve per cent, interest, 
 such deed shall be void, and shall be delivered up to the person 
 paying or tendering the money, &c." 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 towii clerk, otherwise the right of redemption 
 cannot, or at least may not, be exercised, for deficiency of no- 
 tice. Neither the owner of the land, nor a purchaser, mor1> 
 gagee, or creditor, is bound to look anywhere but at the town 
 clerk's office, to get the requisite information of the facts, in 
 order to decide on the necessity or. propriety of redeeming the 
 estate sold. The deed in question was not executed until nearly 
 four years after the sale of the land by the collector. The 
 validity of the deed depending on a positive law not complied 
 with, it is undoubtedly void." 
 
 The statute of Vermont provided, that " every collector-slall, 
 within thirty days after completing the sale, &c., cause his pro- 
 ceedings 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 the 
 
 present case, we know not, as there is no evidence upon the point. It is not neces- 
 sary, however, that it should be done immediately after the sale. If it be made on the 
 first Monday of January 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 conformity 
 with law, vested a title in the grantee, and it would be rather extraordinary to hold 
 that the title could be divested by the failm-e of the collector to do an act which he 
 was subsequently bound to perform. 
 
 i 7 Connecticut, 505. 
 
 2 Richardson v. Dorr, 5 Vermont, 9 ; Giddings u., Smith, 15 Vermont, 357 ; Lane 
 V. James, 25 Vermont, 482. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 309 
 
 sale was completed July 31, 1789, and the proceedings were not 
 lodged until March 4, I8OO.1 
 
 The same doctrine was reaffirmed in Taylor v. French,^ 
 where the facts were, that all the lands upon the list were sold 
 August 24, 1829, but for some reason not shown the sale was 
 adjourned until October, 5, 1829. No sales were made on the 
 latter day, but the collector, finding that all of the sales had been 
 made, and no mistake being discovered, he adjourned the ven- 
 due without day, and on the 16th day of October made his re- 
 turn of the proceedings. The proceedings were held void be- 
 cause the return was not made within thirty days after the 
 completion of the sale. By the court : " It is said that the col- 
 lector had power to adjourn the vendue, and that therefore the 
 thirty days should commence running from the time it was ad- 
 journed without day. Vendue sales for land taxes are proceed- 
 ings in invitum, and we have always required a strict compliance 
 with the statute requisites. The statute is that the return shall 
 be made within thirty days gifter 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 com- 
 men'ce running when the sales are all completed ; and it matters 
 not when the vendue shall in form be finally dissolved. The 
 time begins to run when the sale is ended." 
 
 In Sumner v. Sherman,^ the law required the collector to 
 keep a record of his proceedings, and within thirty days next 
 after the ending of his vendue, lodge a true and attested copy 
 of his sales, together with his warrant, tax bill, and advertise- 
 ment, with the town clerk, whose duty it was made to record 
 the same. The collector failed to perform this duty, and the 
 tax sale was held void. Williams, C. J. : " This was calculated 
 to protect the purchaser, as well as the owners, whose lands 
 
 1 Mead v. Mallet, 1 D. Chipman, 239. 
 
 2 19 Venuont, 49. 
 
 3 13 Vermont, 609. 
 
310 OF CONDITIONS SOBSEQUBNT TO THE SALE. 
 
 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 re- 
 cords by the collector, or deeding -^^hen 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 de- 
 cisions in this State, it has been considered that a failure to do 
 so was fatal to the purchaser's title ; that, although the pur- 
 chaser has no control over the collector to compel him to leave 
 this copy, or over the clerk to compel him to record it, yet un- 
 less it is done, he can acquire no title, and if he has any remedy, 
 it is against the officer who neglects his duty. It has never been 
 doubted, that a failure to comply with what is enacted, must be 
 fatal to any title attempted to be acquired. Thus, it has been 
 considered that a neglect of the collector to record his proceed- 
 ings, to leave a copy of his warrant and advertisement, although 
 subsequent to the sale, or take the oath of office, and give bonds 
 when required to do so, was a defect which prevented any title 
 from passing by his sale." 
 
 Where the proceedings were required to be recorded " in. the 
 proper office for recording of deeds," and they were recorded 
 in separate books, provided for the special purpose, and not in 
 the regular books of the office, this was held to be a compliance 
 with the law.i 
 
 For the purpose of perpetuating the authority of the officer 
 to sell, and the regularity of his proceedings, the legislature in 
 some of the States have required such proceedings, or some 
 portion of them, to be recorded at length in a particular public 
 office. When the duty thus enjoined has been entirely neg- 
 lected, imperfectly performed, or not performed in the time re- 
 quired by the statute, the title derived under such proceedings 
 has been held void. The statute of Vermont directed the town- 
 
 ' Isaacs V. Shattuck, 12 Vermont, 668. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 311 
 
 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 re- 
 cords to ascertain whether a vendue is correct and valid, and 
 whether it is necessary for the owner to redeem. The records 
 must contain full and plenary evidence in this particular. 
 Hence it is obvious, that if the certificate of the town-clerk, as 
 to the publication of the advertisement, is omitted, there is no 
 legal evidence that the advertisement lias been published as re- 
 quired by law. The purchaser may find he has no title ; and 
 the owner may omit to redeem, inasmuch as his land has not 
 been legally sold." 
 
 In regard to' the manner in which the record is to be made 
 up by the officer, iipon whom the duty is devolved, the courts 
 are inflexible in requiring a rigid compliance with the require- 
 ments of the statute. The legislature of Vermont required 
 the collector, on the completion of his sale, to make a return of 
 his proceedings for record in the proper office for recording 
 deeds in his township ; and the town-clerk was directed to re- 
 cord the advertisements at length, together with the title, num- 
 ber, volume, and date of the newspaper in which they were in- 
 serted, and the place where such papers were printed. 
 
 In Culver v. Ilayden,^ the place of the publication of one 
 of the newspapers did not appear in the record made by the 
 town clerk, and the sale was' defeated for this omission. Turner, 
 J., said : " That the clerk should have made the statement of 
 the place where the paper was printed, a part of the record, 
 is a positive requirement of the statute, and a compliance with 
 this requisition must be regarded as a condition precedent to 
 the conveyance of a good title by the vendue deed. Where 
 property is affected, or the title to it divested, by the pro- 
 visions of a special act of the legislature, the requirements 
 
 1 18 Vermont, 470. 
 
 2 1 Vennont, 359; reaffirmed in Clark v. Tucker, 6 Vermont, 181. 
 
312 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 of the act must be strictly followed. lu the present case, the 
 operation of the special statute was to divest the defendant of 
 his property, on his failure to perform a duty created by the 
 statute, and on the performance of certain acts prescribed to 
 the officers required to collect the tax and record the proceed- 
 ings. 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 case, the record omitted the date of the newspaper 
 and its place of publication, and the sale was held void, the 
 court remarking : " These records are not evidence unless they 
 contain all the requisites pointed out by the statute. The stat- 
 ute is very particular in describing what shall be recorded, and 
 makes certified copies of the record, evidence. Those which 
 fall short of this description are not evidence." ^ Another re- 
 cord omitted the official signature of the collector to the adver- 
 tisement, which was attempted to be recorded at length, and for 
 this defect, the tax title was avoided.^ 
 
 In another case, the offices of collector and town-clerk were 
 held by the same person — Jonas Stone — and in certifying 
 upon the books of the town-clerk the verity of the record, he 
 signed his name thus, " Jonas Stone, Collector," and the tax 
 sale was declared illegal for this wrong designation.^ In an- 
 other case, the record of the advertisements was in the exact 
 form prescribed by law, but the clerk made his record from 
 copies furnished him from the collector's books, instead of from 
 the newspapers themselves, which the collector was required to 
 lodge with him. Tlie 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 
 
 1 Coit V. Wells, 2 Vermont, 318. 
 '^ Spear v. Bitty, 9 Vermont, 282 
 s Isaaes v. Sliattuek, 12 Vermont, 668. 
 
0¥ CONDITIONS SUBSBQUpNT TO THE SALE. 313 
 
 I 
 
 oifered 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 individual. 
 In the present case the record is two removes from the original 
 advertisements. The statute requires the clerk to record the 
 advertisements themselves. 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 compli- 
 ance with every requirement of the statute relating to the 
 record of the proceedings, yet intendments are occasionally 
 indulged in for the purpose of sustaining the validity of the 
 record. It is generally said that no presumptions are indulged 
 in favor of tax titles. " It is true that no essential requisite 
 will be 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 rec- 
 ord to state " the place where such paper was printed." The 
 record showed that the advertisement was " published at Wind- 
 sor." There was a town and comity in Vermont of that naine. 
 It was, insisted that the phrase " at Windsor " was equivocal, 
 but the court held otherwise. " We say at a town or .village, 
 but in a county or State. Prom 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 dispense with no 
 prerequisite which the statute fairly indicates, we hope -to 
 escape the imputation of frivolous and puerile criticism." * 
 
 '■ Carpenter v. Sawyer, 17 Vermont, 121. 
 " Taylor v. French, 19 Vermont, 49. 
 8 Spear v. Ditty, 8 Vermont, 419. 
 * Isaacs V. Shattuck, 12 Vermont, 668. 
 27 
 
314 OE CONDITIONS SUBSEQITBNT TO THE SALE. 
 
 I 
 
 Another objection taken to the record in this case, and over- 
 ruled, was that the law required the advertisement to be pub- 
 lished 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, volume, and place of publica- 
 tion, certifying that they were in the same form as the one 
 recorded. And lastly, it was objected that the proceeding was 
 recorded in a separate book, kept by the clerk for the record of 
 tax proceedings, whereas the law i-equired 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 containing deeds. But the court held the record 
 vahd. In Bellows v. Elliot,^ it appeared from the record that 
 the three newspapers in which the collector's advertisement 
 appeared, were published at Danville, Eutland, and Windsor, 
 but the State was not named, and the court presumed that 
 these towns were in Vermont. 
 
 Such is the nature of the duties imposed upon the officers, 
 which occur chronologically after the making of the sale, and 
 such the decisions of the courts in reference to the effect of the' 
 non-performance of them, with the exception of the iiling of 
 the . surplus bond, under the Pennsylvania system, which will 
 be noticed presently. It is now proposed to state the cases 
 arising uncjer those statutes where a duty is imposed upon the 
 purchaser himself, in order to perfect and protect his title, 
 after his purchase is consummated. 
 
 The statute of Missouri authorized the officer, making the 
 sale, to execute and deliver to the purchaser a certificate of the 
 sale, and required the purchaser to cause it to be recorded, and 
 if the sale was not redeemed from within two years, the officer 
 was then directed to deliver a deed to the purchaser, &c. In 
 Rpeds V. Morton ,2 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 
 
 '12 Vermont, 569. 
 ^ 9 Missouri, 878. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 315 
 
 and recorded June 28, 1834. The sale was held void. Scott, 
 J. : " If the certificate was not recorded .before the execution 
 of the deed, it could hardly have been of any avail to record it 
 afterwards. The recording of the deed answered all tlie pur- 
 poses 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 laud had two years, within which be 
 might have redeemed. Had the certificate of sale been season- 
 ably 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 instru- 
 ment 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 tliis neglect. But accord- 
 iiig to the principles above asserted (relative to the strictness 
 required in this class of cases), we do not feel called upon to 
 give reasons why this thing should have been done. He who 
 wishes to obtain an estate worth thousands, for less than ten dol- 
 lars, and under and by virtue of the law, is not to be permitted, 
 to ask why he should be required to do this or to do that. It 
 is an answer, that it is required by law. Ita lex scripta est. 
 He claims by the law : .then by that law let his pretensions be 
 judged. But this provision was designed as one of -the means 
 of communicating to the owner the fact that his land has been 
 sold. The placing of it on record after the time for redemp- 
 tion expired, was a nugatory act ; it should have been season- 
 ably recorded, and the failure to do so renders it void, and by 
 consequence, the auditor's deed." 
 
 Tlie 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 ofificer empowered to make the sale) , and execute 
 and deliver to that officer a bond for the payment of the sur- 
 plus, if any, to the owner of the land. The statute is not at 
 hand, and on account of the mode of reporting the cases which 
 have arisen under these statutes, it is impossible to state with 
 
316 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 accuracy the precise terms of the. law. The substance of them, 
 however, seems to be, tliat the treasurer shall prepare the bond, 
 that the purchaser shall execute it, and the treasurer file the 
 same forthwith in the office of the prothonotary ; 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 execu- 
 tion ; and it is presumed, from the language of the courts, and 
 the nature and object of the requirement, th'at 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 : 
 
 1. That the execution and delivery of this bond by the pur- 
 chaser to the treasurer, is a condition precedent to the validity 
 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 
 ' forthwith.' But the reason of the thing is sufiicient to show 
 what was meant. In thecase of an ordinary piirchase, the party 
 calling for the execution of the ■ contract, must, in the absence 
 of a positive stipulation, have performed, or at least, be ready 
 to perform every thing he was bound to do ; and the same prin- 
 ciple is applicable to cases of purchase at tax sales. The pur- 
 chaser 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 owne.r, 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 
 
 1 Sutton V. Nelson, 10 Sergeant & Eawle, 238. 
 
OP CONDITIONS SUBSEQUENT TO THE SALE. 317 
 
 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 tlie land itself, and to 
 make it the duty of the purchaser, at the peril of his title, to 
 see tha the has it. He might otherwise encumber the land, so 
 as to render a bond subsequently given, no security at all. 
 Besides, it would be unreasonable, and. what the legislature 
 never intended, to suffer bidders to turn the sale into a mere 
 experiment, and to hold to the contract or rescind it, as the 
 bargain 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 consid- 
 erable period, and to claim the land after the original owner 
 had enhanced its value by improvements. Tl>e law intended 
 that every transaction of this kind should be a real one, the 
 execution of the bo:ttd and deed being simultaneous, whereas 
 when the officer parts with the deed, without having obtained 
 the bond, the purchaser is to be considered as obtaining it sur- 
 reptitiously, because the of&cer transcends his power, and 
 under such circumstances the delivery is void." 
 
 And in McDonald v. Maus,i which was an action of eject- 
 ment, the plaintiff gave in evidence a legal and regular title in 
 himself, and the defendant relied upon a tax title. It was objected 
 to the latter title, that the defendant had given no bond to the 
 treasurer for the surplus of the purchase-money. There was no 
 positive evidence whether such a bond was given or not. But the 
 court below being of opinion that, whether there was proof of it 
 or not, the defendant's title was good, so instructed the jury, 
 who found a verdict accordingly, upon which judgment was 
 entered. The judgment was 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.^ Although subsequent cases have somewhat 
 limited this rule, so far as it regards the person whose duty it 
 
 1 8 Watts, 364. 
 
 ^ Sutton V. Nelson, 10 Sergeant & Eawle, 238. 
 27* 
 
318 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 is to file 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. With- 
 out this, the title is void, and cannot avail against the former 
 owner." This doctrine was reasserted in Donnell v. Bellas.' 
 
 The payment of the whole amount of the purchase-money to 
 the treasurer, cannot be taken as a substitute for the surplus 
 bond. The bond is a Hen on the land, for which the personal"' 
 security of the treasurer is not an equivalent. Even his sure- 
 ties 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. Willard,^ the purchaser gave bond at the time of 
 the sale, as required by law, but the bond was mislaid by the 
 treasurer, and was not found until seven years after, when it 
 was filed in the proper office. It was held by the court, that the 
 title of the purchaser became perfected, when he executed and 
 delivered to the treasurer the surplus bond contemplated by the 
 statute, Und 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 negligence not his own. For whose benefit is it 
 that the officers perform this particular duty ? Certainly for the 
 benefit of the former owner, who alone has a remedy against him 
 for a breach of it ; and this shows that the purchaser is not the 
 party to suffer by the officer's negligence. If, then, the pur- 
 chaser has performed his part by delivering the bond, he is not 
 chargeable with negligence in remaining ignorant of the officer's 
 omission, for seven or any other number of years. But, grant- 
 ing him to have beeii aware of the fact, yet not being a trustee for 
 any one, it was not his business to interfere, which is still more 
 conclusively shown by his total inability to control the officer's 
 
 1 1 Ban-, 341 . 
 
 2 Connelly v. Nedrow, 6 Watts, 451. 
 ' 1 Watts, 42. 
 
OF CONDITIONS SUBSEQUENT JO THE SALE. 319 
 
 actions." The same principle has' been affirmed in other 
 cases. ^ 
 
 2. To prove the execution and delivery of a surplus bond, 
 ■rests with the purchaser. And he must show, by satisfactory 
 proof, that the law, in this respect, has been strictly complied 
 with. Where diligent search has been made in the proper 
 of&ce, for the bond, and it cannot be found, and the testimony 
 of the treasurer, or a third person, is relied upon, to establish 
 the fact that a bond was executed and delivered by the pur- 
 chaser, the evidence must be clear and satisfactory in its char- 
 acter, 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 Assembly, is prima facie evidence 
 of the execution and delivery 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 facie 
 evidence, be deemed conclusive.* So a recital in the tax deed, 
 of the execution of a surplus bond, is held to be prima facie 
 evidence of that fact.^ 
 
 4. The bond must -contain a specification or particular de- 
 scription of the land sold, otherwise it is vicious, and the title 
 of the purchaser defective. The reason is, that the statute 
 makes the bond a lien for the surplus, upgn the land pur- 
 chased, and surely the bond cannot create a specific lien against 
 rights subsequently acquired, unless the land upon which it 
 was intended to operate is specifically described in it ; and the 
 indorsement of the description, by the treasurer, upon the back 
 of the bond, cannot aid it, as the officer's indors.ement is no part 
 of the instrument. The indorsement is a simple memorandum 
 for the convenience of filing it. The omission to describe the 
 land in the bond, is not simply a misprision of the treasurer. It 
 is true that the treasurer is charged with the business of prepar- 
 
 ■ 1 Burns v. Lyon, 4 Watts, 363. 
 '' M'J5onald v. Manus, g "Watts, 364. 
 2 Pager v. Campbell, 5 "Watts, 287. 
 ' Eobblnsou v. Williams, 6 Watts, 281. 
 * Devinney v. Reynolds, 1 Watts & Sergeant, 328. 
 
320 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 ing 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 e?;- 
 clusive business of the treasurer begins. Previous to the exe- 
 cution and delivery of the bond, the purchaser acts at the peril 
 of his title.i 
 
 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 minimis non 
 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.^ 
 
 6. The purchaser, in order to show that his bond covered the 
 amount of the surplus, may contradict the recital in the treas- 
 urer's deed, as to the amount of the surplus, by the sale-book 
 or other competent evidence.^ 
 
 7. In Burns v. Lyon* it was held, that common-law proof of 
 the execution of the surplus bond was unnecessary, that its ex- 
 ecution would be presumed, from the fact it was found among 
 the files of the prothonotary's office. 
 
 8. Secondary evidence of the existence and contents of a 
 surplus bond, is not admissible until its loss or destruction has 
 been established, in conformity with the principles of the com- 
 mon 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 any sale for taxes 
 or levies authorized by the laws of this State, shall be entitled 
 
 ' Bartholomew v. Leech, 7 Watts, 472. 
 
 ' Frick V. Sterrett, 4 Watts & Sergeant, 269 ; Devinney v. Reynolds, 1 Watts & 
 Sergeant, 328. 
 8 Turner v. Waterson, 1 Watts & Sergeant, 171. 
 
 4 4 Watts, 36.3. 
 
 5 Dreisbach v. Berger, 6 Watts & Sergeant, 564. 
 • Art. IX. see. 4. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 321 
 
 to a deed for the land or town lot so purchased, until he or she 
 shall have complied with the following conditions, to wit : such 
 purchaser shall serve, or cau'se to be served, a written notice of 
 sucli purchase, on every person in possession of such land or 
 town lot, three months before the expiration of the time of re- 
 demption 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 ex- 
 pire. In like manner, he shall serve on the person or persons in 
 whose name ot 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 iand or lot is 
 taxed do not reside in the county, such purchaser shall pub- 
 lish such notice in some newspaper printed in such county ; and 
 if no newspaper is printed in the county, then in the nearest 
 newspaper that is published in this State to the county in which 
 such lot or land is situated ; which notice shall be inserted 
 three times, the last time not less than three months before the 
 time of redemption shall expire. Every such purchaser, by 
 himself or agent, shall, before he shall be entitled to a deed, 
 make an affidavit of having complied with the conditions of this 
 section, stating particularly the facts relied on a^ such compli- 
 ance ; which affidavit shall be delivered to the person author- 
 ized by law to execute such tax deed, and whicli shall by him 
 be filed with the officer having custody of the records of lands 
 and'lots sold for taxes aud entries of redemption in the county 
 where such land or lot shall lie, to be by such officer entered on 
 the records of his office, and carefully preserved among the files 
 of his office ; and which record or affidavit shall be 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 section to publish a notice in a newspaper, then, be- 
 fore 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 re- 
 
322 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 ceive such redemption money, the printer's fee for publishing 
 such notice, and the expense of swearing or affirming to the 
 affidavit, and filing the same." 
 
 This is the first instance where the people in the exercise of 
 their inherent sovereignty have undertaken to legislate upon 
 tlie subject of tax titles. It will be perceived by a careful 
 analysis of this section, that it provides, — 1. That it shall ex- 
 tend to all tax sales made under the authority of the State, and 
 of counties and municipal corporations. 2. That the purchaser, 
 in order to entitle himself to a deed, must give -a written notice 
 of his purchase, to every person in possession of the land. 3. 
 That he shall serve a similar notice upon the person in whose' 
 name the la:»d 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 
 purchaseV is required to publish the notice in a newspaper 
 printed in that county. 5. If no newspaper is printed in the 
 county, then the notice is to be inserted in the nearest news- 
 paper published in the State, to the county in which the land is 
 situated. 6. That the actual notice to the occupant or person 
 in whose name the land was listed, must be served, at least 
 three months before the expiration of the time of redemption. 
 
 7. Thattlie ne.wspaper publicatioii must be inserted three times. 
 
 8. That the last insertion in the newspaper shall be at least 
 tliree months prior to the time when the redemption expires. 
 
 9. That 'the notice, whether actual or constructive, must contain 
 a statement of the time of the sale, a descriptipn of the land, 
 and the time when the redemption will expire. 10. That the 
 purchaser in person, or by his agent, must make affidavit of a 
 compliance with these requirements. 11. That such affidavit 
 must state particularly the facts relied upon as evidence of such 
 compliance. 12. That the affidavit thus required shall be de- 
 livered to the person authorized bylaw to execute the tax deed. 
 13. Tliat the deeding officer shall file it with the officer having 
 the custody of the records relating to tax sales and redemp- 
 tions. 14. That the latter named officer shall enter the affida- 
 vit upon the records of liis office, and shall carefully preserve 
 
i 
 
 OF CONDITIONS SUBSEQUENT TO THE SALE. 323 ' 
 
 the same among the files of his office. 15. That the affidavit, 
 when made in compliance with the requisitions of the constitu- 
 tion, shall be deemed, prima facie evidence that the redemption 
 notice has been duly given. 16. That perjury maybe assigned 
 upon a false affidavit made under this section. And, lastly, 
 ' When the owner, occupant, or other p»rson in interest, applies 
 to redeem, he or she must pay the expenses attending the pub- 
 lication of the notice and the proof of the same. 
 
 But few questions arising under this constitution have, as 
 yet, been litigated in Illinois. This organic law became oper- 
 ative on the first day of April, 1848. Some tax sales were 
 made after that period, upon assessments made during the pre- 
 ceding fiscal year, and the question arose upon a mandamus, to 
 compel the officer to make a deed to a purchaser, who had failed 
 to comply with the foregoing provisions, whether the constitution 
 embraced such a case. It was insisted by the counsel for the 
 tax purchaser, that the constitution did not apply to tax pro- 
 ceedings in fieri at the time it went into effect, but only to sub- 
 sequent assessments and sales. On the other hand, it was con- 
 tended that the constitution related only to sales and redemptions 
 under the revenue laws, and that its words and spirit required 
 the notice of the sale to be given, in all instances where a sale 
 took place after the constitution went into operation, whether 
 based upon a prior or subsequent assessment; that the pur- 
 chaser acquired no vested interest in the tax proceedings until 
 his purchase, which was after the constitution became oper- 
 ative ; and as he purchased with full notice of this require- 
 ment, he was bound to conform to it ; that the only interest 
 which he could possibly have in the proceedings anterior to the 
 sale, was in the maintenance of them according to the law in 
 force at the time they respectively took place, freed from the 
 legislative power of repeal by which a right acquired by him, 
 at a sale founded on those proceedings, might become divested ; 
 that the doctrine of relation could have no other effect than to 
 shield him from legislative spoliation, and. protect him against 
 rights acquired by third persons in the land purchased interme- 
 diate the assessment and sale. The mandamus was refused, 
 
e 
 
 324 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 and an appeal taken; but never prosecuted, so that the ques- 
 tion 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 anal- 
 ogous cases, that notice to the occupant and person, in whose 
 name the land was listad for taxation, should have been given 
 by the purchasers, at all sales made throughout the State, after 
 the adoption of the constitution, although founded upon assess- 
 ments for the preceding year. The question assumes great 
 importance, inasmuch as it affects most of the sales in Illinois 
 during the year 1848. To the argument already advanced, it 
 may be added, that the same objection which may be urged 
 against the retrospective operation of an ordinary Mw, cannot 
 be urged against a similar operation of a constitution wliich is 
 the fundamental and supreme law of the land — ordained by 
 the people themselves, who acknowledge no superior in a legal 
 sense • — especially as the provision in question docs not interfere 
 with the vested rights of any individual. 
 
 In Weer v. Hahn,^ the question came up as to the meaning 
 of the expression, " nearest newspaper," as used in the consti- 
 tution. The action was ejectment, in which the defendant 
 claimed under a tax title upon a sale made in 1850 for the 
 taxes of 1849. The land was situated in the county of Macou- 
 pin, the redemption notice was published in a newspaper called 
 the " Green County Banner," a paper published in the town of 
 Carollton, the county seat of an adjoining county; there was 
 no newspaper then published in the county where the land lay ; 
 it was proved upon the trial, that af the time of the publication 
 of the several redemption notices, newspapers were regularly 
 published in Hillsboro, Jerseyville, Edwardsville, and Alton, 
 towns situated in adjoining counties, each of which were nearer 
 to the boundary line of Macoupin than Carollton. Alton was 
 seven miles nearer. The court held the notice insufficient. 
 . Chief Justice Treat, after reciting the foregoing section of the 
 constitution, proceeds to say : " These constitutional provisions 
 
 1 15 Illinois, 298. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 325 
 
 are clearly designed for the benefit of the owner of real estate. 
 The principle is that he shall not be divested of his title by a 
 sale for taxes, unless he has, when practicable, personal notice of 
 the sale, and of the time when his right to redeem will expire. 
 To secure this object,, the purchaser is required to serve a writ- 
 ten 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 wilKexpire. 
 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 pub- 
 lished in the nearest newspaper to the county.. These require- 
 ments, being intended for the protection of the owner, must he' 
 strictly complied with in order to divest him of his title. They 
 are imperative, and cannot be disregarded. The purchaser is 
 not entitled to a deed until these precedent conditions are 
 strictly performed ; and if he succeeds in obtaining a deed 
 without such performance, the title of the owner will not 
 thereby be defeated. In this case the plaintiff, in whose name 
 the land was assessed, did not reside in the county, and no 
 newspaper was published therein. It was, therefore, incum- 
 bent 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 newspaper to the county in 
 which the land is situated. And the newspapers oHlie adjoin- 
 ing counties may not be equally near to the county where th© 
 land lies. The question, which is the nearest newspaper to the 
 county, must necessarily be determined by comparing the disr. 
 tances between the places of publication and the county line. 
 That is the only way of ascertaining the paper in which to give 
 the notice. In this case there were four newspapers published 
 nearer to the county than the one in which the notice was in- 
 serted. The notice should have appeared in the Alton paper, 
 
 28 
 
326 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 its office of publication being several miles nearer to the county 
 than that of the Carollton paper. The fact that the latter paper 
 had a respectable 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 m'ode 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 sheriif's deed necessarily fell for 
 want of a foundation upon which to stand." 
 
 There is a statute in New York which provides, that " when- 
 'ever any land, sold for taxes by the comptroller, and conveyed 
 as herein before provided, shall, at the time of conveyance, be 
 in the actual occupancy of any person, the grantee to whom the 
 same shall have been conveyed, or the person claiming under 
 him, shall serve a written notice^on the person occupying 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 a half per cent, on such an amount, and the further ad- 
 dition of the sum paid for the comptroller's deed ; and stating 
 also, that unless such consideration money and the said thirty- 
 seven and a half per cent., together with the sum paid for the 
 comptroller's deed, shall be paid into the treasury for the benefit 
 of such grantee, within six months after the service of such 
 notice, that the conveyance of the comptroller will become ab- 
 solute, and the occupant, and all oftiers interested in the land, 
 be forever barred from all right or title thereto. The occu- 
 pant, or any other person, may, at any time within the six 
 months mentioned in such notice, redeem the said land, by pay- 
 ing into the treasury such consideration money, with the ad- 
 dition of thirty-seven and a half per cent, thereon, and the 
 amount that shall have been paid for the comptroller's deed ; 
 and every such redemption shall be as effectual as if made be- 
 fore the conveyance of the land sold. In every such case of 
 actual occupancy, the grantee, or the person claiming under 
 
OF CONDftlONS SUBSEQUENT TO THE SALE. 327 
 
 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 p^id into, the treasury, he shall 
 certify the fact, and the conveyance before made by him shall 
 thereupon become absolute ; and the occupant, and all others 
 interested in the said lands, shall be 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 pro- 
 visions, are entitled to respect as authority in the other. Sev- 
 eral cases have arisen in the superior courts of New York, upon 
 the construction of the statute of that State, which are entitled 
 to great consideration. 
 
 In Jackson ex dem. Watson et al. v. Esty,^ which was an ac- 
 tion 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 
 possession, or betterments, by a conveyance to himself, and one 
 Day, but he made no claim or pretence of title to the land itself. 
 It further appeared, /that in June, 1824, the defendant succeed- 
 ed to the rights of Day and Carpenter, by purchase. The plain- 
 tiff proved that Day, in 1823, on being informed of the purchase 
 at the tax sale, by the lessors of the plaintiff, said that lie had 
 no title to the land, and expressed a wish to buy of them ; and 
 also that the defendant proposed to purchase the premises of 
 
 ■ Watson, but the parties could not agree as to the price. , This 
 evidence was offered by the plaintiff as equivalent to a waiver 
 
 1 7 Wendell, 148. 
 
328 OP CONDITIONS SUBSEQUENT TO tHB SALE. 
 
 of the notice required by the law, and which had not been 
 given. It was objected to, but received by the judge, who 
 charged the jury that such negotiations amounted to a waiver 
 of tlie notice, if notice was necessary to a mere naked possessor. 
 The defendant excepted, and the jui-y found a verdict 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 wha sets up a title must furnish the 
 evidence necessary to support it. If the validity of a deed de- 
 pends 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 convey- 
 ance, 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, ac- 
 cording 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 comptroller's deed was void, and confers no title. 
 The right to sell depends upon the non-payment of the tax ; 
 the purchaser takes, therefore, a contingent title, and where the 
 land is occupied, it depends further upon a condition subse- 
 quent 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 pro- 
 duce the comptroller's certificate to prove a failure tp redeem, 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 329 
 
 as it is to produce the comptroller's deed to prove the sale made 
 by him. Both are necessary links in the chain of the pur- 
 chaser's title, and both these faots, 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 occupation must be by the owner, and whether the occupant 
 can, by his acts, dispense with the notice required by the stat- 
 ute ? 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 
 proceeding 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-resi- 
 dent, when in truth it was occupied. They wisely provided, 
 therefore, that the purchaser should ascertain the fact at his 
 peril, and give notice when necessary. The purchaser must, 
 therefore, do every act necessary to perfect his title ; he must 
 not only give notice, but he must make proof of that fact, and 
 that proof is the evidence upon which the comptroller is to act 
 in the last instance. Now, I deny that these acts can be waived 
 by a person having no interest in the property, even if they 
 could by the former owner, on which point it is unnecessary to 
 express an opinion. But if tlie 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 byjiim just as it had been trans- 
 ferred to him from the original purchasers at the comptroller's 
 sale ; and if the defendant had purchased the title of the les- 
 sors of the' plaintiff, his title would not have been perfect. Trace 
 it ever so far, and through ever so many hands, whoever sets 
 up this title, must- show that he has complied with the require- 
 ments of the statute, unless, indeed, the former owner were to 
 purchase, and then such purchase might quiet the title, be- 
 cause 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 
 
 28* 
 
330 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 property but by his own acts, or' the operation of law; and 
 where proceedings are instituted to change the title to real es- 
 tate, by operation of law, the- requirements of the law under 
 which the proceedings are had, must be strictly pursued. I am 
 accordingly of opinion, that the offer by the defendant to pur- 
 chase the lessor's title, proved nothing, and that the plaintiff's 
 title is imperfect, and will be, until he gives notice, and pro- 
 cures the comptroller's certificate according to the statute." 
 
 The next case in chronological order, which arose in New 
 York, was that of Comstock et ux. v. Beardsley,i in which the 
 defendant claimed under a deed from the comptroller, bearing 
 date June 27, 1828, in pursuance of a sale for taxes. In answer 
 to which the plaintiffs proved that one Bean occupied the prem- 
 ises in question, from 1824 to 1830 ; that from forty to seventy 
 acres of the tract were cleared and cultivated, that Bean had a 
 dwelling-house on the premises, in which he resided, except 
 during the summer of 1828, when he was from home, working 
 out as a laborer ; but during his absence his wife occupied the 
 house, and the garden adjoining. The residue of the lot was 
 occupied by two individuals, under a lease from Bean, at thirty 
 dollars per annum, who cultivated the improved part of the lot, 
 and made potash on the unimproved 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 im- 
 > proved at the date of the comptroller's deed, but for no more. 
 The jury found accordingly. The plaintiffs havifig 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 iinder that conveyance is defective for want 
 of proper notice to redeem.^ An occupancy that would consti- 
 _f ! , 
 
 1 15 Wendell, 348. 
 « 7 Wendell, 148. 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 331 
 
 tute 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, hiit 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 wlien 
 lands are unoccupied that they can be returned as non-resident . 
 lands. This act and that of 1819 are in pari materia, and the 
 term occupant used to convey the same idea in both of them. 
 Though there was no person in occupation at the time the as- 
 sessment was made, and therefore the land must 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 dis- 
 possessed ; 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 1880, 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 jus- 
 tified in returning the land as non-resident land ? I think not. 
 Bean himself, and by his tenants, was in the actual occupation 
 and possession of the whole lot, and he clearly was taxable un- 
 der the act of 1823. There existed no dif&culty in giving the 
 proper notice under the statute. Every necessary fact for this 
 purpose coul4 have been ascertained upon the premises. 
 
 The judgCj I think, also erred in the distinction taken be- 
 tween the improved and unimproved parts of the lot, holding 
 that notice was necessary before the title of the purchaser be- 
 came perfect as to the former, but not as to the latter. I have 
 already expressed the opinion, that there was an occupation and 
 
 1 LSwSOf 1823, p. 390. 
 
332 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 possession of the entire lot, within the spirit and meaning of 
 the statute, -which is one answer to tliis distinction. But the 
 act of 1819, incorporated into the act of 1828, provides, that in 
 case of every sale and conveyance for taxes, by the comptroller, 
 of lands which, at the time of the conveyance are in the actual 
 possession and occupancy of any person, a written notice shall 
 be served on him, or left at his dwelling-house, stating in sub- 
 stance the sale and conveyance, to whom made, and the amount 
 of consideration, after adding 37i per cent., and that unless 
 the same shall be paid into the treasury, 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 payment, and for what land it was 
 intended to redeem, shall as eflfectually redeem it, notwith- 
 standing the sale and conveyance, as if paid within two years 
 after the sale. Now, in this case, the whole lot was sold for 
 taxes in arrear, in one parcel ; and it seems to me clear, upon 
 the above section, that if part was actually occupied at tlie 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 oc- 
 cupant cannot redeem without paying the whole purchase 
 money, together with interest and expenses, though in posses- 
 sion 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 unoccupied 
 part, since it is not distinguished from that occupied, by the 
 statute, when both are included in one bid. If there is an oc- 
 
OF CONDITIONS SOBSEQUBNT TO THE SALE. 333 
 
 cupant of part only, he is entitled to notice before his possession 
 can be disturbed. Each notice calls for the whole purchase- 
 money. On failure to comply with its requirements, the whole 
 title becomes absolute ; on compliance, thewhole is defeated. 
 As the purchaser may compel the occupant of part, upon no- 
 tice, 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 with- 
 out notice." 
 
 In Buslri). 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 tlie thirty acres constituted a part. The tax deed bor6 
 date December 30, 1833. On the day of the date of that deed, 
 one Phillips was in possession of a dwelling-house erected on 
 the premises in question, as a tenant at sufferance to the de- 
 fendant, and continued in possession until January 18, 1834, 
 Tfrhen he removed from the premises. A question was made 
 upon the trial, whether the possession of Phillips did not con- 
 structively embrace fifty acres of unimproved land surround- 
 ing the house, as well as the house itself, he having originally 
 entered as the owner of the fifty acres, which he conveyed 
 by deed to the defendant on December 13, 1833. The judge 
 charged the jury, that if they should find that Phillips was ia 
 possession of the fifty acres at the date of the comptroller's 
 deed, exercising such acts of ownership as its situation in? its 
 unimproved state was capable of, then the plaintiff, having 
 failed to prove the notice required by the statute to be given by 
 purchasers to occupants of land sold for taxes, was not entitled 
 to recover ; but if they should find that his possession was lim- 
 ited to the dwelling-house, then it would be their duty to find a 
 verdict for the plaintiff for the whole of the premises claimed, 
 except the dwelling-house, as to which they must find for the 
 defendant. The jury found. a verdict for the whole of the prem- 
 ises, except the dwelling-house. The defendant moved for a 
 
 1 16 Wendell, 550. 
 
334 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 new trial, which was granted by the supreme court. The opin- 
 ion of the court was delivered by Cowen, J. : " If the question 
 of constructive possession was material, there can be no doubt, 
 that on the evidence given, the judge properly left the question 
 to the jury, whose finding must be received as conclusive. The 
 plaintiff claims to have made title by operation of the stat- 
 ute ; 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 any 
 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. 326, and 
 proceeds.] Looking at the statute, no doubt can arise that the 
 judge correctly restrained the recovery to the vacant and unoc- 
 cupied land. Phillips being found in possession of the house 
 at the time, the comptroller's deed would be inoperative as to 
 that, according to the common understanding of the act, until 
 notice of the purchase and default to pay the taxes ; and such 
 default proved and certified at the comptroller's office. This 
 was held in Jackson v. Esty, on a consideration of the various 
 , provisions now consolidated in the revised statutes. A com- * 
 pliance 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 solem- 
 nity, carrying a title on its face, and inade by sec. 82 of 1 R. S., 
 pp. 899, 400, 2d ed., conclusive evidence that the sale was 
 regular, according 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. Esty ; and, indeed, no other view of the conveyance 
 would warrant the decision in that case. The defendant was 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 335 
 
 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 contended, and the lessors tried to keep 
 the comptroller's deed out of view, and recover on Bsty's admis- 
 sion alone. But to prevent an ingenious evasion of the decision 
 at bar, by the plaintiff stopping after the admission and dis- 
 claimer had been shown, I 'allowed the defendant himself to 
 prove the deed, and then directed the jury to find against his 
 admission. The late Chief Justice says, at the page cited, that 
 such a deed carries a contingent title, depending on the notice, 
 (fee, as a condition subsequent ; and so indeed it does, when 
 the condition is looked to in its chronological order ; but for the 
 purpose of giving effect to the deed, I think he would have 
 added, that it was a condition precedent to all intents and pur- 
 poses, and that without showing affirmatively the literal per- 
 formance of it, the deed still remained mere waste paper, of no 
 more effect than the sale under a mortgage power without ad- 
 vertisement, or the sale for United States taxes in Jackson v. 
 Shepard,! to which the Chief Justice referred. We want no 
 case beyond that to show the great strictness with which the 
 forms, under which a title is' to be divested by a sale for taxes, 
 must be pursued. The difficulty with us circuit judges, who 
 were called upon in the first instance to act upon the statute, 
 lay in the novel form under which the condition came to us. A 
 deed from the State, authorized by statute, and made conclu- 
 sive of its own regularity, purporting to transmute the title, and 
 actually delivered out to the purchaser, is yet made a mere 
 escrow, to be available on the performance of a precedent con- 
 dition. Looking at the ordinary legal effect of such a deed, 
 under the statutory provisions, we should say it carried the title, 
 which would be defeasible by the actual occupant 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 
 
 1 7 Cowen, 88. 
 
336 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 used ill 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. 
 Next came the question on the meaning of the words actual 
 occupancy, for it was only when the lands sold were in that 
 state that notice was necessary. In Comstock v. Beardsley, 
 which was ejectment by the original owner for land in Clinton 
 county, tlie defence rested on the comptroller's deed of the prem- 
 ises, which were partly in the actual occupancy of another 
 who claimed title to the whole. No notice had been given, and 
 on the trial I restricted the defence to the part actually occu- 
 pied. Tbat 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, ope- 
 rated 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 improved, even though there was no claim beyond, 
 the deed would not be effectual for any part of the land. On 
 , the cause coming down again at the last June circuit, an offer 
 was made, as on the former trial, to limit the actual occupancy 
 to one-fourth of the premises in question, and to prove the ad- 
 ditional fact that the' occupant never claimed any thing beyond. 
 That I overnxled, and stopped the cause, on the distinct ex- 
 pression of the Chief Justice, obiter perhaps, but still a very 
 explicit opinion, bearing the marks of reflection. I must be 
 understood to speak from recollection, not now having notes of 
 the opinion' before me. And I do not stop to procure and ex- 
 amine the opinion, because, on reflection, I am satisfied that 
 the Chief Justice did not, in either branch of it, go beyond what 
 was warranted by the case of Jackson v. Esty, the principle of 
 which I had overlooked. The statute from which I have read 
 all the provisions connected with that case, declares, that when- 
 ever any land sold for taxes shall be in the actual occupancy 
 of any person, the grantee shall give notice, &c., containing 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 337 
 
 particular directions in respect to wliat must be done, and that 
 in default of payment, the conveyance 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 conveyance 
 thereupon becomes absolute. The condition is an entire thing ; 
 so is the conveyance and the title. So the tax, the land, and 
 the right to redeem. The condition imposed by the statute has 
 arisen, if a single foot of land was actually occupied. The words 
 are, if any land sold, &c. What kind of condition ? A condition 
 precedent, which must be perfornied before the deed can operate 
 to pass the title of tlie owner ; or, in the language of the statute, 
 before the grantee can ' complete his title to the land conveyed.' 
 The deed is to be taken as if the statute were recited in it. 
 That the condition is precedent will be more plainly apparent 
 upon a further consideration of Jackson v. Esty. If it were 
 subsequent, then, in common effect, ejectment would lie with- 
 out notice, and a recovery of all the land might be had subject 
 to the riglit of redemption by the occupant or owner, until he 
 should yet be foreclosed by a notice, with proof and the comp- 
 troller's certificate. The statute was open to such a construe- . 
 tion. That would have been treating the owner as a kind of 
 mortgagor, holding an equity of redemption, the legal estate 
 being in another. But both Jackson v. Esty, and Comstock v. 
 Beardsley, denied that there was any legal title in the pur- 
 chaser 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 mortagor 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 re- 
 marked : ' I can see no reason why it is not as necessary to pro- 
 
 29 
 
338 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 duce 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 covered by the 
 deed, it is then impossible to divide or apportion that condition, 
 and say it is dispensed with in respect to the unseated lands, 
 and the deed shall therefore avail as to them, though void as to 
 • the seated part. In the same way, where there are various 
 occupants in 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,' whieh 
 is also an entire thing, might be brought into existence by parts 
 in the same way. It is said in Co. Litt. 215 a, that a condition 
 is an entire thing, and cannot be divided. He instances the 
 case of a condition subsequent, but I can find in the books no 
 attempt to apportion a legal title, upon the ground that only 
 some part of the condition precedent, on which it was to arise, 
 had been performed. In the case at bar, Phillips was in pos- 
 session of a small part of the land sold for taxes ; and no notice 
 having been given, we are of opinion, that on the true construc- 
 tion 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 defendant had chopped 
 over, and used for pasture, about three acres, that he had sold 
 some timber off the lot, and his agent had made sugar from the 
 trees growing thereon. The judge charged the jury, that if 
 any part of the lot was occupied by the defendant, or any other 
 
 1 5 Hill, 286. 
 
OF CONDITIONS SUBSEQUENT TO. THE SALE. '339 
 
 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 occupant. 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 comptroller's deed.^ The privilege of a 
 part claimant to redeem a part, if he choose, supposed to have 
 been overlooked in those cases, does not vary the principle upon 
 which they proceeded." 
 
 The case of Smith v. Sanger^ was an action of trespass 
 quare clausum /regit. 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 affirmed 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 
 number 84, in'Duer's patent, is bounded on the west by lot 
 number 57, and those two lots are bounded, in part, on the 
 south by lot number 4 of the gore. There was a brush fence 
 on and near the south line of lots 84 and 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 possession of lot 4 of the gore, under a con- 
 
 1 Comstock V. Beardsley, 15 Wendell, 348 ; Bash v. Dayison, 16 Wendell, 550. 
 
 2 3 Barbour, 360 ; 8. c. 4 Comstock, 577. 
 
340 OF CONDITipiSrS SUBSEQUENT TO THE SALE. 
 
 tract to purchase the same from the plaintiff; and Baker, 
 that season, mowed the meadow on lot 4, including the nook, 
 which, on subsequent survey, was found to be a part of lot 84. 
 Baker did not know at the time that the fence to which he 
 mowed 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 
 tlie line between the lots. But as the land was worth only 
 three dollars per acre, and the fencb was of a cheap and tem- 
 porary 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 ques- 
 tion of occupancy to the jury, and non-suited the plaintiff. In 
 all of the cases where it has been held that notice was neces- 
 sary, there was- a substantial occupancy of some part of the lot 
 or parcel of land which had been sold by the comptroller, 
 with an intention to enjoy the property, either by right or by 
 wrong ; while here the e^ijoyment 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 
 meaning of the statute. But if that was matter of doubt upon 
 the evidence, the question should have gone to the jury. 
 The judgment should therefore be reversed, and a new trial 
 granted." 
 
 The conclusions to be extracted from the New York de- 
 cisions, are 1. That the notice to redeem is a condition pi-ece- 
 dent to the validity of the comptroller's deed ; that, although 
 the deed of the comptroller is executed and delivered to the 
 
OF CONDITIONS SUBSEQUENT TO THE SALE. 341 
 
 purchaser prior to the time when the notice is required to ' 
 be given, it does not take effect until the comptroller certifies 
 th^t the condition upon which its validity depended has 
 been strictly performed. 2. That the comptroller's deed is 
 not evidence of the performance of this subsequent condition. 
 That the onus probandi upon this question rests on the party 
 claiming under the tax deed. 3. That the certificate of the 
 comptroller is the only evidence that the sale has not been 
 redeemed from. 4. That in order to entitle the occupant to 
 notice, it is not necessary that he should be in possession under 
 claim or color of title, and that any person liable to pay the 
 taxes must be notified. 6. 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 titlCj is yet entitled to notice ; and that notice 
 must extend to the whole tract, upon a portion of which he has 
 intruded — the deed cannot be good in part and bad in part. 
 7. IJj^ot 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 be is seated, he cannot, by 
 any act or declaration of his, 'dispense with the notice required 
 by the statute. 9. That an accidental or chance occupation of 
 a small portion of a tract, occasioned by a confusion of bounda- 
 ries, does not entitle the occupant to notice — .there piust be 
 an intention, on the part of the occupant, to enter and take 
 possession of the specific parcel of land in controversy. 
 
 This particularity and prolixity of statement, in reference to 
 the law of Illinois and New York, was deemed necessary on 
 account of the novelty of the principles involved in their con- 
 struction. These laws are based upon a degree of justice to 
 the owner of the land, which deserves to be followed by the 
 residue of the States. ' When the conditions imposed by ^his 
 class of laws are faithfully performed by the purchaser at the 
 tax sale, he deserves more liberality at the hands of the courts, 
 
 29* 
 
342 OP CONDITIONS SUBSEQUENT TO THE SALE. 
 
 than one who purchases at a sale made under a statute which 
 makes no provision for a redemption notice. The reason is, 
 that in the one case the notice is actual, and in the other con- 
 structive. Courts always construe notices of the latter descrip- 
 tion more strictly than those of the former. 
 
 In reviewing the decisions of the courts detailed in this 
 chapter, in relation to conditions subsequent to the tax sale, 
 it will -be observed, that they uniformly require every condition, 
 the performance of which is imposed upon the purchaser him- 
 self, to be literally performed ; while, on the other hand, where 
 the duty of performing -the condition is cast upon the officers 
 of the law, and they neglect to comply with it, some of the de- 
 tisions assert the doctrine that this failure, on the part of the 
 officer, ought not to invalidate the title of the purchaser. 
 Such as has been shown is the rule in Ohio, in reference to the 
 return of the sale ; and in Pennsylvania, in relation to the filing 
 of the surplus bond. It is contended that there is a manifest 
 distinction, between the neglect of the purchaser and that of 
 the officer. This distinction thus contended for, is most strik- 
 ingly illustrated by the decisions of the Pennsylvania courjs in 
 regard to the surplus bond.. The purchaser is bound, at ' the 
 peril of his title, to execute and deliver to the treasurer a 
 bond, at the time and in the manner prescribed by law. If he 
 fails to do so, this fact alone furnishes conclusive evidence of 
 an abandonment of his purchase. But the duty of filing the 
 bond, in the office of the prothonotary, being imposed upon the 
 treasurer who made the sale, and who was required to receive 
 the bond and cause it to be filed, the omission of this duty 
 ought not to afiect the title of the purchaser. It is impossible 
 to perceive any just distinction between the performance of a 
 condition precedent, and one which is subsequent 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 complied with, by the officers intrusted with 
 the'execution of the power prior to the sale, and before he has 
 acquired any rights whatever ; and it would seem that when 
 his right has once attached — upon his bid and the payment of 
 
OE CONDITIONS SUBSEQUENT TO THE SALE. 343 
 
 , 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 conse- 
 quences of the neglect of the officer to perform a duty which 
 the law exacted of the latter. He may (Compel the specific ex- 
 ecution of the duty by a mandamus, or seek his remedy by an 
 action upon the case for ftie norir-feasance. The title being re- 
 garded as stricti juris, he is bound to see that all of the require- 
 ments of the law are complied with. The condition, though 
 subsequent in point of time, is, nevertheless, regarded In judg- 
 ment of law as precedent to the acquisition of the title. The law 
 authorizes a sale and conveyance, upon certain prescribed con- 
 ditions ; 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 performed, as those conditions which 
 are required to precede the sale. In the last instance, the pur- 
 chaser is bound to see that the law is strictly complied with, 
 and no right having vested in him prior to the sale, the law 
 arms him with no remedy against the officer for any neglect of 
 his duty. But after the sale he has a remedy, and as he does 
 not become entitled to a deed, until the conditions are performed 
 according to the requirements of the law, he is chargeable with 
 personal negligence, if he fails to pursue that remedy, and com- 
 pel 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 acknowl- 
 edged principles of justice, ought to invalidate the sale. It may 
 be called a formality ; but, where the formality prescribed is 
 founded on natural equity, it is said to be substantial, and its 
 omission carries with it nullity of the act. It is of the essence 
 of justice and natural equity, that when a forced sale of prop- 
 erty is made under statutes, all formalities which have the sem- 
 blance of benefit to the owner, should be rigidly complied with. 
 
344 OF CONDITIONS SUBSEQUENT TO THE SALE. 
 
 This class of sales cannot be likened to the sale of a sheriff, and 
 the effect of his neglect to file or record the certificate of his 
 sale. There the owner of the land is regarded as in court until 
 the satisfaction of the judgment, and usually has actual notice 
 of the levy. The authority to sell and convey, depends alone 
 upon the judgment and execution. The purchaser is bound to 
 look no further. No irregularity of the officer, either in adver- 
 tising or selling the land, or in the performance of any duty, 
 imposed upon him subsequent to the s'ale, can affect the title of 
 the purchaser. But the power of the officer in tax sales de- 
 pends upon a series of acts, which are required by law to pre- 
 cede 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 indepen- 
 dent fact. All of these fa^ts, from the beginning to the end of 
 the proceeding, must exist; and if any material link in the 
 chain of title be wanting, the whole falls to the ground for want 
 of sufficient authority to support it. Testing the Ohio and 
 Pennsylvania cases, by .these principles — and the New England 
 decisions in relation to the return, deposit, and record of the 
 proceedings of the officer who made the sale — they cannot be 
 sustained. The return of sale in the Ohio case, as has already 
 been shown, was beneficial as well to the purchaser as the owner, 
 besides being the only guide of the officer in the redemption or 
 conveyance of the laud. The surplus bond, required by the 
 laws of Pennsylvania, constituted a lien upon the land pur- 
 chased, in favor of the former owner of the estate. The filing 
 of it in the office of the prothonotary, where the evidence of 
 judgment and mechanics' liens were preserved, was intended to 
 give notice to subsequent purchasers and creditors, and was, 
 therefore, beneficial to them as well as to the owner. In con- 
 clusion, to use the language of one of the courts, " it is easier 
 for the purchaser to see that the duty is performed, than it is 
 for a judge to assign reasons why it may be safely omitted." 
 
AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 345 
 
 CHAPTER XVIII. 
 
 OF THE AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 The rule is -well settled, that every public document, which 
 is required by law, to be executed by a public officer, and pre- 
 served as a memorial of the facts recited in it, must be verified 
 by the official signature of the person who made it. The object 
 of the rule is the identification of the document as an official 
 act, executed by authority of law ; and its spirit is answered only, 
 when the official character of the person making it is established, 
 and the document appears upon its face to be an official act, 
 attested by the signature of the officer. The reason of the rule 
 is obvious. No man has the right to bind another by a written 
 statement, unless he has authority to make such a statement, 
 either from the person to be affected, or the laws of, the land, 
 by which all are bound-. All written instruments, executed in 
 pursuance of private authorities, show upon their face the rep- 
 resentative character of the person executing, them. The agent 
 executes in the name of his principal, signs the name of the 
 principal, and attests the paper by his own signature ; else, he 
 alone is bound by it. Chief Justice Parker, in Stackpole v. 
 Arnold,^ says : " It might be sufficient for the decision of this 
 cause to. state, that no person, in making the contract, is to be 
 considered as the agent of another,- unless he stipulates for his 
 principal by name, stating his agency in the instrument which 
 he signs. This principle has long been settled, and has been 
 frequently recognized ; nor do I know of an instance in the 
 books pi an attempt to charge a person, as the maker of any 
 
 1 11 Massachusetts, 27. 
 
346 AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 written contract, appearing to be signed by another, unless the 
 signer professed to act by procuration or authority, and stated 
 the name of the principal, on whose behalf he gave his signa- 
 ture. It is also held, that whatever authority the signer may 
 have to bind another, if he does not sign as agent or attorney, 
 he binds himself and no other person." An additional reason 
 why every act of an officer should bear upon its face evidence 
 of its official character, is, that in this countiy 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 
 rislis 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 
 coi;ferred 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 tlie agent, he cannot control the acts of the officer, nor is 
 the officer answerable to him for 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 woxild be a trespasser in exercising the power, and re- 
 sponsible to th§ citizen'for his acts. When therefore he attempts 
 to execute the power, he must recognize the source from whence 
 he derives it, follow the requirements of the law, and perform 
 all acts in that character alone which the law recognizes, other- 
 wise the act is a nullity. The principle is uniformly conformed 
 to by all of t|ie great departments of government. The procla- 
 mations of the king bear iipon 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 authenticated with 
 the seal of the court. The presiding officers of the two houses 
 of parliament authenticate the passage of all bills, and the legal- 
 ity of warrants, by their official signatures. And in this coun- 
 try, every officer, from the president down to ^n overseer of 
 
AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 347 
 
 the poor, verifies in tliis manner his official acts. The rule ex- 
 tends to all official documents connected with the sales of land 
 for the non-payment of taxes. 
 
 The statute of Vermont required the collector to advertise 
 the delinquent list before selling the lands of non-residents, to 
 deposit with the town-clerk the newspaper containing the ad- 
 vertisements, and the clerk was directed to record them at 
 length in a book to be kept for that purpose. In' Spear v. Ditty ,^ 
 the defendant relied upon a tax title, and offered in evidence 
 the record of the town-clerk, headed " collectors' advertise- 
 ments." The record showed that the advertisements were sim- 
 ply signed " B. Spaulding," without the addition of the word 
 " Collector." In the form of the advertisement prescribed by 
 law, the official title was added. The court held the sale void 
 for the omission in the record of the town-clerk. The coiirt 
 remarked : " It is not true that every man is presximed to be 
 clothed with and to be exercising an official capacity, because 
 it seems to be needed for what he was attempting. Such a 
 principle would sweep away all official signatures and desig- 
 nations. The statute form must be strictly followed. Even a 
 known public officer must so sign every official document. It 
 is difficult to see how any one can act officially on paper, and 
 not so state on the paper. It must appear on the publication} 
 by what power, and in what capacity, the person acts. And 
 this cannot be supplied by the record, headed '- collectors' ad- 
 vertisements.' 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 under- 
 took to exercise." 
 
 In Isaacs v. Shattuck,^ it appeared that the person who made 
 the sale, was both poUector and town-clerk ; in the former ca- 
 pacity he was required by law to sell and return the proceed- 
 
 > 9 Vermont, 282. 
 2 12 Vermont, 668. 
 
348 AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 ings ; 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 as any official validity is concerned. It is diffi- 
 cult to perceive, then, how the use of a wrong designation of 
 office should be of any greater force or validity. We must then, 
 in the most favorable view, consider the record in the hand- 
 writing 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 construc- 
 tion has always been required." 
 
 It has already been shown that the assessment list must be 
 verified by the official signatures of the officers charged by law 
 with the duty of making it.^ In Taylor v. Freneh,^ 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 advertisement there was a sim- 
 ple 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 state- 
 ments were verified by any signature, private or official ; but at 
 the end of the record, the town-clerk certified that " he then (Oc- 
 tober 16) received the above and foregoing eighteen advertise- 
 ments 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 extend to the 
 statements in regard to their publication. It does not prOfess 
 
 1 Ante, p. 113 ; Johnson v. Goodridge, 15 Maine, 29 ; Colby v. Russell, 3 Green- 
 lefef,^27 ; Foxcroft v. Nevens, 4 Greenleaf, 72 ; Kellar v. Savage, 20 Maine, 199 ; 
 Sibley v. Smitli, 2 Michigan, Gibbs, 498. 
 
 2 19 Vermont, 49. 
 
AUTHENTICATION OB THE DIFFERENT DOCUMENTS. 349 
 
 to extend any further. Neither does the certificate of the towu- 
 elerk state that he received of the collector the newspapers 
 themselves, in which the publications were made, and that he 
 made the records of the advertisements from the papers them- 
 selves. We think the title under the vendue defective for 
 these reasons." 
 
 In Hannel v. Smith,^ where the auditor of State was re- 
 quired " to transmit to the county auditor lists of land which 
 have been forfeited, &c., said lists to be certified and signed by 
 the auditor of State, and to have thereto affixed* his seal of 
 office," and it appeared that the list in question was signed 
 "John Brough, auditor of State, by J. B. Thomas," and the 
 seal of the auditor's office was not attached to the list, it was 
 held void. By the court : " This was not such a verification 
 of the list as the law required. It was not even signed by 
 the auditor, but by J. B. Thomas. And who is J. B. Thomas ? 
 Plaintiff's coTjnsel answer, the deputy. of the auditor of State ; 
 and the auditor of State signed by his deputy. By what au- 
 thority ? It is replied, by the authority which every public 
 officer has to act by deputy. I know that some public officers 
 may act by deputy, such as sheriffs' clerks, &c., but I have yet 
 to learn that the auditor of the State of Ohio can act by any 
 other authority than the one prescribed by law ; that is, the 
 chief clerk in his office. Thomas, however, does not sign as 
 deputy nor as chief clerk. Tliis instrument is not only without 
 the signature of the auditor, but it is not verified by his official 
 seal, nor is it therein certified tliat the list to which it is at- 
 tached 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, 
 informing him that a judgment had been rendered in a certain 
 cause, would authorize that sheriff to levy upon and sell the 
 lands of a judgment debtor." In Taylor v. French, it was the 
 duty of the collector to return his proceedings, verified by his 
 official signature. The facts were, that two adjournments of 
 
 1 15 Ohio, 134. 
 
 30 
 
350 AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 
 
 the sale had taken place, which was attested by his signature, 
 but no other part of the proceedings were thus verified. The 
 return was held Yoid. 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 validity of the vendue." 
 
 On the other hand, where the official character of the act 
 does, with reasonable certainty, appear upon the face of the 
 document, slight variances and omissions will not destroy its 
 validity. Thus, in Isaacs v. Wiley,' where the record of the 
 advertisement showed the name of Luther ■ TF. Brown as collec- 
 tor, 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 dis- 
 tinguished by these initial letters, reside in the same town, it 
 certainly does require a very.great stretch of credulity to admit 
 the construction that one person was 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 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 maybe 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, &c. Hillman, being by the act 
 made collector, by virtue of his office as sheriff, it seems to us 
 
 1 12 Vermont, 674. 
 
 i* 10 Ohio, 278. 
 
 * See 5 Cowen, 530. 
 
AUTHENTICATION OF THE DIFFERENT DOCUMENTS. 351 
 
 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,i that 
 where the same person holds the same office, and the law re- 
 quires him to act in each of his official characters in the course 
 of a tax proceeding, and he gives the wrong designation of 
 office in authenticating an act, this stands upon the same prin- 
 ciple 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 as- 
 sessed 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 afterwards voted 
 that " the collector be empowered to give a deed." John Knox 
 was the collector of the proprietors, and made the deed in ques- 
 tion. It was held valid. By the court : " If a deed, vote, or 
 other transaction, be susceptible of a construction consistent 
 with law, and with a rightful 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 office 
 of collector, is sufficiently certain. The incumbent of the 
 office at the time, is intended. The collector was John 
 Knox — the vote designates the collector — John Knox, then, 
 was intended." 
 
 1 Ante, p. 348. 
 
 2 5 Greenleaf, 345. 
 « Coke, Lit. 42. 
 
352 OF THE CONFIKMATION OF THE SALE. 
 
 CHAPTER XIX. 
 
 OF THE CONFIRMATION OF THE SALE. 
 
 In some of the States, the law requires the consent, approba- 
 tion, or confirmation. of the sale and conveyance, 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 con- 
 dition, must be strictly performed.^ And when the consent 
 of a third person is required to a deed, in order to its validity, 
 it can have no operation until that consent is given.^ There 
 are numerous treaties between the United States and Indian 
 tribes, whereby the latter have ceded their territorial rights to 
 the former, reserving a specific quantity of the granted lands 
 in favor of particular Indians or half-breeds. Such was the 
 case with the Winnebago treaty of 1829. In that treaty it was 
 provided, that the reservee should not sell and convey the land 
 without the consent and approbation of the President of the 
 United States. Unless such consent is given by the President, 
 the title of the Indian reservee does not pass. In that case the 
 object of the provision was to guard the Indian against fraud 
 and imposition ; and it is the practice of the Indian Department, 
 not to submit a deed, executed by an Indian, to the President 
 for his approval, until it satisfactorily appears that the land 
 brought its fair market value, and that the consideration has 
 
 1 Sngden on Powers, 263, 265; Hawkins v. Kemp, 3 East, 410; 10 Vesey, 
 308. 
 3 5 Wendell, 532. 
 
OP THE CONFIRMATION OP THE SALE. 853 
 
 been paid or secured.^ Where an act of the legislature, or 
 order of a court, requires the approval or confirmation of the 
 sale, it is void without it.^ The same principle is more strongly 
 applicable to a tax sale and deed, when a confirmation of them 
 is required by law. The Ohio statute of January 30, 1822, re- 
 quires a confirmation and approval of the sale, by the court of 
 common pleas of the county where the land lies, and the entry 
 of an order, directing the execution and delivery of a deed to 
 the purchaser.^ In Northorp v. Devore,* it was held that an 
 order of confirmation, which misrecited the day of sale, was a 
 nullity. In no case will the confirmation aid a void title .^ 
 
 A statute of Arkansas, passed November 18, 1833,^ provided 
 " the purchaser, or his heirs or legal representatives, may at 
 any time after the expiration of the term allowed for such re- 
 demption, 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 pxiblication of such notice, why the sale so made should not 
 be confirmed." In Black v. Percifield,^ the defendant in error 
 filed his petitit)n, setting forth a purchase at a tax sale, and 
 praying' a confirmation. The plaintiff in error filed her an- 
 swer, setting forth that she was in possession of the land, and 
 pointing out irregularities in tlie sale. The. answer was held 
 insufficient. By the court : " In her plea, by way of answer, 
 she does not aver how, or in what manner she came by the pos- 
 session,- or under whom she holds, or whether her possession is 
 adverse to the petitioner or not. The duty devolves upon her to 
 
 ' 9 Peters, 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, TJ. S. 495, 496; Young v. Keogh, 11 Illinois, 
 642; Eea v. McEachron, 13 Wendell, 465; Curtis v. Norton, 1 Ohio, 336. 
 
 8 Wilkins v. Huse, 9 Ohio, 154. 
 
 * 11 Ohio, 359. 
 
 ' Barger v. Jackson, 9 Ohio, 163. 
 
 « See Digest of Arkansas, Statutes of 1858, ch. 170, p. 1052. 
 
 ' 1 Arkansas, 472. 
 
 30* 
 
354 OF THE CONPIRMATION OF THE SALE. 
 
 show the kind and character of tlie 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 tortfeasor, without any shadow or pretext of right, and in 
 either event she is not entitled to the privilege of opposing the 
 confirmation." [It is not necessary that the purchaser should be 
 in the actual occupation in order to file a bill for confirmation 
 of his title. ^ In Hunt v. McFadgen,^ it was held, that when a 
 purchaser bids off a certain tract of land for the taxes, and re- 
 fuses to pay the same, whereby the collector is compelled to offer 
 the land again, and the same purchaser bids off a larger quantity 
 of the same tract for the same taxes, a court of equity will not 
 confirm his title by the second purchase, as it would be a fraud 
 on the rights of the^owner. But if he purchased the same quan- 
 tity at the second as at the first auction, it seems the purchase 
 will be confirmed. A proceeding upon such a statute, when in- 
 stituted in a State court, and removed into the circuit court, con- 
 formably to the act of Congress, constitutes a case over which 
 the Supreme Court of the United States has jurisdiction ; and 
 the petition to remove such a case from the State court must 
 allege that the petitioners were " citizens " of some other State ; 
 an allegation that they were " residents " is not sufficient.^ 
 The proceedings under this statute are governed by the ordi- 
 nary rules of chancery practice.*] 
 
 i Bonnell v. Roane, 20 Arkansas, 114. 
 " 20 Arkansas, 277. 
 
 8 Parker v. Overman, 1 8 Howard, U. S. 137. 
 * Payne v. Danley, 18 Arkansas, 444. 
 
OF THE LOCATION OF THE LAND SOLD. 355 
 
 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 atlthorized to elect 
 in what part of the tract the quantity shall be located, and an- 
 nounce his election to the bidders previous to the sale. Thus, 
 in the Illinois statute of February 19, 1827,i it is provided, that 
 " the sheriff shall proceed to sell said property, or so much of 
 it as shall bring the amount of the tax and cost, and the of&cer 
 selling, shall, previous to the sale, designate in what part of the 
 tract the part sold shall be located, and shall give his certificate 
 and make his deed accordingly." In other instances, the law 
 itself locates the land sold, without the intervention of any 
 agency whatever. This was the case in the Illinois statute of 
 February 26, 1839,^ which declared that " when a portion of 
 the tract shall have been struck off on any such bid, it shall be 
 taken off the east side of said tract, extending the whole length 
 on the east side, and so proportioned in width as to embrace 
 the number of acres sold as aforesaid." In the States of North 
 Carolina and Kentucky, the law authorized a sale of the least- 
 number of acres without designation in terms, or authorizing 
 the of&cer selling to locate the part sold, but directing the officer 
 to execute a certificate of the quantity sold, which constituted 
 the authority of the county surveyor, to make a location of the 
 
 1 Gale's Statutes, 566, sees. 24 and 25. 
 
 2 Sec. 35. 
 
356 OF THE LOCATION OF THE LAND SOLD. 
 
 part sold by actual survey ; and upon the return of the survey, 
 the officer who made the sale was required to convey to the 
 purchaser, according to the metes and bounds of the survey 
 thus made and returned. i 
 
 Where a conveyance is made of a certain number of acres, 
 without locating it in any particular part of the tract, the con- 
 veyance confers no election upon the grantee to locate the 
 quantity purchased, but the deed must be held void for uncer- 
 tainty .^ [Thus, a deed of " 10 acres in lot 26, in the 11th 
 range, in the town of Columbia" is void for uncertainty .3] 
 The present statute of Illinois provides, that when a less quan- 
 tity 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 B., and the sale was 
 of one acre off the east side of the two parcels ; the two quar- 
 ters were fractional, ran to a point on the east, and therefore, 
 strictly speaking, had no ^eastern side. By the court: "The 
 intention of the law is, where less than the whole tract is sold 
 for taxes, that the quantity sold shall be taken from the eastern 
 part of the tract, and a line is to be drawn due north and south, 
 far enough west of the most eastern point of the tract of land 
 sold, to make the requisite quantity. The law must have a 
 practical effect, and because a tract of laiid does not happen to 
 be in a form, so as to have, strictly speaking, an east Side, it is 
 not to be presumed the legislature intended such tract to be 
 exempt from this general provision of the revenue law. To 
 give it such a construction, would be emphatically sticking in 
 the bark." 
 
 1 Carrie v. Fowler, 5 J. J. Marshall, 145 ; Jones v. Gibson, 2 Taylor (N. C), 41. 
 
 2 Erwin v. Helm, 13 Sergeant & Rawle, 151 ; Haven v. Cram, 1 New Hamp' 
 shire, 93 ; Jackson v. De Lancy, 11 Johnson, 373; 8. c. 13 Johnson, 551 ; Jackson 
 V. Kosevelt, 13 Johnson, 97. The opposite doctrine is asserted in Coxe v. Blanden 
 1 Watts, 533 ; but it is so utterly repugnant to the general principles of law, that it 
 cannot be sustained. 
 
 3 Harvey v. Mitchell, 11 Foster, 575. 
 * 12 Illmois, 409. 
 
OF THB LOCATION OF THE LAND SOLD. 357 
 
 But upon the same identical state of facts, the tax deed was 
 held void, in Ballance v. Forsyth.^ McLean, J., in delivering 
 the opinion of the court, said : " In these two fractional sec- 
 tions, 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 valile 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 ren- 
 der void the anterior proceedings, will also establish the in- 
 validity of the deed. 
 
 1 13 Howard, U. S. 18. 
 
358 . OP THE AMENDMENT OF THE PROCEEDINGS. 
 
 CHAPTER XXI. 
 
 OF THE AMENDMENT OF THE 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 proceedings of ministerial officers. The com- 
 mon law, independently of any statutpty provision upon the 
 subject, recognizes the power of the courts in all cases, in 
 furtherance (rf justice, to amend their proceedings while in 
 paper ; that is, until the judgment is signed and perfected, by 
 its record and that of the anterior proceeding ; but no amend- 
 ment was allowable, according to the strict rules of the com- 
 mon 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 subject to the control 
 of the court. But by the English and American statxites of 
 amendment and jeofail, the power of the court to amend the 
 record of their proceedings, has been greatly enlarged, and 
 amendments may now be made where the justice of the case 
 requires it, after a motion in arrest of judgment, upon writ of 
 error, and even after execution has been issued, executed 
 and returned. This power of amendment belongs to superior 
 courts of record alone. No inferior court possesses it. No min- 
 isterial officer 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 pos- 
 sesses no legislative or judicial power. To the latter depart- 
 ments of government the power of amendment alone attaches. 
 The executive officers of the law act at their peril in every in- 
 
OF THE AMENDMENT OF THE PROCEEDINGS. 359 
 
 stance, where they are intrusted 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 pro- 
 ceedings. 
 
 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 ofiBcers are to be tested by the law 
 which authorized them. When the act is completed their power 
 \s 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 ofl&cer who sells land for the non-payment of taxes, or in 
 any officer connected with the proceedings, to amend the record 
 of their acts after they have been made. In Blight v. Banks,^ 
 the return of the register showed a sale of 1,900 acres, while 
 the certificate of the sale called for 4,900 acres ; afterwards, the 
 return which had been recorded in the auditor's office, was 
 altered by the auditor to correspond with the certificate. The 
 proceedings were held void. By the court : " As the entry and 
 return of the sale by the register, and the record in the audi- 
 tor's office is kept in 'the custody of the officers of the law, and 
 the certificate is kept by the purchaser, and operates as a mere 
 memorandiim directory to the surveyor, and has no validity in 
 passing the title, we concede the prgference' 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 cer- 
 tificate, yet this change was not authorized, and we cannot deem 
 the sale valid for more than 1,900 acres." The same question 
 was decided in Blight v. Atwell.^ 
 
 1 6 Monroe, 206. 
 
 2 7 Monroe, 268. 
 
360 OF THE AMENDMENT OP THE PROCEEDINGS. 
 
 The whole doctrine of amendment was discussed, and the 
 power sustained, in Gibson v. Bailey.^ The facts were, tliat 
 the return of the posting up of the warrant for the town meet- 
 ing, 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 col- 
 lector 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 alter- 
 ations of the books 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 whole matter will appear; and, in furnishing copies, the 
 original and amendment should both be furnished. 
 
 But it is objected by the demandant, that no amendment 
 ought to be made to her prejudice. That when she purchased, 
 these defects in the vendue title were apparent ; and that she 
 must be presumed to have purchased with knowledge that the 
 title was defective. The general rule is, that amendments of 
 records are made with a saving of the rights of third persons, 
 acquired since the*existeiy;e of the defect. To apply this rule, 
 to all cases of defects in sales of land for taxes, would, in effect, 
 be very nearly denying a right to amend ; as the owner would 
 attempt to defeat any amendment, by conveying to some friend, 
 who would bring a suit in his behalf. It would, at least, be 
 necessary to confine the application of the principle to cases 
 where the land had been actually conveyed bona fide. But 
 
 1 9 New Hampshire, 168. 
 
OF THE AMENDMENT OF THE PROCEEDINGS. 361 
 
 instances might exist where the purchaser, although he might 
 not have found upon the records all that was necessary to 
 make a formal and valid record, might have been well assured, 
 from what he did find, that all that was necessary had in fact 
 been done. Where what is necessary is, although not formally 
 stated, so far set down as to lead to a belief that a correct record 
 might have been made, there seems to be no reason why a 
 purchaser, who has access to the records, should not take it, 
 subject to a right to have the record put in form, if the truth 
 will warrant it. Where, on the other hand, nothing appears 
 upon the record, in relation to any particular fact necessary to 
 make out a title, nor is any thing set down, from whicli it is 
 naturally to be infen-ed 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 proposed 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 officers, but a record of their 
 proceedings has been imperfectly made up, and where sufficient 
 evidence of the compliance appears upon the face of the record, 
 either in express terms, or by legitimate inference, from the 
 facts actually stated. Indeed, in such cases, the court would 
 uphold the title of the purchaser, without any amendment at 
 all ; treating all defects as amended, which, according to the 
 general principles of the law, might be amended. 
 
 Such was the doctrine asserted in Atkins v. Hinman,^ where, 
 in" a collateral action, amendments of the tax record were per- 
 mitted 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 right; that they 
 brought no new matter into the case, and gave no additional 
 efficacy to the proceedings, but simply put them in stricter 
 
 1 2 Oilman, 451. 
 
 31 
 
362 OF THE AMENDMENT OP THE PROCEBDINaS. 
 
 conformity to the provisions of the statiite. And it must be 
 remembered, that these amendments were of the judgment 
 and precept under the Illinois statute of 1839, and the anterior 
 proceedings upon the files of the court, furnished the facts 
 whereon the amendments were based. 
 
 In Pitkin v. Yaw,! a motion was made to amend the 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 application should have no connection 
 with any other case. A contrary practice would introduce 
 mucl> confusion into judicial proceedings. A court engaged 
 in the trial of a case, ought not to be delayed and embarrassed 
 by motion to amend the record of another proceeding, which 
 is but collaterally in question before it. Such an application 
 might involve the necessity of bringing other parties and 
 different interests before the court." 
 
 It was intimated, in Young v. Thompson,^ that a judgment 
 upon the delinquent list might be amended, by adding the 
 date of its rendition, upon a proper application. It is not 
 allowable, in any ease, for a ministerial officer, cither 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 tlie analogy to be drawn 
 'from the limitation of writs of error and bills of review. In 
 Means v. Osgood,* the aiuendment of an extent was refxised, 
 where six years liad elapsed, and the rights of third persons 
 had intervened. In no case will an amendment be allowed. 
 
 1 13 Illinois, 251. 
 
 2 14 Illinois, 380.- 
 
 8 Judevine v. Jackson, 18 Vermont, 470 ; Langdon v. Poor, 20 Vermont, 13. 
 * 7 Greenleaf, 147. 
 
OF THE AMENDMENT OF THE PROCEEDINGS. 363 
 
 except upon notice to the parties in interest.^ And in every 
 instance, there must be something upon the face of the pro- 
 ceedings to amend by — something to show that what is sought 
 by the amendment was originally designed, but has been omit- 
 ted by mistake or misprision.^ 
 
 1 O'Connerw. Mullen, 11 Illinois, 57 & 116. 
 
 2 Luke V. Morse, U Illinois, 587. 
 
364 OF THE TAX DEED. 
 
 CHAPTER XXII, 
 
 OP THE TAX DEED. 
 
 The tax deed is the instrument, whereby the officer of the 
 law undertakes to convey the title of the rightful proprietor, 
 to the purchaser at the tax sale. This deed, according to the 
 principles of the common law, is simply a link in the chain of 
 the grantee's title. It does not ipso facto transfer the title 
 of the owner, as in grants from the government, or in deeds 
 between man and man. The operative character of it depends 
 upon the regularity of the anterior proceedings. 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 pre- 
 sumption arises upon the mere production of the deed, that the 
 facts upon which it is based, had any existence. When it is 
 shown, however, that the ministerial officers of the law have 
 performed every duty which the law imposed upon them — 
 every condition essential in its character — then the deed be- 
 comes 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 evi- 
 dence, either of all the facts recited in it, or of a strict compli- 
 ance, by the officers, with every requisition of the law. In all 
 such cases, the deed is evidence of title to the extent of the in- 
 terest attempted to be conveyed.^ But the instant it is shown, 
 by the party clajming adversely to the deed, that any substan- 
 tial prereiquisite of the law has not been complied with, the 
 prima facie character of the deed is destroyed, all of its pre- 
 
 ' Ante, Chapter 3. 
 
OP THE TAX DEED. 365 
 
 sumptions overthrown, and the deed hecomes mere " waste 
 paper." ^ 
 
 And inasmuch as the evidence necessary to destroy the pre- 
 sumptions 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 pre- 
 suming that the negative allegation is true ; and when this is 
 done, the onus probandi is shifted to the party claiming under 
 the tax deed. T\\& prima facie character of the deed, as estab- 
 lished by the statute, being thus overthrown, the principle of 
 the commoiv 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 proceed- 
 ings.^ This principle conforms to the general law, regulating 
 the proof of negative averments.^ 
 
 It has been attempted to be shown, that the legislature can- 
 not, constitutionally, 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 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, liowever, that greater effect is to be given 
 to the written part of a contract or deed, where it is written in 
 part and printed in part, and it is doubtful, upon the whole in- 
 strument, what the intent of the parties was.^ 2. The deed 
 must be sealed. The statutes usually require, in terms, the 
 sealing of the deed. This was a requisition in the statute of 
 
 1 Sibley v. Smith, 2 Michigan (Gibbs), 486 ; Graves v. Braen, 11 Illinois, 431 ; 
 Tnrney v. Yeoman, 16 Ohio, 24; Fitch v. Casey, 2 G. Greene, 300. 
 
 " Graves v. Bruen, 11 Illinois, 431 ; Sibley w. Smith, 2 Michigan (Gibbs), 486. 
 
 '* 3 Greenleaf, Ev. sec. 78 ; Calder v. Rutherford, 3 Broderip & Bingham, 302. 
 
 * Ante, pp. 80, 83. 
 
 ' Coke, Litt. 229 o ; 2 BlacliStone, Com. 297 ; 14 Johnson, 491 ; 2 Maule & Sel- 
 ■wyn, 288. 
 
 6 3 Kent, Com. 260 ; 4 East, 136. 
 
 31* 
 
366 OF THE TAX DEED. 
 
 Illinois, of January 26, 1826.1 g^t sometimes the statute simply 
 directs the officer to execute " a deed of conveyance." ^ This 
 ex vi termini means an instrument in writing, sealed and de- 
 livered, and whatever else is necessary to constitute the solem- 
 nity 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 appli- 
 cable to conveyances made by a public officer as to those exe- 
 cuted by private individuals. ' . 
 
 Such was the rule laid down in Doty v. Beasley,^ which was 
 an aption of trespass for cutting down and carrying away timber, 
 and the defendant justified under a t&x sale. By the court : 
 " He (the defendant) claims title by virtue of a purchase made 
 from the register at his sales for taxes, the 28th day of Novem- 
 ber, 1800, and obtained a certificate of the purchase. On the 
 23d of October, 1805, he procured from the register, what (we 
 presume) was intended by them as a deed of conveyance. It 
 is signed by the register, but he has failed to annex a seal to it. 
 The act regulfiting conveyances, approved December 19th, 
 1796, declares ' that no estate of inheritance or freehold, or fpr 
 a term of more than five years, in lands or tenements, shall be 
 conveyed from one to another, unless the conveyance be declared 
 by writing, sealed and delivered.' This general regulation must 
 have operation upon all 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 Shortridge 
 
 • 1 Laws 1826, p. 78. 
 2 Eevised Statutes, Illinois, 1845, p. 447, sec. 71. 
 8 1 Bibb, 333 ; 12 Johnson, 197. 
 
 « Jackson v. Wood, 12 Johnson, 73; Same j;. Wendell, 12 Johnson, 355. 
 6 2 Bibb, 14. 
 
OF THE TAX DEED. 367 
 
 V. Catlett.i 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 under seal.^ The manner of sealing will of course de- 
 pend 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 au- 
 thenticated by the private seal of the conveying officer. And it 
 is presumed, that in all cases where the statute directs the ex- 
 ecution of a tax deed, and is silent as to the manner of sealing 
 it, the common law mode may be adopted, that is, the private 
 seal of the person who executes the deed. Such are the de- 
 cisions in Pennsylvania, 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 officer, who is intrusted with 
 the power of executing it, and that it should be accepted 
 by the grantee named in it, or by some person authorized 
 by him to receive it. In this respect it stands upon the 
 same footing as deeds executed between private individuals. 
 It is not necessary that a patent should be delivered to the 
 grantee of the 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 
 officer, and the great seal of State ; while a tax deed simply 
 passes the owner's title, and is executed by the proper officer, 
 under his own hand and private seal.^ . 
 
 1 1 A. K. Marshall, 587. 
 
 2 Pry V. Phillips, 5 Burr. 2827 ; HoUiday v. Marshall, 7 Johnson, 211. 
 8 Watt V. Gilmore, 2 Yeates, 330 ; Huston v. Foster, 1 "Watts, 478. 
 
 * McCoy V. Dickinson College, 5 Sergeant & Eawle, 254. 
 
 ' HuUck V. Scovil, 4 Gilman, 159; Church v. Gilman, 15 Wendell, 658. 
 
368 OF THE TAX DEED. 
 
 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 independent conveyance, to transfer the es- 
 tate described in it, but from the existence of the power, and a 
 compliance with the conditions prescribed by the creator of it. 
 The title is derived from the power, and the conveyance must 
 bear upon its face an acknowledgment of the power in pursu- 
 ance of which it purports to have been executed. This rule is 
 applicable alike 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 pursu- 
 ance of a public power, has been made in the form ordinarily in 
 use among individuals in conveying land, and bearing no recog- 
 nition upon its face of the power under which the officer acted. 
 
 5. Where the form of the deed has not been prescribed by 
 law, but the statute simply authorizes the execution of a, deed 
 of conveyance to the purchaser, any deed, which, according to 
 the rules of the common law, would be sufi&cient to transfer 
 the title of the former owner, and vest the estate in the pur- 
 chaser, 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 complied with.^ 
 But where the statute prescribes the particular form to be ob- 
 served in the execution of the deed, that form becomes sub- 
 stance, and must be strictly pursued, or the deed will be held 
 void.^ 
 
 In Maxcy v. Clabaugh, where the statute form of the deed 
 
 1 2 Terra Eeports, 241 ; Jackson v. Roberts, 11 Wendell, 425; Tolman v. Emer- 
 son, 4 Pickering, 160. 
 
 2 Chandler v. Spear, 22 Vermont, 388 ; Brown v. Hutchinson, 11 Vermont, 569 ; 
 Spear y. Ditty, 8 Vermont, 419; Bank of Utica ». Mersereau, 3 Barbotir, Ch. R. 528. 
 
 8 Chandler v. Spear, 22 Vermont, 388 ; Kinney i". Beverley, 2 Hening & Mun- 
 ford, 531 ; Smith v. Hileman, 1 Soammon, 323 ; Atkins v. Kinnan, 20 Wendell, 
 
OF THE TAX DEED. 369 
 
 required a recital of the year for which the taxes were due, 
 aud 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 case, it appeared that 
 the statute of New York required the comptroller's deed to 
 be executed " in the name of the people of the State ;" and the 
 deed offered in evidence did not purport to be so executed ; 
 but it was proven upon the hearing, that such had been the 
 form used for twenty-five years. The deed was held valid. 
 1. Because the maxim, " that custom is the best interpreter of 
 the law," was 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 comptroller of 
 
 249; Breese, 4; 15 Vermont, 72; 22 Pickering, 387; II Massachusetts, 281; 1 
 East, 64 ; 1 Cowper, 32 ; 5 Oilman, 96. 
 
 I 1 Gilman, 26. The form of the tax deed prescribed by the Illinois statute of 
 January 26, 1826, was as follows, to wit: 
 
 The auditor of public accounts of the State of Illinois, to all who shall see these 
 
 presents, greeting ; Know ye that whereas I did, on the day of , at the 
 
 town of Vandalia, in conformity with all the requisitions of the several acts in such 
 case made and provided, expose to public sale, a certain tract of land being (here in- 
 sert 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, charge- 
 able on the said tract of land ; and whereas, at the time and place aforesaid, A. B, 
 offered to pay the aforesaid sum of money for (the whole tract or part thereof, as the 
 
 case may be,) which was the least quantity bid for ; and the said has 
 
 paid the said sum of into the treasmy of the State. I have granted, bar- 
 gained and sold, and by these presents, as auditor of the aforesaid State, do grant, 
 bargain, and sell (here describe the tract purchase,) 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 Jiere- 
 nnto subscribed his name, and affixed his seal, this day of . 
 
 -, Auditor. [Seal.] 
 
 The form now in use in that State will be found ante, p. 197. 
 ^ Bank of Utica v. Mersereau, 3 Barbour, Ch. K. 528. 
 
370 OF THE TAX DEED. 
 
 the State ; and no one could doubt, upon an • inspection of the 
 deed, that it was the intention of the officer who made the con- 
 veyance, to convey the premises described in it, for and in be- 
 half of the people of tlie 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 delivered prior to the 
 passage of a statute which, it was contended, 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.i 
 This is in accordance with the general rule; the date is 
 regarded as non-essential, the deed taking effect from its 
 delivery, and when the date becomes material, in the course 
 of a litigation, an omission may be supplied, or the deed con- 
 tradicted, where a wrong date is given, by extrinsic evidence. 
 The law, however, will presume that a deed was delivered on 
 the day of its date.^ 
 
 7. Wliere the statute is silent as to the acknowledgment of 
 the deed, it is not essential to its validity. And where the stat- 
 ute expressly requires an acknowledgment, 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 will 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.^ 
 
 I Xhompson v. Schuyler, 2 Gilman, 271. 
 
 '^ 2 Lord Eaym. 1076; Perkins, 120; Touchstone, 55 ; 1 Cranch, 239; 4 Com. 
 Dig. tit. Fait. (B. 3) ; 2 Blackstone, Com. 304 ; 2 Johnson, 230 ; 4 Johnson, 230; 
 4 Bast, 477 ; 1 Bibb, 619 ; 9 Cowen, 255 ; 6 Munford, 555 ; 5 Johnson, 139. 
 
 8 Graves v. Bruen, 1 Gilman, 167 ; Thompson v. Schuyler, 2 Gilman, 271 ; Ken- 
 nedy V. Daily, 6 Watts, 269 ; Hogina v. Brashears, 8 English, 242. 
 
OP THE TAX DEED. 371 
 
 8. Whether the tax deed must be recorded as against subse- 
 quent purchasers from the former owner, is a question upon 
 which the autliorities are divided. The afSrmative is main- 
 tained in Vermont and Massachusetts,^ while tlie contrary is 
 the doctrine of the Illinois courts.^ This is an important ques- 
 tion, and depends upon the fact, whether a tax title is a 
 derivative or an original one. This subject will be fully dis- 
 cussed 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 requi 
 sition of the law. The statute of Illinois declares, that " the 
 deed so made by the collector, shall be acknowledged and 
 recorded in the same manner as other conveyances of real 
 estate, and shall vest in the grantee, his heirs or assigns, the 
 title of the property therein described." ^ 
 
 9. It may be laid down as a general rule, that the officer on 
 whom the power to convey is conferred, cannot execute a con- 
 veyance 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 faras the purchaser is concerned. 
 It could not acquire any additional vitality from the fact, that 
 the. owner of the estate failed to redeem. The officer having 
 no power to deliver the deed, nor the purchaser a right to 
 accept it, before the expiration of the time fixed for redemption, 
 the officer must, at the proper time, execute and deliver a new 
 deed to the purchaser, or redeliver the old one. The date of 
 
 ^ Allen V. Everts, 3 Vermont, 10; Tilson v. Thompson, 10 Pickering, 359. 
 
 ^ Graves v. Bruen, 1 Gilman, 167. 
 
 " Post, Cliapter 37. 
 
 » Revised Statutes 1845, p. 447, sec 
 
372 OF THE TAX DEED. 
 
 the deed being immaterial, a redelivery of it, when the power 
 to convey attached, would undoubtedly be sanctioned by the 
 courts, and the deed treated as an operative conveyance. 
 
 Where a married woman executes a deed, without the 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 provisions of this act, the sherifif 
 shall make out a deed for each lot or parcel of land sold, and 
 ' remaining unredeemed, and deliver the same to the purchaser 
 upon the return of the certificate of purchase." ^ The statute 
 gave, to owners laboring under no disabilities, two years from 
 the date of the sale, to redeem.^ It will be perceived that the 
 language of the law does not empower the officer to convey, 
 until the expiration of two years from the date of the sale. 
 
 10. The power to convey, when it once attaches, is a contin- 
 uing 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 posses- 
 sion of it by action, may affect the-rule. The certificate of sale 
 vests in the purchaser an equitable interest in the land, and he 
 has a right to be clothed with the legal 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 
 
 1 Perkins, 154; 1 Cowper, 201 1 8 Cowen, 277. 
 '' Session Laws, 1838, 1839, p. 17, sec. 42. 
 ' Session Laws, p. 16, sec. 38. 
 
OF THE TAX DEED. • 373 
 
 would not, in this collateral manner, decide whether the pur- 
 chaser or adverse claimant had the better title. 
 
 It has already been shown, that theTegeal 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, a bill in chancery will doubtless be a con- 
 current remedy to compel the specific execution of the contract 
 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, ex- 
 cept where the proceedings have been strictly regular. Whether 
 the deed is executed voluntarily or compulsorily, 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. Bruen,^ 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, 1888 (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 
 
 1 1 Gilman, 167. 
 
 ' Maxcy v. Clabaugh, 1 Gilman, 26. 
 8 3 Barbour, Ch. E. 528. 
 32 
 
374 OF THE TAX DEED. 
 
 elapsed since the execution of the deed, which did not comply 
 with the statute in point 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 author, 
 izes a particular officer — e. g-., the auditor, sheriff, collector, 
 treasurer, or county commissioners — 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 conveyance after the expiration of his term 
 of office, or whether it must not be made by his successor, 
 and also, as to the power of a deputy to make the deed. But 
 all of these questions may be 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, aud 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 execution, in which case the officer who 
 
 ' Bestor v. Powell, 2 Gilman, 119 ; Maxcy v. Clabaagh, 1 Oilman, 26. 
 
 2 [In Donnel v. Bellas, 10 Casey, 157, it was held, that the amount of the taxes 
 and costs should be paid by the purchaser to the treasurer, and the deed delivered 
 by him during his term of office ; and that the treasurer had no authority to receive 
 payment or deliver the deed after his term of office had expired, although it had been 
 executed and acknowledged by him while in office. In Miller v. Williams, 15 Grat- 
 tan, 213, it was held, that where one commissioner of forfeited land has sold and 
 received the price, his successor cannot make the conveyance without an order of 
 court.] 
 
OF THE TAX DEED. 375 
 
 sold may convey after his term of office expires.^ It is intimated, 
 however, in Graves y. 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 exe- 
 cution of the power, can be ascertained only from the records 
 and files of the office. The power of the person who made the 
 sale to execute a conveyance, is an exception to the general 
 rule, which requires the deed to be made by the person in office 
 for the time being ; and this exception depends upon two fictions 
 of law for its support, namely, the entirety of the proceedings 
 in selling the land of delinquents, and the doctrine of relation. 
 This .exception, thus sustained, proves the truth of the general 
 rule, that tlie 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 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 acknowl- 
 edgment of the deed in his own name is invalid. Nor has he 
 power to execute, acknowledge, and deliver a deed in pursuance 
 of a sale made by the principal officer. It would be 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 com- 
 mences the execution of a power, must go on and complete it. 
 
 1 Graves v. Hayden, 2 Littell, 64 ; Elkin v. The People, 3 Scammon, 207 ; 4 
 Bibb, 21. 
 
376 . OF THE TAX DEED. 
 
 except where a term of ofSce 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 trans- 
 fer of the bid, or an assignment of the certificate of sale. It has 
 been shown already, that the officer selling has no authority, 
 upon principle, to substitute the name of a third person for that 
 of the successful bidder, even where the latter consents to it.'-* 
 But upon the common law principles, the certificate of sale is 
 not assignable. The right of the purchaser, prior to the exe- 
 cution of the deed, is not only an equitable interest in the laud, 
 but that interest depends upon a contingency 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 con- 
 summation of it by the delivery of the tax deed. The certifi- 
 cate confers upon the purchaser a simple right to demand and 
 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 redemp- 
 tion is effected, no statute requires a reconveyance of the inter- 
 est of the purchaser, to the owner. Upon the payment of the 
 purchase-money, the land becomes ipso facto discharged of the 
 encumbrance. No interest in the land itself becomes vested in 
 the purchaser, until tlie time for redeeming has expired. Until 
 that period arrives, his interest is contingent. But between that 
 
 1 Wilsons V. Bell, 7 Leigh, 22. [In Wilsons v. Bell, the court decided, that where 
 the deed recited that the sale was naade by the sheriff, but the deed was made and 
 acknowledged by the deputy, as his, the deputy's own act, it was ineffectual to convey, 
 title. But Carr and Tucker, Judges, rely on the fact that he acknowledged the 
 deed, not as the act of the sheriff, but as the act of the deputy himself. See Flanagan 
 D. Grimmet, 10 Grattan, 431.] 
 
 " Ante, p. 278. 
 
OF THE TAX DEED. 377 
 
 time and the delivery of tlie deed, he has a perfect equity. 
 Having purchased the land, paid the consideration, received a 
 certificate of his purchase, and the owner having failed to re- 
 deerii, if the law has been complied with in every respect, he is 
 entitled to a deed, and may treat the transaction as an agree- 
 ment 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 as- 
 signment 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 as- 
 signee, upon proving, to the satisfaction of the conveying 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 sliall 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 assignment, was prima facie evidence of a regular 
 ■assignment. The reason of this decision was, tliat whether the 
 officer conveyed to the purchaser or his assignee, did not in the 
 sliglitest degree affect the interest of the owner. This "decision 
 was not satisfactory to the entire bar. It was insisted, that the 
 assignment was an act in pais, which was essential to the validity 
 of the assignee's title, and that he was as much bound to prove 
 that fact as any matter of record upon which his title depended ; 
 that the statute did not declare the deed prima facie evidence of 
 the assignment, and therefore the question ought to be deter- 
 mined according to the principle of the common law, which re- 
 quired a party who asserted the existence of a fact to prove it. 
 The owner of the estate is directly interested in the question to 
 this extent ; he might be subjected to a double prosecution for 
 mesne profits, where he was in possession of the land, and held 
 over after the expiration of the time limited for a redemption, and 
 the execution of the tax deed. If the person named in the deed 
 
 1 1 Gilman, 302. 
 
 32* 
 
378 OF THE TAX 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 pruna facie evidence of the assignment, in an 
 action brought by the pretended assignee against the former own- 
 er of the estate, and the latter having no means in his power of 
 proving the negative, the consequence would be that a recovery 
 of the land itself must take place, and the owner subjected to an 
 action for the back rents and profits of the premises. It is evi- 
 dent that a judgment and satisfaction Tor the rents, would con- 
 stitute 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 recital in the 
 deed would not be evidence against the purchaser. Why ? 
 Because he was not a party .to the deed, and therefore not 
 bound by any thing contained in it. The same reason is equally 
 applicable to the efiect of the recital as against the original pro- 
 prietor. He was no party to the deed. It was made against 
 his will, perhaps without his knowledge, by a public officer act- 
 ing 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 evi- 
 dence 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 declar- 
 ation 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 declara- 
 tions 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 unauthorized 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 
 
OF THE TAX DEED. 379 
 
 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 defence. Yet, according to the ruling in Wiley 
 V. Bean, the judgment of a mere ministerial officer, upon the 
 fact of assignment, is held to be evidence against a stranger to 
 the proceeding — where it may have the effect of concluding 
 his rights, because of the difficulty of proving the negative. 
 Because, therefore, the statute does not give the deed this effect 
 as evidence, because it is contrary to the common-law rule rela- 
 tive to the onus of proof, because it falls within the maxim, res 
 inter alios acta, because it is not evidence against the alleged 
 assignor, and because it may result injuriously to the original 
 proprietor, it may be safely affirmed tliat the fact of assignment 
 must be sustained by evidence aliunde. 
 
 This doctrine seems to be conceded by the Supreme Court 
 of the United States, in reference to patents issued to assignees 
 of land warrants under the laws of Virginia. ^ The contrary 
 was intimated in Ohio.^ It is immaterial, however, which is 
 the true rule in this class of cases, as the patent is matter of 
 record, and ordinarily conclusive at law of every fact recited 
 in it, where the government had title, and the officer of the 
 law power to transfer it. It is very different with a tax deed, 
 as has been shown already. The fact of assignment is easily 
 proven. The deed is issued upon the surrender of- the cer- 
 tificate, and the latter is iisually preserved upon the files of 
 some public office. Suppose 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 pro- 
 duction 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 in instruments of conveyance exe- 
 cuted by- private individuals. In concluding this subject, it is 
 to be hoped, that when a decision is made affirming the doctrine 
 in Wiley v . Bean, some satisfactory reason may be assigned for 
 
 ' Bouldin v. Massie, 7 Wheaton, 122 ; Clark u. Graham, 6 Wheaton, 577. 
 2 2 Ohio, 415. 
 
380 OF THE TAX DEED. 
 
 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 
 proprietor, nor under any authority derived from him, but in the 
 name of the State or the officer, in virtue of the authority with 
 which the latter is invested by law. No principle is 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 
 the deed 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 conveyance may 
 be Executed in pursuance of it, notwithstanding the death of 
 the defendant.^ 
 
 14. The Illinois statute ^ declares, that " whenever any per- 
 son, either as original purchaser or assignee, is entitled to deeds 
 for more than one tract of land, under the same sale, he shall 
 have the right to require the sheriff to include all the said tracts, 
 or as many thereof as he may designate in one deed." This 
 provision " is a salutary one," says Chief Justice Treat, " it 
 avoids the inconvenience of having numerous conveyances to 
 real estate, situated in the same county, the title to which 
 originates in a common source. It also dispenses with the 
 •unnecessary expense of the sheriff and recorder, in the execu- 
 tion and recording." ^ 
 
 15. A tax deed, which upon its face, bears evidence of a 
 
 1 Curry v. Fowler, 3 A. K. Marshall, 504. 
 ^ Laws 1842, 1843, p. 238, sec. 3. 
 8 Silliman v. Frye, 1 Gilman, 664. 
 
OF THE TAX DEED. 381 
 
 non-compliance with a substantial requisition of the law, is a 
 nullity. 1 
 
 16. The deed must give a certain description of tlie laud 
 conveyed,^ and conform, in every respect, to the mode of desig- 
 nation, 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, judgment, precept, and other 
 documents, are equally applicable to the description contained in 
 the deed. [There may be instances, however, where the descrip- 
 tion in the deed need not be as exact as required in the assess- 
 ment roll. Thus, where a statute requires, that wliere the'tract 
 is less, or other than a subdivision authorized by the United 
 States for the sale of the public lands, it shall be described in 
 the assessment by a designation of the number of the lot or 
 tract, or of other lands by which it is bounded, and the deed 
 described the land as " the west half of the south-west fractional 
 quarter section of twenty-eiglit, in townsliip one, south of range 
 twelve east, containing fifty acres, more or less," and the south- 
 west fractional quarter was not subdivided by government ; but 
 contained one hundred acres of an irregular triangular shape, 
 and patented as one parcel, it was held that the description was 
 good for the purpose of a sale, but not for an assessment.^] It 
 only remains to state the cases which have been decided, rela- 
 tive to descriptions in the deed itself. 
 
 In Tallman v. White,* the addition of a false particular in 
 /the description, whicli, in a deed between private individ>ials, 
 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, namely : " one 
 
 1 Moore v. Brown, 4McLean, 211 ; s. c. 11 Howard (U. S.), 414; Farrar k. East- 
 man, 1 Fairfield, 191 ; Hogins v. Brashears, 8 English, 242. 
 
 2 Sutton V. Calhoun, 14 Louis. Ann. 209. 
 
 * Amberg v. Sogers, 9 Michigan, 332. 
 
 * 2 Corastock, 66. 
 6 Ante, 125. 
 
382 OP THE TAX DEED. 
 
 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.i [This description of the premises, " All the 
 estate, right or title, the owner had on the 31st August, last 
 past, in and to a certain lot of land and buildings in said N. P., 
 and being taxed in the name of H. I. ; being about ten acres 
 of land on the easterly side of the road that leads from 0. to T. ; 
 for a further description reference is had to a certain mortgage 
 deed to W. A., which is recorded in the N. P. registry of deeds, 
 book 8, page 228," was held void for vagueness ; as it appeared 
 that the assessor's book contained no description of the location 
 or character of the lands taxed to H. I., and that the registry 
 book referred to contained no record of any mortgage to W. A. 
 as stated in the deed; the phrase on "the easterly side of the 
 road, &c.," being altogether too vague and indefinite as to 
 location.^ A deed of 2,500 acres, to be taken out of the two- 
 thirds of a certain league, " to commence at the beginning quar- 
 ter, and taken in a square, if it will admit of it," is void for 
 uncertainty of description, if tlie tract cannot be contained in a 
 square.^ A deed of " 640 acres of land adjoining Taylor & 
 Moseby's Landing, in the said county of Jefferson," is not a 
 sufficient description within the act of Arkansas, of 1836.''] A 
 grant by the owner of a specified number of acres, in a partic- 
 ular 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 prin- 
 ciple, 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 
 
 1 Burchard v. Hubbard, 11 Ohio, 316. 
 
 2 Tripp V. Ide, 3 Rliode Island, 51. 
 
 8 "Wofford V. McKlnna, 23 Texas, 36. 
 * Bonnell v. Eoane, 20 Arkansas, 126. 
 
OF THE TAX DEED. 383 
 
 the case of Doe ex dem. Webb v. Dixon, i where a lease for 
 " seven, fourteen, or twenty-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 describing it by metes 
 and bounds, or some other certain desci-iption, the grantee 
 would have the right to elect in what particular part of the 
 tract he would take it ; the location, when once made, would 
 be conclusive upon the grantor ; and an exclusive possession 
 by the grantee, of that number of acres, would be evidence of 
 his election. But in this respect there is a wide difference be- 
 tween 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 officer of 
 the law. It is not only unnecessary to the objects to be effected 
 by a tax sale, but would be destructive of the interests of the 
 owner, if tolerated. The purchaser, for instance, by locating 
 the quantity so as to include a mine, a spring, a water power, 
 or a dwelling and curtilage, might render the residue of no 
 value to the owner, and thus produce a sacrifice of the property. 
 In most statutes a power is 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 ruinous 
 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 nof before.^ But the question, 
 whether the doctrine of relation can have any application to 
 such a title, is an interesting one. The general rule of law is, 
 " that, where there are divers acts concurrent, to make a con- 
 
 1 9 East, 15. 
 
 " Erwin v. Helm, 13 Sergeant & Eawle, 151. 
 
 ' Hulick V. Scovil, 4 Oilman, 159. 
 
384 OF THE TAX DEED. 
 
 veyance, estate or thing, the original act shall be preferred, and 
 to this the other acts shall have relation." This rule is based 
 upon a legal fiction, or assumption, that a thing is true which 
 is either not true, or which is as probably false as true. It is 
 applied only where it is absolutely necessary, in order to ad- 
 vance 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 
 will be injuriously affected by the application of the doctrine, 
 courts invariably refuse to be governed by it.^ The fiction has 
 been applied in this wise : A term of court is regarded as one 
 day in law, and every act of the court has relation to that day.^ 
 An execution relates to the judgment.^ Possession under a writ 
 of habere, facias, issued upon a judgment in ejectment, relates to 
 the time of the commencement of the action.* A patent relates 
 from the delivery to the delivery 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 
 
 1 Broom's Legal Maxims, 90. 
 . ^ 1 Term Reports, 279; 7 Term Eeports, 21 ; 3 Bmi-ow, 1596; 1 Willes, 39; 
 Oilman, 119. 
 
 8 Shelley's Case, cited 3 East, 444. 
 
 * 2 Dana, 32 ; 4 Cowen, 329. 
 
 6 3 Cainos, 62; 2 Johnson, 80; 12 Johnson, 140. 
 
 6 1 Johnson's Case^, 81 ; 2 Gaines' Cases, 301 ; 2 Johnson, 519 ; 4 Johnson, 230, 
 534. I 
 ' 8 Hammond, 87; 1 Cranch, 239. 
 
 * 7 Massachusetts, 381. 
 
OF THE TAX DEED. 385 
 
 escrow relates to the first delivery.^ A deed made in pursuance 
 of a power relates to the date of the power. ^ The enrolment 
 of a bargain and sale, under the English statute, relates to the 
 date of the deed.^ A copyhold estate relates from the admit- 
 tance to the surrender.* And livery of seisin relates to the deliv- 
 ery of the deed of feoffment.^ A sheriff's deed relates to the time 
 when the right of redeeming the estate has expired,^ and to 
 the time when the judgment became a lien upon the land for 
 the purpose of protecting the rights of the purchaser against 
 intervening interests.'' A confirmation by a board of land com- 
 missioners, organized under a special act of Congress, relates to 
 the time the claim was filed before them.^ These cases suf- 
 ficiently 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 inju- 
 ries done to the inheritance, and, in general, to protect those 
 rights of his, which attached at the time the act took place, to 
 which the consummating act of title has relation. It has been 
 regarded as questionable whether this principle, or rather 
 fiction, has any application to tax titles. The only reason as- 
 signed 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 
 
 1 1 Johnson, Ch. 288 ; 1 Johnson's Cases, 81 ; 18 Johnson, 544 ; 13 Johnson, 285. 
 
 2 20 Johnson, 537. 
 8 Burrow, 2787. 
 
 * Burrow, 2787. 
 
 '^ Burrow, 2787. 
 
 « 3 Gilman, 365; 9 Missouri, 524; 12 Missouri, 146 ; 11 Ohio, 235 ; 3 Caines, 
 262 ; 2 Wendell, 507 ; 7 Cowen, 540 ; 13 Johnson, 340 ; 20 Johnson, 537 ; 1 
 Hill, 107 ; 15 Johnson, 309 ; 3 Cowen, 75 ; 4 Johnson, 234. 
 
 ' Fell V. Price, 3 Gilman, 190. 
 
 8 10 Howard, 372. 
 
 33 
 
386 OF THE TAX DEED. 
 
 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 assessment 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 principal 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 defence proved that the the tax deed was exe- 
 cuted at the instance of Hill, the judgment creditor, and 
 delivered to him, that the certificate of purchase was not 
 surrendered at the time of the execution of the deed, nor 
 was the deed made with the knowledge or assent of Morton, 
 and that on June 20, 1844, a second deed was made and 
 delivered to the agent of Morton, conveying the estate to 
 Morton, in pursuance of the tax sale. Upon this state of 
 facts the circuit court excluded the tax deed of May 11, 
 1843. The plaintiff then offered to read the tax deed of 
 June 20, 1844, as evidence of title in Morton, the judgment 
 debtor, but it was rejected. Thereupon the plaintiff prosecuted 
 a writ of error. The supreme court held the first deed inad- 
 missible, because it was never delivered to and accepted by the 
 
 1 3 Oilman, 358. 
 
OF THE TAX DEED. 3S7 
 
 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 redemption expired. 
 The judgment was accordingly reversed, and the cause re- 
 manded for further proceedings. This case, it .will be per- 
 ceived, 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 conveyance, and that the title thus acquired, will 
 enure to the benefit of the purchaser, at the sheriff's sale. 
 
 In Donahoe v. Veal,i the action was trespass q. c.f. to re- 
 cover 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 oflBcer 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 ofi&cer who made the sale should convey 
 to the piirchaser. 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 complied with; 
 while the act of 1847 made "the deed evidence per se, and cast 
 the onus probandi upon the former owner in order to defeat it. 
 
 ' 19 Missouri, 331. 
 
388 OF THE TAX DEED. 
 
 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 un- 
 touched, that a person claiming to hold land under a sale for 
 taxes, can only maintain his title when the law has been strictly 
 pursued. It is to be observed, that in neither of these acts is 
 there any intimation that the deed is to afford any evidence of 
 title in the purchaser, prior to its date. In the absence of any 
 such provision, the deed can have no such effect, unless the 
 previous proceedings 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 purcliaser 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 tliat period, and the right of the purchaser was, to 
 receive his redemption money, with a high penal interest 
 during the delay of redemption. It appears very clearly to be 
 ,the design of these two acts, that the title to the property sold 
 for taxes shall remain undisturbed until the deed is actually 
 executed by the register, and that until that act is performed, 
 the title is in the former owner. Such being the design of the 
 acts, the doctrine of relation cannot be applied to such deed, 
 to give it an effect and operation contrary to the meaning of 
 the law, by allowing the person claiming under it, to maintain, 
 not only actions of trespass for injuries done after the sale, 
 and before the conveyance by the register, but actions for the 
 rents, issues, and profits accruing during that period. The 
 whole scheme of these acts very plainly shows, that such a 
 construction, or application of the fiction of relation to such a 
 case, would be contrary to the intention of the legislature.' 
 The Illinois and Missouri cases are in direct conflict with 
 each other. The former admits a relation to the time when 
 
OF THE TAX DEED. 389 
 
 the right of redemption expires^ the latter denies the operation 
 of the fiction altogether. The reasoning in Donahoe v. Veal 
 is not satisfactory. The fact that the statute makes the deed, 
 and not the certificate of sale, prima facie evidence of title, 
 cannot aflfect 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 inheri- 
 tance. 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 m such case — because his title is gone. Unless the 
 purchaser may sue, the trespasser must go unpunished. It is 
 therefore equitable that by means of the doctrine of relation, 
 the purchaser should be permitted to maintain an action of 
 trespass for an injury to the inheritance intermediate the time 
 when the right of the owner to redeem expires, and the 
 execution and delivery of the tax deed. It has been decided, 
 that a party to an ejectment suit cannot read, as evidence of 
 title, a tax deed executed and delivered after the demise in the 
 declaration.^ 
 
 18. The question sometimes arises, whether a power to sell 
 land for the non-payment of taxes, confers, by implication, the 
 power to execute a deed to the purchaser. Ordinarily, a power 
 of sale carries along with it the authority to execute and de- 
 liver to the purchaser the usual instrument of conveyance. It 
 is a general rule^ that every grant of power necessarily carries 
 with it all the usual, ordinary, and necessary means for the ex- 
 ercise of that power. And in the case of a power of sale, it 
 would seem reasonable that this principle should apply. The 
 sale is the substantial, and the conveyance the formal, part of 
 the transaction. In cases of private agency, it is difficult to 
 perceive why the agent cannot convey, as well as sell, under a 
 
 1 Pitkin V. Yaw, 13 Illinois, 251. 
 33* 
 
390 OF THE TAX DEED. 
 
 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 
 municipal corporation, having simply a power to sell land for 
 taxes, could, after a sale, make a deed to the purchaser, the 
 power was denied, because, 1. The power was in derogation 
 of the common law ; 2. A corporation can exercise no implied 
 powers ; and 3. The power to sell did not imply the power 
 to convey, because the general law, authorizing proceedings 
 against delinquents, treated the sale and conveyance as sepa- 
 rate and independent acts. The question was put to the court, 
 how is the purchaser to obtain his right ? to which it was re- 
 plied, " The method is not pointed out by legislative authority ; 
 it is a case not provided for in the statute, and a court of law 
 cannot supply the defect." And in Sibley v. Smith, the power 
 of the auditor of the State to convey lands sold by him for taxes, 
 was denied upon similar grounds. These decisions appear ex- 
 tremely 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 ho title to it — he may pay his money to the 
 State, and yet receive no value for it. A court of equity can- 
 not 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 requirements of a 
 
 1 Farrar v. Eastman, 5 Greenleaf, 345 ; Bruce v. Schuyler, 4 Gilman, 273, 274. 
 
 2 Doev. Chunn, 1 Blackford, 336,338; Sibley ti. Smith, 2 Michigan (Gibbs), 
 490. 
 
OF THE TAX DEED. 391 
 
 statute, it is presumed they would be able to sustain a convey- 
 ance made under such circumstances, by unanswerable argu- 
 ments. ^ 
 
 1 The statute of Arkansas prescribed the form of the tax deed, which contained 
 many recitals, and among others, the day of sale and the person by whom it was 
 made, and declared the deed conclusive evidence of title in the purchaser ; and it vcas 
 held in Hogins v. Brashears, 8 English, 242, that where the deed, in its recitals, 
 showed that the sale was made on tbe wrong day, and by an ex-collector, after the 
 expiration of his term of office, it was void upon its face, and conveyed no title to 
 the purchaser. 
 
392 VARIANCES. 
 
 CHAPTER XXIII. 
 
 OF VARIANCES BETWEEN DIFFERENT DOCUMENTS AND RECORDS 
 RELATING TO THE PROCEEDINGS. 
 
 The validity of a tax title depending upon the regularity of 
 all the proceedings, each document or record, in the series of 
 acts necessary to the consummation of the title, must not only be 
 legal on its face, but correspond with the preceding one upon 
 which it is based, in all essential particulars. The proceedings 
 are, in one sense, an entirety, and must be consistent through- 
 out. This is requisite, not only with a view to the legal identi- 
 fication of the document or record, but the power of sale and 
 conveyance in a great measure depends upon such consistency. 
 The assessment is the incipient act in the 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 assess- 
 ment, but correspond with its own immediate antecedent, in 
 every thing which is essential to its legal identity. Any mate- 
 rial and substantial variance between the document or record 
 in question, and those which preceded it in point of time, is 
 fatal to its validity; while trifling errors and omissions in 
 matters of form, which do not affect the power of the officer, 
 nor destroy the identity of the document or record as a part of the 
 entire proceedings, may be^isregarded.^ 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 bounda- 
 
 1 Pitkin V. Yaw, 13 Illinois, 251. 
 
VAEIANCES. 393 
 
 ries and definitions of right and wrong prescribed by the law, 
 it is, in the nature of things, impossible that a transaction, de- 
 tailed in records and docuinents, 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 variance, in its own nature, ever so insignificant. It is 
 easy, therefore, to see, that to require this, as it were, natural 
 and absolute identity between the fact and the proof, in all 
 matters of detail and form, would be, at the least, highly incon- 
 venient, if not wholly impracticable. Hence it is, that an arti- 
 ficial and legal identity, as contradistinguished from a natural 
 identity, mxist be resorted to as the proper test of variance be- 
 tween different parts of an entire transaction. ^ This is the 
 philosophical ground upon which the doctrine of variance, be- 
 tween the pleadings and evidence in a cause, is based. There the 
 strict rule is, that the allegations and proofs must correspond. 
 A party, cannot be permitted to allege upon the record, one 
 cause of action or ground of defence, and prove another, be- 
 cause 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 descrip- 
 tive averment must be strictly proven ; but this rule, too, is 
 qualified by the doctrine of idem sonans, surplusage, and im- 
 materiality. 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 appli- 
 cable to variances between different documents relating to the 
 sale of land for taxes. But on the other hand, where the vari- 
 ance affects the question of power, or destroys the legal identity 
 of the document or record, it furnishes a decisive objection to a 
 title derived under it. Many such variances have been noticed 
 in the preceding chapters. 
 
 1 Starkie's Bv. part i, pp. 1526, 1527. 
 
394 VAKIANCES. 
 
 In Pitch v., Casey ,1 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- 
 ^fths were returned as delinquent, the west third was adver- 
 tised for sale, the west two-fifths sold, and the tax deed con- 
 veyed the west two-fifths. The sale was held void. Kinney, 
 J. : " These variances 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 givfen. These dis- 
 crepancies 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, betweeu the delinquent 
 list and the judgment, was held fatal.^ 
 
 In Smith i;. Bodfish,^ the deed recited the levy of a tax of 
 one cent and four mills per acre on a township containing 
 23,414f acres, amounting to f923.00. The record of the 
 county commissioners showed a tax of eight cents and two 
 mills per acre, amounting to $1,920.00. In the absence of 
 any explanation, the sale was held void, because of the variance 
 in the amount of the tax. The court remarked, that if the 
 aggregate amount of the tax due upon the land had been re- 
 duced from the amount named in the levy to that recited in the 
 deed, by a portion of the owners of the township paying their 
 share of the tax, which was probably the case, this fact should 
 have been recited in the deed, or proved by the party claiming 
 \inder the tax sale. Where the land was listed and assessed in 
 
 1 2 G. Greene, 300. 
 
 ^ Smith V. State, 5 Blackford, 65. 
 
 » 27 Maine, 289. * 
 
VARIANCES. 395 
 
 the name of Allan Gillespie and James Gaily, and advertised 
 as the property of Charles Gillespie, the variance was held 
 fatal.^ Under the act of Congress authorizing a sale of the 
 land of delinquent tax-payers, a parcel of land was listed in the 
 name of John Hood, and described as a tract containing 30,000 
 acres : the deed recited a sale of, and conveyed 30,000 acres. 
 It appeared, however, that Hood was the owner by patent of a 
 15,000 acre tract alone. The court held the sale void upon 
 the ground of the variance in the quantity, but intimated an 
 opinion, that if the parcel of land was identified by oral evi- 
 dence, 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 accordingly. The proceeding must have some consist- 
 ency 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 jucigment 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 Watt V. Gilmore, 2 Yeates, 330. 
 
 2 Hood u. Mathers, 2 A. K. Marshall, 556. 
 " Pitkin V. Taw, 13 Illinois, 251. 
 
 " Wiley V. Scoville, 9 Ohio, 43. 
 6 Pitkin V. Yaw, 13 Illinois, 251. 
 
396 FEAUDDLBNT SALES. 
 
 CHAPTER XXIV. 
 
 OE SALES ACTUALLY AND CONSTRUCTIVELY FRAUDULENT. 
 
 It has been already remarked, Jhat the validity of a tax sale 
 depends, not only upon the authority of the officer to sell, but 
 on the fairness of the transaction. The maxim is, that fraud 
 vitiates every thing. Contracts of vchatsoever 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 inforijied by high authority, that even an act of 
 parliament, conceived in fraud, may be declared a nullity. 
 There is nothing in the nature of tax sales, which exempts 
 them from the operation of this general maxim. On the 
 contrary, a more rigid scrutiny into their fairness is demanded, 
 because of the gross inadequacy of the price usually paid at 
 such sales, and the great inducements held out for the perpe- 
 tration of fraud in the conduct of them. Positive fraud occai- 
 sionally 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 intrusted with funds 
 to pay the taxes, violated his trust, and, by a similar arrange- 
 ment with the purchaser, permitted a sale. These, and positive 
 frauds of a similar character, of course render the sale void. 
 
 Though positive frauds sometimes occur, the most numerous 
 kind are those usually denominated constructive ; or that class 
 of frauds which may be inferred from the violation of piiblic 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 
 
FRAUDULENT SALES. 397 
 
 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 author- 
 ity in support of this position. The question arose upon a bill 
 in chancery, in which the complainants alleged that they were 
 the heirs of Israel Ludlow, and, as such, the owners of the land 
 in controversy ; that 370 acres of this land, of the value of three 
 dollars per acre, were purchased by the defendant for f 33.73. 
 The bill then charged, that a fraudulent combination had been 
 formed between the defendant and sundry other persons, to 
 purchase large tracts of land at said sale, for the purpose of 
 speculation ; that it had been agreed, between the defendant 
 and those who were to participate in the profits of the specula- 
 tion, that the defendant alone should bid at the sale ; that the 
 other partners in the contract should advance their respective 
 portions of the purchase-moneys, and receive their share of the 
 profits ; and that in pursuance of such fraudulent contracts, the 
 defendant purchased the complainants' land, and obtained a 
 deed therefor. The prayer of the bill was to set aside the tax 
 deed, etc. To this bill a demui'rer was interposed, which was 
 overruled, and a decree entered according to the prayer of the 
 bill. In the opinion, the court say : " Such combinations have, 
 necessarily, a direct tendency to prevent competition, which it 
 is the duty of the legislature and the policy of the law to 
 encourage. Ovefr a sale of this description the owner has no 
 control ; he cannot refuse a bid, or adjourn the sale, or fix 
 a sum below which the property shall ftot be struck off. 
 The sale is managed by the agent of the State. The owner 
 is not consulted. The highest bidder becomes the pur- 
 chaser, although the sum bid be less than a hundredth part 
 
 1 2 Hammond, 504. 
 34 
 
398 FRAUDULENT SALES. 
 
 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 per- 
 mitted, all the persons present at the sale might form them- 
 selves 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 propei'ty at a tax sale, for the 
 convenience of the business they are engaged in, when specu- 
 lation is not their object ; but that a partnership or combina- 
 tion cannot legally be formed for the purpose of making such 
 purchases." Upon the same principle, any agreement or 
 understanding between two or more bidders at such sales, that 
 one of them only shall bid upon a particular tract of land, 
 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 competition. A custom exists in some of 
 the western States, among the regular attendants upon sales 
 of this character, that no one of them shall bid in competition 
 with another, who alleges that he has a claim upon the land 
 offered for sale. By claim is understood any colorable or 
 defective title to the whole or any portion of the land put up. 
 Such customs are clearly void, and if acted upon, render, the 
 sale illegal.! j^ jg ^ well-settled principle, that all agreements 
 whereby parties engaged not to bid against each other at judicial 
 or statutory sales, are void. They are unconscientious, against 
 public policy, have a tendency to affect injuriously the character 
 
 [1 Bat there is no reason or law to prevent an individual, who holds a defective 
 title, from purchasing a better one at a tax sale ; and if he stands in no relation of 
 trust to the owner, and is not implicated in any fraud against him, his measures to 
 perfect his title by a purchase at a tax sale will not enure to the benefit of the owner. 
 Coxe V. Gibson, 3 Casey (Penn.), 1-60.] 
 
FRAUDULENT SALES. . 399 
 
 of sales at public auction, and to mislead private confidence. 
 The'5^ operate virtually as a fraud upon the owners of tiie 
 property. This principle has been applied to judicial sales, 
 judgments, decrees, and orders, to sales made by persons acting 
 under a power conferred by a special statute, and to those 
 made by public officers 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 they 
 are, in fact, misled, the sale will be held void as against public 
 policy.^ 
 
 There is still another class of frauds proper to be noticed, 
 such as purchases made by those who are bound by covenant, 
 or upon legal or equitable principles, to pay the taxes, and yet 
 suffer the land to go to sale for the purpose of acquiring a title 
 against the owner, under whom they claim the possession, or to 
 whose title they are in some manner privy.^ The adjudg'ed 
 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 enures to, the benefit of the mort- 
 gagee.* So where the mortgagor conveys the estate in pledge 
 by simple quitclaim. Nor can the mortgagee acquire any title 
 at a tax sale, whereby the 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 t'tle by purchasing it at 
 the sale.^ [And one in possession of and claiming title, ac- 
 
 1 1 Story's Bq. sec. 293. 
 
 " 1 Stor/s Eq. sec. 293. 
 
 " Blake w. Howe, 1 Aikens, 306 ; Willard v. Strong, 14 Vermont, 532. 
 
 * FttUer V. Hodgdon, 25 Maine, 243 ; Gardiner v. Gerrisli, 23 Maine, 46 ; Frye v. 
 Bank of Illinois, 11 Dlinois, 367 ; Coombs «. Warren, 34 Maine, 89 ; Williams v. 
 Hilton, 35 Maine, 54 ; 7 Faure v. Winans, Hopkins, Ch. 283. 
 
 5 Donglass v. Dangerfield, 10 Ohio, 152 ; Ballance v. Forsyth, 13 Howard (TJ. S.), 
 18; Voris v. Thomas, 12 Dlinois, 442; Glancy v. Elliott, 14 Illinois, 456; Cham- 
 bers V. Wilson, 2 Watts, 495. 
 
400 FRAUDULENT SALES. . 
 
 quires no additional title by such purchase, if the taxes were 
 a lien upon the land at the time of his taking possessfbn; 
 whether the land were taxed to the occupant, or to one having 
 no claim of title, or as non-resident.^] 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 ap- 
 pears that he was bound to pay the taxes, in which event he 
 can acquire no title by his purchase. 
 
 In Blakely v. Bestor,^ the defendant set up. an outstanding 
 tax title, and it appeared that he was in possession of the land 
 at the time of the assessment and sale, and the court refused 
 to presume that he was bound to pay the taxes : " It is 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 
 thai he ought not to be permitted to avail himself of a tax title 
 acquired through his default. This may or may not be so. It does 
 not necessarily follow, that because a person is in possession of 
 premises, he is bound to pay the taxes assessed upon them. He 
 may occupy them as a tenant, under an agreement that his laud- 
 lord shall pay the taxes, and in such case there could be no ob- 
 ligation 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 de- 
 fendant has the right, prima facie, to introduce it in evidence. 
 When introduced, it would be competent for the plain tifif 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 
 
 1 Lacey v. Davia, 4 Michigan, 152. 
 
 ' Piatt V. St. Claii-'s heirs, 6 Ohio, 93 ; Choteau v. Jones, 11 Illinois, 322. 
 
 3 13 Illinois, 708 
 
FRAUDULENT SALES. 401 
 
 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 purchase of the land at a tax sale.^ 
 Nor can an agent, whose duty it is to pay the taxes, become the 
 purchaser of his principal's land at such a sale.^ Nor can one 
 tenant in common, in sixch case, acquire a title in exclusion of 
 the rights of his cotenants.^ But after the tax title has ma- 
 tured in the hands of a stranger, it is said that one tenant in com- 
 mon 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 ac- 
 quire no right to the estate against the owner in fee.^ 
 
 But in Branson v. Yancey et al.,^ which was a bill in chan- 
 cery by the purchaser at an execution sale, against Yancey's 
 heirs, to set aside a tax deed, executed and delivered to the 
 widow of Yancey, and subject the land to the payment of their 
 debts, it was held by the court, that " a widow, who, after the 
 death of her husband, occupies his residence, his children, some- 
 of them of age, living with her, is iinder no obligation to pay 
 the tax accruing thereon between his death and the assignment 
 of her dower. Therefore, a purchase by her of the premises for 
 such taxes made after the assignment of dower, without actual 
 fraud, will not be set aside in favor of her husband's creditors." 
 Henderson, J., dissented, saying: "It was the duty of the 
 occupant to keep down incumbrances, and any acquisition of 
 
 1 Voris V. Thomas, 12 IlliQois, 442 ; Glancy v. Elliott, 14 Illinois, 456. 
 
 2 Oldhams v. Jones, 5 B. Monroe, 458 ; Matthews v. Light, 32 Maine, 305 ; Bar-, 
 tbolomew v. Leech, 7 Watts, 472. 
 
 " Lewis V. Robinson, 10 Watts, 354 ; Williams v. Gray, 3 Greenleaf, 207. 
 * Kirkpatrick v. Mathiot, 4 Watts & Sergeant, 251. 
 " Vamey v. Stevens, 22 Maine, 331. 
 ■ " 1 Devereux, Eq. 77. 
 
 34.* 
 
402 FEAUDULENT SALES. 
 
 title made by her, growing out of her omission, is for the benefit 
 of all concerned." 
 
 In Woodburn v. Farmers and Mechanics Bank,^ where one 
 became the judgment creditor of another, and after the judg- 
 ment became a lien on the land in question, the premises were 
 sold for taxes, upon an assessment against the judgment debtor, 
 and the creditor purchased in the property at the tax sale ; and 
 afterwards caused an execution to be issued upon his judgment, 
 and permitted a stranger to purchase the property at the exe- 
 cution sale, without informing him of his tax title, it was held, 
 that the conduct of the judgment creditor was a fraud upon 
 the execution purchaser, and that the latter was entitled to the 
 land. 
 
 It seems to be a debatable question whether the officer in- 
 trusted with the power of sale may purchase the land. This 
 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 reg- 
 ister of the sale, to execute certificates of purchase, and through 
 whom alone a redemption could be effected, was the purchaser. 
 The question, however, principally argued upon this branch of 
 the case, was, as to the jurisdiction of a court of law to declare 
 the sale void. It was urged that this class of frauds was pecu- 
 liarly within the province of a court of equity. 
 
 The case of Fox v. Cash,^ arose upon a statute v,ery much 
 like that of Illinois ; the sale was made to the clerk and sus- 
 tained. By the court : " The clerk to the commissioners Is not 
 forbidden by law, to be a purchaser of land sold at public sale 
 by the commissioners for arrears of taxes. Nor is it so opposed 
 to the policy of the law as to make it iniquitous and void. The 
 sale is open to all, except the commissioners themselves, who 
 are the vendors, and cannot, therefore, both buy and sell. The 
 
 1 5 Watts & Sergeant, 447. 
 
 2 12 Illinois, 173 ; 14 Illinois, 223. 
 * 1 Jones (Penn.), 206. 
 
FRAUDULENT SALES. 403 
 
 clerk is merely the scrivener, or ministerial agent of tlie 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 subser- 
 vience to the directions of the commissioners." 
 
 In Nalle v. Penwick,i the question as to the right of the dep- 
 uty-sheriff to purchase at the tax sale, arose, but was not dis- 
 cussed ; it seemed to be conceded, however, that in this respect 
 the sale was unobjectionable. In Yancey v. Hopkins,'^ where 
 the sheriff who made the sale became the purchaser, the title 
 was held valid in his hands. But in this case, there was a gen- 
 eral custom, recognized in a public statute, and proved in the 
 case itself, for sheriffs and their deputies to buy land at tax 
 sales. Eoane, 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 per- 
 sons were enabled to purchase property oflFered for sale by them- 
 selves. The inhibition, in those cases, seems to arise from the 
 confidence placed in, and the internal knowledge acquired by, 
 trustees, commissioners of bankruptcies, auctioneers, &c., which 
 would enable them, if permitted to purchase, to avail them- 
 selves of facts coming to their knowledge, in their several char- 
 acters, 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 com- 
 missioners, as aforesaid ; it would be too much to suppose him 
 
 1 4 Randolph, 591. 
 ^ 1 Munford, 419, 437. 
 
404 FRAUDULENT SALES. 
 
 cognizant of the particular circumstances 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 inhibition has, in 
 England, been extended to sheriffs or collectors, though, I 
 presume, the case must have occurred in a thousand instances." 
 Again, it was remarked, in the same opinion, that a bid by the 
 sheriff " might be absolutely necessary to counteract combina- 
 tions to defeat the collection of the revenue, whether arising 
 from the sympathy of the by-standers, or other causes." A 
 statute was afterwards passed in Virginia, prohibiting the 
 sheriff and his deputies from acquiring title to land, under 
 tax sales. 
 
 In Taylor v. Stringer,^ where the deputy was the purchaser, 
 the title was held void in the hands of a bona fide purchaser, 
 who claimed title under the deputy. [In Pennsylvania it has 
 been held, that a county commissioner may purchase, in his own 
 right, unseated land duly sold for taxes.^ And in Kentucky it 
 was decided, that when a deputy register of the land-office be- 
 comes a purchaser of non-resident lands on a sale made by the 
 register, he is bound to show that his purchase was fair in every 
 respect, and made for a full and adequate consideration.^] 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. [And although the 
 sale to the commissioner be for more than the taxes and 
 costs, the title of the owner is nevertheless divested, but if 
 
 1 1 Grattan, 158. 
 
 2 Cuttle V. Brockway, 8 Casey (Penn.), 45 ; 12 Harris (Penn.), 145. 
 8 Morton v. Waring, 18 B. Monroe, 72. 
 
 * Lazarus v, Bryson, 3 Binney, 58. 
 
FRAUDULENT SALES. 405 
 
 the court ratifies the purchase, the owner gains additional 
 time to redeem. But if the court does not purchase, the right 
 of redemption is limited to ten years. The remarks in Cuttle 
 V. Brockway, 12 Harris (Penn.), 145, do not overthrow, nor 
 were they intended to interfere in any respect with the case 
 of Peters v. Hearley, 10 Watts, 208, upon this point.^ In a re- 
 cent case in Vermont^ it was expressly held, that a tax col- 
 lector selling land to pay taxes, cannot either by himself or his 
 agent purchase such estate, and his title is void against the 
 former owner, who may maintain ejectment for the land, al- 
 though he does not redeem within the time allowed by law.] 
 
 1 Russell V. Keed, 3 Casey (Penn.), 166. 
 
 2 Chandler v. Moulton, 33 Vermont, 245, citing 14 Pickering, 356 ; 3 New Hamp- 
 shire, 144 ; 5 Connecticut, 475. 
 
406 LANDS NOT SUBJECT TO TAXATION. 
 
 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 taxa- 
 tion be not within the jurisdiction 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 assess- 
 ment being coram non judice.^ 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 whenever the purchaser or his grantee attempts 
 to recover the possession, or establish his title to the land.^ 
 Where the constitution itself exempts the land from taxation, 
 it is clear that the legislature have no power to levy and collect 
 taxes upon it.* And it would seem to be equally clear, that 
 
 1 Dresback v. McArthur, 6 and 7 Ohio, 307; Buckley u. Osbum, 8 Ohio, 180; 
 Dyer v. Branch Bank of Mobile, U Alabama, 622 ; Coney v. Owen, 6 Watts, 435 ; 
 Sandford v. DeCamp, 8 "Watts, 542 ; Bott v. Perley, 11 Massachusetts, UB9. 
 
 ' Nichols V. Walker, Croke, Car. 394 ; Perkins v. Proctor, 2 Wilson, 382 ; Thurs- 
 ton V. Martin, 3 Sumner, 497; Eowe v. Blakeslee, 11 Connecticut, 479. 
 
 ' Dyer v. Branch Bank of Mobile, 1 4 Alabama, 622. 
 
 * Brewster v. Hough, 10 New Hampshire, 138; Hai-dy v. Waltham, 7 Pickering, 
 108. 
 
LANDS NOT SUBJECT TO TAXATION. 407 
 
 where the people, in the exercise of their sovereign power, in the 
 formation of a constitution with the view to their admission 
 into the Union as an independent State, stipulate with the 
 Federal Government to exempt a particular 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 riglii to do so has been repeatedly afErmed,^ and 
 the exemption treated as a contract, the inviolability of whicli 
 is guaranteed by the Constitution of the United States.^ How- 
 ever, 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 whether a statute, exempting a par- 
 ticular 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 power to grant an exemption from all future 
 taxation, so as effectually to tie the hands of future legislatures, 
 under any and all future emergencies. But this has been held 
 to be properly done ; and it is sanctioned by the highest 
 judicial authority."'^ 
 
 And in Brewster v. Hough,^ the supreme court of New 
 
 1 Ante, pp. 9, 10. 
 
 ^ Tax Cases, 12 Gill & Johnson, 117, and cases there cited. 
 
 8 New Jersey v. Wilson, 7 Cranch, 164 ; Atwater v. Woodbridge, 6 Connecticut, 
 223 ; Osborne ». Humphrey, 7 Connecticut, 335 ; Landon v. Litchfield, 1 1 Connecti- 
 cut, 251 ;, Gordon v. Appeal Tax Court, 3 Howard (U. S.), 133 ; Terrett v. Taylor; 
 9 Cranch, 43 ; Pinney v. Fellows, 15 Vermont, 526 ; Backus v. Lebanon, 11 New 
 Hampshire, 20. 
 
 * 10 Connecticut, 490. 
 
 6 6 Connecticut, 223; 7 Connecticut, 335. 
 
 ' Seymour v. Hartford, 21 Connecticut, 481. 
 
 7 10 New Hampshire, 138. 
 
408 LANDS NOT SUBJECT TO TAXATION. 
 
 Hampshire, without expressly deciding the point, held this lan- 
 guage in relation to this important question : " There is no 
 doubt that the legislature may provide, 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 
 property required to be taxed. Such exemptions will be valid 
 until the law is repealed. But it may well be doubted whether 
 the legislature may contract with the citizen for the permanent 
 exemption of his property from taxation. There is no express 
 grant of such power in the constitution. The power of taxa- 
 tion is essentially a power of sovereignty or eminent domain, 
 and it may well deseiwe 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 wliich 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 exclu- 
 sive privileges, and make many other contracts, etc. But there 
 is a material difference between the right of a legislature to 
 grant lauds or corporate powers, or money, and a right to grant 
 away the essential attributes of sovereignty, or the right of emi- 
 nent 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 over- 
 powering; it is simply, that every exemption, from its very 
 nature, withdraws the property exempted from the operation of 
 the taxing power, and thus increases the burdens of the rest of 
 the property holders in the State — and that the right of the 
 legislature, a body acting under the delegated authority of the 
 people, in whom all power is inherent, to part with one of the 
 attributes of sovereignty for a consideration, thus making sover- 
 eignty 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 
 
 ^ 8 Johnson, 420, 421 ; 12 Johnson, 483. 
 
LANDS NOT SUBJECT TO TAXATION. 409 
 
 is once conceded to the legislature, it furnishes a strong argu- 
 ment 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 npiil- 
 lions of dollars in value, and the necessities of the governijaent 
 require a revenue of one hundred thousand dollars, but the leg- 
 islature, in the same law which levies the tax, exempts half of 
 the entire value of taxable property from the levy, the con- 
 sequence 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 unambig- 
 uous 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. Tlie 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 legis- 
 latures, to the end of time, from raising the necessary taxes for 
 the support of the government, and the exigencies of the coun- 
 
 1 Ante, pp. 6, 7. 
 
 '' Kendrick v. Farquar, 8 Ohio, 197 ; Armstrong v. Treasurer of Athens Co. 10 
 Ohio, 235; Cincinnati College v. State, 19 Ohio, 110; Anderson v. State, 23 Mis- 
 sissippi, 459 ; Stewart v, Davis, 3 Murphy, 244 ; Chegaray v. Jenkins, 3 Sand- 
 ford, 409; Providence Bank k. Billings, 4 Peters, 514; Louisville Canal w. Com- 
 monwealth, 7 B. Monroe, 160; Brewster v. Hough, 10 New Hampshire, 138; Howell 
 u. Maryland, 3 Gill, 14; Piatt v. Eice, 10 Watts, 352; Seymour y. Hartford, 21 
 Connecticut, 481. 
 
 35 
 
410 LANDS NOT SUBJECT TO TAXATION. 
 
 try, 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 or construction."^ 
 It is also held, that this power of exemption cannot be exercised 
 by counties, towns, and municipal corporations, unless it is 
 expressly conferred upon them.^ When, however, this power 
 of exemption is clearly exercised by the legislature, effect must 
 be given to it by the courts.^ 
 
 The constitution of Maine provided that lands which belonged 
 to the commonwealth of Massachusetts " shall be free from taxa- 
 tion, while the title to said lands remains in the common- 
 wealth." In one case it appeared that Massachusetts had con- 
 tracted 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 individual 
 had such an equitable and conditional title as exists in the case 
 ' before us ; the condition might never be performed ; and if 
 performed, no legal or equitable process could compel Massa- 
 chusetts 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, therefore, illegal.^ 
 
 It is held in Ohio and Michigan, that lands sold by the 
 
 1 State «i "Wilson, Pennington, 300. 
 
 ' Mack V. Jones, 1 Foster, 393. 
 
 8 State Bank v. People, 4 Seammon, 303 ; 2 Harrison, 80, and the cases above 
 cited. 
 
 " Emerson v. County of Washington, 9 Greenleaf, 88. 
 
 •" Buckley w. Osborn, 8 Ohio, 180; Stewart v. Shoenfelt, 13 Sergeant & Rawle, 
 230. 
 
LANDS NOT SUBJECT TO ' TAXATION. 411 
 
 United States, but upon which sale patents have not been 
 issued, whereby the legal title remains in the Federal Govern- 
 ment, are not exempt from taxation, by implication or express 
 law.^ There is a controversy as to the right which the pur- 
 chaser at the tax sale acquires under such circumstances, and 
 the remedies to be adopted to enforce it, which will be dis- 
 cussed in a subsequent chapter. 
 
 1 Gwynne v. Neiswanger, 15 Ohio, 367 ; Astrom v, Hammond, 3 McLean, 107 ; 
 Carrol v. Perry, 4 McLean, 25. 
 
412 PAYMENT OF THE TAX. 
 
 CHAPTER XXVI. 
 
 OF THE EFFECT OF THE SALE AND DEED, WHERE THE TAXES HAVE 
 BEEN PAID BEFOUE THE SALE. 
 
 The delinquency of the owner is the essential fact upon 
 which the power of sale rests. The authority of the govern- 
 ment extends only to those cases where the owner neglects to 
 pay the tax in arrear voluntarily. When this neglect is shown, 
 the coercive remedies of the law may be resorted to, and not 
 before. The law in substance declares, that the tax assessed 
 shall constitute a lien upon the laud, and if the tax is not paid 
 within a specified time, the officer charged with the duty is 
 authorized to sell. The right to sell is therefore founded on 
 the fact of the non-payment of the tax. If the tax be paid 
 before the sale, the lien of the State is discharged, and the right 
 'to sell no longer exists. When the owner has performed all of 
 his duties to the government, no court would sanction, under 
 any circumstances, the forfeiture of his rights of property. 
 The law was intended to operate upon the unwilling and the neg- 
 ligent citizen alone. Legislative power extends no further. 
 The sale involves an assertion by the officer that the taxes are 
 due and unpaid, and the purchaser' relies upon this, or on his 
 own investigations, and his title depends upon its truth. The 
 title of the purchaser is contingent, so far as it may be affected 
 by proof establishing the fact that the tax had been paid before 
 the sale was made. This is an implied condition, annexed to 
 every gi'ant 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 ordi- 
 nary law, he is bound to know, and justice is presumed to have 
 
PAYMENT OF THE TAX. 413 
 
 a lodgment in tbe breast of every man — even in that of a 
 purchaser at a tax sale, who is said to have " but little eon- 
 science." 
 
 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 com- 
 petent to prove payment ; and in permitting the owner to make 
 this proof, no rule of law is violated ; it is not permitting parol 
 evidence to impugn or destroy a written contract, but it is con- 
 sistent with the deed ; and if the deed is thereby defeated, it 
 arises upon the proof of a fact, upon which, by law, the opera- 
 tion of the deed was made to depend, at the very time of its 
 execution. It would be a monstrous doctrine to hold other- 
 wise.^ 
 
 The same principle is applied to a sheriff's sale under execu- 
 tion ; there it is held that a sale, based upon a satisfied judg- 
 ment, is absolutely void ; ^ though in one case it was held, that a 
 sale to a bona fide pvLVchasev would be sustained, unless the sat- 
 isfaction appeared of record.^ The tenacity with which the 
 courts adhere to the doctrine that a sale and deed are nullities, 
 where the taxes were in fact paid prior to the sale, is most 
 strikingly illustrated by the cases of Rowland v. Doty, Jackson 
 
 1 Curry v. Hinman, 11 Illinois, 420 ; Jackson v. Morse, 18 Johnson, 441 ; Blight 
 V. Banks, 6 Monroe, 206; Eowland u. Doty, 1 Harrington, 3, 11 ; Hunter v. 
 Cochran, 3 Barr, 105 ; Dougherty v. Dickey, 4 Watts & Sergeant, 146 ; Stanley v. 
 Smith, 1 Carolina Law, 511 ; s. c. Bat. Ed. 124; Aukney v. Albright, 8 Harris 
 (Penn.), 157. 
 
 2 6 Ohio, 430 ; 4 Wendell, 474. 
 S 1 Cowen, 622. 
 
 35* 
 
414 PAYMENT OF THE TAX. 
 
 V. Morse, and Curry v. Hinman, to which the reader is re- 
 ferred — 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 in- 
 terference.^ It has been held that where, by the mistake of the 
 land-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, tinder such circumstances, is legal. ^ 
 
 On the other hand, where the owner pays upon the right 
 tract, but the money thus paid to discharge the lien upon his 
 own land, is appropriated, by the mistake of the officer, to an- 
 other tract, this was held to be a valid payment, and the sale of 
 the land void.* [Payment of the tax to an officer not author- 
 
 1 Jones V. Gibson, 2 Taylor (N. C), 41. 
 ^ Hunter i'. Cochran, '3 Barr, 105. 
 
 * Stephens v. Wells, 6 Watts, 325. [If a stranger without title, pays taxes on a part 
 of S tract of unseated land, without defining its location or boundaries, it will not de- 
 feat the title of the purchasers of the whole tract. Crura v. Burke, 1 Casey (Penn.), 
 377. In Pennsylvania, by act of 1862, No. 233, in case of a sale of unseated land 
 for taxes, which may be interfered with by the title or survey of other claimants, the lat- 
 ter may, within two years after the sale, pay to the county treasurer the amount of the 
 tax assessed upon so much of the land as is included in his claim, and the costs, 
 together with the additional twenty-five per cent, on the same, equal to the propor- 
 tionate part so included within his claim, which shall be a redemption, as effectual 
 for the amount within his lines of claim, as if it had been for all the land within the 
 lines of said interference.] 
 
 * Dougherty v. Dickey, 4 Watts & Sergeant, 146. The author is Indebted to 
 Judge Lowrie, of Pennsylvania, for the following copy of a very able opinion re- 
 cently 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 interesting and 
 useful to the bench and the bar. The case referred to is that of Laird v. Heister. 
 
PAYMENT OF THE TAX. 415 
 
 ized by the law to receive it of the tax payer (as to the treas- 
 urer instead of the collector'), will not render the subsequent 
 
 [Since reported in 12 Harris (Penn.), 452.] Lowrie, J. : " It is important to 
 notice, that the laws to enforce the payment of taxes on unseated lands, give no di- 
 rections at all relative to the mode in which any of the tax books shall be kept, ex- 
 cept so far as they are involved in the general direction, that such land ' shall be val- 
 ued and assessed in the same manner as other property.' And though some directions 
 are given for advertising, yet, even in this, irregularities are declared not to affect 
 the sales ; and then there is, besides, a general declaration, that no irregularities in 
 the assessment, process, or otherwise, shall be allowed to aifect the title of the pur- 
 chaser. Taking this thought with lis 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 coun- 
 ties, 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, 260) to indicate the form in which un- 
 seated 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, 260 ; 4 Watts & Sergeant, 
 133 ; 8 Pennsylvania State, 169 ; 14 Pennsylvania State, 404.) 
 
 4. The tax books in the offices of the commissioners and treasurer, are not in- 
 tended 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 opened to be corrected or proved 
 erroneous, when any interests depend upon the facts expressed by them. 
 
 5. Placing land taxes on the collectors' duplicates is not, of itself, a declaration, 
 by the taxing 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 ; though a 
 departure from a well known usage, in this regard, has been allowed such an eflfect. 
 If the law had made the tax lists, instead of the tax laws, notice to the world of the 
 liability of land for taxes, then, of course, the tax lists would need to possess those 
 qualities of certainty and completeness, that are appropriate to theu: function of giv- 
 ing notice. They do not give notice of the liability, but merely define its amount. 
 And if they were to stand for notice, then tliey ought to affect both parties ; but no 
 
416 PAYMENT OE THE TAX. 
 
 sale Toid, although the duty of the collector would have been, 
 upon receipt of the money, to have paid it over to the same 
 treasurer.!] 
 
 matter how full, complete, and regular may be all the entries, they furnish no found- 
 ation for the faith of purchasers, that is not swept away by proof, that the taxes were 
 really paid, or that the land was seated ; nor do they bind the person, if the land ia 
 in fact unseated. If we say that a tax on land is no lien upon it, unless it appears 
 in the list as unseated, or is placed upon an unseated list, then the tax is good for 
 nothing ; for, being actually unseated, the owner is not personally liable for it. 
 
 6. The purpose of an inquiry into the mode in which the tax books are kept in 
 any county, is, generally, to show how they ought to be understood by the court 
 and jury ; and it is relevant to notice the usages of the office in keeping them, 
 prior and up to the time of the entry, that is to be interrupted ; but when a uew 
 usage has heen 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 oiFers 
 to pay to him all the taxes upon it, and does pay the amount demanded by him, and 
 the treasurer credits the payment to another tract, and sells this, it is a good payment, 
 and the sale is void. The unseated land laws are intended to enforce the payment 
 of taxes, and their purpose is fulfilled when the duty is performed. If a man has 
 really, and in good faith, performed his duty herein, to the satisfaction of the proper 
 officers, his land is safe. If it be sold after that, it is through the error of some officer, 
 which cannot be visited on the owner ; for the State does not mean that the owners 
 of unseated lands shall warrant the fidelity or competency of its officers. The sale 
 involves an assertiou, by the treasurer, that the taxes are unpaid, and the purchaser 
 relies upon this, or on his own investigations, and his title depends upon its truth. 
 
 8. When the commissioners purchase unseated land, for taxes duly assessed and 
 unpaid, the provisions of the law, curing all irregularities in the assessment and 
 process, and giving five years for redemption, are as ample a protection to their title 
 as that which is furnished for other cases, by the limitation in the acts of 1 804 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 transaction, by its 
 very nature, discharges the public duty, rescinds the commissioners' title, and revests, 
 that of the next preceding owner. If a stranger thus redeems, he discharges the public 
 duty, without acquiring the title for himself. (4 Watts & Sergeant, 298 ; 10 Penn- 
 sylvania State Rep.) 
 
 Without any further specification, the counsel will understand that these princi- 
 ples affirm all the important rulings involved in the charge of the learned President 
 of the Common Pleas, and in the offers of evidence. As to the rest, It is sufficient 
 to say, that we do not perceive that there was any irrelevant or incompetent evidence 
 admitted, or any questions of fact submitted to the jury without evidence, or any 
 improper instructions given to them." 
 
 1 Young!). King, 3 Rhode Island, 196. 
 
PAYMENT OF THE TAX. 417 
 
 No instance is remembered, where the law does not permit 
 the owner to pay the tax and charges upon his land at any time 
 before a sale takes place. " He may arrest the uplifted ham- 
 mer of the auctioneer, when tlie cry for sale is made, if it be 
 done before a bona fide bid has been made." ^ It is evident, 
 that a payment after sale can have no effect whatever.^ 
 
 The payment of the tax, being matter in pais, may be 
 proved by oral evidence ; it is not necessary to introduce the 
 collector's books or his receipt, or produce the assessment roll, 
 but 1;he 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.^ 
 [But the letters " Pd." on the cotinty treasurer's book, opposite 
 the taxes, are not any evidence that the payment was before 
 the sale. So proof of a payment of the tax for the year 1795, 
 is not admissible as tending to show a payment of the tax of 
 1817, for which land has been sold.* 
 
 1 Early t). Doe, 16 Howard (U.S.), 617, 618. 
 
 '^ Collins V. Barclay, 7 Barr, 67. 
 
 ^ Dennett v. Crocker, 8 Greenleaf, 239. The same principle was settled at nisi 
 prius, in England, in an action apon a covenant " to pay all taxes and assessments 
 upon the land," and is reported in, Campbell or Espinasse, but the author is unable 
 to make a special reference to the volume and page, where it may be found, although 
 he has cited it on several occasions, at the bar. 
 
 * Aukney v. Albright, 8 Harris (Penn.), 157. 
 
418 KEDEMPTION FROM THE SALE. 
 
 CHAPTER XXVII. 
 
 OF THE EFFEOT OP THE SALE AND DEED WHERE A REDEMPTION 
 PROM 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 con- 
 ducted, in strict conformity with the law, and yet a redemption 
 by the owner will defeat the contingent title of the purchaser. 
 This is evident. The purchaser acquires his right to the estate 
 under the same law which confers the privilege of redeeming 
 upon the owner. That law is the source of his title, and by it 
 his rights must be determined. If no redemption is effected, 
 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 ipso facto gone forever .^ Where a right of redemption is 
 given to owners who labor under no disability whatever, the 
 usual course is to deliver to the purchaser a certificate of the 
 sale, which entitles him to a deed unless the redemption is sea- 
 sonably made. But, sometimes a deed is executed and deliv- 
 ered to the purchaser immediately after the completion" of the 
 sale, or lodged in some public office as an escrow to take effect 
 in case a redemption is not made.^ And where a deed is made 
 
 1 Cooper V. Brockway, 8 Watts, 163 ; Byington v. Rider, 9 Iowa, 566. 
 ■2 Blight V. Banks, 6 Monroe, 206 ; Taylor v. Steele, 1 A. K. Marshall, 316. 
 » Ante, Chap. 16, pp. 296, 2 97. 
 
REDEMPTION FROM THE SALE. 419 
 
 after the expiration of the ordinary period of redemption 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 disabilities are removed. 
 
 Thus the Illinois statute of January 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, 
 namely : " subject, however, to all the rights of redemption 
 provided for by law." "Whatever form the transaction is made 
 to assurae, 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, p. 369. 
 
 2 The Illinois Statutes, being more familiar, are here inserted, as illustrations of 
 the general nature of these redemption laws. 1. The act of September 17, 1807, 
 provides " That all persons shall be allowed two years to redeem their land ; resi- 
 dents 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 pay- 
 ing 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 keep a record in their respective offices, which 
 at all times shall be evidence sufiBcient 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, 
 namely : " Provided always. That when any property, sold for*taxes by virtue of 
 this act, shall belong, to heirs, any of whom are not of lawful age, the same lands 
 may be redeemed as aforesaid, at any time within one year after the youngest heir 
 becomes of age." CLaws, 1819, p. 317, sec. 11.) 
 
 3. By the act of Pebruary 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 be redeemed at any time be- 
 fore 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, un- 
 
420 REDEMPTION FROM THE SALE. 
 
 The question — who may redeem ? — is probably more im- 
 portant than any other connected with this subject. The terms 
 
 less he shall, at the same time, pay into the treasmy all taxes which may hare be- 
 come due subsequently to such sale, together with interest thereon, at the rate of six 
 per cent, per annum, from the time they became due. Whenerer 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 jurisdicion of wills 
 and testaments, and intestate estates, that it appears from the records of said court, 
 that such person or persons are the legal heir or heirs of the former owner of said 
 tract of land ; and that said former owner died before the day on which said land 
 was sold for taxes ; and also certifying the real age of the youngest of said heirs. 
 In cases where there has been no will, nor any settlement of the intestaft estate, be- 
 fore the court to which such jurisdiction appertains, such heir or heirs shaU 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 comt, to the above 
 facts, such heir or heirs shall be entitled to the same rights of redemption as above 
 provided. Such certificate shall bear the signature of the clerk of the court, the gen- 
 uineness of whose authentication shall be certified by the judge, and the official char- 
 acter 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 be sold 
 at any time as aforesaid, for taxes, interest, and costs due thereon and unpaid, 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 taxes, interest, and costs for which 
 the same may have been sold. Lands that may belong, at the time of such sale, in 
 the whole or in part to heirs under lawful age, may be redeemed at any time before 
 the expiration of ftne 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 land sold for 
 taxes, interest, and costs, as aforesaid, unless he shall at the same time pay to said 
 clerk, all taxes which may have 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 land sold for taxes, shall sufiTer the same to be sold be- 
 fore the expiration of two yeai-s 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 firs); 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 per- 
 sons shall apply to the clerk as aforesaid, to redeem any lands sold for taxes under the 
 
REDEMPTION FROM THE SALE. 421 
 
 of the statutes are, that " the owner," " the party in interest," 
 or " any person," may redeem. The term owner is less exten- 
 
 provisions of this act, relative to minor heirs, it shall be incumbent on the person or per- 
 sons so applying, to produce to said clerk a certificate of the judge, clerk, or other prop- 
 er officer of the proper court, having jurisdiction of wills and testaments, and intestate 
 estates, that it appears from the records of said court that such person or persons are 
 the legal heir or heirs of the former owner of said tract or tracts of land, and that 
 such former owner died before the said tract of land was sold for taxes, and also cer- 
 tifying the true age of the youngest of such heirs, and in cases where there has been 
 no will, nor any settlement of such intestate estate before the court to which such 
 jurisdiction appertains, such heir or heirs shall go before some court of record, and 
 exhibit proof of his, her, or their heirship, minority and age ; and on producing the 
 certificate of the clerk of such court to the above facts, such heir or heirs shall be 
 entitled to all the rights of redemption as are herein before allowed ; also, such cer- 
 tificate of heirship shall bear the signature of the clerk of the proper court, the suf- 
 ficiency of whose authentication shall "he certified by the judge of such court ; and in 
 all cases where such certificate shall be made without this State, the ofiieial chairac- 
 ter of such judge shall be certified by the Secretary of State or territory in which 
 such proof shall be exhibited, with the seal of the State or territory thereto affixed, 
 and the certificate containing the evidence on which the right to redeem is predi- 
 cated, shall in every case be delivered to the said clerk, and by him filed and pre- 
 served in his office." (Laws 1833, p. 531, 532, sees. 10 and 11.) 
 
 5. The statute February 26, 1839, made this provision relative to a redemption, 
 namely: "Lands and real estate sold under the provisions of this act, may be re- 
 deemed from such sale, at any time before the expiration of two years from the date 
 of such sale, by any person who will pay to the clerk of the county commissioners' 
 court of the proper county, double the amount for which the same was sold, and all 
 taxes accruing after such sale, together with the interest on the amount of each year's 
 tax, at 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 taxation, and the heirs or assigns of such' per- 
 son, 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 infanta, femes covert, or lunatics, may be re- 
 deemed 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 
 estats sold for taxes, such infants, or any one of them, may redeem the same from 
 such sale at any time within one year after the youngest one of them shall arrive at 
 the age of twenty-one years ; and any person claiming the right to redeem land under 
 the provisions of this section, shall produce to the clerk of the county commissioners' 
 court of the proper county, the affidavit of some credible person, stating who owned 
 the same at the time of the sale thereof, and if the owner was a feme covert at the 
 time of sale, stating that fact ; or if there were several infant owners, stating that fact, 
 
 36 
 
422 KBDBMPTION FROM THE SALE. 
 
 sive in its signification tlian either of tlie other expressions. 
 Ordinarily, ownership means the right by which a thing belongs 
 to some one in particular, to the exclusion of ^11 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 de- 
 
 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 sub- 
 ject 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 sal« : Provided, 
 however, that the certificate of redemption shall not be evidence of any other fact 
 than that the redemption money was paid. Affidavits presented to the clerks of the 
 county commissioners' court of the several counties in 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 this State, and certified under the hand and seal of such judge or clerk ; 
 or they may be taken before any judge or clerk of a court of record without the State, 
 and certified as aforesaid." (Laws 1838, 1839, pp. 16, 17, sections 38, 40.) 
 
 6. The statute of March 3, 1845, thus provided, that " Real estate, sold under the 
 provisions of this chapter, 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 com- 
 missioners' court of the proper county, of double the amount for which the same was 
 sold, and all taxes accruing after such subsequent taxes have been paid to the col- 
 lector, as may be shown by the collector's receipt, by the person redeeming, with six 
 per cent, interest thereon, from the first day of May, in each year, up to the time of 
 payment ; Provided, that if the real estate of an infant, feme covert, or lunatic, be 
 sold for taxes, the same may be redeemed at any time within one year after such 
 disability be removed, upon the terms specified in this section." (R. S. 1845, p. 447, 
 section 69.) 
 
 7. And by the act of February 12, 1853, it is enacted, that " Real property, sold 
 under the provisions of this act, may be redeemed at any time before the expiration 
 of two years from the date of sale, by the payment, in specie, to the clerk of the 
 county court of the proper county, of double the amount for which the same was 
 sold, and all taxes accruing after such sale, witli ten per cent, 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,/e»!e covert, or lunatic, be sold 
 for taxes, the same may be redeemed at any time within one year after such disa- 
 bility be removed, upon the terras specified in this section ; which may be made by 
 their guardians or legal representatives." (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. 
 
REDEMPTION FROM THE SALE. 423 
 
 stroy it, except so far as he maybe restrained by law, or 
 some covenant or agreement. It is the highest grade of title. 
 Under the statute of Illinois, which gave to the owner the right 
 to recover a penalty of eight dollars for every tree cut upon 
 his land by a trespasser, the Supreme Court held, that to 
 authorize a recovery, the plaintiff miist be the owner of the 
 fee.^ The same principle was recognized in an insurance 
 cause, upon a question relative to the representation of owner- 
 ship 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, &c.. 
 It was held that this language did not import an inheritable 
 interest.^ On the other hand, in construing the redemption 
 laws, the courts hold that the word owner is a generic term, 
 which embraces the different species of interest which may be 
 carved out of a fee-simple estate. This construction is the only 
 one which can effectuate the intention of the legislature, and 
 protect the interests of all parties concerned in the land sold 
 for the non-payment of taxes. In the same estate there may 
 exist a fee-simple and life interest, or a leasehold.'' The estate 
 may have been mortgaged to secure a debt, and judgment cred- 
 itors may have lians upon it, and the land may be in the ad- 
 verse possession of a stranger to the title, and whose possession 
 may be ripening into a right. Bach is an owner 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 
 
 ' Wright V. Bennett, 3 Scammon, 258 ; Whiteside v. Divers, 4 Scamnjon, 336 ; 
 Jarrott v. Vaughn, 2 Oilman, 132. 
 
 ^ Illinois Mutual Fire Insurance Co. v. The Marseilles Manufacturing Co., 1 Gil- 
 man, 236. 
 
 8 Davenport v. Farrar, 1 Scammon, 315. 
 
 * [And it was expressly held in Byington v. Rider, 9 Iowa, 566, that a lessee for 
 life, for years, or at will may redeem ; although his interest was acquired after 
 the tax ^ale, and although the redemption be made without the knowledge of the 
 owner of the fee.] 
 
424 REDEMPTION FROM THE SALE. 
 
 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 upon it constitutes 
 the person claiming it, an owner so far as it is necessary to 
 give him the right to redeem. 
 
 No judicial proceedings take place upon an application to re- 
 deem (except in OIuo), 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 the doctrine is, 
 that any person claiming an interest in the land has a right 
 prima 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 pur- 
 chaser. It surely was never contemplated that rights should be 
 affected without an opportunity of being heard. The authori- 
 ties fully sustain the principles contended for. 
 
 Thus, in Dubois v. Hfepburn,^ the plaintiff deduced a regu- 
 lar 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 un- 
 divided interest in the land, in right of his wife, and who had 
 made ah ineffectual effort to partition the land among the 
 several tenants in common, offered to pay the amount necessary 
 
 ^ 10 Peters, 1. 
 
REDEMPTION FROM THE SALE. 425 
 
 to redeem to the treasurer, which the treasurer declined to re- 
 ceive. 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, to- 
 gether 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 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 sus- 
 tained." 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 pui*- 
 chaser, 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 redemp- 
 tion, it reverts to the lawful proprietors. It would, therefore, 
 seem not to be necessary for the purposes of justice, or to effect- 
 uate 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 
 
 36* 
 
426 REDEMPTION FROM THE SALE. 
 
 sold for taxes, as the owner thereof, for the purposes of redemp- 
 tion. Any right, which in law or equity amounts to an owner- 
 ship 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 Ohapin v. Curtenius,' wliich was an ejectment, the plain- 
 tiff, to defeat a tax title relied on by the defendant, read in evi- 
 dence a certificate of redemption executed by the proper offi- 
 cer ; the defendant thereupon offered to prove that said certifi- 
 cate was issued by the officer, without there being on file in his 
 ' office any evidence or papers to authorize the granting of the 
 cei'tificate. The circuit court refused to admit such testimony, 
 and the defendant excepted. The judgment was affirmed by 
 the supreuie court. Treat, 0. J. : " The certificate of redemp- 
 tion, in this case, being in proper form, was clearly admissible 
 in evidence. It proved the payment of the redemption money 
 by the heirs of Freeman ; and it appeared from the other evi- 
 dence in the case, that they had a clear right to redeem. This 
 proof showed a valid redemption from the sale to the defend- 
 ant, and that the heirs were reinstated in all their former 
 rights in the premises. The certificate itself was not evidence 
 of such a redemption. The statute only makes it evidence of 
 the payment of the redemption money, leaving the right to re- 
 deem to be established by other proof. The question whether 
 there has been a valid redemption of the lands of infants, 
 
 1 15 Illinois, 427. 
 
REDEMPTION FROM THE SALE. 427 
 
 does not necessarily depend on the fact that the clerk has 
 or has not preserved the proof upon which the redemption was 
 founded. The statute requires an affidavit of the facts to be 
 presented to the clerk, and filed by him. Two objects are con- 
 templated by this requisition. The affidavit furnishes the evi- 
 dence 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 mak- 
 ing 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 per- 
 mitted to sustain his right to redeem when put in issue. The 
 ruling of the court upon this branch of the case was unexcep- 
 tionable." 
 
 Under the statute of Ohio,'^ this question was presented to 
 
 1 It is deemed advisable to set forth the Ohio statute at large, because it is the 
 only one which provides for judicial proceedings, upon the application to redeem, 
 and because it is ipore perfect in its details than any other. The act of March 3, 
 1831, provided, " That all lands and town lots which haje been, or may hereafter be 
 sold for taxes, may be redeemed at any time within two years from and after the sale 
 thereof; and all lands and town lots belonging to minors, femes covert, insane per- 
 sons, or prisoners in captivity, and which have been, or hereafter may be sold for 
 taxes, may be redeemed at any time within two years from and after the expiration 
 of such disability. That all applications for the redemption of lauds 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 ap- 
 plication 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 
 
428 REDEMPTION FROM THE SALE. 
 
 the Supreme Court in Masterson v. Be&slej,^ upon certiorari. 
 It appeared, that in November, 1826, an application was made 
 
 to make such application, shall, at the time of publishing the aforesaid notice, deposit, 
 with the clerk of the court to which the application is to be made, an amount of 
 money equal to that for which such land or lot was sold, and the taxes subsequently 
 paid thereon by the purchaser, or those claiming under him, together with interest, 
 and fifty per centum per annum on the whole amount paid by such person, including 
 costs. That if the court to which such application shall be made, shall be satisfied 
 that due notice has been given, as required in the third section of this act, and that 
 the deposit required by the preceding section has been made, they shall proceed to 
 examine the testimony of such applicant, relative to his right of redemption, and the ■ 
 counter testimony of the adverse party, if any be oflfered. And if, on such exami- 
 nation, 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 appli- 
 cant all the title which passed by such sale, and shall award restitution of the prem- 
 ises, 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 per- 
 sons so entitled shall refuse to join in the appUcation for an order of redemption, or 
 from any cause cannot be joined in such application, the court may entertain the ap- 
 plication of any one of such persons, or so many as shall join therein, and may make 
 an order for the redemption of such proportion of said land or lot, as the person or 
 persons making such application shall be entitled to redeem. That in case any last- 
 ing and valuable improvements shall have been made by the purchaser at a sale for 
 taxies, or by any person claiming under him, or any land or town lot, for which an 
 order of redemption shall be made, as aforesaid, the premises shall not be restored 
 to the person obtaining such order, until he shall have paid or tendered to the adverse 
 party, the value of such improvements ; and if the parties cannot agree on the value 
 of such improvements, the same proceedings shall be had in relation thereto as shall 
 be prescribed in any law existing at the time of such proceedings, for the relief of oc- 
 cupying claimants of land : provided, that no purchaser of any land or town lot, 
 sold for taxes, nor any person claiming under him, shall be entitled to any compen- 
 sation for any improvements which he shall make on such land" or town lot, within 
 two years from and after the sale thereof. That the person obtaining an order for 
 the redemption of any land or town lot, as aforesaid, shall, within thirty days after 
 the date thereof, cause a certified copy of such order, with the seal of the court affixed 
 thereto, to be recorded among the records of deeds, in the county wherein such land 
 or lot is situated." 
 
 The amendatory act of March 16, 1839, provided, " that any person or persons 
 entitled to redeem lands or town lots sold for taxes, or his or their agent or attorney, 
 may, at his or their discretion, tender to the purchaser or purchasers, or his or their 
 
 1 3 Ohio, 301. 
 
REDEMPTION FROM THE SALE. 429 
 
 to the Common Pleas by Beasley, as agent of the minor heirs 
 of Massie. In support of the application, Beasley produced the 
 certificate' of the auditor of State, showing that 100 acres of 
 land charged with taxes in the name of John Jonett, liad 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 re- 
 quired to redeem had been deposited with the auditor, Decem- 
 ber 20, 1825 ; and it appeared fiirther, 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 re- 
 spective heirs, was also proved. Masterson then'introduced a 
 judgment of the U. S. court against Massie's heirs, an execu- 
 tion 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 re- 
 funded in all cases ; and if the applicant has not been under 
 
 agent or attorney, the amount of taxes, interest, and penalty due thereon, under the 
 provisions of the fourth section of the act aforesaid, instead of depositing the same 
 with the clerk of the court, as prescribed in the said fourth section ; and if the said 
 purchaser or purchasers, his or their agent or attorney, will not accept the same, 
 the owner or owners, his or their agent or attorney, may make an application to the 
 court of Common Pleas for the redemption of the same, as provided for in the act 
 to which this is an amendment ; and the costs of such application shall abide the 
 event of the same, as in other cases, any provision in the act to which this is an 
 amendment to the contrary notwithstanding. 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 corporate.'' 
 
430 REDEMPTION FROM THE SALE. 
 
 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 re-' 
 demption, 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 proceedings, on the part of the applicants, have 
 been technically correct. The question, whether Beasley was 
 legally authorized to represent the minor heirs of Massie, does 
 not in any degree affect the merits of the case, nor does it con- 
 cern the rights of the purchaser. The court below were satis- 
 fied with the evidence of his aiithority. The guardians of the 
 minors have not questioned it, nor can the purchaser be per- 
 mitted to do so. As the redemption is made in the name, and 
 for the benefit of the heirs, there is no ground for apprehend- 
 ing the improper meddling of a stranger. It is a matter of but 
 little moment in what way the agent derives hfs 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, nojie other have been injured. The purchaser of the 
 tax title must receive every thing to which the law entitles 
 him, before the order for a redemption can be operative. The 
 second error assigned is not exactly true in .point of fact. The 
 sale by the marshal does not necessarily show that the heirs of 
 Massie have been divested of their legal title. The validity of 
 that sale depends on the legality of the judgment and subse- 
 quent proceedings, which the heirs are at liberty to contest ; 
 and having this privilege, they must be pei'mitted to protect 
 themselves and their possessions against'others. If this objec- 
 tion 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 court that the claimant has a legal right to redeem such 
 
EEDBMPTION FROM THE SALE. 431 
 
 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 Dis- 
 trict, where the land in question is situate, it may happen that 
 one person claims under a junior entry not carried into grant, 
 while another has the possession, and a patent on an elder 
 entry, each party believing himself to have the better title. In 
 such a case, it would he difficult to decide who had the right 
 to redeem, if the construction of the plaintiff be correct. In a 
 court of law, the patent must prevail. In a court of equity, the 
 person holding the junior entry might prevail. This and simi- 
 lar 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 liind. 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 sucli an 
 attempt should be made, it could not succeed, because it is 
 confessedly the duty of the court to require satisfactory evi- ' 
 dence of a right to redeem. The applicant must show that he, 
 or those for whom he professes to act, are in some way con- 
 nected with the title to the premises, as by deed, descent, con- 
 tract, or possession under claim of title, either of which will be 
 sufficient. 1 An equitable title, or a naked possession, may give 
 a legal right of redemption under the statute, which was not 
 intended to require investigations of title, further than may be 
 necessary to prevent impertinent applications.^ This being oiir 
 
 1 Although none but the owner- or party interested has a right to redeem against 
 the purchaser's consent, yet if he accepts the redemption money, the sale is ayoided 
 and the redemption enures to the benefit of the rightful owner ; and although the 
 purchaser thereupon assigns his legal title to the party paying the money, he thereby 
 acquires no title which he can convey to a third person as against the former owner, 
 the transaction not being a sale but a redemption, and the money paid under a claim 
 of a right to redeem. Cox v. Sartwell, 9 Harris (Penn.), 480. And see Orr ». 
 Cunningham, 4 Watts & Sergeant, 294. 
 
 ^ See Bylngton v. Bookwalter, 7 Clarke (Iowa), 512. 
 
432 REDEMPTION FROM THE SALE. 
 
 view of the subject, it follows that the proceedings, and the 
 order of the court below, must be afifirmed." 
 
 The principle, that this class of laws should be construed 
 liberally, was sustained in Patterson v. Brindle,i and in Win- 
 chester V. Cain.2 In Shearer v. Woodbarn,^ it was- held-, that a 
 purchaser at an execution sale of land, over which the debtor 
 .exercised acts of ownership, and who was reputed to be the 
 owner, was entitled to redeem. 
 
 The general law which authorizes the sale of land for the 
 non-payment of taxes assessed thereon, embraces as well the 
 land of infants as that belonging to adults ; ^ and under ar stat- 
 ute authorizing a redemption by " orphans," minors acquire 
 no rights whatever.^ [And if at the time of sale, the period 
 allowed for redemption is only three years, such period cannot 
 be constitutionally enlarged by a subsequent act to four years, 
 although such act be passed before the three years have ex- 
 pired. Such a law impairs _the obligation of^the contract of 
 sale ; although at the time of such attempted extension of 
 time the piirchaser had not received his deed, but only a cer- 
 ' tificate of the sale, and afterwards takes a deed in the form 
 prescribed by the new act.^J A widow claiming dower in laud 
 sold for taxes in the lifetime of her husband, has no right to 
 redeem under the statute of Illinois, passed February 26, 1839, 
 which confers such right upon "/ewes 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. Ourtenius,^ an agent was per- 
 mitted to redeem without proof of his authority. So in Mas- 
 
 1 9 Watts, 99. 
 
 2 1 Robinson (Louisiana), 421. And see People v. Detroit, 8 Michigan, 14. 
 8 10 Pennsylvania State, 511 ; s. o. 11 Pennsylvania State, 341. 
 
 * Elliott V. Gerrard, 1 A. K. Marshall, 472 ; Hood v. Mathers, 2 A. K. Mai-shall, 
 558. 
 6 Downing v. Shoenberger, 9 JTatts, 298. 
 ' Kobinsoa v. Howe, 13 Wisconsin, 341. 
 ' Knch V. Brown, 3 Gilman, 488. 
 8 15 Illinois, 427. 
 
REDEMPTION PROM THE SALE. 433 
 
 terson v. Beasley.^ A power of attorney to sell land author- 
 izes the attorney to redeem from a tax sale, because his power 
 of sale may prove ineffectual, unless the power of disencumber- 
 ing 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.* 
 [In Holloway v. Clark,^ it was held, that the provisions of the 
 limitation act of Illinois, of 1839, requiring minors to redeem 
 within three years after their majority, by paying to the person 
 who paid the tax, the amount thereof and interest, did not take 
 from the minor the right to redeem within one year after his 
 majority, by paying double the amount to the collector, &c., ac- 
 cording to the revised statutes, chapter eighty-nine, section 
 sixty-nine. And if the minor pays the necessary amount to the 
 clerk, and the purchaser accepts the money from him, he there- 
 by admits the right of the minor to redeem under the statute. 
 Under the Pennsylvania act ©■f 1815, if the owner was a minor 
 at the time of sale, he had two years after his majority in which 
 to redeem, but if he was then an adult, and died before the two 
 years expired, lea\ing minor heirs, they had not two years 
 after majority in which to redeem, but only two years from the 
 time of sale.^] And the mode and manner pointed out by the 
 statute must be pursued.^ The proper officer must act as the 
 agent of the law, in effecting the redemption, or the redemption 
 will be ineffectual. The owner, at his peril, must pay to the 
 officer the full amount necessary to redeem the estate ; 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 
 
 1 3 Ohio, 301. 
 
 2 McCord V. Bergautz, 7 Watts, 487. 
 8 Patterson v. Brindle, 9 Ohio, 98. 
 
 * [There may be a permissive redemption after that period ; and whether a certain 
 transaction was intended as a redemption or as an ordinary purchase, is a question 
 of fact for the jury. Coxe v. Wolcott, 3 Casey (Penn.), 154.] 
 
 6 27 Illinois, 483. 
 
 ' McCormack ». Russell, 1 Casey (Penn.), 185. 
 
 ' See Stewart v. Brooks, 28 Missouri, 62. 
 37 
 
434 REDEMPTION FROM THE SALE. 
 
 of the inferior tribunal levying the tax, will show the rate of 
 the levy for the year in question. The costs, interest, penalty, 
 and back taxes, can be readily ascertained by comparison of the 
 law and facts. The parties in interest cannot be too circum- 
 spect in their examination, with a view to ascertain the amount 
 of th^ redemption money. The maxim de minimis, etc., pos- 
 sesses no healing virtues, in case the owner makes a blunder in 
 this respect. The maxim, as has been shown, is seldom applied 
 in favor of the purchaser, and it is presumed to be equally in- 
 applicable against him. The condition imposed upon ihe 
 former owner is usually plain and easily understood, and it is 
 his duty to comply with its exact terms. Courts will construe 
 the law liberally in his favor, but his acts must be construed 
 like those of the officer and purchaser, where duties are im- 
 posed upon them. 
 
 In Bright v. Boyd,^ where the law permitted a minor to re- 
 deem within eight years from and after the sale, the facts were, 
 that the purchaser at the tax sale conveyed to a stranger, 
 and by mesne conveyance the title became vested in one Gil- 
 man ; 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 tlie natural and 
 indeed almost necessary construction of the statute, the right of 
 redemption must be against the party who is possessed of the 
 tax title, at the very time of the redemption ; for such party 
 alone is entitled to the redemption money, as holding the con- 
 ditional 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 intervening charges, which had been in- 
 curred by him, and for which he might justly claim remunera- 
 tion under the statute." 
 
 The Mississippi statute required the owner, in case he desired 
 to redeem, to tender the amount necessary to effect the re- 
 demption to the purchaser. In Bacon v. Conn,^ the complain- 
 
 1 1 Story, 478. 
 
 ^ 1 Smedes & Marshall, ch. 348. 
 
REDEMPTION FROM THE SALE. 435 
 
 ant'made the tender in diie season — but afterwards Remanded 
 the surrender and cancellation of the tax deed ; it was held, 
 thatthis latter demand did. not vitiate the tender, and a decree 
 of cancellation was entered. [In Halsey v. Blood, 5 Casey 
 (Penn.), 319, it was held, that money left by the party re- 
 deeming, with the county treasurer, must be left uncondition- 
 ally ; and that the treasurer was bound to pay it over to the pur- 
 chaser without any of the conditions attempted to be imposed 
 upon it.] The code of Louisiana authorized a redemption, 
 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 \ipon the 
 land ; it was held, that an offer to redeem and a refusal by the 
 purchaser to render an account, were equivalent to a redemp- 
 tion.^ 
 
 • Tiie 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 re- 
 sorted to. Loose declarations of parties will not be admitted 
 in questions of this character.^ A mandamus is an appropriate 
 remedy, where redemption is improperly refused by a public 
 officer.* The law of New York and Illinois, relative to redemp- 
 tion 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 au- 
 thorities to give at least six months' notice to redeem from tax 
 sales, before the expiration of two years after such sale, by 
 publication in a newspaper, at least once in each week, for four 
 weeks successively. In The People" v. The Mayor of New 
 York,^ the notice to the owner was valid, if lunar months were 
 intended by the statute, otherwise it was void. The court held, 
 
 ' Brooks V. Hardwick, 5 Louisiana, An. 675. 
 2 Taylor v. Steele, 1 A. K. Marshall, 316. 
 ' Lane v. Sharpe, 3 Scammon, 567. 
 * Finch V. Brown, 3 Gilman, 488. 
 " 10 Wendell, 394. 
 
436 REDEMPTION FROM THE SALE. 
 
 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,.ihat 
 unless there is something in the statute indicating 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 expiration 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 succeed it, and were intended to in- 
 clude part of it, it should be construed to mean the same, other- 
 wise we must believe the legislature intended to fix different 
 periods, by different calculations of time, in the same breath, 
 and on the same subject-matter, and without any conceivable 
 purpose." [If the purchaser at the tax sale is indebted to the 
 tax payer for more than the amount of the tax, this has been 
 thought to operate as an immediate redemption, and the deed 
 to hiili would become inoperative.^] 
 
 1 Gaskins v. Blake, 27 Mississippi (5 Cushman), 677. 
 
EXCESS OR ABUSE' OP AUTHOEITY. 437 
 
 CHAPTER XXVIII. 
 
 OP THE EFFECT OP 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 au- 
 thority conferred by law upon a public officer or private indi- 
 vidual, an abuse or excess of the authority occurs, the entire 
 proceedings under the authority are rendered void, and the 
 person committipg the act complained of as an abuse or excess, 
 becomes a trespasser, ab 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 in fact 
 does not render the entire execution void, but only the illegal 
 part of the transaction. But even in this case the courts must 
 be enabled to separate that which was properly done, from that 
 part- which there was no" authority for doing. The same princi- 
 ple is applied to the execution of all private authorities, and to 
 powers of appointment and revocation growing out of the stat- 
 ute of uses. There an excessive execution of the power does 
 not vitiate and taint the entire act, but only so much as con- 
 stitutes the excess, provided the excess can be seen and sepa- 
 rated. . 
 
 I The Six Carpenters' Case, 8 Co,, 146 ; Bagshawe v. Goward, Croke Jac. 147 ; 
 Taylor v. Cole, 3 Terra, 292 ; Winterbourne «. Morgan, 11 East, 395 ; Anscomb v. 
 Shore, 1 Campbell, 285; Messing u. Kemble, 2 Campbell, 115; 1 Wilson, 154; 2 
 W. Blackstone, 1218; Bacon, Abr., Tit. Trespass ; 1 Chitty, PI. 185; 11 Am. Ed. 
 1851 ; 5 Bamewall & Cresswell, 485 ; 2 Johnson, 191 ; 10 Johnson, 253, 369. 
 
 37* 
 
438 EXCESS OR ABUSE OF AUTHORITY. 
 
 The rule is thus laid down by Sugden : " Where there is a 
 complete execution, and something ex abundante added, which 
 is improper, there the execution shall be good, and only the ex- 
 cess void, but where there is not a complete execution of a 
 power, and the boundaries between the excess and execution 
 are not distinguishable, it will be bad. If a man, having a 
 power to lease for twenty-one years, lease for forty, that will be 
 good in equity pro tanto, because it is a complete execution of 
 the power, and it appears how much he has exceeded it." i 
 But it seems to be a debatable question, whether a court of law 
 will support an execution of the power under such circum- 
 stances. 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 abundantly prove, that where the officer 
 abuses his authority by selling more land than is necessary to 
 pay the tax, his act is void.^ [So where the collector of the tax 
 had been enjoined by a court of chancery, a sale of the land 
 taxed, pending the injunction, is void ; * and may be set aside in 
 chancery.] 
 
 But the strongest case in illustration of the doctrine, and 
 which is placed upon invulnerable grounds, is that of Jones v. 
 Gibson.^ The facts were, that a tr^ct 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 uuless a less quantity than the 
 
 ' Sugden on Powers, ch. 3, sec. 9. 
 
 2 Adams v. Adams, Cowper, 651 ; Campbell v. Leach, Ambler, 740 ; Roe v. Pri- 
 deaux, 10 East, 158. 
 
 8 Ante, 287, 288 ; Mason v. Fearson, 9 Howard (U. S.), 248 ; O'Brien v. Coulter, 
 2 Blackford, 421. 
 
 [* Williams v. Cammack, 27 Mississippi (5 Cushman), 210. In this case the in- 
 junction had been seryed on the sheriff, but he said he should sell anyhow.] 
 
 6 2 Taylor (N. C), 41 ; Batty, Ed. 480. 
 
EXCESS OR ABUSE OF AUTHORITY. 439 
 
 whole tract was bid for at the sale, the of&cer should convey to 
 the governor for the use of the State. The law further pro- 
 vided, 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 ot the 389 acres, or any undivided part there- 
 of, 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 
 officer did no more than he was authorized to do ; liere he has. 
 He has in this case sold an entire tract for taxes on the whole, 
 when no tax was due for oue third part. , He has not been 
 satisfied with this ; but has sold for the raising .of two years' 
 taxes upon the whole, when by law, he had no 'right to sell at 
 all, and which appears on the face of the deed. The purchaser, 
 therefore, cannot show his title, without exhibiting, on the face 
 of it, an abuse of the authority under which the sheriff acted. 
 But it is insisted, that so far as the sheriff could have sold, his 
 sale ought to be effectuated ; and cases of powers derived from 
 contract have been relied on. Now it may be a general rule, that 
 in such cases, the courts will sustain them, where they have 
 been executed in such way, that the act which the agent had 
 authority to do, was properly done, and was capable of being 
 separated from that which there was no authprity 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 officer had 
 authority to demand. No one, therefore, can tell how much 
 would have been required to raise the tax legally demand'able. 
 If this were a case of private agency, we therefore see no prin- 
 
440 EXCESS OR ABUSE OE AUTHORITY. ' 
 
 ciple 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, tlrough the agent 
 may have done more — and the authorized act has been done 
 in such way that it may operate consistently with the author- 
 ity — if innocent persons are likely to suffer, the law has said 
 ' that it will intend from the act and its effects, that the agent 
 designed to execute his authority, but has only done so in a 
 bungling manner.' But we think, in the case of public officers, 
 whose authority is not derived from any individual, that the 
 law is clear, that whenever they transcend their authority, the 
 whole act is void ; that the law will not for them, nor for any 
 one else, presume they intended to act properly.^ The sheriff 
 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 cRarge of advertisement, for the smallest number 
 of acres ; and if no one will pay them for less than the whole 
 tract, to execute a deed to the governor for the use of the 
 State. And when they are sold to an individual, the same act 
 requires that the quantity purchased shall be separated from 
 that not sold, by an actual survey made by the county surveyor, 
 and the sheriff is to execute a deed accordingly. Prom 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 own deed bears testimony 
 against the justice, as well as legality of his claim. But if the 
 
 ' Six Carpenters' Case, 8 Co. 146. 
 
EXCESS OR ABUSE OE AUTHORITY. 441 
 
 deed is to be confined to the two-thirds, where is the excepted 
 acre to be found ? Not in the deed ; but, it must require some- 
 thing further to be doile, either by the consent of the parties, 
 or tlie compulsory process of law ; such a resort is clearly at 
 variance with what the legislatiire contemplated to follow from 
 the act it authorized the sheriff to do." Still another distinc- 
 tion is .taken by Cruise : " There is a material difference, in 
 common-law powers, between a naked power or bare authority, 
 and a power coupled with an interest. In the case of a naked 
 power, if it is exceeded in the act done, it is entirely void. But 
 in that of a power coupled with an interest, it is good for so 
 much as is within the power, arid 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 exe- 
 cution of it is void, both at law and in equity.* 
 
 ^ 4 Craise, Dig. Tit. 32, ch. 13, sec. 2, citing Jenlc. 205. ^ 
 
 2 Ante, p. 32. 
 
 ' Sugden on Powers, ch. 1, sec. 1. . • 
 
 * Waldron ». McComb, 1 Hill,lU; Clarke;;. Courtney, 5 Peters, 319; Taylor w. 
 Galloway, 1 Hammond, 232. 
 
442 COVENANTS OF THE OFFICER. 
 
 CHAPTER XXIX. 
 
 OF THE COVENANTS OF THE OFFICER, 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 wliich the State, officer, 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 
 covenant, substantially, that the officer making the conveyance 
 had, in his capacity as such officer, good right to sell and con- 
 vey the estate, and that he would warrant and defend the same 
 against the Ifwful claims of all persons. 
 
 In Gibson v. Mussey,^ it was held, that the intention of the 
 legislature in requiring this particular form of deed, was to 
 make an operative conveyance of the land where the provisions 
 of the law had been complied with, and not to bind the officer 
 by this involuntary covenant; that they acted upon the as- 
 sumption 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 expressly re- 
 quired 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, thanto hold the collec- 
 tor liable on covenants which he has no option whether to omit 
 or not. If the contract was voluntary, and personal, as in the 
 
 i 11 Vermont, 212. 
 
COVENANTS OF THE OFFICER. 443 
 
 case of executors or administrators, who sell land under an 
 order of a probate court, the collector would, no doubt, be 
 liable. But it is believed no case can be found where a public 
 officer i^ required to execute a contract in a specified form, 
 and does so execute it, that he has been holden liable on any 
 express promise or covenant therein contained." 
 
 The case of Wilson v. Cochran,^ was an action upon such a 
 covenant, against the officer who executed the deed. It 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 ren- 
 dered 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 mak- 
 ing the covenant will be bound personally, as in the case of 
 executors, administrators, and guardians. But this case is not 
 within that rule, as the defendant has not voluntarily entered 
 into these covenants, except so far as he may voluntarily have 
 taken the office of collector. Having accepted the office, and 
 made the sale for the payment of the taxes assessed, so far as 
 it appears, in the regular performance of his duty, the statute 
 gave him no option as to the form of the conveyance to be exe- 
 cuted, in pursuance of the sale. Thoiigh required to be in- 
 serted in the form of a personal covenant, we are of the opin- 
 ion' 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 officer, and the 
 greater portion of the consideration goes into the public treas- 
 ury. That the officer, for the small pittance of fee which falls 
 to his share, should be required to take all the responsibility of 
 the title,. would be exceedingly strange. But the covenant, as 
 it stands, is a good covenant of warranty against the claims of 
 all persons ; and if held to be a warranty against defects in the 
 assessment, must also extend to all other defects in the title 
 
 1 14 New Hampshire, 397. 
 
444 COVENANTS OP THE OFFICER. 
 
 through which the purchaser might be evicted. The fact that 
 the deed commences with a description of the grantor as col- 
 lector, negatives the supposition that he is to assume such 
 responsibility. It is the deed of a public officer, made in his 
 pubUc 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 covenant, which he en- 
 tered 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 as- 
 sessed the land, a proceeding in which the collector took no 
 part whatever, and who had no manner of control over the offi- 
 cer who did, in fact, conduct it. Whether the collector might 
 not be responsible for his own omissions, neglect, and other 
 irregularities upon such a covenant, is undecided. No objec- 
 tion, however, can be perceived to a recovery of the considera- 
 tion money in such a case. Even an action on the case would 
 lie against him, in which the purchaser, if he sustained his ac- 
 tion, would recover the full amount of damages actually in- 
 curred. The only argument against a recoveiy upon the cove- 
 nant is, that it is a compulsory one ; the answer to which is, 
 no one is compelled to accept an office, but if he does so, he 
 assumes the full measure of responsibility for its faithful execu- 
 tion which the law has imposed upon the incumbent for the 
 time being. Where the officer voluntarily covenants against 
 his pwn acts, and for the regularity of the anterior proceedings, 
 there is no question of his liability to the covenantee, his heirs 
 and assigns. This is conceded in the foregoing cases, and is 
 fully sustained by the authorities in those which are analogous 
 in principle. 
 
CONSENT OF OWNER TO IREEGULAKITIBS. 445 
 
 CHAPTER XXX. 
 
 OF THE CONSENT OF THE OWNER TO IRREGULARITIES IN THE ■ 
 PROCEEDINGS. 
 
 It may be laid down as a general rule of law, tliat 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 pernaits it to proceed, or 
 even actually consents to waive the irregularity, a sale under 
 such circumstances will not be recognized in a court of law. 
 The officer derives his authority from the law, and not from- 
 the owner. He must obey the law, and not the orders of a 
 private individual. When he keeps within the pale of his au- 
 thority, 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 en- 
 larged, 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 by the Supreme Court of 
 Alabama, in the case of Scales v. Alvis,i where the statute pro- 
 vided, that the collector should advertise the delinquent list 
 three months prior to the sale ; and the facts were, that the 
 advertisement was first inserted January 4, 1843, announcing 
 that the sale would take place February 1, 1843, and the col- 
 lector, 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, re- 
 
 1 12 Alabama, 617. 
 38 
 
446 ' CONSENT OE OWNER TO IREEGULAEITIES. 
 
 quired by law, was not, in fact, given. The collector notified the 
 delinquent owner of the error, and the latter consented to it. 
 The court held, that the sale was a nullity, and the consent of 
 the owner did not cure the irregularity. 
 
 The same principle was applied in Kentucky, to a sheriff's 
 sale, where the officer seized and sold more land of the 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 the judgment debtor was not estopped at law from re- 
 lying upon the error to defeat the title of the purchaser.^ In 
 this case the court intimated, that if the sale had a,ny validity 
 at all, it derived it from the individual acts and private author- 
 ity of the debtor, and that, probably, a court of eqiiity would 
 treat the proceeding as creating a contract by way of estoppel, 
 and compel the completion of the purchaser's title. 
 
 And in Buchannon v. Upshaw,^ the Supreme Court of the 
 United States held, that where the owner of land recognized a 
 sale of it, made by a person who had no authority to sell, there 
 was a privity of contract between the owner and 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 sim- 
 ple 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-com- 
 pliance with the letter and spirit of the law, can be aided there. 
 Chancery possesses no dispensing or substitutional power. 
 
 1 Isaacs V. Gearheart, 12 B. Monroe, 231. 
 
 2 1 Howard (U. S.), 56. 
 
CORPORATION SALES. 447 
 
 CHAPTER XXXI. 
 
 • 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 compensa- 
 tion than the promotion of the public good. Such interference 
 with the natural right of acquisition and enjoyment guaranteed 
 by the constitution, can be justified only when public necessity 
 clearly demands it. Being a sovereign power, it can be exer- 
 cised only by the general assembly, when delegated by the peo- 
 ple, in the fundamental law ; much less can it be exercised by 
 a municipal corporation without a further unequivocal delegation 
 by the legislative body.i 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 condition that they may be taxed equally 
 for general and local purposes.^ But in all cases, the corporation 
 to whom the power is committed, must exercise it according to 
 the principles which control the exercise of the taxing power 
 under the constitution.^ And they must conform to the mode 
 
 1 Mays V. Cincinnati, 21 Ohio, 273 ; Sharp v. Speir, 4 Hill, 76. 
 
 2 Cheaney v. Hooser, fl B. Monroe, 330 ; Talbot v. Dent, 9 B. Monroe, 526 ; 
 Hope V. Deaderick, 8 Humphreys, 1 . 
 
 ^ Hope V. Deaderick, 8 Humphreys, 1 ; Fitch v. Pinckard, 4 Scammon, 69. 
 
448 CORPORATION SALES. 
 
 and manner of levying 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 Sharp v. Speir.'^ " A corpora- 
 tion must show a grant, either in terms or by necessary impli- 
 cation, for all the powers which it attempts to exercise ; and 
 especially must this be done when it claims the right, by taxing 
 or otherwise, to divest individuals of their property without 
 their consent. The exercise of the corporate franchise being 
 restrictive of individual rights, cannot be extended beyond the 
 letter and spirit of the act of incorporation. The power to sell 
 is a high prerogative power." The power is a limited one,^ 
 and must be strictly construed and_ pursued.* Thus, although 
 the State may resort to summary proceedings to 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, corpo- 
 rations cannot make a by-law to enforce tlie payment of taxes, 
 by warrant to distrain and sell the goods and lands of a party 
 who has neglected to pay his dues. When the taxes are legally 
 assessed, they become a debt due to the corporation, and if not 
 paid, must be recovered in due course of law.^ An action of as- 
 sumpsit 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 corpora- 
 tion, to levy taxes and sell lands for the non-payment of them. 
 
 1 Mack a. Jones, 1 Foster, 393 ; Dillingham v. Snow, 5 Massachusetts, 547 ; 
 Williamsport v. Kent, 14 Indiana, 306 ; Stetson v. Kempton, 13 Massachusetts, 272. 
 
 2 4 Hill, 76. 
 
 s West School District of Canton v. Merrills, 12 Connecticut, 436; Kemper v. 
 McClelland, 19 Ohio, 324. 
 
 * NichoU V. Nashville, 9 Humphreys, 252. See Dean v. Madison, 9 Wisconsin, 
 402. 
 
 ^ Bergen v. Clarkson, 1 Halsted, 352. 
 
 " Mayor v. Howard, 6 Harris & Johnson, 383 ; Dagan o. Mayor, 1 Gill & John- 
 son, 499. 
 
CORPORATION SALES. 449 
 
 taut the charter was silent as to the power of the corporation to 
 convey the land sold to the purchaser at the sale, it was held 
 that the power of conveyance could not be exercised by the 
 town. 1. Because a corporation can exercise no implied pow- 
 ers. 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, ex- 
 cept by express grant, to exempt any property within its corpo- 
 rate limits, from taxation.^ Such a power can neither be ex- 
 ercised 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 corpora- 
 tion.^ Nor has a municipal corporation the power to declare 
 that the collector's deed shall be conclusive, or eYsn prima facie 
 evidence of a compliance with all the prerequisites of the ordi- 
 nance, 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 to make and alter 
 rules of evidence.^ Corporation taxes can in no sense be re- 
 garded 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, regulat- 
 ing the taxing power of the State at large, can be construed in 
 any given case as embracing taxes levied by such corporations. 
 Upon this principle, it was held in Shoalwater v. Armstrong,^ 
 that a general statute, declaring a tax deed made in pursuance, 
 of a sale for " public taxes," prima facie evidence of conformity, 
 with the requisitions of the law, and authorizing the respective 
 collectors to make a report of the delinquent list to, and apply 
 for a judgment thereon, hi 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 com- 
 
 i»r)oe V. Chunn, 1 Blackford, 336. 
 
 2 Ktch V. Pinckard, 4 Scammon, 69 ; Mack v. Jones, 1 Foster, 393. 
 
 " Fitch V. Pinckard, 4 Scammon, 69 ; Mack v. Jones, 1 Foster, 393, 
 
 " Fitch V. Pinckard, 4 Scammon, 69. 
 
 5 9 Humphreys, 217. 
 
 38* 
 
450 CORPORATION SALES. 
 
 moil justice that tlie same property should not be twice bur- 
 dened for the same tax ; and, consequently, in construing gen- 
 eral powers, bestowed on towns and cities to impose taxes, a 
 construction ought not to be given, which would subject the 
 property of any individual or corporation to double taxation, 
 unless required by the express words of the statute, or by neces- 
 sary implication." ^ 
 
 Where, by charter, a miinicipal corporation is authorized to 
 assess taxes " according to law," the general law regulating tax- 
 ation is intended ; and the general law in force at the time of 
 the assessment and collection of the tax, is the law by which 
 the corporation is to be controlled in the exercise of the power 
 granted, and not the one in force' at the time of the enactment 
 of the charter. Such a construction ought not to be placed 
 upon the charter, as would prevent the corporation from partici- 
 pating in th% improvements of the system of taxation 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 author- 
 ized by charter, or to change or modify the public laws of the 
 land, regulating the taxing power.^ And it is presumed, that 
 when the charter is silent as to the principles, mode, and man- 
 ner of taxation, the analogies to be drawn from the general 
 statutes of the State, in relation to the taxing power, ought to 
 be adopted by the corporation, in the execution of their local 
 power of taxation.* Such are the general principles to be ex- 
 tracted from the adjudged cases, relative to the nature, ex- 
 tent, 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 evi- 
 
 1 State Bank v. Savannah, Dudley, 132, citing 10 Massacliusetts, <14; 17 
 Massacliusetts, 461. 
 
 2 Ontario Bank v. Bunnell, 10 Wendell, 186. 
 <* Mack V. Jones, 1 Foster, 393. 
 
 * Doe V. Chunn, 1 Blackford,. 336 ; Mack v. Jones, 1 Foster, 393. 
 
COEPORATION SALES. 451 
 
 dence of title), 1. The existence of a corporation, by evidence 
 of the charter and its acceptance by the inhabitants. The char- 
 ter may be proved by an exemplification of it under the great 
 seal of State, or the production of the printed statute book con- 
 taining 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 pursu- 
 ance of, the charter, will be evidence of its acceptance by the in- 
 habitants ; 1 and, 2. A strict compliance with all of the require- 
 ments of the charter and ordinances in force at tlie time the 
 proceedings took place, and under which they purport to have 
 been made.^ What provisions of the charter and ordinances 
 are to be regarded as peremptory requirements, depends upon 
 •the same general principles discussed in the other chapters of 
 this work. If there is any difference between sales for taxes, 
 made under the general laws of the State, and these made in 
 pursuance of the charter and ordinances of a municipal corpo- 
 ration, the strictness required in the latter, is greater than in 
 the former class. It may be added, that no instance is known 
 where a corporation tax sale has been maintained by the 
 courts. 
 
 There are instances of tax sales made under a power con- 
 tained in the charter of a private corporation, which it may be 
 proper' to notice in this connection. On April 15, 1803, the 
 legislature of Ohio, incorporated " the proprietors of the half 
 million acres of land lying south of Lake Erie, called sufferers' 
 land," for the purpose of enabling the proprietors to extinguish 
 the Indian title to their lands, to cause them to be surveyed, 
 and to make partition among themselves. Along with other 
 special powers conferred upon the corporation, the charter of 
 Ohio provided, " that to defray all necessary expenses of said 
 company, in purchasing and in extinguishing the Indian claim of 
 
 1 Fitch V. Pinckard, 4 Scammon, 69. 
 
 2 Fitch 0. Pincliard, 4 Scammon, 69 ; Shdalwater v. Armstrong, 9 Humphreys, 
 217 ; Doe v. Chttnn, 1 Blacliford, 336 ; Ronkendorff v. Taylor, 4 Peters, 349 ; Cor- 
 poration of Washington v. Pratt, 8 Wheaton, 686 ; Mason v. Pearson, 9 Howard 
 (U. S.), 248; Kayburn v. Kuhl, 10 Iowa, 92. 
 
452 CORPORATION SALES. 
 
 title to the land, surveying, locating, and making partition there- 
 of, as aforesaid, and all other necessary expenses of said com- 
 pany, power be, and the same is hereby given to, and vested 
 in, the said directors and their successors in office, to levy a 
 tax, or taxes (two-thirds of the directors present agreeing 
 thereto), on said land, and have power to enforce the collection 
 thereof." And it was further provided, " that all sales of rights, 
 or parts of rights, of any owner or proprietor in said half million 
 acres of land, made by the collector, shall be good and valid, so 
 as to secure an absolute title in the purchaser ; unless the said 
 owner and proprietor shall redeem the same within six calendar 
 montlis 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 suc- 
 cessors, to do whatever shall to them appear necessary and 
 proper to be done, for the well ordering and interest of said 
 owners and proprietors, not contrary to the laws of the State." 
 And it was further provided, " that supplies of money which 
 shall remain in the hands of the treasurer, after the Indian title 
 shall be extinguished, and said land located, and partition 
 thereof made, shall be used by said directors for the laying out 
 and improving tlie public roads in said tract, as this assembly 
 s^iall 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 de- 
 clared' it a- perpetual lien. On May 5, 1808, the director as- 
 sessed a tax upon each share-holder in the corporation, for the 
 purpose of defraying the State tax, levied as aforesaid, and other 
 necessary expenses of the corporation. 
 
 In Beaty v. the Lessee of Knowler,^ the lessors of the plain- 
 tiif, in error, were infant share-holders in the corporation afore- 
 said, and their interest in the lands of said corporation were 
 sold, under the charter and vote of said corporation, to pay the 
 
 ,1 4 Peters, 152 
 
CORPORATION SALES. 453 
 
 assessment aforesaid. The defendant below claimed xmder 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 af 
 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 failure to pay the tax, was a high prerogative, 
 and never should be exercised where the right was doubtful ; 
 and there was no express power to assess a tax for the purpose 
 of discharging that levied by the general law of the State ; that 
 it could not be implied from the language- of the charter, au- 
 thorizing 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 legislature to look to the corporation 
 for the payment of the tax assessed under the general law, 
 but to the land itself, for the law declared the tax a lien upon 
 the land.i 
 
 1 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 corporations, 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. AH their powers must be de- 
 rived from the law of Ohio.- This law, it is insisted, is a private act, not designed 
 for public purposes, and consequently cannot 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 
 authorities were cited, as having a bearing upon the objections thus stated. The 
 names of the sufferers are published in the Connecticut act or resolution in 1 792, with 
 the amount allowed to each, as his indemnity for losses sustained. In this act is 
 found the name of the ancestor of the lessors of the plaintiff. His right descended 
 to them, subject to the same conditions by which it> was originally held. The pro- 
 visions of the law of incorporation, that it should be considered a public act, must 
 be regarded in course of justice, and its enactments noticed, without being specially 
 pleaded, as would be necessary if the act were private. That a private act of incor- 
 poration cannot affect the right of individuals who do not assent to it, and that in 
 
454 CORPORATION SALES. 
 
 The case of Thompson v. Gotham,^ involved the validity of 
 a tax title derived fi-om the same source as that litigated in 
 
 this respect it is considered ia the liglit of a contract, is a position too clear to admit 
 of controversy. Bnt, in the present case, this objection seems not to have been made in 
 the court below, where proofs of the assent, if necessary, might have been submitted 
 to the jury. From the nature of the 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. Rights 
 have been protected and regulated under those laws, and to the provision of the lat- 
 ter are the claimants indebted, in a great degree, for the present value of the remain- 
 der of the land, which they still hold ; and, as has been well argued, if they partici- 
 pate in the benefits of the law, they can set up no exemption fiom 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 spe- 
 cifically conferred on it, will not be denied. The exercise of a corporate franchise, 
 being restrictive of individual rights, cannot be extended beyond the letter and spirit 
 of the act of incorporation. In the second section of the act, power is given to the 
 directors to extinguish the Indian title, uni^er the authority of the United States 
 when obtained ; to survey and locate the land into townships, or otherwise to make 
 partition ; and to defray all necessary expenses in carrying these objects into effect; 
 and to meet these and ' all other necessary expenses of said company,' the directors 
 are authorized to levy a tax or taxes on said land, and to enforce collection thereof. 
 As the power to tax for the purpose of paying a tax to the State, is not found among 
 the enumerated powers of the directors, it must be derived, if it exists, under the 
 words ' all other necessary expenses of said 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 pro- 
 prietors, not contrary to the laws of the State.' In favor of this construction, it 
 has been ingeniously argued, that partition not having been made of the land, it could 
 not be entered for taxation, as required by the law of the State. That the half mil- 
 lion 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 proprie- 
 tor Jiis 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 un- 
 paid. Whether partition was made of the land wten the directors assessed the tax, 
 does not appear, nor is it considered a fact, of much importance in the case. No 
 argument drawn from convenience can enlarge the powers of the corporation. Was 
 the tax imposed, a ' necessary expense of said company,' within the meaning of the 
 act 1 That these words wouldcover the expense of necessary agents to assess and 
 
 ^ 9 Ohio, 170. 
 
COKPPBATION SALES. 455 
 
 the preceding case. The defendant, who set up the tax title, 
 proved a legal levy of the tax, the appointment of a collector, 
 
 collect a tax legitimately imposed by the directors, is clear, and also other incidental 
 expenses, arising from carrying into effect the powers expressly given ; but do they 
 invest the directors with a new and 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 eScpenses of the company ■? 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. Tor the convenience of non-residents, district col^ctors 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 upon the land 
 in controversy, and raises a lien, the same as on any other taxable land in the State. 
 It appears, therefore, .that it was not the intention of the legislature to look to the 
 corporation for the payment of the tax assessed under the law, but to the land, as 
 in all other cases. And if any part of the land has been sold by the State, in which 
 minors 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 seerii, there- 
 fore, that the tax collected by the State would be less expensive to the proprietors 
 than if collected by their own agents, and less hazardous to their rights, as the in- 
 terests of the minors were protected. If, therefore, the argument drawn from con- 
 venience could have any influence, it could not operate favorably to the power of the 
 directors. The power to Impose a tax on real estate, and to sell it where there is a 
 failure to pay the tax, is a high prerogative, and should never be exercised when the 
 right is doubtful. In the preamble to the Ohio act of incorporation, there is a refer- 
 ence to the Connecticut act, and to the cession of the reserve, by that State, to the 
 Union, and a statement that it was annexed to the State of Ohio. And as a reason 
 for the passage of the act, it is stated, that said ' half million of acres of land are now 
 within the limits of Trumbull county, in said State, and are still subject to Indian 
 claims of title ; wherefore to enable the owners and proprietors of said half million 
 acres of land, to purchase and extinguish the Indian claim of title to the same (under 
 the authority of the United States, when the same shall be obtained), to survey and 
 locate the said land, and to make partition thereof to and among said owners and 
 proprietors, in proportion to the amount of land which is or shall be by them respec- 
 tively owned,' &c. These are the objects to be accomplished by the act of incorpo- 
 ration, and which could not be entertained 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. 
 
456 CORPORATION SALES. 
 
 and his qualification, 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, upon the ground that there was no -proof that the sale 
 was advertised in conformity with the charter and ordinances 
 of the corporation — that such notice was a prerequisite to the 
 validity of the sale — that the onus was upon the defendant to 
 prove the fact — that the recital in the deed was not evidence 
 in his favor. 
 
 There is another class of tax titles somewhat analogous to 
 those derived under the charter of the corporators and share- 
 holders in tlie " Sufferers' tract." In the early settlement of 
 
 and said land located and partition thereof made, shall be used by said directors for 
 the laying out and improring the public roads in said tract, as the legislature should 
 direct.' From a careful inspection of the whole act, it clearly appears, that the in- 
 corporation of the company was designed to enable the proprietors to accomplish spe- 
 cific objects, and that no more power was given than 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 purposes. A 
 tax to the State is not a necessary expense of the company, within the meaning of 
 the act. Such an expense can only result from the action of tbe company in the ex- 
 ercise of its corporate powers. The provision in the tenth section, that the ' directoi-s 
 shall have power to do whatever shall appear to them to be necessary and proper to 
 be done, for the Avell ordering of the interest of the proprietors, not contrary to the 
 laws of the State,' was not intended to give unlimited power, but the exercise of a 
 discretion, within the scope of the authority conferred. If the words of this section 
 are not to be restricted by the other provisions of the statute, but to be considered 
 according to their literal import, they would vest in the directors a power over the 
 land, only limited by their discretion. They could dispose of the land and vest the 
 proceeds in any manner which they might suppose would advance the interest of the 
 proprietors. It is only necessary to state this consequence, to show the danger of 
 such a construction. The restriction, imposed in other parts of the statute, very 
 clearly demonstrate that it was not the intention of the legislature to Invest the di- 
 rectors 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 assess a tax, as 
 has been done, in the case under consideration, to pay* tax to the State." 
 
CORPORATION SALES. 457 
 
 the New England States, it was iitual 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 oommon. These tenants in common wcie created 
 quasi corporations, with power to manage their common lands. 
 They were authorized to assess taxes upon each share and col- 
 lect the same, for the purpose of improving the estate and pay- 
 ing off incidental, charges. Each share was Kable 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 officer, appointed for the purpose, in 
 case the proprietor, against whom the tax was assessed, proved 
 delinquent. The modus operandi of the proceeding was to warn 
 a meeting of all the proprietors, under a warrant from the jus- 
 tice 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 in a newspaper or 
 by posting in public places, and sometimes in both ways. Other 
 provisions of an immaterial character, were to be found in the 
 laws under which the proceeding took place. The courts 
 adopted the same principles in testing the validity of these 
 titles, which have been applied in the construction of similar 
 laws in other States. The strict rule was adopted, and the 
 onus probandi cast upon the party claiming under the tax sale. 
 However, after a great lapse of time, it became difficult to 
 prove the legality of the meetings which levied the tax and 
 authorized the sale and conveyance, and the records of the 
 sale were imperfectly kept ; and in support of a long possession, 
 the courts were liberal in construing the acts of the 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 appeared 
 upon the face of the conveyance to be illegal, the sales were 
 
 39 
 
458 
 
 COKPOKATION SALES. 
 
 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. Ch. 68, Art. 4, sec. 5; Sullivan on Land Titles, 116, 121 ; Bott 
 ■ V. Perley, 11 Massachusetts, 169 ; Farrar v. Eastman, 5 Greenleaf, 345 ; s. c. 1 Fair- 
 field, 191 ; Porter v. Whitney, 1 Greenleaf, 306 ; Inman v. Jackson, 4 Greenleaf, 237 ; 
 Farrar v. Perley, 7 Greenleaf, 404 ; Wentworth v. Allen, 1 Tyler, 226 ; Decker v. 
 Freeman, 3 Greenleaf, 338. 
 
POBFBITUKBS. 459 
 
 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 him- 
 self to perform, or to the performance of which he is enjoined 
 by the law, is, upon the breach or neglect thereof, called a for- 
 feiture ; that is, the advantages accruing from -the performance 
 of the thing are defeated and determined.^ It is a punishment 
 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 recom- 
 pense for the wrong which either he alone, or the public together 
 with himself, hath sustained.^ These definitions include for- 
 feitures 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.^ 
 Forfeitures for crime have been abolished in this country. But 
 the common-law rule in relation to the forfeiture of estates for 
 breaches, or the non-performance of conditions annexed to 
 them — those forfeitures arising upon an alienation of a greater 
 estate than a tenant for life or for years, has in the land, 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 im- 
 
 1 Bacon, Abr., Tit. Forfeiture ; Beard v. Smith, 6 Monroe, 444. 
 
 2 2 Blackstone, Com. 267. 
 
 ^ Beard v. Smith, 6 Monroe, 444. 
 
460 \ FORFEITDRES. 
 
 posed 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 di- 
 rected 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 shall " forfeit " 
 his estate to the commonwealth for non-compliance with the 
 duty or duties imposed upon him.. In others the law declares 
 that the land of the negligent owner shall be stricken off to the 
 State, or to the governor, for the use of the State. In all cases 
 which have come under the observation of the writer, ample 
 provision is made for a redemption, by the owner of the estate. 
 It may be laid down as a principal 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 en- 
 force the forfeiture upon ofBce found, and not the freehold in 
 
 1 Beard v. Smith, 6 Monroe, 430. 
 
FORFBITTJRES. 461 
 
 deed or in law.^ " These inquests of office," says the learned 
 author of the commentaries upon the laws of England, " were de- 
 vised bylaw as an authentic means to give the king his riglit by 
 solemn matter of record ; without which he, in general, can nei- 
 ther 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 doctrine is maintained in Dowtie's Case,* and in Page's 
 Case.^ And it was recognized and applied by the Supreme 
 Court of the United States in Fairfax w. 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 unappropriated lands 
 in the act of 1785, c. 42." The manner of acquisition pre- 
 scribed by the recited act, was by paying the purchase-money 
 into the land-office, upon which a warrant was directed to issue 
 in the name of the purchaser ; under this warrant a location 
 and survey was directed, and upon the return of the warrant 
 and survey, a patent was to be issued to the locator. Infants, 
 femes covert, and persons non compos, were allowed three years 
 to redeem, and thus save the forfeiture. The law further re- 
 
 1 Dwarris' Stat. 743 ; Plowden, 486. 
 
 2 3 Blackstone, Com. 259., 
 8 2 Inst. 221. 
 
 * 3 Coke, 10. 
 6 5 Coke, 52. 
 « 7 Cranch, 603. 
 39* 
 
462 FORFEITURES. 
 
 quired a listing of the land, a return of the list, and a publica- 
 tion of the delinquency of the owner. 
 
 In Kinney v. Beverley ,i the latter, who was the original pro- 
 prietor 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 forfeited under 
 the above recited act of 1785. A special verdict was found, 
 that the land had never been valued by the listers, that the list 
 had never been returned, and that the delinquency of the owner 
 was not advertised. Nor did it appear that the title had been 
 vested in the commonwealth by means of an inquisition, or in 
 any other manner, except by force of the statute. All of the 
 judges agreed upon a judgment in favor of Beverley, because, 
 1. The land was not 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 con- 
 sidered that, from the period of our revolution, the common- 
 wealth succeeded to the political character of the king, in all 
 cases whatsoever ; and that its rights, privileges, and remedies 
 were to be, in general, ascertained by the political character of 
 the king, where the same were not controlled or enlarged by 
 the express terms of the constitution, or the clear and definite 
 provisions of some statute of the commonwealth. On this 
 ground I have held, that the commonwealth could neither take 
 nor grant any thing, except by matter of record." (He then 
 cites Blackstone and Coke, and proceeds.) " The conclusion 
 which irresistibly presses itself upon my judgment is, that pre- 
 vious to any grant or location thereof, there must be some 
 further inquiry made ; and as at present advised, that this must 
 be done, either by an inquest of office, or some other mode to 
 be provided for by the legislature,, whereby the certainty of the 
 lands may be shown, and the seisin, as well as the right vested 
 in the commonwealth. A further reason in support of this 
 opinion arises from that principle of moral justice, recognized 
 by Magna Charta in England, and by our constitution, whereby 
 
 1 2 Hening & Munford, 531. 
 
FORFEITURES. 463 
 
 it is declared that no man shall be disseized of his freehold or 
 be condemned, but by the lawful judgment of his peers, or by 
 the law of the land ; the meaning and intention of which is, 
 that no man shall be deprived of his property without being 
 first heard in his own defence. In the case before us, the plain- 
 tiff has been disseized of his lands, and they have been granted 
 over to a third person, withoTit notice or warning whatso- 
 ever." ^ 
 
 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 extract 
 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 redeemed. 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 instruc- 
 tion, and a verdict and judgment having been rendered against 
 him, he has appealed to this court, and relies on this intruction 
 as error. It may be a question of some moment, how far the 
 purchase of Banks and Claiborne by the government could re- 
 
 ^ Upon this point, Judge Koane gave a contrary opinion, making use of the com- 
 mon 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 ques- 
 tion ; nor can I think that, under the influence of that power, and the actual provisions 
 contained in that law, there is any pretence to say, the locations under the act must be 
 preceded by inquisitions of office. Such a construction would defeat the great end 
 and object of our acts, in this particular ; would greatly affect our revenue ; and can 
 only gain color by giving to the principles of the common law, in respect of inquisi- 
 tions, a supremacy over the positive acts of the legislature." 
 
 2 3 Littell, 38. 
 
464 FORFEITURES. 
 
 ceive or infuse validity into the title of the lessor of the plaintiff, 
 and whether the right of entry would not pass exclusively to the 
 State. But we do not suppose it nepessary to inquire into that 
 question now ; for we are of opinion, that the sale for taxes to 
 the State did not pass the legal title. It is a well-known rule 
 of the common law, that no freehold might be given to the 
 king, nor derived from him, but by matter of record.^ 
 
 In conformity with this principle, the Supreme Court of the 
 United States, in the case of Fairfax's Devisee v. Hunter's Les- 
 see,2 decided, that the statutes of Virginia, which showed a 
 strong intention in the legislature to take and pass the title of 
 real estate without inquest of office, were 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 question 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 " be stricken off to the State." Whether the 
 register, iu case such tracts were not redeemed, was bound to 
 convey them to the State, as to other purchasers, to furnish 
 such record as would pass the title, or, whether further legisla- 
 tion 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 re- 
 turn an account of the sales. We discover no provision dire'ct- 
 
 ' 2 Blackstone, Com. 344. 
 ' 7 Cranch, 603. 
 8 3 Littell, Stat. 335. 
 
FORFEITURES. 465 
 
 ing the auditor to record these returns. We do not scruple the 
 power of the legislature to have made the auditor's books, or 
 even these returns of the register, sufficient to pass the title. 
 But still it was necessary that they should make such provision, 
 before we can say that they intended to affect the common-law 
 principle. As such provision is 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 
 evidenced, took the legal title from Banks and Claiborne, and 
 passed it to the State, so as to render .it inoperative against the 
 junior grant of the lessor of the plaintiff, was erroneous." 
 
 The Kentucky statute of 1801,i 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 commis* 
 sioner 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, forfeit 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 thou- 
 sand acres, had failed to list it for taxation, as required by the 
 law. Whereupon the circuit court instructed the jury, that 
 " the title was forfeited to the Commonwealth, and the title 
 thereof and right of entry, was thereby divested out of Bar- 
 bour ; and that, without an inquest of office, the certificate of 
 the auditor, showing that the land had not been entered for 
 taxation, was sufficient to show that the plaintiff had no title." 
 The court of appeals reversed a judgment rendered in pursu- 
 ance of the foregoing instructions, saying : " If, by the opera- 
 tion of this statute, the title to lands is divested out of non-resi- 
 dents, immediately on a failure to comply with its requisitions, 
 in entering them for taxation, the instructions of the court 
 below, are correct ; but if, before the title vests in the Common- 
 wealth, the failure to enter the lands for taxation should be as- 
 
 1 2 Littell, Stat. 463. 
 
 2 1 Littell, 60. 
 
466 FORFEITURES. 
 
 certained 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 ofSce of inquisition, before the title vests in the 
 Commonwealth, will be apparent, if those rules of construction 
 be applied which have invariably governed the English courts, 
 in expounding their acts of parliament, declaring forfeitures to 
 the king. Thus, it has been held, where' a man is attainted by 
 parliament, and it is thereby ordained, that all his lands shall 
 be forfeited, and it is not said, that they shall be in the king 
 without office, 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- 
 mentaries, observes : ' These inquests of office were devised by 
 law as an authentic means to give the king his rights by solemn 
 matter of record ; without which, he, in general, can neither 
 take nor part from any thing.' And the reason 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 inter- 
 vention 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 construction 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 taxation ; 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 dis- 
 pense with the inquest of office. It is true, in the proviso to 
 
 1 Broke, title Office, cited and recognized in 2 Plowden, 486, and 3 Coke, 10. 
 
FORFEITURES. 467 
 
 the statute, there is not only a saving of the rights of others, 
 but it is declared, also, that such rights shall be and remain as 
 valid and secure, as if the claim which has been forfeited had 
 never existed ; but that proviso, we 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 impracticable for a purchaser of a for- 
 feited claim, after 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 for- 
 feiture ; but as, without the proviso, the Coniraonwealth 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 politi- 
 cal character, is nothing more nor less than policy and govern- 
 ment, constituted for the direction of the people ; and by the 
 change of government, produced by the revolution, the Com- 
 monwealth of necessity has succeeded to that political charac- 
 ter. There is an obvious propriety, therefore, in ascertaining 
 the rights and remedies of the Commonwealth, in the general, 
 by the standard of the common law, as respects the political 
 character of the king, where the same are not varied by the 
 terms of the constitution or some statutory provision." 
 
 It will be perceived, upon a careful examination of the fore- 
 going opinions, that the common-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 inquisitiqp, 
 is a violation of that principle of constitutional law which de- 
 clares " that no man shall be disseized of his freehold, but by 
 
468 FORFEITURES. 
 
 the judgment of his peers, or the law of the land." It must 
 be confessed that, if at common law an inquisition was requi- 
 site to vest title in the government, in this class of cases — and 
 this seems to be admitted by Coke and Blackstone — it is diffi- 
 cult to perceive why the term, " law of the land," should not 
 be construed in this country under our constitutions, accord- 
 ing 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 description 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 officer of the State may 
 convey to the State the land of another, and act as the agent 
 of the State in the double capacity of auctioneer and bidder. 
 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 gov- 
 ernor is regarded as a bidder for the entire parcel, and the offi- 
 cer, conducting the sale, is required to execute and deliver to 
 the governor, for the use of the State, a deed for the same.^ 
 
 In Ohio, it has been the universal practice, under the statutes 
 passed from time to time, for the officer to strike off the lands 
 unsold to the State, and they were regarded as redeemable until 
 the legislature took some steps to dispose of them. After a con- 
 siderable accumulation of such forfeited lands in the hands of 
 the State, the legislature have authorized them to be disposed of 
 
 1 Kegister v. Bryan, 2 Hawks, 17 ; Jones v. Gibson, 2 Taylor (N. C), 41. 
 
FORFEITURES. 469 
 
 at public vendue, either by the State auditor, who was required 
 to advertise the time and place of sale, or that oiKcer was di- 
 rected 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 collector, as herein before pro- 
 vided, 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 subsequently ac- 
 , cruing, and six per cent, interest^ The clerk was required to 
 transmit a list to the auditor, of lands redeemed, semi-annually. 
 The auditor was directed to furnish, in turn, to the clerk, a list 
 of all lands lying in his county, which had been forfeited to the 
 State ; and the clerk was authorized to advertise and sell the 
 same biennially. The sheriff was required to assist in the sales. 
 The clerk was directed to execute 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 lan- 
 guage of this law is broad enough to vest the title ipso facto in 
 the State. It is free from all ambiguity whatever — declares 
 the title of the owner forfeited, and transfers it to the State. 
 If constitutional, which, as we have seen, is at least a debatable 
 point, the purchaser, at a sale of these forfeited lands, will ac- 
 quire a valid title, where the law has been strictly complied 
 with by the officers making the sale. The only requirements 
 are, a list transmitted by tHe auditor to the clerk, an advertise. 
 
 1 Buckley v. Osbom, 8 Ohio, 180 ; Hannel ». Smith, 15 Ohio, 134. 
 
 2 Revised Sts. 1845, pp. 448, 450, sees. 77-90. 
 
 40 
 
470 FOKFEITTJRES. 
 
 ment 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 laud was not sold at the ordinary tax sale, they were di- 
 rected to be stricken oif 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 pur- 
 chaser will acquire no title.^ 
 
 And under the Ohio and Illinois statutes, the county auditor 
 in the former, and the county clerk in the latter State, cannot 
 advertise and sell, until they are furnished with a transcript of 
 the forfeited lands by the State auditor.^ 
 
 The Ohio statute of February 1, 1825, declared, that forfeited 
 lands should vest in the State, with a proviso that the 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 laud by the State. The act of March 14, 
 1831, made provision for the sale of the laud, 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," &c. In Reynolds v. Leiper's 
 heirs,* which was an application to redeem from a sale made of 
 forfeited lands under the foregoing statutes, it appeared that 
 the land in question belonged to Thomas Leiper, and was for- 
 feited in 1826. Leiper died in May, 1831, leaving the appli- 
 cants his heirs, all of whom were minors ; the land was sold 
 December 12, 1831, for the taxes due thereon for the years 
 1826, 1827, 1828, 1829, 1830, and 1831. The redemption was 
 resisted upon the ground, that as the forfeiture • happened dur- 
 
 1 Buckley v. Osbom, 8 Ohio, 180. ' 
 
 2 Of course, the proceedings prior to the forfeiture must have been regular in all 
 respects. 
 
 8 Hannel v. Smith, 15 Ohio, 134. 
 4 6 and 7 Ohio, 250. 
 
FORFEITURES. 471 
 
 ing the lifetime of the ancestor, no such estate descended to 
 the heirs, as would authorize them to' redeem. The Common 
 Pleas ordered a redemption, and the order was affirmed by the 
 Supreme Court. 
 
 In Hodgdon v. Wight,^ where land was forfeited to tlie State 
 for the non-payment of taxes due upon it, and afterwards sold 
 and conveyed to the purchaser, and between the day of for- 
 feiture and the day of the sale, the owner paid several assess- 
 ments of State taxes due upon the land, which were received 
 by the State without objection, and appropriated ; this was held 
 to be no waiver of the forfeiture. By tlie 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 ho intention to permit the owners to redeem. The State, 
 however, does not appear to have insisted upon forfeitures when 
 it could obtain payment without. Such a course of proceed- 
 ingg 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 for- 
 feiture, further than it has manifested an intention to do so by 
 its enactments." 
 
 There was a statute in Ohio, which made it the duty of ten- 
 ants for life to list the estate and pay all taxes assessed upon it, 
 and declared that a neglect to do so " shall forfeit to the per- 
 son or persons in remainder or reversion, all the estate which 
 he or she, so neglecting or refusing, may have in said lands," 
 
 36 Maine, 326. 
 
472 FORFEITURKS. 
 
 etc. Ill the Lessee of McMillan v. Robbins,i which was an ac- 
 tion of ejectment by the reversioner, to enforce a forfeiture 
 under this statute, it appeared, upon the trial, that 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 February 29, 1825, made a lease to the de- 
 fendant of the premises thus devised to her, and which were 
 the same in controversy, for and during the term of her natu- 
 ral life, 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 William McMillan." The 
 taxes for 1827 and 1828, were not paid, and the land was sold 
 for these taxes. in December, 1828, to William Corry, one of 
 the lessors of tlie 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 ap- 
 plied as well to tenants for life who held the estate in trust, as 
 to ordinary tenants. 3. That a forfeiture had been iucul-red. 
 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. 
 
 [A statute of Virginia," of March 11,1834, provided, that 
 lands, delinquent as to taxes, should be forfeited, October 1, 
 1834. Subsequent acts provided that they might be redeemed 
 within a limited time afterwards. Under this act it was held, 
 in Usher v. Pride,^ that the title of the owners was divested 
 October 1, 1834, and that the subsequent statute granted them 
 a mere right to redeem, and to revest the title by proceedings 
 within the after-limited time, and did not remove the forfeiture, 
 or postpone the time when the title was to divest.J 
 
 ^ 5 Hammond, 28. 
 2 15 Grattan, 190. 
 
EFFECT OF A REPEALING STATUTE. 473 
 
 CHAPTER XXXIII. 
 
 OP THE EFFECT OF THE REPEAL OF THE LAW UNDER WHrCH THE 
 PROCEEDINGS TOOK PLACE. 
 
 It is a well-established principle of law, that when a statute 
 is repealed, it must be considered, as to qll 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, notwith- 
 standing 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 siifBcient 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 re- 
 peal of the statute under which it was acquired.^ 
 
 The general rule is illustrated by the case of Mc Quilken 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 the assessment of the tax, but before the sale took place. 
 The repealing law contained this clause : " saving, however, 
 any act done, Ac, previous to the passage of this act, &c." 
 The court held the sale void, saying : " The road law being 
 thus repealed, .the case is without difficulty. The law is well 
 
 1 Dwarris, 676 ; Smith's Commentary, 890. 
 ^ Smith's Commentary, ch. 19. 
 8 8 Blackford, 581. 
 40* 
 
474 EFFECT OF A REPEALING STATUTE. 
 
 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 col- 
 lection, was absolutely repealed, at least two months before the 
 sale in question to enforce the payment of the tax was made ; 
 and we hold that such sale, and all the proceedings for the col- 
 lection 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,^ 
 contahiing 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, re- 
 quiring merchants to obtain a license to sell goods, are hereby 
 repealed : Provided, that the i-epeal of said acts shall in no way 
 affect or impair any right or interest acquired under said acts." 
 An ejectment cause came before the Circuit Court of the Uni- 
 ted 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 re- 
 quired " claim and color of title made in good faith," upon a 
 deed made in pursuance of a sale for taxes, held after the re- 
 pealing statute above recited took etfect, and which sale was 
 conducted in pursuance of the repealed law. The cause was 
 fully argued, and Judge Drummond held, upon general prin- 
 ciples, 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 
 
 1 Ante, pp. 190, 199. 
 
 2 Session Laws, 1839, p. 266. 
 
EFFECT OP A REPEALING STATUTE. 
 
 475 
 
 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 presumed that the de- 
 cisions in botli cases were satisfactory to the bar. Certain it is, 
 they were correct upon general principles. All inchoate rights 
 derived under a statute, are lost by its repeal, unless expressly 
 saved. [In Bryan v. Harvey,^ an act of 1842 had enacted, 
 that the tax collector, upon the sale of land for taxes, should 
 give the purchaser a certificate., and if the land was not re- 
 deemed within one year, the tax collector or his successors 
 should give a deed, &c. The act of 1846 provided, that where 
 sales were afterwards made, the deed should be delivered imme- 
 diately, but contained no provision as to taxes previously levied, 
 nor to cases where certificates were outstanding, and it con- 
 tained no words of repeal. It was held, that the successor of 
 the tax collector who had sold and given a certificate under the 
 act of 1842, had no power to give a deed, after that act was 
 impliedly repealed by the act of 1846, it being a power not 
 coupled with an interest, and necessarily revoked by the repeal 
 of the statute confirmfng it.j It is otherwise, however, in re- 
 gard to such civil rights as have become so far perfected as to 
 stand independeut 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 froin the civil law. Puffeudorf remarks, that 
 " the law itself may be disannulled by the author, but the 
 rights acquired under it must still remain." This principle of 
 natural justice has become one of the axioms of constitutional 
 law in this country. No vested right to property, acquired by 
 
 1 11 Texas, 311. 
 
 2 Butler V. Palmer, 1 Hill, 324. 
 
476 EFFECT OF A KEPEALING STATUTE. 
 
 virtue of a statute, can be divested by a repeal or modification 
 of the law.^ 
 
 Tliis principle was fully discussed by the counsel, and con- 
 sidered by the court, in Bruce v. Schuyler ,2 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 certificate 
 of sale at the time of his purchase, but the deed was not exe- 
 cuted 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 con- 
 stitutional 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 opposition between it 
 and the constitution is direct and clear ; but when such \s. the 
 case, the duty of the court is iinperative, 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 tc? 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 ofiicer, or any other authority competent to make a valid 
 one ? The constitution of the United States provides, that no 
 State shall pass any law impairing the obligation of a contract, 
 &c. The State constitution contains the same prohibition upon 
 the power of the legislature, with the difference of the word 
 ' validity ' in the place of that ' Obligation,' used in the consti- 
 tution of the United States. Is the sale made by the auditor 
 
 1 Fletcher v. Peck, 6 Cranch, 87 ; Benson v. Mayor of New York, 10 Barbour, 
 223; Plymouth v. Jackson, 3 Harris (Penn.), 44; Butler v. Chariton County 
 Court, 13 Missouri, 112 ; Wright v. Marsh, 2 G. Greene, 94. 
 
 a 4 Gilman, 221. 
 
EFFECT OF A REPEALING STATUTE. 477 
 
 of the land in question a contract within the meaning of the 
 constitution ? That, I think, will be manifest by adverting to 
 the law authorizing the sale, and the action under it. In order 
 to collect its 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 speci- 
 fied ; and as an inducement to purchasers, the law provides 
 that the auditor shall give to the purchaser a certificate of pur- 
 chase, or a deed, at the option of the purchaser, to the whole or 
 such part of each tract of land as he may purchase and pay the 
 tax due thereon. Upon these terms the.land is sold, the stipulated 
 price paid by the purchaser, and a deed therefor executed by 
 the auditor ; but before the deed is made, the law authorizing 
 this officer to sell and convey delinquent lands is said to be re- 
 pealed, and the duty of making these sales is imposed upon 
 other officers. The case thus stated embraces all the constitu- 
 ent parts of a contract, so fully and clearly, as to leave no doubt 
 as to the character of the transaction. All argument, therefore, 
 to prove it a contract, would be superfluous, and that it is such 
 an one as is contemplated by the constitution, can, I think, be 
 made equally clear, and if so, it follows, that the legislature 
 could not constitutionally destroy the authority of that officer 
 to convey the land a,ccording 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 contract, and would conse- 
 quently be void. By a series of adjudications, the conditional pro- 
 vision 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 .stipulation's, is held to impair its va- 
 lidity, and it is immaterial, as to the extent or the manner of the 
 change, whether it be ever so minute, or relates to its construc- 
 tion, 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 
 
478 EFFECT OF- A EBPEALING STATUTE. 
 
 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, ^nd 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 sub- 
 sequent act of the legislature, which repealed the fourth section 
 of the act, which requires a conveyance to be made to the pur- 
 chaser, is not in conflict with the constitution, because it ope- 
 rates only upon the remedy of the purchaser, and not upon the 
 obligation of the contract, and numerous authorities are referred 
 to for the purpose of sustaining this position, but they totally 
 fail to do so. The execution of a deed to the purchaser, by the 
 auditor, at the time and in the form 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 purchase 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 con- 
 tract. 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 re- 
 ferred to by the counsel for the defendant, to justify the repeal 
 insisted upon, are such as affect vested rights, which are not se- 
 cured by any constitutional provision, by reason of their not 
 vesting vmder a contract, or such as take away a peculiar priv- 
 ilege, conferred by a prior act, or the repeal of a penal or crim- 
 inal law, by which the jurisdiction of the court is divested, be- 
 fore any right under it has ripened into a contract or vested 
 interest. The authority to eitl^er repeal or modify, according 
 to their nature, these preexisting laws, is admitted. There is 
 also another class included in the reference, recording and lim- 
 itation laws, in relation to which a great stretch of legislative 
 
EFFECT OF A REPEALING STATUTE. 479 
 
 power is allowed, yet, even with regard to them, it is not with- 
 out its limit. The obligation of a contract is that which obliges 
 a party to perform his contract, or repair the injury done by a 
 failure to perform ; and, as regards the remedy, it may be modi-* 
 tied by the legislature, but not entirely abolished, for, in sub- 
 stituting one mode of proceeding for another, they must afford 
 a reasonable remedy. An act that should wholly extinguish all 
 existing remedy, so as to leave no redress, and no means of 
 enforcing a contract, would, by operating in presenti, impair its 
 obligation. If, therefore, the act. of 1833 be regarded as abol- 
 ishing the power of the auditor to make the deed in question, 
 it is equally obnoxious to the constitutional prohibition, whether 
 it is considered as operating upon the obligation, orthe 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 
 particiilar remedy, or in a special mode of administering it. 
 In these, then, there is no vested right, but there is such aright 
 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 ad- 
 equate remedy, the grant of which depends upon the will of the 
 .legislature. ' When,' says Judge Story, ' we speak of the obli- 
 gation of a contract, we include, in the idea, some known 
 means, acknowledged by the municipal law, to enforce it.' It 
 is also a well-settled principle, that the repeal of a law in which' 
 a contract 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 
 
480 EFFECT OF A EEPEALING STATUTE. 
 
 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 individuals, as a general rule, I 
 * think there can be no question that it does so in this case, and 
 that the purchaser's title to a deed cannot be taken from him 
 by the repeal of a law that forms part of the contract. If it 
 was otherwise, then every executory contract entered into by 
 the State, or its officers on her behalf, in virtue of an act of the 
 legislature, may be avoided by them at discretion, although the 
 terms of the contract have been complied with by the other 
 contracting party." 
 
 It is well settled, that repeals by implication are never favored, 
 and that the repugnancy between a prior and 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 
 under the prior law, such a construction cannot be tolerated.^ 
 And it may be laid down as a general rule, that in determining 
 th§ 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 Garrett v. Wiggins, 1 Seammon, 335. 
 
 ^ Brown v. Veazie, 25 Maine, 359 ; Eldridge v. Tibbitts, 5 Louisiana, An. 380. 
 
JURISDICTION AND REMEDIES. 481 
 
 CHAPTER SXXIV. 
 
 OF THE JURISDICTION OE THE COURTS IN CAUSES INVOLVING THE 
 VALIDITY OF TAX SALES, AND OF THE REMEDIES OF PARTIES 
 INTERESTED THEREIN. 
 
 Ordinarily, the validity of a tax, and the regularity of the 
 proceedings to enforce its collection, are questions properly cog- 
 nizable in a court of law.^ But a court of equityi undoubtedly 
 possesses ample authority to restrain a tax sale, where injustice 
 might result, but for this restraining power. It is well estab- 
 lished, that equity will restrain'the sale of an estate, in all cases 
 of trusts, and special authorities, where the sale would be in- 
 equitable, 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 require- 
 ments of the statute, under which he derives his authority, a 
 court of equity may enjoin the sale. The officer has no right 
 to proceed in such a case, or in such a manner ; ^ and the ex- 
 ecution of the power under such circumstances, is calcukted to 
 cast a cloud upon the title of the owner, and to render it un- 
 marketable, in the equitable sense of that term. And the effect 
 
 ' [In 1858, the legislature of Michigan attempted to confer the power of adjudicat- 
 ing upon tax titles upon Circuit Court commissioners, but the Supreme Court held, 
 that this was a judicial power, and could not be constitutionally rested in those 
 officers. See Art. 6 of Michigan Constitution, § 6 ; Waldby v. Callendar, 8 Michi- 
 gan, 430. 
 
 2 Waterman's Eden on Injunctions, 339, note. 
 
 ' See Williams v. Cammack, 27 Mississippi (5 Cushman), 210. 
 41 
 
482 JURISDICTION AND REMEDIES. 
 
 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 pitceedings 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 circum- 
 stances, 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 proceedings 
 are void, the law affords an adequate remedy, without a resort 
 to a bill in equity ; in such case, the sale would not divest the 
 title : on the other hand, where the proceedings are merely 
 erroneous, and not void, there is no equitable power in the court 
 to revise and correct them.' But in Van Doren v. Nejf York,^ 
 an illegal tax proceeding was enjoined, the court takiiig the 
 distinction between a proceeding void upon its face, and one 
 rendered so by extrinsic evidence ; e. g. where the land was 
 not subject to taxation, where the taxes had been paid, or the 
 sale redeemed from. [And in Scott v. Onderdouk, in the 
 same State, it has since been held, that if the instrument al- 
 leged to create a cloud on the title of land taxed, be itself 
 void on its face, or if defective for the want of any of those 
 preliminary proceedings which the party claiming under it 
 would be bound to show, the instrument will not be set aside in 
 
 1 Livingston u. HoUeubeck, i Barbour, 16 ; Van Rensselaer v. Kidd, 4 Bar- 
 bour, 17. And see Cox v. Clift, 2 Comstock, 118. 
 " 9 Paige, 388. 
 
JURISDICTION AND REMEDIES. 483 
 
 equity, but the party will be left to his remedy at law. On the 
 other hand, if the instrument is itself made presumptive evi- 
 dence that such preliminary proceedings were in fact had, then 
 the instrument may be set aside in equity, if in fact void for a 
 defect in such proceedings. 
 
 Accordingly it was determined, that where land was sold for 
 an alleged assessment, which had never in fact been laid, and 
 a deed was about to be executed which by statute was prima 
 facie evidence that a valid assessment had been made, the court- 
 might restrain the execution of the conveyance, might declare 
 the sale void, and cancel the certificate which had been already 
 issued to the purchaser.^ And the same doctrine has been 
 more recently adopted in Wisconsin,^ in a case where the taxes 
 were illegally assessed.] In other cases, the courts of that State 
 have sustained bills of interpleader against collectors of ad- 
 joining counties, at the suit of the tax payer, where his property 
 has been assessed in each county.^ The reason of the distinc- 
 tion 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 ap- 
 parent as long as the dofcument has an existence ; while in the 
 latter case, the evidence of illegality rests in the memory of 
 man. With due deference to the New York judges, who are 
 conceded to be highly respectable, in point of legal attainment, 
 it maybe remarked, that their adjudications cannot be supported 
 upon principle, and are clearly against the current of au- 
 thorities. Preventive justice, administered through the re- 
 straining power of a court of equity, is one of the most valuable 
 features in our system of jurisprudence. The application of 
 this principle, to proceedings to enforce the collection of a tax, 
 and to tax sales, is not difficult. Where there are no equitable 
 circumstances to distinguish the case from an ordinary trespass, 
 
 ^ 4 Kernan, 9. And the same rule was distinctly approved in "Weller v. St. Paul 
 6 Minnesota, 106. 
 
 2 Dean v. Madison, 9 Wisconsin, 402. See also, Knowlton v. Supervisors of Kock 
 County, 9 Wisconsin, 410; Weeks y. Milwaukee, 10 Wisconsin, 242. 
 
 " Van Rensselaer v. Kidd, 4 Barbour, 17; Thomson v. Ebbets, Hopkins, 272; 
 Mohawk & Hudson E. R. Co. u. Clute, 4 PaigeJ 384. 
 
484 JURISDICTION AND REMEDIES. 
 
 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 dis- 
 tinguishes it from a common trespass, and which appeal^ to the 
 conscience of the chancellor for the relief prayed. 
 
 Thus, in the case of Ogborn v. Bank U. S.,^ the Supreme 
 Court of the United States held, that it was proper to enjoin the 
 collection of a tax, upon a branch of the United States Bank, 
 levied under the authority of the laws of the State of Ohio, upon 
 the ground that the taxing power of the State, if once conceded, 
 without limitation as to its extent, tended to the destruction of 
 the franchise of the bank, which was a fiscal agent of the govern- 
 ment, and also would have the effect of disordering the national 
 finances. On the other hand, when a tax — simply unconstitu- 
 tional — unaccompanied by any circumstances of peculiar in- 
 jury, is about to be enforced by a distress and sale of personal 
 property, in the ordinary way, and for which wrong the com- 
 plainant had an adequate remedy at law, it 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 granting injunctions to stay waste, spoil, and de- 
 struction, and other injuries to the inheritance, attended by 
 circumstances of peculiar hardship ; or where, according to the 
 analogies of equity juiisprudence, relief to the injured party 
 would be proper. They have also interfered to prevent sales of 
 land, under a claim of authority or right — such as cases to 
 stay sales, under a power in a mortgage, deed of trust, marriage 
 settlement — imder leasing powers, and powers of revocation 
 and appointment, ijideed, under all classes of powers arising 
 ex contractu — in such cases, it has never been inquired 
 • whether the title to be made, under such a power, will or will 
 
 1 9 Wheaton, 773 ; 5 Cond. 771. 
 
 2 McCoy V. Chilicothe, 3 Ohio, 380. 
 
JURISDICTION AND REMEDIES. 485 
 
 not be indisputable. The fact that the proceeding takes place 
 under a statute authority, cannot affect the application of the 
 general rule. It sounds ill, in the mouth of him who 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 right to sell, is the subject of inquiry. The reason is much 
 stronger for restraining an illegal tax sale, than any other class 
 of illegal sales. Prior to the sale, no one has a vested interest 
 in the proceeding, save the government, to the extent of the 
 tax ; and where power to levy the tax exists, but the proceed- 
 ing to collect it is illegal, the exercise of a speedy restraining 
 power, furnishes the State with notice of the illegality, and en- 
 ables the government to re-assess tlie tax, and enforce its col- 
 lection in a legal manner. If, on the contrary, the tax itself is 
 illegal, the State has no right to harass her citizens, by pro- 
 ceedings 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 ejectment. 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 even 
 pr.ima facie evidence of title in the purchaser. 
 
 The best reasoned case in support of this doctrine is Burnet 
 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 
 and possessed by the complainant, for a city assessment to im- 
 prove the streets. The bill set out the title and possession of 
 the complainant, and the nature and character of the assess- 
 ment made by the city counsel, alleging that it had not been 
 made in ' accordance with the charter and ordinances, but was 
 
 1 3 Hammond, 73 ; s. c. 1-4 Ohio Cond. 476. 
 41* 
 
486 JCRISDICTION AND REMEDIES. 
 
 illegal and void ; 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 
 pro forma. 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, never- 
 theless, under legal color, the defendants are about to sell a 
 part of the real estate of the complainant, and prays the inter- 
 ference of the court, in the exercise of its chancery powers, to 
 restrain them by injunction. The demurrer, and the argu- 
 ment 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 ope- 
 rate upon the property of their fellow-citizens, must be permit- 
 ted to proceed, however illegal, unjust, or oppressive their con- 
 duct may be. It follows, too, that the property of a citizen may 
 be exposed to sale, under circumstances that render it impossi- 
 ble for the parties to know whether a title can pass or not. 
 Thus involving great hazard to all concerned, and perplexing 
 the titles to real estate, for no beneficial purpose to any person 
 whatever. If such be the rule of the law, we must so adminis- 
 ter it. But nothing short of a series of repeated adjudications 
 would be sufficient to demonstrate that the law is so settled. 
 The authorities which have been referred to, do not lead to the 
 conclusion insisted upon by the defendants. They all proceed 
 upon the principle, that in very many cases, this court may in- 
 terpose 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 conflic- 
 tion 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 
 
JURISDICTION AND REMEDIES. 487 
 
 more than that injury which greatly impairs its intrinsic value. 
 In a city, the sale of part of a lot for assessments, may often be 
 very destructive to the interests of the proprietor, though no 
 title passes by such sale. A cloud would be cast upon the 
 title, which litigation only could remove, and until removed, 
 the property might be valueless to the owner ; subject, too, 
 during the period of litigation, to additional assessments and 
 embarrassments. When an assessment of a tax is made, and 
 its legality disputed, the uncertainty attendant upon the final 
 result, puts the estate upon which it operates, in imminent jeop- 
 ardy. If no title passes by a sale, the party has remedy at law. 
 He can defend his possession ; but if title does pass, he is rem- 
 ediless altogether. A mode, therefore, of deciding the ques- 
 tion, before any right is effected, is safest for all parties. It 
 was upon this ground the court entertained jurisdiction in the 
 case of The Bank United States v. Shultz, from which, in prin- 
 ciple, this case is not distinguishable. The defendants conce.de, 
 that if a sale were made, this bill might be sustained under our 
 statute. To sustain it now, is clearly withiu 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 revenue, 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 Osborn and others v. the Bank United States,^ is 
 
 1 9 Wheaton, 738. 
 
488 JURISDICTION AND KBMEDIES. 
 
 a case directly in point, of enjoining the collection of a tax. 
 That case was most earnestly litigated, and yet the coimsel who 
 resisted the injunction did not attempt to maintain that the 
 jurisdiction could not be sustained, on the ground that it in- 
 terfered with the collection of the revenue. We overrule the 
 demurrer, and send back the cause, at the suggestion of the 
 defendants, for further proceedings." The statute of Ohio, al- 
 luded to in the foregoing opinion, provided, that " any person 
 having both the legal title to, and possession of land, may in- 
 stitute a suit against any other person setting up a claim there- 
 to." As intimated in Burnett v. Cincinnati, it is the estab- 
 lished doctrine of the Ohio courts, that this statute is merely 
 declaratory of that jurisdiction of courts of chancery virhich ex- 
 isted 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, cancelling 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 com- 
 plaiiiant. The case of Yancey v. Hopkins,^ 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, 1786, for the taxes 
 of 1784, 1785, and purchased by Yancey, the deputy-sheriff 
 •who made the sale, and was one of the defendants, and by him 
 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 
 
 1 Andersons. State of Mississippi, 23 Mississippi, 459; Lyon v. Hunt, 11 Ala- 
 bama, 295 ; Dyer v. Branch Bank of Mobile, 14 Alabama, 622. 
 
 2 Anderson v. State of Mississippi, 23 Mississippi, 459. 
 
 3 1 Munford, 419, 437. 
 
JURISDICTION AND REMEDIES. 489 
 
 complainant, an infant, was tlie owner of the estate at tlie time 
 of the sale, and resided in a foreign county. Harris was in 
 possession of the land at the 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 proprie- 
 tors 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 per- 
 sonalty 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 deliver- 
 ing the opinion said : " It was objected to by the appellant's 
 counsel, that the complainant had a plain remedy at law, by 
 ejectment to recover the 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 defendants 
 that he should do .so, as they might, by their answers, purge 
 themselves of any imputations of fraud or collusion in making 
 the sale. Besides, the object of the bill was to compel a recon- 
 veyance of the land from the defendant Harris, wliich a court 
 of law could not enforce. And, as a simple verdict in ejectment 
 might not have been conclusive, I think the parties pursued 
 the most proper course." 
 
 In Dudley v. Little,' a tax sale and deed were set aside, be- 
 cause of a fraud among the bidders at the sale. In Rowland v. 
 Doty,^ the sale and deed were set aside, because the taxes had 
 
 1 2 Hammond, 504; 1-4 Ohio Cond. 445. 
 
 2 1 Harrington, Ch. 3. 
 
490 JURISDICTION AND REMEDIES. 
 
 been. paid previous to the sale. And in Bacon v. Conn,^ a tax 
 deed was ordered to be cancelled, 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 gran.t 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 sus- 
 tained in such a forum, only when the law has been rigidly 
 complied with in its every requisition. In the language of 
 Judge Pope, a tax title is one of strict right, where a court 
 would not grant a new trial, or a chancellor enforce such an 
 unequal bargain.^ 
 
 And in Douglass v. Dangerfield,^ where the tax purchaser 
 was complainant. Judge Hitchcock, in delivering the opinion 
 said : " This is a case of considerable importance, whether we 
 consider the amount of property in contest, or the principles 
 involved. The aniount of property exceeds 1,300 acres, which 
 the complainant claims he is eiititled 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 
 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 consider- 
 ation. 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 
 
 1 1 Smedes & Marshall, Ch. 348, 
 
 2 Mayhew v. Davis, 4 McLean, 213. 
 " 10 Ohio, 152. 
 
JURISDICTION AND KEMEDIES. 491 
 
 of equity will give a thorough and close scrutiny into a title 
 derived under a tax sale, whenever 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 who- 
 ever seeks equity must do equity, a court of chancery will im- 
 pose terms upon the complainant in granting him relief. Tims, 
 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 paynient of their debts, may file a 
 bill to set aside an illegal tax sale, and thus dispel any cloud 
 upon the title of their debtor, and remove any obstacle thus 
 created to the enforcement of their lien or right.* But in the 
 Ohio case, where the law declared, that whenever a tax sale 
 should be held invalid, the owner, or other party in interest, 
 should refund the taxes to the purchaser at the sale, and make 
 the tax a lien upon the land in favor of the purchaser, the bill 
 of the creditor was 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 anal- 
 ogous cases. Thus, if the ofiicer refuses to execute and deliver 
 to him a certificate of purchase, or deed of conveyance, when 
 
 1 Douglass V. Dangerfield, 10 Ohio, 152 ; Yancey ti. Hopkins, 1 Mnnford, 419 ; 
 Blakeney v. Ferguson, 3 English (Arkansas), 277. 
 
 2 Chapter 35. 
 
 ' 2 Hammond, 504. 
 
 * Gillett V. Webster, 15 Ohio, 623; O'Brien v. Coulter, 2 Blackford, 421 ; Bran- 
 son V. Yancy, 1 Der. Eq. 77. 
 
492 JURISDICTION AND REMEDIES. 
 
 he has become entitled to either by a fair and regular purchase, 
 he may by mandamus compel the execution of them,i and in 
 some instances, a bill in chancery may be regarded as appro- 
 priate.^ The question has been discussed, and variously de- 
 cided in Ohio, as to the right of the purchaser of an equity at a 
 tax sale, to come into a court of chancery, and, treating the 
 holder 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, that the purchaser 
 who seeks relief under such circumstances, must aver in his 
 bill, and prove 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 with- 
 draw 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 de- 
 tainer. Ejectment is his only remedy.^ But there is a statute 
 in Ohio which gives this remedy to the purchaser.* It is a gen- 
 eral rule, subject to occasional exceptions, that the remedial 
 
 • Maxcy v. Clabaugh, 1 Gilman, 26 ; People v. Mayor, &c., 10 Wendell, 395 ; 
 Ante, 291, 372. 
 
 2 Ante, 272, 373 ; Bank of Utica v. Mersereau, 3 Barbour, Ch. 528. 
 
 8 Eennick v. Wallace, 8 Ohio, 540 ; Stuart o. Parish, 6 and 7 Ohio, 204 ; Wal- 
 lace II. Seymour, 7 Ohio, 313 ; Douglass v. Dangerfield, 10 Ohio, 152 ; Gwynne 
 V. Neiswanger, 15 Ohio, 367 ; s. c. 18 Ohio, 400 ; s. c. 20 Ohio, 556. 
 
 ' Douglass V. Dangerfield, 10 Ohio, 152. 
 
 ' Gait V. Galloway, 4 Peters, 339 ; HoUingsworth v. Barbour, 4 Peters, 466 f Mc- 
 Arthuri). Nevill, 3 Ohio, 178; Taylor w. Myer, 7 Wheaton, 23; Wallace o. Porter, 
 14 Ohio, 277 ; Jackson v. Clark, 1 Peters, 629. 
 
 « Holt V, Hemphill, 3 Hammond, 232 ; Douglass v. Dangerfield, 10 Ohio, 152 ; 
 Wallace v. Seymour, 6 and 7 Ohio, 313. 
 
 ' Kelly V. Hunter, 12 Ohio, 216. 
 
 8 Hannel ». Smith, 15 Ohio, 134. 
 
JURISDICTION AND REMEDIES. 493 
 
 power of a court of equity does not extend to the supplying of 
 any circumstance, for the want of which the legislature has ex- 
 pressly, or by implication, declared the instrument or act void ; 
 for otherwise, equity would, in effect, defeat the very policy of 
 the legislative enactments. In this respect there is a clear and 
 manifest distinction between public and private powers when 
 defectively executed. A power created by private parties, 
 when defectively executed by reason of fraud, accident, or mis- 
 take, may be aided by a court of equity. But where the power 
 is created by statute, it is construed with more strictness ; 
 and whatever the formalities required by the statute to attend 
 the execution of the power, they must be punctiliously complied 
 with, and no defect can be aided in equity. Courts in 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 excep- 
 tions, that in regard to powers, which are in their own nature 
 statutable, equity must follow the law, however meritorious 
 t^i6 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. Pines and common re- 
 coveries are judicial powers, based upon statutes, and the rule 
 is, that equity will not aid a defective fine against the issue, 
 nor a defective recovery against the remainder man. The 
 power to make a will is also a statutory authority and if the 
 solemnities required by the statute to attend the 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, thfe power must be executed in that way, 
 and whenever there is a failure to conform to the statute re- 
 quisitions, the title is void at law.^ And when void at law. 
 
 1 Young V. Keogh, 11 Illinois, 642. 
 42 
 
494 JURISDICTION AND REMEDIES. 
 
 equity cannot aid any defect in the execution of it.^ These 
 two cases are the strongest illustrations of the rule which can 
 be found in the books. The statute of Illinois, in- relation to 
 guardian sales made 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 retui-n of such proceedings to the court grant- 
 ing such order, wliich, if approved by the court, shall be re- 
 corded, and shall vest in the purchaser or purchasers all the 
 interest the watd had in the estate so sold." This requirement 
 was omitted, in Young v Keogh, which was an action of eject- 
 ment, and the sale was held void. Afterwards, Bowling, 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. Bowling, 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 Young V. Dowling, 15 Illinois, 481. 
 
 2 Caton, J. . "In this case a very important principle is involved, which demanded 
 and has received the most careful consideration of this court. The complainant in 
 this case claims title to the premises in question under a guardian's sale made in 
 1 846, under an order of the circuit court. The title in the case of Young v. Keogh 
 (li lUifiois, 642), was precisely like this in every respect, being derived under a sale 
 made by the same guardian, and under the same decree, and made at the same time 
 with the sale under which the complainant claims title, so that 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 proceedings were regular, except that the guardian 
 never made a report of his proceedings under the order of sale, as that order had di- 
 rected and the statute required. For that defect this court decided that the sale was 
 void, and that no legal title passed to the purchaser by the deed which the guardian 
 had executed. This court then said : ' There is no avoiding the conclusion, that the 
 title does not vest in the purchaser till the report is made and approved. The lan- 
 guage of the statute is so explicit and unequivocal, that it neither admits of doubt or 
 argument.' Since the decision of that case, a trial in ejectment has been had between 
 the complainant and defendants in this bill, in which these defendants recovered a 
 judgment in ejectment against the complainant, thus determining, in conformity to 
 the decision of this court in the other case, that the complainant acquired no legal title 
 
JURISDICTION AND REMEDIES. 495 
 
 The same principle was applied by Judge Story, in Bright-i;. 
 Boyd,* to an administrator's sale, which was void at law for 
 non-conformity with the statute. 
 
 by his purchase. This bill is filed against the heirs, who were plaintiffs in the eject- 
 ment suit, praying an injunction to restrain the execution of the judgment rendered in 
 that cause, and for general relief The bill set out the decree of the circuit court, order- 
 ing 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 guar- 
 dian, when it was impossible to compel a return of the sale to be made by the guar- 
 dian, and to procure an approval thereof by the Circuit Court. It is insisted, in sup- 
 port 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 <5f the guar- 
 dian, was defectively exercised or executed ; and that it is competent for a court of 
 equity to relieve against, and to give him a title which, by reason of such defect, the 
 law will not give him. Where a power is created by an individual, or the party in- 
 terested 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 
 rule is otherwise, where the power is created by law, and without the concurrence of 
 the party whose interests are to be affected by its exercise. Mr. Justice Story says : 
 ' But in cases of defective execution of powers, we are carefully to distinguish be- 
 tween powers which are created by private parties and those which are specially cre- 
 ated by statute ; as, for instance, the powers of tenants in tail to make leases. The 
 latter are construed with more strictness ; and whatever formalities are required by 
 the statute must be punctually complied with, otherwise the defect cannot be helped, 
 or at least, may not, perhaps, be helped in equity, for courts of equity cannot dis- 
 pense 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 pre- 
 scribing 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 consum- 
 mation of the exercise of the power, and this last act, it has said, should pass the 
 title ; and in construing that statute, we have determined, that without that act the 
 
 1 1 Story, 478. 
 
496 JURISDICTION AND EEMEDIES. 
 
 The cases where a power of appointment, or of revocation, 
 which arise by construction under tlie statute of uses, where 
 
 title did not pass. This act, from its very nature, was one of tlie most important 
 *acts dictated by tlie 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 valid execution of the power conferred 
 by the law, it is this, which the statute says shall be the one which shall vest the title 
 in the purchaser ; and it is this act, of all others, which is best calculated to secure 
 the interest of the infant against the misconduct or indiscretion of the 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 previous 
 order of the court, the sale will not be approved, in which event all the acts of the 
 guardian stand for nought. This Avas 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 essential element in the policy of the statute, we 
 are asked to dispense with, because at this distance of time, and after the decease of 
 the guardian who made the sale, these heirs may not be able to show any sulBcieut 
 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 guar- 
 dian, but that jurisdiction was vested in the Circuit Court, which ordered the sale. 
 If chancery may interfere and dispense with one of the requirements 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 full value of the property to the guardian of the owners, that there- 
 by an equity is raised in his ftivor 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 
 court, to a purchaser, who, in good faith, supposed he was getting a good title ; in 
 that case, the purchaser's equity would be just as strong as Is the equity in this case, 
 and, should we now hold that the purchaser here acquired an equitable title which 
 should be enforced against the heir, it would be equally our duty, when the case sup- 
 posed arises, to compel a conveyance to the purchaser, and then the entire statute 
 would be gone. But the truth is, the purchaser at Ijheso statutory sales gets no im- 
 perfect equitable title which may be perfected in chancery ; he gets the whole title 
 which the infant h.ad, or he gets no title whatever. Undoubtedly, if at the time of 
 the sale, the infant had but an equitable title, and subsequently acquires the legal 
 
» JURISDICTION AND REMEDIES. 497 
 
 the power is required by the donor to be executed through 
 the instrumentality of a will, and is executed by deed, in 
 
 title, that equity will compel him to convey to the purchase!- such subsequently 
 acquired legal title, but that would be upon the ground that he acquired the legal 
 title by reason of the equitable title which had been regularly sold, and that he took 
 the legal title simply as trustee. In such a case equity could undoubtedly enforce the 
 trust. 
 
 Nor has the complainant here tlie 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 in- 
 vested it in other estate for their beneilt, or applied it any way to their use. It sim- 
 ply shows that he 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 ed- 
 ucation, there would be some reason for saying that this should affect their consciences, 
 and require them to refund it Sifter they became of age ; but that question is not here, 
 for it is not shown what the guar.dian 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 ■? 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 affecting their interests. All the rights of 
 parties thus situated arereserved, and they are to be considered as opposing and pro- 
 testing against every thing which is done affecting their interests. This is a special 
 proceeding provided by the statute, by which the title to land of third persons is di- 
 vested without their consent, and not only against their will, but that, too, when they 
 are incapable of making an effort to protect themselves ; and such being the case, it 
 was the duty of the legislature to throw every check and safeguard around the pro- 
 ceeding to protect the rights of the infants from becoming a prey to avarice and dis- 
 honesty. This was done by requiring the court to supervise the whole proceeding, 
 and if all was found right and fair, to approve them, until which time all the acts 
 which had been done were merely preliminary, having in themselves no binding ef- 
 fect. It was the manifest policy of the law to make the court' the special guardian 
 of the infant, to see that he was not defrauded by. his general guardian or others. 
 This policy of the law must be upheld. The statute alone created the power to sell' 
 the land, and required that it should be exercised in a particular way to make it 
 valid, and in no other way can it acquire validity. This sale and proceeding was 
 either 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 says the title might be trans- 
 ferred in a particular way, and if done in any other way, the statute gives it no sanc- 
 
 42* 
 
498 JUEISDICTION iND KEMEDIES. 
 
 which case equity will aid the defective execution of it, is not 
 an exception to the general rule ; though the will is not exe- 
 cuted as required by the statute of wills, equity relieves, because 
 the deed takes effect under the instrument which creates the 
 power, and not under tlie will. The maxim being, that every 
 instrument made in execution of the power, refers to the instru- 
 ment creating the power. The principle that equity must fol- 
 
 tion, and it is as void as if there were no statute on the subject. This is not a power 
 created by a power of attorney or by will, where the court may aid a defective exe- 
 cution of the power, where it is necessary to carry into effect the intention of the 
 donor of the power, whose interests were to be effected by its execution. 
 
 We are not without authority directly on this point. The case of Bright v. Boyd 
 (I Story, 478), is almost precisely like this in all its essential particulars. There an 
 administrator had, in pursuance 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, ap- 
 proved by that court. Previous to the sale, a bond was executed, by sureties, and 
 who were approved by the court, but the bond was not actually approved by the 
 court and filed. The administrator advertised and sold the premises, in pursuance 
 of the order of the court, for their full value, and executed a deed, &c., and the pur- 
 chaser 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 ap- 
 proved by the court ; and the bill was filed, praying that the heirs might be decreed 
 to pay the value of the improvements, or release to the purchaser. Story, J., after 
 adverting to the decision at law, said : ' It is now argued, that however correct this 
 doctrine may be at law, yet in a court of equity, the omission to give the bond within 
 the stipulated time, ottght not to be held, a fatal defect, but it should be treated as an 
 inadvertence, or accident, properly remediable in a court of equity. We do not think 
 so. The mistake was a voluntary omission or neglect of duty, and in no just sense 
 an accident. But if it were otherwise, it would be difficult, in the present case, to sus- 
 tain the argument. This is not the case of the defective execution of a power created 
 by the testator himself, but.of a power created and'regulated by statute. Now it is a 
 well-settled doctrine, that although courts of equity may relieve against the defective 
 execution of a power created by a party, yet they cannot relieve against the defeaive 
 execution of a power created by law, or dispense with any of the formalities required 
 thereby for its due execution, for otherwise the whole policy of the legislative enact- 
 ments might be overturned. There may, perhaps, be exceptions to this rule; but if 
 there be, the present case does not present any circumstances which ought to take it 
 out of the general rule. Therefore, it seems to us, that the non-compliance with the 
 statute prerequisites in the present case, is equally fatal in equity as it is in law.' It 
 would be diflacult 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. 499 , 
 
 low the law, and cannot supply any defect which would render 
 a sale and conveyance void at law, for non-conformity with the 
 statute, is peculiarly applicable to tax sales and conveyances, 
 because of the fact, that they are regarded as titles stricti juris, 
 derived under a naked statute authority. No instance is known 
 of an attempt to malle 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. sees. 96, 177, 178 ; Fonb. Eq. B. 1, C. 1, sec. 7 ; Earl of Darling- 
 ton V. Pulteney, Cowper, 267. 
 
500 HOW TO PLEAD A TAX TITLE. 
 
 CHAPTER XXXV. 
 
 OF THE MODE OF PLEADING A TAX TITLE. 
 
 The rules which govern the mode of pleading a title derived 
 under a tax sale, will, of course, depend upon the form of ac- 
 tion, the character of the defence, 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 clausum fregit, 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 prose- 
 cuted 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 intrusted the power of 
 making it ; where he relies upon his title as a defence to an 
 action at law, or suit in chancery ; and in all cases, where a 
 party to a suit founds his cause of action or ground of defence 
 upon the existence of an outstanding tax title in a third per- 
 son, the title must be specially alleged in the pleading of the 
 party. This proposition will not be denied. But how shall 
 this special allegation be framed ? What particularity and cer- 
 tainty 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 provisions of the statute in 
 such case made and provided," " regular," or " legal," suffi- 
 cient, 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 requirements 
 
HOW TO PLEAD A TAX TITLE. 501 
 
 of law ? Pleading is defined to be, " the statement of the facts 
 which constitute a cause of action or ground of defence." Now, 
 what facts constitute the cause of action or ground of defence, 
 where a tax title is relied upon ? Clearly, all of those which 
 the law has declared shall exist, in order to consummate a 
 complete and perfect title. Each independent act of the offi" 
 cers who have any thing to do with the proceedings, from the 
 listing of the land for taxation, until the title is consummated 
 by the execution and delivery of a deed, constitutes an essen- 
 tial link in .the chain of title, and must be specially averred in 
 the pleading. The rule requires that all of the facts upon 
 which the legal sufficiency of the cause of action or ground of 
 defence depends, shall be stated. 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 the jurisdic- 
 tion of inferior courts, or the course of their proceedings. The 
 pleader must aver and set forth such facts as will show that 
 they had jurisdiction, and that their proceedings were regular ; 
 no? willthe 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 al- 
 ready been shown, raise no presumption in behalf of an officer 
 intrusted with the power to sell laud 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 ; therefore, the facts upon 
 which his authority depends must be set forth in pleading. 
 Nor do the facts upon which the validity of the officer's pro- 
 ce'edings depends, lie more properly within the knowledge of 
 the former owner, for we have seen that these facts should be , 
 
502 HOW TO PLEAD A TAX TITLE. 
 
 examined by the purchaser, before he buys at a tax sale, and 
 the evidence of them should be preserved by him as a neces- 
 sary muniment of his title ; therefore, all of these facts should 
 be averred. 
 
 There is another rule of proceeding which requires, " that 
 facts only ai'e to be stated, and not arguments or inferences, or 
 matter of law." An averment that the proceedings of the offi- 
 cer were " regular," "legal," &c., 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 made in writing, under the hands and seals of the arbi- 
 trators, by a particular day, it is not sufficient in pleading the 
 award, to allege, simply, that the arbitrators " duly made their 
 award." So, where a sheriff is sued in trespass, for taking, 
 carrying away, and disposing of personal property, and he justi- 
 fies under an execution, a general averment, that by virtue of 
 a " lawful execution" he seized the goods, &c., is insufficient, 
 he must set it out, or so describe it in his plea, that the court 
 can determine whether or not the writ is a lawful one. So, 
 where an officer is sued for false imprisonment, it is not suffi- 
 cient, in his justification, to state that he arrested and impris- 
 oned the plaintiff under a " legal warrant," &c. So, where'the 
 proceedings of an inferior court of limited jurisdiction, are 
 relied upon as a cause of action or ground of defence, it is not 
 sufficient for the pleader to allege, that the proceedings were 
 had before " a court of competent jurisdiction and authority," 
 but 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, &c. So, where a special demand is 
 necessary, an averment that a demand was " duly made," is 
 insufficient, but the pleader must show by and to whom the 
 same was made, and the time and place of making it, in order 
 that the court may judge. This doctrine is not opposed to 
 
HOW TO PLEAD A TAX TITLE. 503 
 
 Lord Coke's rule, that " circumstances implied by law, need 
 not be 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 delivered, therefore, if the pleader alleges 
 that "the defendant, on, &c., at, &c., made his certain deed of 
 that date, &c.," the law implies that it was in writing, sealed 
 and delivered. If a feoffment be pleaded, livery of seizin need 
 not be alleged, for it is implied in the word " enfeoffed." In 
 pleading the assignment of dower in land, it is not necessary 
 to say, that it was by metes and bounds, for it shall be intended 
 a lawful assignment. There is no analogy between this class 
 of cases and tax titles. * If a tax deed was, by law, conclusive, 
 or even prima facie evidence that the law had been complied 
 with, then it would be sufficient to aver generally, the exis- 
 tence of a " tats 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 prin- 
 ciples 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 performance of a condition precedent, 
 is somewhat analogous to a pleading which sets forth a tax sale 
 as a cause of action or ground of defence ; and the rule in such 
 case is, that the performance must be shown to have been ac- 
 cording to tlie 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 degree of certainty in pleading a 
 tax sale. Where a party claims a right .unknown to the com- 
 mon law, but which depends entirely upon a statute for its 
 
504 HOW TO PLEAD A TAX TITLE. 
 
 support, he must, in pleading his title, set forth all of the facts 
 which the statute has made essential to its validity. The stat- 
 ute of 27 Hen. VJ^EI. 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, &c. 
 It has been held, that in pleading 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 iin- 
 der the statute of uses, a pecuniary consideration must be aver- 
 red, for this is essential to raise an use. So, in pleading a de- 
 vise of land, it is necessary to allege the seizin of the devis.or, 
 and that he, being seized on, &c., at, &c., made and published 
 his last will and testament, in writing, bearing date, &c., by 
 him signed and attested and subscribed, in his presence, by 
 three credible witnesses, &c., and that after th^s publication of 
 the will, the devisor died. In none of these does the law in- 
 tend the validity of the bargain and sale, the conveyance under 
 the statute of uses, or the will. So, also, the declaration upon ■ 
 a penal statute, whether at the suit of the party aggrieved, or 
 a common informer, must especially allege all of the facts nec- 
 essary to sliow the title of the plaintiff to recover the penalty. 
 Another rule of pleading, equally well settled, is, that in all 
 cases where a party claims title, or defends an act done under 
 an authority, he must not only allege the authority, but set forth 
 the facts which show that the terms of the power have been pur- 
 sued. 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 pui-sued. And where an officer justifies 
 the seizure of goods and chattels, under an execution, he must 
 not only set forth the execution, but aver that the seizure was 
 made in the lifetime of the writ, or his plea will be ill. Where 
 the authority is special, as in the case of the sale of land for 
 taxes, the reason is stronger for setting out the authority and 
 acts done in pursuance of it. Another rule of pleading is, that 
 
HOW TO PLEAD A TAX TITLE. 505 
 
 where the validity of a title depends upon the existence of any 
 fact in paiSf 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 succession must specially allege the existence of all the 
 facts necessary to establish the validity of his title as successor, 
 &c. So one claiming freehold by a marriage with the person 
 seized, must allege the marriage. In pleading a dower encum- 
 brance, the seizin of the husband, his intermarriage with the 
 dowress, and his death, must all be averred. It would there- 
 fore 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 numbpr of proclamations, and the times, 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 rever- 
 sioners and remainder men, unless they make claim or pur- 
 sue 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 tlie land, and vest a pei-fect 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, where- 
 as the tax title depends upon matters in pais. If, then, great 
 particularity is required in pleading the fine, -there is greater 
 reason for strictness in the mode of pleading a tax title. In 
 strictness, therefore, in pleading a tax title, it should be alleged, 
 with reasonable certainty, that the land was subject to taxation ; 
 that it had been listed, valued, and charged with the tax, in the 
 time and manner required by law ;■ that the tax had been duly 
 
 43 
 
500 HOW TO PLEAD A TAX TITLE. 
 
 •levied by competent authority ; that the tax list or warrant to 
 collect had been duly delivered to the collector ; that the col- 
 lector 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 de- 
 maud'of the tax, and a seizure of the body or goods of the delin- 
 quent ; that the delinquent list had been duly returned to the 
 proper officer or court by the collector ; that the tax remained 
 due and unpaid ; that personal notice had been given to the 
 delinquent, where the law requires it ; that a judgment had 
 been rendered by a court of competent jurisdiction, against the 
 land, where the law requires a judgment; that a valid precept 
 had issued upon such judgment, and was duly delivered to the 
 officer a,ppointed by law to make sale of the land ; that the time 
 and place of sale was advertised in the time and manner re- 
 quired by law ; that the sale took, place at the time and place, 
 and was made by the person and in the manner required by 
 law ; that the pleader was the purchaser, or some person 
 under whom he claims by assignment ; that a certificate of 
 purchase was duly executed and delivered by the officer to 
 the purchaser, and was duly recorded, &c., where such record- 
 ing is requisite ; that due notice to redeem had been given the 
 owner ; that the officers charged with the duty have duly re- 
 turned the proceedings to the proper office, and that they were 
 filed or recorded 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, &c., which deed 
 had been duly recorded, &c. Such strictness is not only in 
 conformity with the principles of pleadings and the precedents 
 in analogous cases, but is supported by express authority. 
 
 In the case of Blakeney v. Ferguson,^ the bill alleged, that on 
 November 5, 1827, the sheriff of Pulaski County " advertised 
 and sold for taxes, in due form of law, according to the form of 
 the statute in such case made and provided," the S. W. i of 
 Sec. 17, T. 4, N. R. 9 W., &c., that one Sampson Gray then 
 
 1 3 English, 277. 
 
HOW TO PLEAD A TAX TITLE. 507 
 
 and there became the piirchaser thereof, and received from such 
 sheriff a certificate of purchase for said land, at said sale ; that 
 said Gray bargained and sold said land to Joseph Ferguson, with 
 the express agreement that he would convey when he received a 
 tax deed ; that Gray died before the execution and delivery of 
 a sheriff's deed, and without conveying to Ferguson ; tliat Fer- 
 guson put his son Moses in possession of the premises under 
 the agreement with G^ay, and he was so possessed up to tlie 
 time of his decease ; that Joseph Ferguson died after the mak- 
 ing of said agreement and taking of such possession ; that MoSes 
 Ferguson was one of the lieirs of the said Joseph ; and that his 
 interest was sold to Benjamin Blakeney,by the sheriff of Pu- 
 laski, under an execution against said Moses, and that Blake- 
 ney was now seized of said interest by vii-tue of said sale, and a 
 sheriff's deed executed thei'eon. The bill was filed by the widow 
 and heirs of Joseph Ferguson, against the sheriff, Blakeneyand 
 the heirs of Gray, and prayed the execution of a tax deed, by 
 the sheriff of Pulaski, to Gray's heirs, in pursuance of th^ sale 
 Nov. '5, 1827, a specific performa:iice, by Gray's heirs, of the 
 agreement between Gray and Ferguson ; that complainants 
 might be quieted in the title and possession of said land ; that 
 partition might be made between Blakeney and complainants ; 
 that the widow's dower might be assigned ; and for general 
 relief. To this bill there was a general demurrer for want of 
 equity, which was sustained by the court, upon the ground that 
 the general averment that the tax sale was in due form, &c., 
 was insufficient. The court say : " The rule of law that pre- 
 vailed at the tiijie of the alleged sale (alluding to the common 
 law as contradistinguished from the statute then in force, which 
 made the deed conclusive evidence), required great strictness 
 in the proof, and required the party claiming under the collec- 
 tor's sale, to show, and that fully, that every step prescribed as 
 a prerequisite to such sale had been complied with. It is per- 
 fectly obvious that each and every step, from the assessment of 
 the tax to the sale itself, is a separate and independent fact, and 
 that the one has not the most remote connection with the other. 
 It is therefore clear that, in this case, it was necessary to allege 
 
508 HOW TO PLEAD A TAX TITLE. 
 
 specially every fact essential to the consummation of the title, 
 and that, having failed to do so, they could not be permitted to 
 support them by proof." The same doctrine was tacitly main- 
 tained in Stead's Executors v. Course. ^ These authorities are 
 directly in point. 
 
 In Purness v. Williams,^ which was assumpsit by ^le assignee 
 of a note against the maker, the* defence -was a partial failure 
 of consideration. The plea alleged, that the consideration of 
 the note was the sale and conveyance, by the payee to the maker, 
 of -a town lot, with covenants of good right to convey, and 
 against encumbrances. The plea alleged, that at the time of 
 the sale and conveyance, a part of the lot, equal in value to 
 three hundred and fifty dollars, " had been sold under and by 
 virtue of the revenue laws of Illinois, to one Riddle, in the year 
 1844, for the taxes due thereon to the county and State, for the 
 year 1843, and that two years have elapsed since said sale, and 
 that the same has not been redeemed from," &c. There was a 
 speciaA replication to this plea, to which the defendant de- 
 murred, which, on writ of e*ror 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 de- 
 murrer. The defence relied upon is a breach of the covenants 
 contained in the deed, and in pleading it, the defendant is held 
 to the same strictness as in declaring in an action brought di- 
 rectly on the covenants. On every principle of correct plead- 
 ing, he is bound to set forth the proceedings iinder which the 
 lot was sold, so that the court can see that the covenant has 
 been broken ; or, he must make the general averment that the 
 sale was legally made, and the title thereby divested. In this, 
 plea he does not pretend to set out the proceedings ; nor does 
 he make any allegations respecting their regularity and validity. 
 He simply alleges, that the lot has been sold under the revenue 
 laws, without averring that the sale was duly made, or stating 
 any facts showing that the title passed thereby to the purchaser." 
 
 1 4 Cranch, 403. 
 
 2 U Illinois, 229. 
 
HOW TO PLEAD A TAX TITLE. 
 
 509 
 
 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 evidently 
 in favor of the special mode of allegation, " that the court >can 
 see that the covenant has been brolien." The Arkansas case 
 was not cited in Purness. v. Williams, by the court or counsel. 
 It may be also worthy of remark, that the revenue law, in force 
 at the time of the sale, set up ii\ that case, declared the tax deed . 
 to be prima facie evidence of some facts, and conclusive evi- 
 dence of the others ; but a judgment against the land, and pre- 
 cept 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 ques- 
 tion, 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 truly stated in the pleading, 
 the existence of any particular fact may be denied by the oppo- 
 site pleader, and thus the issue iri fact to be tried will be nar- 
 rowed 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 tlie proceedings. Omits the averment that it was so adver- 
 tised ; on demurrer to the plea, the question of law is presented, 
 whether an advertisement is a prerequisite which must be com- 
 plied with, and the whole case must turn upon this point. On 
 the other hand, suppose no advertisement was in fact made, but 
 the pleader alleges one in his plea, the plaintiff may, by a gen- 
 eral 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 replication and demurrer 
 thereto may present the question of law to the court, or a gen- 
 eral traverse, the question of fact to a jury. In every view, 
 therefore, the special mode of allegation is preferable. 
 
 43* 
 
510 R0LES OF EVIDENCE. 
 
 CHAPTER XXXVI. 
 
 OF THE RULES OF EVIDENCE RELATIVE TO MAINTENANCE AND 
 OVERTHROW OF A TAX TITLE. 
 
 Where the statute, under which the title originated, or 
 which is in force at the time of the trial, is silent as to the 
 mode of proving or disproving any fact involved in the 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 \ipon 
 whom the onus probandi 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 founded 
 upon the knowledge of the party, that its introduction would 
 defeat or weaken his claim of right. The rule is therefore es- 
 sential 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 re- 
 ceived which is merely substitutionary in its nature, so long 
 as the primary evidence can be had. The rule excludes only 
 that evidence which, upon its face, or from the very nature of 
 the fact sought to be proven, indicates the existence of more 
 original and reliable sources of information. Because the bet- 
 
 1 [In Lamb v. Gillet, 6 McLean, 365, it is said, that parol evidence is admissible to 
 prove the prior proceedings, except as to such facts as the statute requires to be of 
 record. 1 
 
RULES OF EVIDENCE. 511 
 
 ter evidence affords the greatest certainty of the fact in ques- 
 tion, 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 destruction, the next best evidence must 
 be resorted to, thus recognizing the principle, that there are 
 degrees in the various kinds of secondary evidence.^ The ap- 
 plication 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 office, 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 perpetuating the evidence of every part of it in 
 writing, and forbids a resort to the memory of man for proof of 
 any material fact connected with it. The list, valuation, levy 
 of the tax, the authority to collect, the return of delinquents, 
 the advertisement, registry, and certificate of sale> deed, &c., 
 all necessarily imply that they are to be in writing, and au- 
 thenticated by the proper officer. It would be utterly impossi- 
 ble to conduct tlie proceedings in any other manner. The 
 universal usage has been to reduce the proceedings to writing, 
 and the authorities, either expressly or by implication, acknowl- 
 edge the necessity of it.^ If this position be true, it follows in- 
 evitably, that the best evidence to prove any disputed fact in- 
 volved in the investigation of a tax title, is the original docu- 
 ment, 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 certified 
 or sworn copy, but it was held in Spear v. Ditty,* that the rate 
 
 1 Starkie, Ev. part 3, sec. 10 ; 1 Greenleaf, Ev. ch. 4, sec. 82. 
 " 1 Greenleaf, Bv. sec. 84, note; Mariner v. Saunders, 5 Gilman, 121, 124. 
 " Laird v. Heister, ante, 414, note ; Job u. Tebbetts, 5 Oilman, 380 ; Bruen 
 Graves, 1 1 Illinoie, 442. 
 ♦ 8 Verinout, 419. 
 
512 RDLES OF EVIDENCE. 
 
 bill might be proved by the production of itself. The most 
 usual mode of proof is by means of an office copy — i. e. by a 
 copy made out by the officer having the legal custody of the 
 original, and certified under his hand and seal of office.^ But 
 an examined or sworn copy, made by a person wlio saw and 
 copied from the original, is also admissible upon general prin- 
 ciples.^ In no case can a private or unofficial copy, in the hands 
 of the officer who made it, or to whom it was delivered, be re- 
 ceived in evidence in lieu of the original, if the latter is in 
 existence. 3 
 
 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 f^he contents proved to the satisfaction 
 of the court. But such evidence ought not to be permitted 
 when there is any suspicion of a fraudulent destruction or sup- 
 pression of the original. It is extremely dangerous in any case, 
 and the necessity of resorting to it but seldom occurs.* Where 
 the original or a copy is offered, and it appears upon the face of 
 either that the proceeding was irregular in any respect, parol evi- 
 dence is inadmissible for the purpose of supplying the defect, or 
 in any manner to aid by explanation.' And where the law re- 
 quires 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 omitted to record the originals, or re- 
 corded them defectively.^ In all cases where office books and 
 files are relied upon to prove a particular fact, their admissi- 
 
 ' Parker v. Smith, 4 Blackford, 70 ; Coman v. State, 4 Blackford, 241. 
 
 ^ Graves !>. Bruen, 1 Gilman, 167 ; s. c. 11 Illinois, 431 ; Job v. Tebbetts, 5 Gil- 
 man, 376 ; 11 Elinois, 453 ; Schuyler v. Hull, 1 1 Illinois, 462 ; Sheldon v. Coates, 10 
 .(jJiio,278. 
 
 ' McCall V. Lorimer, 4 Watts, 351. 
 
 * Doe ex dm.. Kelley v. Craig, 5 Iredell, 129 ; ante, p. 109 ; The Proprietors of 
 'Cardigan v. Paige, 6 New Hampshire, 182. 
 
 6 Lessee of Massie's Heirs v. Long, 2 Hammond, 287 ; s. o. 1-4 Ohio, Condensed, 
 364. 
 
 " Minor v. McLean, 4 McLean, 138 ; Coit v. Wells, 2 Vermont, 318 ; Eellogg v. 
 McLaughlin, 8 Ohio, 114. 
 
RULES OF EVIDENCE. 
 
 513 
 
 bility 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 repeat- 
 edly held by the courts, that a mere certificate of the officer 
 who conducted the proceedings, or iu whose custody the docu- 
 ments 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 reqitisitions of the law, 
 is not copapetent evidence to prove the performance of any pre- 
 requisite. It is the duty of the officer to make a transcript of 
 the entire proceedings, so that the court can determine, upon 
 inspection, whether the law has been complied with or not. 
 The officer has no power to decide upon the legality of the pro- 
 ceeding, nor certify to hi^ legal conclusions. Thus, the re- 
 .cital of " due notice " 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 com- 
 putes time in such a case. The affidavit should state the day 
 when the advertisement was put up, and then we can see 
 whether it was put up in due season." ^ And in Dunn v. 
 Games,* where the question as to the validity of the listing 
 arose, the only evidence of it was the certificate of the auditor, 
 that the land in question was " regularly entered on the dupli- 
 cate 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. Th^ 
 
 1 Dikeman v. Parrish, 6 Barr, 210; Doe ex dem. Kelley v. Craig, 5 Iredell, 129. 
 '' Rex o. Croke, 1 Cowper, 26 ; Gilbert v. Columbia Turnpike Co. 3 Johnson's 
 Cases, 107. 
 ' Nelson v. Pierce,, 6 New Hampshire, 1 94. 
 * 1 McLean, 319. 
 
514 KDLES OF EVIDENCE. 
 
 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. Tilson,^ which was an action of trespass against 
 tiie collector, for arresting and imprisoning a delinquent taxa- 
 ble inhabitant, the defendant, in his justification, set forth his 
 return to tlie tax list in these words : " that he had legally noti- 
 fied the plaintiff of the time and place, when and where he 
 would receive the tax, and no goods being shown him, he ar- 
 rested the body, <fec." On demurrer, the plea was held insuf- 
 ficient. By the court : " This general statement, that the col- 
 lector had given the plaintiff legal notice, 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 col- 
 lector, that he had proceeded according to law, wou,ld be insuf- 
 ficient where any st&tement 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 Yer- 
 mont, 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 com- 
 petent 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 
 
 1 Games v. Stiles, 14 Peters, 322. 
 
 2 19 Vermont, 447.- 
 8 7 Vennont, 18. 
 
 • Lancaster y. Pope, 1 Massachusetts, 86 ; Davis v. Maynard, 9 Massaclrasetts, 
 242 ; Wellington v. Gale, 13 Massachusetts, 483 ; Perry v. Dover, 12 Pickering, 206. 
 6 Coit V. Wells, 2 Vermont, 318. 
 ' Carpenter!). Sawyer, 17 Vermont, 121. 
 ' Luff borough v. Parker, 16 Sergeant & JBawle, 351. 
 
RULES OF EVIDENCE. 515 
 
 provision, the notice may be proven by the introduction of the 
 newspaper in which it was inserted, accompanied by proof that 
 it was published the requisite number of times.^ It has already 
 been shown, that upon common-law principles, the tax deed is 
 not evidence of a compliance wffch the law, and that the onus is 
 upon the party claiming under the tax sale ; that it is compe- 
 tent 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 aver- 
 ment. Otlier important questions, relative to the evidence re- 
 quired 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, no presumption can be raised in behalf of the officers, to 
 cover any radical defect in their proceedings.^ _ But it is said, 
 by Chief Justice Marshall, in delivering his opinion in Stead's 
 Executors v. Course : ^ "It is true, that full evidence of every 
 minute circumstance ought not, especially at a distant day, to 
 be required. Prom the establishment of some facts, it is possi- 
 ble others may be presumed, and less than positive testimony 
 may establish those facts. In this case, as in all others depend- 
 ing upon testimony, a sound discretion, regulated by the law 
 of evidence, will be exercised." If the learned judge,' in these 
 remarks, simply meant, that the best evidence in the power of 
 the party claiming under the tax deed, should be produced by 
 him in support of his title, and, though it might not be positive 
 in its character, yet, because it tended to prove the issue, should 
 not be altogether excluded, but submitted to the jury, to be 
 weighed by them as in other cases, there can be no objection 
 to the doctrine. But if, on the other hand, the Chief Justice 
 intended to advance the opinion, that after a great lapse of 
 
 1 Thevenin v. Slocum, 16 Ohio, 519. 
 ^ Ante, pp.71, 72. 
 8 4 Cranch, 403. 
 
516 RULES OF EVIDENCE. 
 
 time, any facts essential to the validity of the title, might be 
 presumed from the establishment of other essential facts, the 
 soundness of the rule is denied in its appUcation to a case where 
 the-tax purchaser is out of possession, and is seeking to recover 
 the land in ejectment. In such case, no presumption ought to 
 be indulged in, to support a stale claim, which the party did not 
 dare to assert in a reasonable time after he acquired his right — 
 when the facts were fresh in tlie memory of the witnesses- to the 
 transaction ; it would be unjust to the o.wner of the land, be- 
 cause 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 diligence in the prosecution of his claim, presupposes an 
 inherent defect in it, and the claim should be looked upon with 
 no more favor thau 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 siibsequent opinion, where 
 he says that the facts upon which the validity of the purchaser's 
 title depends, " should be examined by him before he became 
 a purchaser, and the evidence of them should be preserved as 
 a necessary muniment of title." The same 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 into the principles by which tax title 
 causes are investigated and decided. To use the language of 
 Judge Phelps iipon this point, in answer to the opposing doc- 
 trine : " It is said that no presumption is made in favor of a tax 
 title. It is true that no essential requisite will be presumed ; 
 but, to a certain extent, presumptions may and must be made, 
 otherwise, we are driven to forced and violent presumptions 
 the other way, which are not to be made." ^ Iii the preceding 
 chapters, many instances will be noticed by the critical reader, 
 
 1 1 Leigh, 248. 
 
 " Spear v. Ditty, 8 Vermont, 419. 
 
RTJIiES OF EVIDENCE. 517 
 
 where the courts have indulged in those usual and familiar pre- 
 sumptions which are applied in ordinary cases, in support of a 
 right asserted in the halls of justice. Bat 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 
 presumptions.^ 
 
 And in Hole v. Rittenhouse,^ the rule is laid down, that no 
 lapse of time will afford presumptive evidence of the regularity 
 of a tax sale, where the purchaser, or those 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 
 unaccompanied 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 denomi- 
 nated, 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 al- 
 ready,* and the tenant, who had been in possession twelve 
 years, relied upon the doctrine of presumption to cure the de- 
 fect in the advertisement, but the court declined to apply the 
 doctrine to that case, saying : " The proceeding complained of 
 was only about twelve years since, and in all recent cases of this 
 nature, the courts of law have required a strict compliance with 
 legal provisions, on the part of the collector, in the execution, 
 of his duty. In ancient transactions, many presumptions will 
 be allowed ; but in the case at bar, nothing is to be presumed. 
 We have before us the fact, which shows the notice to have 
 been irregular and insufficient ; no presumption can be made 
 against the evidence in the case." This case also lays down 
 the rule, that no presumption can be indulged iil to sustain a 
 tax title, where the evidence clearly shows upon its face that 
 the proceedings were irregular. This is a self-evident propo- 
 
 1 Eichardson ». Dorr, 5 Vermont, 9. And see Townsend v. Downer, 32 Ver- 
 mont, 183. 
 
 2 6 Harris (Penn.), 305. 
 
 3 ) Greenleaf, 306. 
 * Ante, p. 244. 
 
 44 
 
518 RDLES OF EVIDENCE. 
 
 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. Bmerson,^ than in any other reported case. The rule there 
 laid down is, that no power will be presumed, where the evi- 
 dence of its existence is of record ; and it is immaterial whether 
 the presumption is sought to aid one in, or out of possession. 
 That case was a writ of entry. The demandant offered in evi- 
 dence a deed executed by a committee of the General Court, 
 executed December 17, 1744, to E. Robbins and others, under 
 whom the demandant claimed title. The tenant objected to 
 this evidence, because the record of the authority of the com- 
 mittee to make the deed was not pi'oduced. 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 iii 1826, eighty-two years after the execution of the 
 deed. The objection of the tenant was overruled, and a ver- 
 dict 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 principle is, that where one claims under 
 a deed or other instrument used in the conveyance of real es- 
 tate, which appears on the face of it to have been executed by 
 virtue of a power from the grantor, the power, or an authenti- 
 cated copy of it, should be produced in evidence, to support the 
 deed, in order that it may be seen whether there was authority 
 for the act, to the extent to which it is performed. But the 
 same principles by which deeds may be admitted in evidence, 
 without proof of their execution, may be applied to the powers 
 under which they purport-to be executed. In either case, the 
 
 1 1 Washington C. C. ^35, 336. 
 ^ 4 Pickering, 160. 
 
RULES OF EVIDENCE. 519 
 
 deed is prima facie evidence of title, if possession of the prem- 
 ises, purported to be granted, has been taken and continued 
 imder the deed. It has been held, however, and I think justly, 
 that this indulgence of the law, if it may be so called, is found_- 
 ed on the supposed loss, by death, of the regular evidence to 
 prove the execution of the will or deed. So, that if a subscrib- 
 ing witness be alive, he should be called to prove the deed, al- 
 though it be more than thirty years old. By analogy to this 
 doctrine, if a power be recorded, so that the evidence is per- 
 petuated, there can be no reason for admitting the deed with- 
 out the power, however ancient it may be, for there is certain 
 proof to be obtained, for which a mere presumption ought not 
 to be substituted. For the presumption is of an authority co- 
 extensive with the act ; whereal the power may show a limited 
 or more particular authority whicli 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 befone us is of a grant from the legislature by 
 a committee. Tlie authority must necessarily have been ex- 
 pressed 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 Pejepscut Proprietors v. Ransom,^ 
 which was a real action, the plaintiffs demanded 100 acres 
 of land, counting upon 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 ad- 
 mitted tlie 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 Bphraim Hunt, as collector or con- 
 stable of Brunswick, to one Samuel Thompson, for taxes 
 assessed on the same, as land of non-resident proprietors. 
 The tenant produced the deed, and an entry by 
 Thompson soon after its date, and also gave in evidence the 
 
 1 14 Massachusetts, 145. 
 
520 RULES OF EVIDBXCE. 
 
 copy of a i-ecord 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 persons as assessors, were also produced ; and 
 there was some evidence which went to show a want of confor- 
 mity 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 establish the validity of 
 the collector's deed, should be required to prove that the collec- 
 tor had been duly chosen into office at a legal town meeting, 
 duly called for that purpose, and that he acted by virtue of assess- 
 ments committed to him by assessors, also duly chosen at a legal 
 town meeting for the purpose. But Judge Thatcher ruled that, 
 as the copy of the record of th# choice of Hunt had been pro- 
 duced, together with the bills committed to him to collect, it 
 might be presumed that all the other prerequisites for giving 
 him authority were complied with. A verdict was returned 
 for the tenant ; the demandants filed exceptions to the opinion 
 of the judge, which were argued by the counsel of the demand- 
 ants 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, &c., it was 
 proper to leave the evidence to the jury, with instructions that 
 they might lawfully presume that all things were done according 
 to law, especially as more than thirty years had elapsed between 
 those transactions and the commencement of this suit." 
 
 In Oolman et al. v. Anderson,^ which was a writ of right, 
 the tenant rested her defence on deeds from Jonathan Loveitt, 
 constable and collector of Windham, to Caleb Graffam, dated 
 February 10, 1780, and from Ichabod Hanson, constable and 
 collector of the same place, to said Graffam, dated February 14, 
 
 ' 10 Massachusetts, 105. 
 
RULES OF EVIDENCE. 521 
 
 1780, each for sundry continental, State, county, and town 
 taxes, assessed for the years 1778 and 1779 ; a deed from 
 Graffam to Jonathan Roberts, dated November 1, 1783, and a 
 deed from Roberts to Edward Anderson, husband of the ten- 
 ant, dated October 14, 1793. At what time possession was 
 taken under these tax deeds, and by whom, does not appear from 
 the report of the case ; but it is stated, tliat on the 1st day of 
 February, 1810, and for many years before, the demandants had 
 been and continued disseized of the demanded pi'emises. In 
 support of these collectors' deeds, the tenant produced the war- 
 rants 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 deficien- 
 cies and irregularities hereinafter stated. It is unnecessary to 
 notice the numerous objections taken to the proceedings of the 
 officers ; many of them were substantial, while others were im- 
 material. Judge Thatcher, who presided at the trial, observed 
 to the jury, that " It appearing that the transactions, constitut- 
 ing 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 testi- 
 mony, or evidence of any kind, to each of them ; and he be^ 
 lieved all the law required was the proof of such facts, papers, 
 and documents, as might be considered the ground of strong 
 presumptions of the existence of other facts. Witli regard to 
 the notifications and advertisements required by law to be 
 made in two public newspapers, it being proved that a notifica- 
 tion was published in one of them', that being the only one 
 which could be found, notwithstanding all due diligence was 
 used in search of the other, it is competent for the jury to pre- 
 sume that a like notification was regularly published in the 
 other, although not now to be found. And this principle, he 
 observed, ought to govern them in forming their verdict, with • 
 regard to all the facts in the case." Under these instructions 
 the jury found a verdict for the tenant. The demandants ex- 
 
 44* 
 
522 ECLES 01' EVIDENCE. 
 
 cepted and moved for a new trial. The Supreme Court con- 
 firmed the verdict, and entered judgment accordinfrly. Sewall, 
 J., in delivering the opinion of the court, remarks, that " The 
 title under which the tenant has been permitted to succeed, so 
 far as to obtain a verdict in support of it, is of that kind al- 
 most proverbially denominated a collector's title, as expressing 
 a case of doubt and difficulty. And collector's titles must con- 
 tinue dubious and difficult, in the proof and evidence required 
 to support" them, so long as they remain unassisted by any 
 other limitation tlian 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 au- 
 thority ; and this notwithstanding the length of possession un- 
 der these deeds, and the long acqiiiesceuce of the parties other- 
 wise entitled to the premises thereby conveyed. Again, the 
 judge who tried the cause ' as to the requisites of tax bills, val- 
 uations, warrants,' &c., was right in submitting such evidence 
 as there was, although incomplete ; and if the jury were satis- 
 fied 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 wilfully withheld, the jury 
 were very properly instructed to consider every thing as pi'oved, 
 which might be rationally and fairly presumed 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 evidence of the particulars 
 which tlie tenant in the case was put to prove, especially evi- 
 dence from documents not intrusted with the party, or trans- 
 ferred with his title." 
 
 In both of these cases tliere was a long and uninterrupted 
 possession, under the tax title ; and the party in whose favor 
 the presumption was extended, was not the original purchaser 
 at the tax sale, but an innocent person, who, for aught that ap- 
 pears, had no notice in fact of the irregularities in the proceed- 
 ing. And the court place the presumption upon the ground, 
 
EULES OF EVIDENCE. 523 
 
 that the jury must be " satisfied that the deficiencies in the evi- 
 dence are not chargeable to the fault or negligence of the 
 party," and that no better evidence within the power of the 
 party " is wilfully withheld." This doctrine cannot, therefore, 
 be extended to the original purchaser, " for he is bound to col- 
 lect and preserve the evidence " upon which the validity of his 
 title depends ; and if he has failed to do so, it is his own folly. 
 Again, it will be observed, that the rule, as laid down in the 
 case cited, requires good faith, and a diligent and thorough 
 effort on the part of the person claiming the benefit of the pre- 
 sumption, in collecting all the evidence which can be produced, 
 tending to throw light upon the regularity of the original pro- 
 ceedings of the officers. Strict search must be made in all the 
 offices and places, and inquiry made of all persons, for the docu- 
 ments and facts necessary to establish the validity of the title. 
 The presumption is not raised for the purpose of supplying any 
 defect in the doings of the officers,- but to fill up the gap occa- 
 sioned 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 presume only 
 such facts as may be fairly and rationally presumed from the' 
 facts and circumstances proved. This excludes every presump- 
 tion 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. Suppose, again, that the newspaper in which the no- 
 tice was published, is found upon the files of the proper office, 
 and produced in evidence before the jury, and upon its face 
 
524 KULES OF EVIDENCE. 
 
 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 land in controversy is not embraced 
 in the list ; in these and otlier like cases, the presumption will 
 be unavailing. With these limitations, no objection is per- 
 ceived to the rule laid down by the Supreme Court .of Massa- 
 chusetts ; 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 defend- 
 ant's tax deed was twenty-one years old, and he had been in 
 possession and paid the taxes due upon the land ever since his 
 purchase, the court would presume that the proceedings were 
 regular in all respects. By the court : " That there must be 
 some limit where the courts should apply the maxim, omnia 
 presumuntur rite esse acta, will appear from the consideration, 
 that otherwise the longer the possession, the weaker the title. 
 After the lapse of twenty-one years, it is almost impossible to 
 prove a literal compliance with the act, and to exact a punctual 
 adherence to the letter would be equivalent to saying, that a 
 sale for taxes should not be supported. It would be only nec- 
 essary to lie by until the evidence of the regularity of the sale 
 was lost, when a recovery would be the consequence. Time 
 would strengthen the title of the warrant holder in the same 
 proportion that it would weaken the title of the vendee of the 
 land. A title acquired by time alone, independently of the act 
 of limitations, is regarded in law and equity." It is presumed 
 that a tax title, whether good or bad, is a substantial founda- 
 tion for an adverse possession, under every statute of limita- 
 tion 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. 
 
 In Freeman v. Thayer,^ the sale was made March. 19, 1816, 
 the deed bore date April 1, 1816, was acknowledged March 21, 
 
 1 1 Greenleaf Ev. sec. 20, and cases there cited. 
 ^17 Sergeant & Rawle, «50. 
 ' 33 Maine, 76. 
 
RULES OF EVIDENCE. 525 
 
 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 as- 
 sessors, and their warrants to the collector ; and to prove that 
 such collector complied with the requisitions of law as to ad- 
 vertising and selling such real estate." The defendant exhib- 
 ited his tax deed, under which he had taken possession, soon 
 after its date, proved the loss of the assessment, and gave evi- 
 dence 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 pre- 
 sume, after such a lapse of time, that all of the proceedings had 
 been regularly and legally conducted, but that they were not 
 required to make any such inference or presumption ; it was a 
 matter submitted to their consideration and judgment, whether, 
 under all the circumstances, they ought to come to such con- 
 clusion." These rulings were sustained by the Supreme Court. 
 On the first point, the court say : " The provisions of the sec- 
 tion 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 evidence 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 obligation of contracts, or distinct vested 
 rights, when applied to cases involving the validity of prior 
 sales. There never was imposed upon the defendant an obliga- 
 tion to prove the title under which he claims, in a particular 
 mode ; nor had those, contesting that title, a vested right to re- 
 quire that it should be supported by a particular kind or amount 
 
526 RULES OP EVIDENCE. 
 
 of evidence. The legislature had the power and the right to 
 prescribe the evidence to be received, and the effect of that 
 evidence in proceedings in our courts. They may prescribe 
 and change remedies, and such regulations would not necessa- 
 rily affect the obligation of contracts. It has been well said, 
 that there is no such thing as a vested right to a particular 
 remedy. There can be no such thing as a vested right in one 
 to compel another to pursue a particular remedy, or to take a 
 given line of defence in any case." On tlie other point, the 
 court remarked : " It has been determined, that, after a lapse 
 of thirty years from a collector's sale of land for taxes, it may 
 be presumed, from facts and circumstances proved, that the tax 
 bills, valuation, warrants, notices, &c., were regular; that .the 
 assessors and collectors were duly chosen at legal meetings ; 
 that the collector was sworn ; that a valuation and copy of the 
 instruments were returned by the assessors to the town clerk, 
 and that every thing which can be reasonably and fairly pre- 
 sumed, may have the force and effect of proof." 
 
 In Parrar v. Eastman,^ a proprietary tax sale was sustained, 
 where it took place forty years prior to the trial, and there had 
 been a possession for 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 precision. It is 
 well known, that much of the business of these proprietors was 
 loosely conducted, and after such a lapse of time, and for the 
 purpose of upholding their proceedings, and of titles derived from 
 them; and after such long acquiescence, they are to be viewed 
 with great indulgence ; whether, in a recent case, greater pre- 
 cision, 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 sus- 
 tain and justify the sale, should be recited in the deed. They 
 may be presumed or proved aliunde. Such as do not appear 
 
 1 5 Greenleaf, 345. 
 
RULES OF EVIDENCE. 527 
 
 in the records, and among the papers of the proprietors, may, 
 and after such a length of time, will be presumed." 
 
 .The case of the Lessee of Ward v. Barrows,' was an action of 
 ejectment, in which the plaintiff showed a regular chain of title. 
 The defendant relied upon a tax sale and deed, the latter dated 
 April 14, 1838. It is to be gathered from the case, that the 
 defendant, or those under whom he claimed title, had been in 
 possession since the execution of the deed. It was admitted 
 that all of the proceedings connected with the tax sale were 
 regular, except that the return of the delinquent list did not 
 appear to have been sworn to by the collector, and certified in 
 the manner required by law. On inspection, it appeared that 
 the list was sworn to by the collector, but there was no certifi- 
 cate of the auditor, in the nature of a jurat, that the oath was 
 administered by him to the collector. Two questions were dis- 
 cussed in the Suprenie 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 dispos- 
 ing of the case upon the authority of a prior decision in that 
 court,^ that " upon principle it is equally clear. When the du- 
 plicate was placed in the hands of the collector, he was required 
 to be charged with the full amount appearing upon it. Upon 
 his subsequent settlement with the auditor, he was to be credited 
 with such taxes as he had been unable to collect, and the audi- 
 tor was then required to certify upon the list the amount of 
 money in- the hands of the collector belonging to the State,' 
 county, &c., which the latter was required to pay over against 
 a specified day. Before this credit could be allowed or certifi- 
 cate made, the auditor must be satisfied, by the oath of the col- 
 lector, of its correctness. To 'have allowed the credit, or made 
 the certificate without this, would have involved him, not only 
 in criminal neglect of duty, but actual misfeasance. Under 
 
 1 2 Ohio State, 241. 
 
 2 Winder's Lessee v. Sterling, 7 Ohio, 190, Part 2. 
 
528 RULES OP EVIDENCE. 
 
 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 
 overturn this presumption ; and, consequently, as stated by the 
 Supreme Court of the United States, in Bank of the U. S. v. 
 Dandridge,^ " acts done which presuppose the existence of other 
 acts to make them legally operative, are presumptive proofs of 
 the latter." Instances of the application of this doctrine under 
 a variety of circumstances, may be found in Williams v. East 
 India Co.,^ Kelly v. Counell,* Wheelock v. Hall,^ Brown v. 
 Connelly,"' Hartwell v. Root,^ and Jackson v. Sliaffer.* Facts 
 presumed are as effectually established as facts proved, where 
 no presumption is allowed ; and hence, in accordance with this 
 long-established rule of evidence, the court, in Lessee of Winder 
 V. Sterling,^ were entirely justified in saying, that the act of the 
 auditor in allowing the credit, and making the certificate, which 
 could 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 pre- 
 sumptions in favor of a possession of twenty-two years duration. 
 Thus, in Allen et al. v. Smith,!" -^riiich ^ag g, 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 bairgained and sold the land to 
 Jessie Sims ; that this contract was evidenced by a bond, which 
 had been lost or mislaid ; that on August 27, 1800, Sims, being 
 
 1 1 Greenleaf Ev. 51 ; Mathews on Presumption, 36. 
 
 2 12Wheaton, 70. 
 
 8 3 East, 192. 
 4 3 Dana, 532. 
 
 ' 3 New Hampshire, 310. 
 
 « 5 Blackford, 390. 
 
 ' 19 Johnson, 345. 
 
 '11 Johnson, 513 ; 9 Cowen, 110. 
 
 9 7 Ohio, 190, Part 2. 
 W 1 Leigh, 231. 
 
RULES OF EVIDENCE. 529 
 
 embarrassed in his pecuniary circumstances, conveyed the land 
 to John and Peter Wise, in trust for creditors, with a proviso 
 that the creditors miglit take the land in satisfaction of their 
 debts, at a certain valuation, contained in a schedule attached 
 to the deed of trust ; that Sims afterwards died insolvent ; that 
 the complainant was a creditor of Sims, and had elected to take 
 a part of the land in satisfaction of his debt, at the value named 
 in the schedule ; that Peter Wise was dead, and that John, the 
 surviving trustee, conveyed according to such 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 daughter of the testator ; that in 1818, Neville and wife 
 conveyed to an agent ot 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 convey- 
 ance of 1818, as far she could, by a written declaration to that 
 eiFect ; 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 pos- 
 session of the premises twenty-two years, under the deeds from 
 the marshal, and Neville and wife ; and that the tax sale was 
 illegal and void. The bill prayed a specific performance of the 
 contract between Morgan and Sims, for the delivery of posses- 
 sion, and an account of the rents, profits, &c. The defendants 
 answered, setting up their tax title, under the laws of the 
 United States, alleging the legality of the proceedings, and set- 
 ting up lapse of time as a bar to any inquiry into their regular- 
 ity, &c. The land was listed for taxation in the name of Tid- 
 ball, the locator, instead of Morgan, his grantee. The act of 
 Congress authorizing the sale, required publication of the time 
 and place of the vendue in four gazettes. No proof of the prere- 
 quisites was ofiered by the defendants. Chancellor Tucker ren- 
 dered a decree for complainant, saying: "The title claimed 
 under that sale could not prevail unless the requisitions of the 
 law were proved to have been complied with, or unless such 
 compliance were to be presumed in favor of possession after 
 
 45 
 
530 RULIS OF EVIDENCE. 
 
 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 cau- 
 tiously admitted, in a case where a party's rights have been 
 sold in the name of another ; and where, from the nature of the 
 requisitions of the law, the presumption of compliance with 
 them might easily be fortified by the 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 purchaser is 
 blameless wlio 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 presumption on which they would 
 rely as late as 1818, about sixteen years after the sale. There- 
 fore the collector's deed did not convey the legal title to them." 
 Upon writ of error, this decree was affirmed. In delivering his 
 opinion, Judge Carr, of the Court of Appeals, after citing and 
 approving the rule of strictness, and that relative to the onus 
 laid down in Thatcher v. Powell, proceeds : " Now, if the 
 validity of the marshal's deed depends upon the performance 
 of these acts in pais (advertisement, &c.) ; if the party claim- 
 ing under such deed is as much bound to prove their perform- 
 ance, as he would be to prove any matter of record, on which 
 the validity of the deed might depend ; how can it be supposed, 
 that he would be permitted to supply evidence of these acts by 
 presumption from time, sooner than he might supply the want 
 of the deed itself by such evidence ? The very nature of such 
 titles, it seems to me, ought to warn the purchaser to see that 
 all the prerequisites of the law are complied with ad unguem 
 (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, but they must be ready for defence ; and they ought 
 
RULES OF EVIDENCE. .531 
 
 at once to collect the proper evidence of compliance with the law ; 
 and these documents being written-^ can be just as easily pre- 
 served as their deed." In this opinion Judge Cabell con- 
 curred — so also did President Brooke, who delivered a sep- 
 arate opinion, in which he e-xpresses a doubt whetheV a court of 
 equity ought even to presume any fact in support of a tax sale. 
 A re-argument of this cause was awarded, and the qtiestion dis- 
 cussed, whether twenty years' adverse possession, under the tax 
 title, was not a bar to the complainant's equity, but the court 
 reaffirmed their former decree.-^ 
 
 The same principle was asserted by the Supreme Court of 
 New Hampshire, in the case of Waldron v. Tuttle,^ and in that 
 case the rule is laid down, which 'is probably applicable to all 
 cases where the doctrine of presumption is relied iipon, that 
 in order to justify its application, the possession of the party 
 claiming under the tax deed must be a long, open, notorious 
 and exclusive possession — such .an one as will constitute, 
 technically, an adverse possession. ■ This case, was an action 
 of trespass, de bonis asportatis, and it became necessary for 
 the plaintiff to prove title to the land upon which the trespass 
 originated. He accordingly relied upon two tax deeds, made 
 in pursuance of sales made for the years 1780 and 1783, and 
 proved, that immediately after his purchase, he entered upon 
 the land and ran out his lines, and continued to enter and 
 take firewood therefrom ever since. Holmes was the officer 
 who made the sale of 1780, and Pelker that of 1783. The 
 
 ' The Virginia court, in Eobinett v. Preston (4 Grattan, 141 ), applied the doc- 
 trine of presumption to a sheriflf 's sale, purporting to have been made under the au- 
 thority of a judgment and execution. The only evidence offered by the tenant was 
 the sheriff's deed, which recited a judgment, execution, advertisment, sale, &c., in 
 the usual form, and a possession under the deed from 1816 to 1845, twenty-nine 
 years. The court held, 1. " Th.it 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 con- 
 vey said land." 
 
 a 3 New Hampshire, 340, 
 
532 RULES OF EVIDENCE. 
 
 action was brought in 1826. The evidence was admitted, and 
 the court instructed the jury, thaj on account of the lapse of 
 time, and the occupancy of the plaintifE, they might presume 
 a performance of all legal prerequisites to a valid sale. The 
 jury foujid'for the plaintiff. But the Supreme Court granted 
 a new trial, saying : " The jury were told that it was compe- 
 tent for them to presume, from the possession of the plaintiff, 
 and the length of time which has elapsed since the deeds of the 
 collectors were made, that all acts and proceedings had been 
 duly done and had, which were necessary to the validity of those 
 conveyances. But we are of opinion, that, under the circum- 
 stances, the possession of the plaintiff and the antiquity of the 
 deeds, afforded no legal ground on which, any such presump- 
 tion, with respect to the deed of Holmes, could rest. That deed 
 was made more than forty years ago ; but it has not been ac- 
 companied by any exclusive possession. The plaintiff had 
 occasionally entered, but the defendant, and those under whom 
 he claims, have been constantly in possession. A possession, 
 to be the ground of any presumption in favor of such a title, 
 must be 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 pro- 
 duction of a collector's deed, and from proof of possession un- 
 der 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 legal- 
 ity of such a title, must show, affirmatively, that the law of the 
 land has been substantially pursued in the sale. And in no 
 case can he be permitted to rely upon possession as evidence, 
 even of particular facts, until he has shown, that the common 
 and ordinary evidence of such facts has been probably lost by 
 time and accident, and is not to be found. In all cases, 
 enough of the proceedings should be shown to render it not im- 
 probable 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 ordinary proof of which cannot be found. 
 The deed of Pelker stands on ground somewhat different, 
 hat instrument purports to convey a portion of the estate in 
 
RULES OF EVIDENCE. 533 
 
 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 iindisturbed by him, before it can be submitted 
 to a jury, as a legal ground of presumption in favor of a col- 
 lector's sale. It does not appear from the case, that the pos- 
 session of the plaintiff was of this character, and we think it 
 was improperly submitted to the jury as evidence of the regu- 
 larity of the collector's proceedings." The case came before 
 the court a second time,' upon the same state of facts, and the 
 court reaffirmed the doctrine, that no presumption can be in- 
 dulged in to support a tax sale. 
 
 Upon a critical review of all the decisions relative to presump- 
 .tions, 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 presumption, as to 
 non-essentials, must be allowed to a certain extent, or the courts 
 are driven to forced and violent presumptions 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 ac- 
 tion of the owner, the possession based upon a tax deed is. suffi- 
 cient to establish a claim of title, without resorting to the 
 doctrine of presumptive evidence. 4. That a long possession 
 under a tax deed, short of the period fixed by the statute of 
 limitations, is a sufficient basis for a presumption of regularity. 
 
 5. That one out of possession, but claiming under a tax title, 
 has no right to the benefit of any presumption in his behalf.^ 
 
 6. That no presumption can be sustained, 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 existence of the 
 proceedings, can be produced. 
 
 1 4 New Hampshire, 371. 
 ^ See Worthing v. Webster, 45 Maine, 270. 
 45* 
 
534 OF THE TITLE OF THE PURCfeASEE. 
 
 CHAPTER XXXVIII. 
 
 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 subsequent 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 
 delivered to the purchaser — what kind of title does the grantee 
 of the State acquire ? ^ Is it an original, or derivative one ? 
 Does it pass merely the title of the person in whose name it 
 was listed, and on account of whose delinquency it was sold 
 and conveyed, or is it to have the sweeping effect of divesting 
 all prior interests iu 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 cove- 
 nants 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-owners, and of 
 much interest to the profession. [In Parker v. Baxter,^ it was 
 held, under the statutes of Massachusetts, that if land was 
 rightly taxed to a mortgagor who was in possession, a lien was 
 thereby created on the entire estate, and a sale thereof in due 
 
 1 [In Habbell v. Weldon, Hill & Denio, 139, it was held, that after such a sale, 
 the person in possession was to be considered as holding in subordination to the pur- 
 chaser, and not adversely, so that a deed from the purchaser who had no possession 
 in fact, would not be void, as for a disseisin.] 
 
 2 2 Gray (Massachusetts), 185. But subsequently the statutes were somewhat 
 modified. See Statute, 1848, ch. 166; 1849, ch. 213; General Statutes, eh. 12. 
 
OF THE TITLE OE THE PURCHASER. 535 
 
 form, would also pass the rights of the prior mortgagee therein. 
 And in New York it has been determined, that a sale, by or- 
 der of court, in an action to which all persons having vested 
 estates at law or in equity are made parties, or are proceeded 
 against by the publication of notice, as owners unknown, cuts 
 oif all estates, contingent .and unvested, as well as others, in- 
 cluding all possible interests which might, under contingent 
 limitations, vest in persons not yet in being, and transfers to 
 the purchaser a fee-simple absolute. ^ But when a statute de- 
 clares that a tax execution shall bind the property only from 
 the date thereof, it has been held, that a tax execution against 
 a mortgagor does not bind the right and title of a prior mort- 
 gagee, but in order, to have that effect it must be issued against 
 him under the statute.^] In Atkins v. Hinman,^ Chief Justice 
 Treat said : " The land itself is sold, and not a particular in- 
 terest in it.* If the land was subject to taxation, and the pro- 
 ceedings 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 pur- 
 chaser.^ A new and perfect title is established. This results 
 from the paramount authority of the State to levy taxes on 
 property within its limits, and coerce the payment by subject- 
 ing the property to sale. It is one of the necessary and in- 
 herent rights of the sovereign power." It may be proper to 
 remark, that the question did not arise in that case, as to the 
 effect of the sale, but only as to its regularity. 
 
 [In Arkansas, the statutes authorize the sale of the land 
 itself, and not merely the particular interest or title of the per- 
 son to whom the tax is assessed.^ While in Mississippi, it has 
 been held under the statute of 1846, that a sale conveys only 
 
 1 Jackson v. Babcock, 16 New York (2 Smith), 246. ' 
 '■' Dojine V. Chittenden, 25 Georgia, 103. 
 s 2 Gilman, 449. 
 
 * See Clarke v. Strickland, 2 Curtis, C. C. 439. 
 
 ^ [And see Dunlap v. Gallatin Co. 15 Dlinois, 7, that all prior liens and en- 
 cumbrances are devested.] 
 
 " Biscoe V. Coulter, 18 Arkansas, 423. 
 
536 OF THE TITLE OF THE PTJECHASER. 
 
 the title of the party assessed.i ' In Ohio, a valid sale and con- 
 veyance of a husband's land for taxes, bars the wife's right pf 
 dower.^] 
 
 This question was discussed in Neiswanger v. Gwynne, 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 controversy 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 E,oss. The 
 land was listed for taxation in the name of Ross, while he was 
 the owner of the equity, and forfeited to the State for the non- 
 payment of the tax. In 1829 the land was sold, for the arrears 
 of tax due upon it, to Lyne Sterling, who subsequently con- 
 veyed it, by quitclaim, to Gwynne, and the latter took posses- 
 sion under the tax title. Neiswanger instituted an action of 
 ejectment to recover the possession of the premises. The stat- 
 ute under which the sale took place, declared that the " deed 
 shall convey to the purchaser, &c., a good and valid title to the 
 land, and such deed shall be received in all courts of this State 
 ' as good evidence of title, &c." The court, upon this statement 
 of facts, gave judgment in favor of Neiswanger. The counsel 
 for the defendant insisted " certainly, the deed of the State, de- 
 clared to be ' a good and valid title to the land,' ought to have 
 as much effect as that of an individual with covenants of war- 
 ranty ; 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 bona fide 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 Jan- 
 uary 9, 1827, admitting the same to be valid, acquires a better 
 or different title than was possessed by the former owner ? 
 
 1 Dunn V. Winston, 31 Mississippi (2 George), 135. 
 
 2 Jones V. Devore, 8 Ohio, St. 430. 
 
OF THE TITLE OE THE PUECHASER. 537 
 
 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 proceedings 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 
 determination of the cause, we cannot, with propriety, be called 
 upon to determine its validity." ^ In accordance with this in- 
 timation, Gwynne filed a bill in chancery, to compel a convey- 
 ance of the legal title, and enjoin the judgment in ejectment. 
 To this bill a demurrer was interposed, which was argued and 
 overruled. Two questions were discussed. 1. Whether a court 
 of equity, acting witliin its ordinary powers, can compel the 
 legal owner of land to convey the same to a purchaser at a tax 
 sale, the owner, at the time of the sale, having no other than 
 an equitable interest, but having, subsequent to the sale, ac- 
 quired the legal title ? 2. If the court has such power, is the 
 case made in the complainant's bill such as to justify the exe- 
 cution of it ? Both of these questions were answered in the 
 afiirmative. 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 Ross ; that when the patent issued, the holder of it 
 became the trustee of the person claiming under the tax title ; 
 and that a court of equity had the power, and it was its duty, 
 to compel a conveyance to tiae tax purchaser or his assigns. ^ 
 Upon the overruling of the demurrer, leave was given the de- 
 fendant to answer the bill. An answer was accordingly filed, 
 to which the complainant replied, and evidence was taken to 
 
 1 13 Ohio, 74. 
 ^ 15 Ohio, 367. 
 
538 , OF THE TITLE OF THE PURCHASER. 
 
 show an irregularity in the listing of the land. The statute 
 which declared that no irregularity in the listing -should affect 
 the title of the purchaser, has been cited already .^ A decree 
 was rendered for the complainant, the court deciding, 1. That 
 when the land was sold for taxes, the conveyance, in pursuance 
 of the sale, vested in the purchaser and his grantee, the entire 
 title of the original proprietor ; 2. That the title of Ross, when 
 the laud was sold, was purely equitable ; 3. That when his 
 assignee subsequently acquired the legal title from the United 
 States, he became the trustee of the complainant, and was 
 bound to convey to him ; and, 4. That evidence of irregularity 
 in the listing was not admissible under the statute. A rehear- 
 ing was granted, and the cause continued. It was re-argued, 
 at the next term, when the court dismissed the bill, upon the 
 ground that the complainant acquired a legal title by his pur- 
 chase, though the patent had not been issued at the time. 
 Caldwell, J. : " We are of the opinion that much of the diffi- 
 culty 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 ope- 
 rated 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 
 
 ^ Ante, p. 88. 
 
OF THE TITLE OF THE PURCHASER. 539 
 
 the legal title, he cannot avail himself of it. The land is gone, 
 and another title has intervened. Just so with a person hold- 
 ing 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 liis right is a mere equitable one, he cannot 
 reclaim it, although he afterwards obtain a patent from the 
 United States. A majority of the court think the title created 
 by a tax sale a legal title, and when not good at law, that a 
 court of chancery has no power to aid the purchaser in com- 
 pleting his title." Prom this opinion, Judge Hitchcock dis- 
 sented, 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. Tlie tax sale 
 severs them forever. No covenant running with the land, nor 
 warranty, no incident to the title, as a title, passes to the tax 
 purchaser. He takes it by another right — by a new and inde- 
 pendent and paramount grant, and in his argument at the bar, 
 he says that it is the creation of a new estate — a new fee. 
 But if by the tax sale, a new estate — a new fee, is created, 
 what becomes of the old estate — the old fee ? Does that still 
 continue to exist ? Are there two estates in fee in the same 
 land ? Now it may not be technically correct to say, 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 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 opera- 
 tive. If not the same, it is a similar title." 
 
540 OF THE TITLE OF THE PURCHASEU. 
 
 The Ohio decisions, in the case of Neiswanger v. Gwynne,^ 
 present tlie most extraordinary commentary upon the charac- 
 ter of tax titles, and the difficulties which a purchaser at a tax 
 sale encounters, in courts of law and equity, in asserting a title 
 under his purchase, to be found in the history of tax title 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 fol- 
 lowed their decisions upon this point — indeed, the argument 
 in favor of the power of the State to tax lauds bargained and 
 sold by the government, is based upon impregnaible legal 
 grounds. 1. The taxing power of the State operates upon all 
 property within its territorial limits, and 2. No species of prop- 
 erty is ever to be regarded as exempt from the operation of the 
 taxing power, unless by virtue of some positive law — such ex- 
 emption can never arise by implication. Gwyune, having pur- 
 chased at a sale made in the exercise of this undeniable power, 
 in the State of Ohio — and under a statute which declared, 1. 
 Tliat 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 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 pur-- 
 chase at the tax sale — and a court of law tells him, we recog- 
 nize only legal titles — your remedy is in chancery. He goes 
 to the latter 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 dif- 
 ference of opinion among the judges, as to the application of 
 
 1 Reported in 13, 15, 18,. and 20 Ohio. 
 
OP THE TITLE OF THE PURCHASEK. 541 
 
 this rule of State sovereignty, where the legal title was, at the 
 time of the tax sale, in the Federal government. 
 
 The majority held, that the case of Eoss v. Barland,^ was 
 an authority in point, where the Supreme Court of the United 
 States held, that it W9,s within the power of a State legislature 
 to declare, that a junior patentee, whose claim was based on a 
 prior equity, should prevail over the senior title, in an action 
 of ejectment ; and, by parity of reasoning, the State of Ohio had 
 the right to declare the title of one who purchased a simple 
 equity, superior to that of one who afterwards acquired the 
 legal title from the United States. On the other hand. Judge 
 Hitchcock, in his dissenting opinion, cites Wilcox v. Jackson,^ 
 and draws from that case the conclusion, that where the legal 
 title remains in the Federal government, the question whether 
 the sale divested that legal title, depended upon the laws of the 
 Federal, and not the State legislature. One, of course, is bound 
 to respect the decisions of courts, but when those courts vacil- 
 late in this manner, upon a simple question, but little weight 
 can be attached to their opinions and judgments. Upon prin- 
 ciple, all of their decisions are wrong. The statute perempto- 
 rily declared the effect of the tax sale to be, that it should 
 transfer to the purchaser a valid title in all courts — at law 
 and in equity. In the action of ejectment, effect ought to have 
 been given to the words of the law. But when the court of 
 •equity acquired jurisdiction, ajid it appeared that the highest 
 court of law had refused to recognize the title of Gwyime, 
 relief should have been given him by the chancellor, be^cause 
 there would otherwise be a failure of justice. Under very simi- 
 lar circumstances, and under laws. which made a distinction in 
 phraseology, without a real difference in substance, the Su- 
 preme Court held the holder of the legal title 4 trustee for the 
 tax purchaser, and decreed a conveyance.^ It may be added, 
 
 1 1 Peters, 664. 
 
 2 13 Peters, 498. 
 
 " Lessee of Wallace v. Seymour, 6 and 7 Ohio, 313 ; Stuart v. Parish, 6 and 7 
 Ohio, 204 ; Renick v. Wallace, 8 Ohio, 540. 
 
 46 
 
542 OF THE TITLE OF THE PURCHASER. 
 
 however, that the Supreme Courl 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 coiikpact between the Fed- 
 eral and State governments, the decision cannot be sustained 
 upon principle or authority. It is even contended, by highly 
 respectable jiirists, that the States may exercise their taxing 
 power over the public domain of the United States within their 
 borders. In fact, it has been repeatedly urged, that upon the 
 admission of a State into the Union, she became ipso facto in- 
 vested with the title to all of the public land within her limits. 
 The Supreme Court of tlie United States have often held, that 
 lands covered by navigable waters belong to the States, and 
 .cannot be granted by the Federal authorities. When it is 
 remembered that the power to hold land, even, is an implied 
 power under the Federal constitution, and that that govern- 
 ment held the public lands in the North-West Territory upon 
 a trust long since discharged, and that there are compacts and 
 ordinances which specially exempt the public domain from tax- 
 ation — which seems to be a recognition of the right of the 
 States to tax them, but for these compacts — and when it is 
 further remembered, that no exemption from the taxing power 
 exists, except where expressly reserved or granted, and that 
 the sovereignty of the State in this respect extends to all prop- 
 erty within its territoi'ial 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 compelled 
 to contribute, with other landed proprietors, her share of the 
 public taxes. By holding the lands at high prices, or reserving 
 them' from sale,*the Federal government might not only retard 
 the settlement of the new States, but deprive them of one of 
 the greatest sources of revenue. This is a subject worthy of a 
 more extended examination, but it is merely hinted at here, be- 
 cause a loose opinion, expressed in a former part of this work — 
 
 ' Dixon V. Doe, 23 Mississippi, 84. 
 
OF THE TITLE OP THE PURCHASER. 543 
 
 without much reflection, and believing that such was the com- 
 mon opinion of the bench and bar, and the understanding of 
 the people — has been called in question by one of the Su- 
 preme 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, ex- 
 empt 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 Col- 
 lier remarks : " If the persons in possession in 1845, were lia- 
 ble to pay the tax for that year, their interest only could be 
 sold to enforce its payment ; and if the defendant had a para- 
 mount title, dating back to a time previous, its right could not 
 be impaired by the sale. It is clear, that a purchaser at a sale 
 under judicial process, for the payment of taxes, purchases the 
 interest of the party whose property is sold, and not the inde- 
 pendent and superior, or ultimate title of a third person. This 
 seems to us to be a proposition so clear, that it need but be 
 mentioned, to receive universal concurrence." 
 
 The Pennsylvania statute of April 3, 1804, provides, " that 
 sales of unseated lands for taxes, &c., shall be in law and 
 equity valid and effectual, to all intents and purposes, to vest 
 in the purchaser, or purchasers of lands so sold, all the estate 
 and interest therein, that the real owner or owners had ai the 
 time of such sale, although the laud may not have been taxed 
 
 1 The author was promised the opinion of the jurist alluded to, upon this interest- 
 ing question, and he would have been happy to have inserted it in a note, but it is 
 now evident that the opinion will not be ready in time for publication in this edi- 
 tion. 
 
 2 14 Alabama, 622 
 
544 OF THE TITLE OF THE PURCHASER. 
 
 or sold in the name of the real owner." The construction put 
 upon this statute is, that all prior ownerships are merged in, 
 and divested by the tax sale — a new and independent title 
 created— the land, and not the owner, is regarded as the 
 debtor for the public charge imposed by the revenue laws, thus 
 making a clear distinction between execution and tax sales.i 
 In the one, the estate itself is sold ; in the other, the interest of 
 the debtor only.^ 
 
 But in the case of Irwin v. Bank of the United States,^ which 
 was an action of covenant to recover a ground-rent, it appeared 
 that James Robinson, being the owner in fee, made a perpetual 
 lease of the land — reserving an annual rent of sixty dollars, 
 payable quarterly — to William Nixon, his heirs and assigns. 
 The right of receiving the rent became vested in the United 
 States Bank, and the right of Nixon under the lease became 
 vested in Irwin, the defendant. In 1824, the land out of which 
 this rent issued, was sold for taxes, upon an assessment in 
 the name of Nixon's heirs. This last fact ■fras 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 account of the taxes 
 assessed on the ground-rent issuing out of it. For the purpose 
 of raising money to pay the latter, he had not authority to sell 
 the ground. He could only sell it to raise money to pay the 
 
 1 [The due and regular sale and deed of land for taxes for any one year, divests the 
 land from the lien for taxes of any previous year. At least, this is the rule as to unseated 
 land in Pennsylvania, Irwin v. Irego, 10 Harris (Penn.), 368 ; but in the same 
 State it has been held, that a sale on the 18th June, 1834, for the taxes of 1832 and 
 1833, does not extinguish the lien for 1834, and the land may be again sold for 
 the taxes of that year, after the expiration of two years, Liggett v. Long, 7 Harris 
 (Penn.), 499.] 
 
 ^ Sergeant's Land Laws of Pennsylvania, 217 ; Luffboroughu. Parker, 16 Ser- 
 geant & Rawle, 351, 358 ; Blair v. Waggoner, 2 Sergeant & Rawle, 472 ; Strauch v. 
 Shoemaker, 1 Watts & Sergeant, 166 ;McCord v. Bergautz, 7 W.atts, 490 ; Morton 
 V. Harris, 9 Watts, 323 ; Caul u. Spring, 2 Watts, 396 ; Eager ... Campbell, 5 
 Watts, 288 ; Collins v. Barclay, 7 Barr, 67. 
 
 8 1 Barr, 349. 
 
OF THE TITLE OF THE PURCHASER. 545 
 
 taxes assessed on the ground itself, when unseated; and gen- 
 erally, for this purpose, it is amply sufficient. The rent, in this 
 case, though it issued out of the groimd 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 incorpo- 
 real inheritance in fee, the other a -corporeal inheritance in fee ; 
 and each are made, by one act of assembly, separate and dis- 
 tinct subjects of taxation. There is, therefore, no reason why 
 the collection 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 often years, 
 to begin on the first of January, 1847, free of rent, in con- 
 sideration that the said Watson would erect on said lot a build- 
 ing, according to specifications, and deliver the said building 
 to the defendant, her heirs or assigns, at the end of the term, 
 in good repair, natural decay alone excepted ;, and the said 
 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 reentry, in case the covenants were not complied 
 with. In April, 1847, Watson assigned this lease to the plain- 
 
 1 11 Iredell, 624. 
 
 46* 
 
546 OF T^E TITLE OF THE PURCHASER. 
 
 tiff, in consideration of ^2,050, Watson binding himself t« erect 
 the building according to his covenant with the defendant. 
 Afterwards, taxes became payable by virtue of an assessment, 
 authorized by au act of the legislature, passed at its session in 
 1846-47. These taxes, amounting to $13.20, were paid on a 
 threat of distress, and under protest by the plaintiff, who de- 
 manded of the defendant the amount so paid ; and, upon re- 
 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 con- 
 curred 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, &c. Land, tlien, is taxed ac- 
 cording to its fee-simple value, and whoever is owner of the 
 land for the time being, is bound to pay the tax. If the estate 
 is divided, By giving a particular estate to one — the remainder 
 to another — as if an estate is limited to A for life, or for ten 
 years, remainder to B and his heirs, the valuation 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, 
 where rent is reserved ; for the rent is in lieu of the land, and 
 the landlord is in the pernancy of the profits of the land, the 
 profits of the tenant being the fruit of his own labor. Hence, in 
 such cases, the landlord is bound to pay the tax ; and if the tenant 
 be compelled to pay, he may recover from the landlord, or may de- 
 duct the amount out of the rent. But in the case under considera- 
 tion, no rent is reserved. The defendant receives nothing in 
 lieu of the land, and the entire profits are enjoyed by the plain- 
 tiff. He, then, does not come within the reason for making the 
 case of ordinary tenants paying rent, an exception to the gen- 
 eral nile. Let us see how it Operates. A vacant lot, worth, 
 
OF THE TITLE OF THE PURCHASER. 547 
 
 say |200, is leased for ten years without rent — a building 
 worth, say $2,000, is erected upon it. The lessee enjoys the en- 
 tire use and profits of the lot in its improved condition. The 
 amount of the assessment, and, of course, the tax, is increased 
 ten times. It is right that the lessee, who has the whole profit, 
 should pay the tax ; for, in fact, the lessor has parted with his 
 entire estate for the ten years, and stands as a remainder man, 
 and not as a landlord receiving rent. It is said the lessor will 
 be benefited by i-eceiving the property, in its improved con- 
 dition, at the end of the term. That is true, and then he 
 will be bound to pay the tax ; but, in the mean time, it is mani- 
 festly unjust to require the lessor to pay tax for what he has 
 never enjoyed ; and there is no mode of apportioning the tax, 
 so as to show what ought to be paid for and on account of the 
 original value, and what for the additional value ; and, upOn 
 the general rule, the plaintiff is bound to pay the tax. The 
 English cases give no aid in deciding this question, because the 
 .land in that country is assessed upon the annual reht, and if it 
 be not rented, upon such sum as it could reasonably be rented for ; 
 and the statiite provides, 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 acquire^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, aud 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 pro- 
 ceeding is strictly in rem, the tax deed will undoubtedly have 
 the effect to destroy all prior iuterests in the estate, whether 
 vested or contingent, executed or executory, and those in pos- 
 session, reversion, and remainder. In such case, the tax law 
 itself is notice to the whole world of the liability of the land for 
 
548 OF THE TITLE OF THE PUECHASEE. 
 
 all public assessmeDts — and .every one claiming an interest in 
 the land, is bound at his peril, to pay the tax, and thus protect 
 that interest from forfeiture or sale. If he neglects his duty 
 in this respect, his title becomes extinct, and a new and in- 
 dependent 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 required of the purchaser in such cases, is to show 
 title out of the State, prove the regularity of the proceedings, 
 and introduce his deed, and he makes out a complete and per- 
 fect title to the fee.^ On the other hand, where the law re- 
 quires the land to be listed in the name of the owner of the fee, 
 or of any other interest in the estate — provides for a personal 
 demand of the tax — and in case of default authorizes the seiz- 
 ure of the body or goods of the delinquent, in satisfaction of 
 the tax — and in terms, or upon a fair construction of the law, 
 permits a sale of the land only, when all other remedies have 
 been exhausted — then, the sale and conveyance by the officer, 
 passes only the interest of him in whose name it was listed — 
 upon whom the demand was made — who had notice of the 
 proceedings, and who alone can be regarded as legally delin- 
 quent. In such cases the title is a derivative one, and the tax 
 purchaser can recover, ii# 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 violation of the spirit which moved 
 the legislature to enact them, and be the means of depriving 
 innocent persons of their estates — persons who had no notice 
 of the proceedings — and who, in consequence of this omission, 
 can in no sense be regarded as delinquent.^ There are no ex- 
 press adjudications upon this point, but such seems to be fairly 
 
 1 Bigler v. Kams, 4 Watts & Sergeant, 137. 
 
 ^ [It has since been held, that a deed purporting to conyey all the right, title, and 
 interest of a particular person named, or of any other person claiming the same under 
 the first named person, conveys only the title of the person, first named, and no 
 other. Yeuda v. Wheeler, 9 Texas, 408 ; Wheeler v. Yeuda, U Texas, 562.] 
 
OF THE TITLE OF THE PURCHASER. 549 
 
 implied 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 wrpng name. That the law in all such cases 
 deems a notice — actual or constructive — to the owner of an 
 interest in the land offered for sale, a prerequisite — is mani- 
 fest from the circumstance, that a publication, or personal 
 demand of a tax, is invariably required. Take this case : A 
 devises an estate to B for life, and the remainder to 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 officer 
 conveys to the purchaser. No demand was ever made upon 
 the remainder man for the tax, and he had no notice of its as- 
 sessment. Every one would say, at first blush, that it would 
 be a monstrous species of injustice to hold, that his interest in 
 the estate was divested by such a proceeding. Whereas, if the 
 State never contemplated any notice at all, but exercised her 
 sovereign power by proceeding in rem alone, then he and all 
 other persons would be bound to take notice at their peril, be- 
 cause the State did not promise that she would give any — it 
 being a maxim of law, " that every person is bound to take no- 
 tice', where no one is bound to give notice." ^ 
 
 lu Finch v. Brown,^ which was an application by a widow to 
 redeem a tract of land, in which she claimed a dower interest, 
 and which was sold .in her husband's lifetime, the court, in 
 speaking of her right of 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, «r conveyance, performed or executed by the husband, 
 
 1 16 Viner's Abridgment, ch. 2 ; 5 Binney, 157, 311, 313. 
 
 2 3 Gilman, 488. 
 
 " Revised Statutes, 1845, p. 200, sec. 14. 
 
550 OF THE TITLE OF THE PURCHASES. 
 
 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 husband, 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 neces- 
 sary to protect her own interests, that no neglect of the hus- 
 band 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 p4"emises. 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, dower could only be barred by a 
 divorce a vinculo, by eloping with an adulterer, by the attain- 
 der 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 recog- 
 nized in this country, the court holding that her own voluntary 
 assent or misconduct was necessary to b^r her right of dower, 
 and that no laches of the husband could have any such effect. ^ 
 A contrary rule would be manifestly unjust. 
 
 It was held, by the Supreme Court of Georgia, in Doe ex 
 dem. Gledney et al. v. Deavors,^ under a statute which declared 
 that taxes should " be preferred, to all securities and encum- 
 brances whatever ; " that the State had a lien upon all lands 
 
 1 Sisk V. Smith, 1 Gilraan, 503 ; Hale v. James, 6 Johnson, Ch. 258 ; Dunham 
 V. Osborn, 1 Paige, 635 ; Tabele v. Taliele, 1 Johnson, Ch. 45; Smiley v. Wright, 
 2 Hammond, 506 ; 4 Kent, Com. 50 ; 2 Blackstone, Com. 138 ; 1 Thomas, Coke, 
 475. 
 
 2 8 Georgia, 479. 
 
OF THE TITLE OF THE PTJRCHASEK. 551 
 
 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 be- 
 tween 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 seem, upon princi- 
 
 1 This being an important and well-considered case, the opinion of Judge Nisbet 
 is given at length. He said : " This was an action of ejectment. The plaintiff 
 claimed under a tax-collector's deed, and the defendant under a sheriffs deed. The 
 sheriffs deed bears date in April, 1841, and the tax-collector's deed in December of 
 the same year. The sheriff sold the land under an execution in favor of a citizen, 
 as the property of the defendant in execution. The collector caused the same land 
 to be sold for the taxes due by the same defendant, assessed for that year. The 
 question of title being before the Circuit Court, the presiding judge instructed the 
 jury, ' that the lien or security of the State, for the tax due from the defendant in 
 execution, for the year I84I, was destroyed by the sheriff's sale, and the subsequent 
 sale conveyed no title, unless the jury believed that the sheriff's sale was made for 
 the purpose of avoiding the payment of taxes' due, and that the only preference that 
 existed for said tax, was the right of the tax collector to claim out of the fund 
 raised by the sheriff's sale.' To this charge the plaintiff in error excepted, and the 
 question is, whether the tax due by a citizen is a lien upon his property, which can 
 be 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 does not seem to hold, that generally taxes are not a 
 lien, but believes that the lien was destroyed by the sheriff's sale, and that after 
 such sale, the only way in which the State can collect her taxes is by putting in a 
 claim upon the fund. Inasmuch as the land had been sold, the view of the judge 
 seems to be, that the State occupied the position of a favored or preferred claimant 
 on it, and failing to assert her claim, lost it, unless the sale by the sheriff was in- 
 tended 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, 
 wheljier in this case it was, as held by the presiding judge, destroyed by the sale by 
 the sheriff. The right to tax the whole property of the citizen for the defence of the 
 State, and the support of the government, is not a questionable proposition. It is 
 an incident of sovereignty. All property which vests in the citizen by grant from 
 the State, is liable to'taxation, without a reservation of the right to tax. That right 
 grows out of the right of the citizen to governmental protection, and the correspond- 
 ing obligation of government to protect him. Revenue is indispensable to the 
 maintenance of all the privileges and immunities of the people.; it is also indispen- 
 sable to national independence, without which, individual 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 government are laid, the property of the citizen is 
 pledged for these purposes ; pledged without any express declaration of a pledge. 
 In the act of organizing a government, the pledge is implied. It is one of the 
 
552 OF THE TITLE Or THE PDECHASER. 
 
 pie, that the sovereign power of the State to levy and' collect 
 taxes — the nature of tax laws, which are regarded as notice to 
 
 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 legislative 
 competency, to be arAnged from time to time by law, afccording to the public ex- 
 igencies. In this country the people irtipose 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 e^lclusion of 
 any other lien or encumbrance. The decision goes upon the idea, that the obliga- 
 tion to support the government precedes and is paramount to every contract between 
 citizens; and without amplifying this general doctrine, I leave it with my concur- 
 ,rence. 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 overrides 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 prefen-ed 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. 
 Our opinion is, that it creates a general lien, which attaches, at the time when the 
 property is liable by law to taxation, upon all the property of the citizen. It is 
 true, that the phraseology of the Act might have been more plainly declaratory of a 
 lien. But what is its effect '} A legal preference, that is, priority, is given to the 
 taxes, not only over all encumbrances whatever — sueh as mortgages and judg- 
 ments — 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, u. title by deed upon a judicial sale will not, u fortiori; for 
 the lien of the judgment, under which the purchaser at the judicial sale gets his title, 
 is unquestionably postponed by the-Act. There is no particular form of wordanec- 
 essary to create a lien. The plain import of this Act is, a legal preference for satis- 
 faction out of the property of the person taxed, over every security and every en-, 
 cumbrance, and that is a lien. The legislature, no doubt, intended simply to declare 
 the great fundamental 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 statesmen — it 
 can hardly be presumed that the legislature intended to innovate upon and weaken 
 it. If the Act only creates a preference over other claims, it is available for the pro- 
 tection of the State only when a citizen is dead, and his estate isifor distribution, or 
 when he is insolvent, or when there is a fund in hand for distribution. Upon this 
 idea, it looks to marshalling. assets. And in case of the alienation, bona fide, of 
 
OP THE TITLE OF THE PURCHASER. 553 
 
 all the, world, of the liability of property to taxation — the fact 
 that all property is impliedly pledged for the prompt payment 
 
 property by private Bale, this construction would wholly defeat the security of the 
 State. In this veiy case, as I shall show, it would defeat the collection of taxes al- 
 together. I do not mean to say, that when the money of the citizen is in the hands 
 of the court, and the tax is in a situation to be presented as a claim upon it, that 
 that claim would not be good. If the act creates a lien on property, the lien equally 
 attaches upon its proceeds. But in such a case, I do not believe that the lien of the 
 State would be lost by its agent failing to put in a claim upon the fund, upon the 
 principle that no laches can be imputed to the State. It is not enough to say, that 
 the collector and his security would be, in that case, liable, for that liability is only 
 a cumulative security for the State. The lien is a general one. The whole property 
 is bound for the taxes. That it is not confined to the specific property upon which 
 each item of the tax arises, is manifest in this. The law requires the personal estate 
 first to be sold to pay the tax, and if none, or not enough, then the real estate. Ac- 
 cordingly, taxes originating on lands may be paid out of the personal estate, and 
 vice versa. It takes effect when, by law, in each and every year, the property is 
 made taxable — that is to say, on the first of January. It is the imposition of the 
 tax by law, which appropriates, if needs be, the property of the citizen to the public 
 use. The lien, therefore, does not commence only with the return of the property 
 or with the return of the digest by the receiver to the collector, or with the issuing 
 of execution to enforce payment. It is argued, that the taxes are not a lien, from 
 certain provisions of the tax law — such as that which declares all sales, made to 
 prevent their payment, void — that which makes them first to be paid, in case of the 
 death of the debtor, and charges the administrator, personally — and that which 
 charges the mortgagee with the tax due upon the mortgaged property. These pro- 
 visions 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, &c., made to avoid the payment 
 of taxes. If there is a lien, this provision is useless. AH these things, and others — 
 for exampjp, 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 provis- 
 ions of law to constrain payment. 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 in- 
 terference. She must put in her notice, or file her injunction — await the regular 
 time for a hearing — abide delays, continuances, and collateral issues. In short, she 
 is no better off than any other judgment creditor. No. To collect taxes, the State 
 moves with uncontrollable power, directly and 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 
 
 47 
 
554 OF THE TITLIf OP THE PURCHASER. 
 
 of all assessments, made under the authority of the constitution 
 and laws — all necessarily concur in creating, by implication, 
 a lien, without any express declaration to that effect. 
 
 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 de- 
 fendant — 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, officially, could know nothing 
 of the claim of the State for taxes. He was not restrained from paying over at once 
 the proceeds of the sale to the judgment in his hands ; and if paid, then all means 
 of security to the State is lost forever. The collector and his sureties would not be 
 liable, for be could not be in default. So it would be in any case where there is a 
 bona fide sale of property intervening between the first of January and the return of 
 the digest of taxes to the collector, whether that sale be private or judicial. The con- 
 sequence of this doctrine would clearly be a loss to the State of no inconsiderable 
 amount of -her revenue, and a serious injustice to the tax-paying portion of the 
 people. In the case before me, the collector has pursued the course which the law 
 points out. 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 pro- 
 ceedings are authorized by law (and that they are, no one questions), does not the 
 purchaser get a title ■? 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, and he is pre- 
 sumed to buy with notice. In the argument of this cause, the defendant in error 
 relied upon the decision of the Supreme Court of the United States in Conard u. 
 The Atlantic Insurance Company of New York (1 Peters, 386). That decision 
 places a construction on the 6.5th 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 insufficient to pay all the debts due 
 from the deceased, the debt or debts due to the United States shall be fiht satisfied; 
 and any executor, administrator, or assignee, or other person, who shall pay any 
 debt due by the person or estate, for whom or for which they are acting, previous to 
 the debt or debts due to the United States from such person or estate, being first 
 duly satisfied and paid, shall be answerable in their own person and estate,' &c. 
 The Supreme Court held, that the priority, thus limited in behalf of the United 
 States, was not 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 
 payment out of the general funds of the debtor in the hands of the assignee. This 
 decision is inapplicable to the present case. A similar provision of law is made in 
 this State, when a debtor for taxes dies between the time of giving in his taxes and 
 the payment. A priority is created in behalf of the State for the tax, and the ad- 
 ministrator is bound to respect that priority at the peril of personal liberty. If this 
 were the only provision of our law on the subject, the question would be very differ- 
 
OP THE TITLE OF THE PURCHASER. 555 
 
 ent. 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 legis- 
 lature declares, that the taxes shall be preferred to all securities and incumbrances 
 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, &c. It cannot be enlarged beyond its terms. Our law, 
 in general terms, confers a preference over all incumbrances and securities, and, as 
 we think, creates a lien," 
 
556 STARE DECISIS. 
 
 CHAPTER XXXYIII. 
 
 OF THE PRINCIPLE OP STARE DECISIS CONCERNING TAX TITLES. 
 
 OuH 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 de- 
 vised. It is of great importance to keep this principle of decis- 
 ion 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 precedents, where the same points come again in litiga- 
 tion; as well to keep the scale of justice even and steady, and 
 not liable to waver with every new judge's opinion, as also, be- 
 cause the law in that case being solemnly declared and deter- 
 mined, what before was uncertain, and perhaps indifferent, is 
 now become a permanent rule, which it is not in the breast of 
 any subsequent judge to alter or vary from, according to his 
 private sentiments ; lie being sworn to determine, not accord- 
 ing to his own private judgment, but according to the known 
 laws and customs of the land ; not delegated to pronounce a 
 new law, but to maintain and expound the old one." But 
 
 1 Parke, J., in Mirehouse v. Rennell, I Clarke & Finnelly, 546. 
 
STAEE DECISIS. 557 
 
 this judicial rule — stare decisis — like all others, has its ex- 
 ceptions, 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 law and opinion of a judge are not 
 synonymoiis terms — the latter may mistake or pervert the law 
 of the land. Precedents ought not to be followed blindly, nor, 
 on the contrary, treated irreverently. We owe some respect to 
 our own opinions when deliberately formed — for conscience' 
 sake. On the other hand, there is due to the opinions of oth- 
 ers such a deference, as not to suppose that they acted in the 
 formation of them, without any consideration. There is a me- 
 dium ground between these two extremes which should be 
 sought for in the application of the maxim in question. It is 
 founde.d on policy — to insure certainty, to as high a degree 
 as possible, in the administration of justice. It is important 
 that the decisions of our courts should be as stable and uniform 
 as the statute law itself — indeed more so — a decision which 
 overturns a prior one has a retroactive effect — its tendency is 
 to disturb vested right? — whereas the promulgation of a new 
 rule by the legislature operates prospectively only. To enable 
 the citizen to be governed in his social relations, and square his 
 conduct by the laws of the land, he must know beforehand 
 what the law requires of him. There is no difference in prin- 
 ciple 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 igno- 
 rant of the existing rule ; in the other, he is ignorant of what 
 will be the rule when his rights are in jeopardy ; and in neither 
 case can he possess the requisite information 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 circum- 
 stances — in other wor^s, to make a precedent. " But it never 
 
 47* 
 
558 STAKE DECISIS. 
 
 fell from a judge in this country, tliat he would obey a solemn 
 judgment in one case and not in others. This is a doctrine 
 to which our courts are not accustomed." ^ .The discretion of 
 judges in the application of the maxim stare decisis, is not an 
 arbitrary one. "Discretion," said Lord Mansfield,^ "when 
 applied to a court of law, means sound discretion, guided by 
 law. It must be governed by rule, not by humor. It must 
 not be arbitrary, vague, and fanciful, but legal and regular." 
 This is the principle by which the courts are controlled in refer- 
 ence to precedents. A single decision upon a question is never 
 regarded as settling a rule, unless rights have become vested 
 under it, and it has been acquiesced in for a length of time.* 
 And in mere matters of practice, where propriety and utility 
 are regarded more than the certainty of the rule, and where 
 no one is injured by a reexamination 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 
 contracts, and existing instruments, the authority of erroneous 
 precedents seems at its maximum. The notorious Bewdley 
 case,^ which was directly contrary to the act of Parliament, 
 was sustained on this principle. When titles to real property 
 are to be affected by erroneous precedents, they are usually 
 sustained, however absurd. The rule is founded in policy. 
 It is considered better to adhere to a bad rule, than overthrow 
 the estates of many proprietors, which have been acquired upon 
 the faith of the erroneous precedent.^ 
 
 Such is the general doctrine of the courts in relation to 
 former decisions in regard to tax titles. The Supreme Court 
 of Vermont had decided, that the neglect of the collector to 
 
 1 LordEldon, 6 Dow, 112. 
 
 2 4 Burrow, 2539. 
 
 8 Frink v. Darst, 14 Illinois, 310-312, and cases there cited. 
 * Bowers v. Green, 1 Scammon, 42 ; Kenney v. Greer, 13 Illinois, 432 ; Little v. 
 Smith, 4 Scammon, 400. 
 6 1 Peere Williams, 207. 
 5 4 Burrow, 2580 ; Broom's Legal Maxims, 112. 
 
STAEB DECISIS. 559 
 
 lodge a copy of his proceedings in the town clerk's office, 
 within the time required by the statute, rendered the sale 
 void.i The question was again before the court, many years 
 afterwards, in Taylor v. French,^ and the court was asked to 
 overrule Mead v. Mallet, to which the following reply was 
 made : " On the faith of this construction numerous estates in 
 land have been bought and sold, and it would be productive of 
 great injustice to disturb it. This construction having become 
 a rule of property, it should not be changed without an impe- 
 rious necessity, whatever we might think of it, were it res Inte- 
 gra." 
 
 In Bellows v. Elliot,^ the same maxim was applied, in another 
 tax-title cause. The Supreme Court of New Hampshire had 
 decided that a sale of land, in unorganized townships, should 
 be in conformity with a statute passed in 1791, instead of one 
 enacted in 1794. It was a doubtful question which statute 
 was applicable, and the question again came before the court 
 in Bellows v. Parsons,* and the former decision was adhered 
 to, the court 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 
 conclusion." 
 
 The Supreme Court of Ohio thus commented on the rule in 
 Hannel v. Smith : ^ " Whether, as a matter of policy, the strict- 
 ness with which tax sales have been scrutinized, has been most 
 conducive to the public good, is questionable. But if this 
 court have been too rigid in this respect, the legislature can 
 easily apply a proper remedy ; and many of the arguments of 
 
 1 Mead ». Mallet, 1 D. Chipman, 239. 
 
 2 19 Vermont, 49. 
 8 12 Vermont, 569. 
 
 » 13 New Hampshire, 256. 
 6 15 Ohio, 134. « 
 
560 STAKE DECISIS. 
 
 plaintiff's counsel would be much more applicable unto a leg- 
 islative body, than to a judicial tribunal. Where a principle 
 of law has been established by a long course of judicial decis- 
 ions, it should not be changed for light and trivial reasons. 
 It does not so much matter what the law is, as that it should 
 be well understood. A change of the law by the legislature 
 can do but little harm, as their acts are only prospective in 
 their operation ; but a change of decisions by this court, inter- 
 feres with previoiisly-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 : " Thefe can be no class of laws more strictly local in 
 their character, and which more directly concern real property, 
 than these. They not only constitute a rule of property, but 
 their construction by the courts of the States, should be fol- 
 lowed by the courts of the United States, with equal, if not 
 with greater strictness than any other class of laws." 
 
 1 14 Peters, 322. 
 
STATUTES OF LIMITATION. 561 
 
 CHAPTER XXXIX. 
 
 OF TAX TITLES AS THE FOUNDATION OF AN ADVERSE POSSESSION 
 UNDER THE STATUTES OF LIMITATION. 
 
 At common law, there was no limitation as to the time of 
 commencing a suit,^ and now a party is not bound to sue im- 
 mediately for any injury he may sustain. He may consult his 
 own convenience as to when he will assert his rights, provided 
 he is not barred of his remedy by the statutes of limitation, or 
 neglects to assert his rights for such a length of time as to raise 
 the presumption of an abandonment of his claim, and an extin- 
 guishment 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 pos- 
 sessor and tiller of the soil. Such laws have been emphati- 
 cally and justly denominated statutes of repose. The best 
 interests of society require that causes of action should not be 
 deferred an unreasonable length of time. This remark 'is 
 peculiarly applicable to land titles. Nothing so much retards 
 the growth and prosperity of a country as insecurity of titles to 
 real estate. Labor is paralyzed, when the enjoyments of its 
 fruits are uncertain ; and litigation without limit produces 
 ruinous consequences to individuals.^ The principle upon 
 
 1 Coke's Littleton, 115, 6. 
 
 2 Watkins v. White, 3 Scammon, 549. 
 
 8 Bradstreet v. Huntington, 5 Peters, 407 ; Hawkins v. Barney's Lessee, 5 Peters, 
 457. 
 
5()2 STATUTES OF LIMITATION. 
 
 which these statutes are based, is derived from the natural 
 law. This position is sustained by the unanswerable argu- 
 ment of Vattel.i The usucapio and prescriptio of the civil law, 
 
 ' Law of Nations, B. 2, ch. 11. "Nature has not herself established a private 
 property over any of her gifts, and particularly over land ; she only approves itp 
 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 hu- 
 man 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 bona fide possessor, who has, perhaps, dearly purchased his title to 
 it — who has received it as an inheritance from his progenitors, or as a portion with 
 his wife — and who might have made other acquisitions, had he been able to discover 
 that the one in question was neither solid nor lawful. Far from giving such aright, 
 the law of nature lays an injunction on the proprietor to talte 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 tiine, and afterwards reclaim it, according to his caprice. With 
 what other view than that of the peace, the safety, and the advantage of human 
 society, does the law of nature ordain that all men should respect the right of pri- 
 vate property in him who makes use of it % For the same reason, therefore, the 
 same law requires that every proprietor who, for a long time, and without any just 
 reason, neglects his right, should be presumed to have entirely renounced and aban- 
 doned 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 ap- 
 propriate to himself the thing so abandoned. The absolute presumption does not 
 here signify a conjecture of the secret intentions of the proprietor, but a maxim 
 which the law of nature ordains should be considered as true and invariable — and 
 this with a view of maintaining peace and order among men. Such presumption, 
 therefore, confirms a title as firm and just as that of property itself, and established 
 and supported by the same reasons. The bona fide possessor, resting his title on a 
 presumption of this kind, has, then, a right which is approved by the law of nature ; 
 and that law, which requires that the rights of each individual should be stable and 
 certain, does not allow any man to disturb him in his possession. The right of usu- 
 caption properly signifies that the bona fide possessor is not obliged to suffer his 
 right of property to be disputed, after a long-continued and peaceable possession on 
 his part ; he proves that right by the very ckcumstance of possession, and sets up 
 
STATUTES OF LIMITATION. 
 
 563 
 
 was the simple application of the law of nature to the affairs of 
 civil society. The English law of prescription relative to incor- 
 poreal rights, was borrowed from the civil code. Courts of 
 equity refuse to enforce a stale claim by analogy to the natu- 
 ral 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 arbitrary period of limitation according to the local 
 wants of the State or nation, by the authority of which they 
 were enacted. It is said that " prescription is a thing of pol- 
 icy, 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, 
 
 the plea of prescription in bar to the claims of the pretended proprietor. Nothing 
 can be more equitable than this rule. If the claimant were permitted to prove his 
 property, he might happen to bring proofs, yery convincing, indeed, in appearance, 
 but, in fact, deriving all their force only from the loss or destruction of some docu- 
 ment 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 bona 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 circum- 
 stances. As prescription cannot be grounded on any but an absolute or lawful pre- 
 sumption, it has no foundation, if the proprietor has not really neglected his right. 
 This condition implies three particulars. 1. That the proprietor cannot allege an in- 
 vincible jgnorance, 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 rea- 
 sons. 3. That he has neglected his right, or kept silence during a considerable 
 nnmber of years, for the negligence of a few years being incapable of producing con- 
 fusion, and rendering doubtful tne respective rights of the parties, is not sufficient to 
 found or authorize a presumption of relinquishment. It is impossible to determine, 
 by the law of nature, the number of years required to found a prescription ; this de- 
 pends on the nature of the property disputed, and the circumstances of the case." 
 ' M'Elmoyle v. Cohen, 13 Peters, 312. 
 
564 STATUTES OF LIMITATION. 
 
 though in terms, acting upon the remedy alone, indirectly bar 
 the right. A right without a remedy is unknown to the com- 
 mon 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 con- 
 tract, 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 operation, the excep- 
 tions 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 sit- 
 uation 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 rise to much discussion and litiga- 
 tion. The act is entitled " an act to quiet possessions and con- 
 firm titles to land," approved March 2, 1839,^ and was incorpo- 
 rated in the revised code of 1845, under the title " Convey- 
 ances." ^ 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 unocc\ipied 
 
 1 Angell OE Limitations, cli. 2, sec. 11, and authorities there cited. 
 
 2 Laws 1838-9, p. 266. 
 
 8 Revised Statutes, p. 104. 
 
STATUTES OF LIMITATION. 565 
 
 land, shall pay all taxes legally assessed thereon for seven suc- 
 cessive years, he or she shall be adjudged to be the legal owner 
 of said vacant and unoccupied land, to the extent and accord- 
 ing 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 unconstitu- 
 tional, in Arrowsmith v. Burlingim,i which led to a discussion 
 of the question by contributors to the periodical just cited.^ 
 
 Afterwards Judge Drummond, the successor of Judge Pope, 
 decided in favor of the constitutionality of the statute ; and 
 such is the implied opinion of the Supreme Court of Illinois, as 
 they have enforced the law on one occasion, and on others, dis- 
 cussed questions relative to its construction, without denying 
 its validity.* It is the practice of all courts to give to this class 
 of statutes a liberal construction. 
 
 Having premised thus much, let us proceed to the applica- 
 tion of these general principles, and of particular statutes, to 
 rights and possessions originating under tax titles. This sub- 
 ject must be considered in reference, t. To general statutes of 
 limitation, and, 2. To statutes, which in terms, embrace no 
 other cases, but which were designed to give security to the 
 possession of those who claim under this class of titles. It is 
 enacted, by the statute, 21 Jao. 1, ch. 16, " that no person or 
 persons shall, at any time thereafter, make any entry into any 
 lands, tenements, or hereditaments, but within twenty -years 
 next after his or their right or title, which should thereafter 
 first descend or accrue to the same ; and in default thereof, 
 such persons so not entering, and their heirs, shall be utterly 
 excluded and disabled from such entry after to be made." * 
 The principle of this clause has been adopted by most all of the 
 American States. The Illinois statute of February 10, 1827 
 (and which took effect June 1, 1827), declares, " that no per- 
 
 ' Western Legal Observer, 1849, p. 46. 
 2 Ibid. 97, 129, 289. ' 
 
 ' Irving w. Brownell, 11 Illinois, 402; Spellman w. Curtenius, 12 Illinois, 409; 
 Cole V. Penoyer, 14 Hlinois, 159 ; Rawlings 6. Bailey, 15 Illinois, 178. 
 * Cruise, Digest, Title, 31 ; Prescription C. 2, sec. 14. 
 48 
 
566 STATUTES OF LIMITATION. 
 
 son 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 re90very of 
 such lands, &c., after the expiration of twenty years from the 
 time the title, right, or cause of action accrued. This statute 
 contains a saving clause in favor of infants, femes covert, lu- 
 natics, and non-residents of the State, 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 plaintiff may 
 enter ; therefore it is necessary for the plaintiff to show his 
 right to enter, by proving a possession within twenty years, or 
 account for the want of -it, under some of the exceptions con- 
 tained 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 
 subordination to the title of the rightful proprietor. These le- 
 gal principles and presumptions give rise to the doctrine of ad- 
 verse possession. To repel the presumption of a holding under, 
 or in privity with, the title of the true owner, it is essentially 
 necessary that the tenant of the freehold should show a posses- 
 sion under claim and color of title — under an apparent right. 
 Indeed, an adverse possession is nothing more or less than a pos- 
 
 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. 
 
 " Taylor v. Horde, 1 Burrow, 60. 
 
STATUTES OF LIMITATION. 567 
 
 session vinder claim and color of titjp . It need not be a right- 
 ful title — else the statutes of limitation are unavailing and 
 useless. The occupant can defend upon his title — without 
 resorting to the bar of the statute. It is therefore held, 
 that any evidence, written or oral, which gives color to the 
 claim of the tenant, will repel the presumption that he holds 
 the possession under the true owner. Any thing which clearly 
 defines the extent of the cla^, which professes to pass the 
 land, and is not obviously defective, will constitute the basis of 
 an adverse possession. That it need not be written, is mani- 
 fest from the fact, that parol gifts, disclaimers by tenants, and 
 expulsion of a tenant in common, and an exclusive possession 
 for twenty years afterwards, may be the foundation of an ad- 
 verse possession. And when written evidence of claim is relied 
 on, it need not purport to carry the legal title. Thus a con- 
 tract for a conveyance, or a deed without a seal, has been held to 
 be sufficient. It has been said that the title must be prima 
 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 
 Tlpon its face to have been executed under an aifthority, al- 
 though the power is not produced or proven. All that can be 
 demanded, is a title, whicli 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 malajide.^ 
 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 en- 
 try was made and continued, renders it adverse to the owner. 
 The only exceptions to this rule are those cases where a tenant 
 enters in privity with the title of the proprietor, but afterwards 
 places himself in a hostile attitude, and claims to hold the pos- 
 session in his own right, and in exclusion and defiance of the 
 person under whose title he entered. Such cases arise occa- 
 sionally between landlord and tenant, mortgagor and mortgagee, 
 vendor and vendee, trustee and cestui que trust, and tenants in 
 
 1 See Everett v. Smith, Busbee, Law, 228. 
 
568 STATDTBS OF LIMITATION. 
 
 common. Where this relation exists, any hostile holding is in 
 bad faith, yet a positive disclaimer of the title of the person un- 
 der 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 
 presumptiftn 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 compe- 
 tent power and authority to sell and convey the title of delin- 
 qiient tax-payers. If the tax deed relied upon in a given case 
 is declared by law to be conclusive, or even prima facie evi- 
 dence of title in the purchaser at the tax sale, then all of the 
 authorities 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 probandi 
 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 paramount title, and the statutes of limitation 
 would be an unnecessary prop to sustain the possession ; 2. 
 The statute bars the entry of the former owner in twenty years, 
 
STATUTES OP LIMITATION. 569 
 
 and the only question is, whether the tax deed confers a claim 
 upon and gives color of title to the possessor. Let this ques- 
 tion be answered by the authorities. 
 
 In Dresback v. McArthur,i a tax deed, which was not evidence 
 of title, was held to be admissible in evidence for the purpose 
 of defining the boundaries of the purchaser's claim, and thus 
 establish the extent of his possession. And in Waldron v. Tut- 
 tle,^ in speaking of the effect of a tax deed, the court re- 
 marked : " 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 pre- 
 sumption of law, that he who enters under a deed, enters claim- 
 ing according to his deed, and that his possession is adverse to 
 all other titl^, when a party relies upon an adverse possession 
 against the legal title, a deed by which nothing passed, may be 
 evidence of the extent and character of his possession."'' 
 
 But the case of Hearick v. Doe,* is in point upon this question. 
 It was an action of ejectment by the defendants in error against 
 the plaintiffs in error. The plaintiffs, in the court below, de- 
 duced 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 
 
 1 6 & 7 Ohio, 307. And see Flanagan v. Grimmet, 10 Grattan, 491. 
 
 2 4 New Hampshire, 371. 
 
 " It was, however, said in Wallingford v. Tiske (24 Maine, 38&), " 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.), 164. See also, to the same effect. Doe v. Hearick, 14 Ind. 242. 
 48* 
 
570 STATUTES OF LIMITATION. 
 
 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 laud until his death ; and that the defend- 
 ants below had been in the peaceable possession of the land 
 from the death of James until the time of the trial. The stat- 
 ute of 1824, made the tax deed evidence of the regularity of 
 the collector's doings alone, and not the anterior proceedings. 
 It further appeared, that Isaac Dunn was one of the mesne 
 grantees from the United States, under whom the plaintiffs 
 claimed title, and that at the time of the conveyance to Dunn, 
 tire premises were in the possession of the defendants below, 
 who claimed under tlie tax deed. Upon this state of facts, the 
 defendants below (plaintiffs in error), requested the court to 
 instruct the jury as follows, to wit: " 1. That if the jury be- 
 lieved, from tlie evidence, that the defendants had possession 
 of tlie 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 con- 
 stitute 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 commencernent of this suit, 
 they should find for the defendants. 2. That if the jury be- 
 lieve, from the evidence, that the defendants were in the pos- 
 session of said land, holding 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 Dunns and others, to Isaac Dunn, in 
 tliat case, the deeds from Piatt, and the Dunns and others, to 
 Isaac Dunn, are void, and said Isaac Dunn, as one of the les- 
 sors of the plaintiff, cannot recover in this suit." These in- 
 structions were refused, and the court instructed the jury as 
 follows : " That the collector's certificate of sale is not evidence 
 
STATUTES OF LIMITATION. 
 
 571 
 
 to prove that the land was advertised for sale, as required by 
 law ; and that, if there is no other evidence of such advertise- 
 ment, tlie tax title is void." The opinion of the court was 
 delivered by Davison, J.; "Tlie 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 obviously correct, and 
 are pertinent to the defence set up. It was shown by the evi- 
 dence, th^t Stephen and Frisby Hicks entered upon the land 
 in dispute, in the year 1828 ; and that they, and tl^se claim- 
 ing 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 the/ be- 
 lieved to be good. To constitute an adverse possession a right- 
 ful title is not required. It has been said, that ' whenever this 
 defence is set up, the idea of right is excluded ; the fact of pos- 
 session, and the quo animo it was commenced and continued, 
 are the only tests.' The title under which the defendants held 
 was not a nullity. It was derived from a collector's sale, and 
 a deed made in '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 col- 
 lector. 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 defendant's title, although it may have 
 been defective and not rightful, was gtill sufficient to support a 
 possession adverse to the title of the plaintiff's lessors. It 
 seems to us that an adverse possession in the defendants is 
 fully established by the evidence ; but whether it commenced 
 within twenty years gext 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 defend- 
 
 1 See Revised Statutes, 1824, sec. 12, p. 344. 
 
 2 Doe V. Himelick, 4 Blackford, 494. 
 
572 STATUTES OF LIMITATION. 
 
 ants. The possession of the defendants being' adverse at the 
 time the several deeds were executed and delivered to Isaac 
 Dunn, it follows that these deeds are void. The law is settled, 
 that where land is held adversely, the party out of possession, 
 although his right may be valid, is incapable of conveying to 
 another." The judgment was accordingly reversed. On 
 reading the opinion, it will be seen that the plaintiff's title was 
 defeated : 1st. Because the premises were in the adverse pos- 
 session of the defendants at the time of the convfyance to 
 Isaac Dun# ; and 2d. Because their right of entry was barred 
 by the statutes of limitation. 
 
 The Illinois statute of January 17, 1835, declares, "that 
 here'after no person who now has, or hereafter may have, any 
 right of entry into any lands, &c., of which any person ipay 
 be possessed by actual residence thereon, having 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 this State to sell such land for the 
 non-payment of taxes, or from any sheriff, marshal, or other 
 person, authorized to sell such land on execution, or under 
 any order, judgment, or decree of any court of record, shall 
 make any entry therein, except within seven years from the 
 time of such possession taken," &c. The same statute barred 
 all actions, real, possessory, ancestral, and miixed, and writs of 
 right under similar circumstances. The statute also provided, 
 that where the possessor acquired his title after taking posses- 
 sion, the limitation should begin to run from the time of acqui- 
 sition ; 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 posses- 
 sor, might connect these fragmentary possessions so as to make 
 one continuous possession. And the law also gave to infants, 
 married women, insane persons, those imprisoned, and those 
 out of the limits of the United States, and in the employment 
 of the State or United States, seven years to make their entry 
 or institute their suits, after the time when their respective 
 disabilities ceased. The act took effect by its terms, June 1, 
 
STATUTES OP LIMITATION. 573 
 
 1735.1 It was decided by the Supreme Court of Illinois, that 
 this statute was prospective in its operation, and that the bar 
 did not attach unless the possession continued seven years 
 after it took effect, June 1, 1835.^ 
 
 And it was held in Moore v. Brown,^ that seven years' pos- 
 session, iinder a tax deed void upon its face, was no bar to a 
 recovery by the rightful proprietor. Tlie 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 controversy seven years 
 prior to the commencement of the suit, under a tax deed pur- 
 porting 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 16, because 
 the law gave the owner iintil October 1 to pay his taxes, 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 facie evi- 
 dence of a compliance witli 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 officer authorized to sell the land in controversy, and 
 that the auditor was not so authorized in this instance. The 
 opinion was given by Judge Wayne, who said that, "Upon 
 comparing this section with the former laws of Illinois, we have 
 concluded, that the act of 1835, was not meant to give protec- 
 tion 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, 
 
 1 Laws, 1835, pp. 42, 43. 
 
 2 Rhinehart v. Schuyler, 2 Gilman, 528 ; Bruce v. Schuyler, 4 Gilman, 278. 
 ' 11 Howard, U. S. 414. 
 
574 ' STATUTES OF LIMITATION. 
 
 the deed is void upon its face, because the action of the auditor 
 is illegal, 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 iipon the face of the deed, that the auditor sold the 
 land short of the time prescribed by the act. It was not then 
 a sale according to law. That must have been as well known 
 by the purchaser as it was by the auditor. The law presumes 
 it to have been. The act under which the sale was made, was 
 not meant to prescribe the authority of the auditor only to 
 make sale, but also to give to purchasers full information of the 
 terms upon which a title could be acquired to land sold for the 
 non-payment of taxes. It was meant to put bidders at a tax 
 sale upon inquiry, whether or not the land was offered for sale 
 according to law. If they do not examine, and shall buy land 
 exposed to sale for taxes, against the law, they do so at their 
 own risk, and it will be presumed against them, that they know 
 that the deeds given under such circumstances are made in vi- 
 olation 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 taxe* due 
 upon the laud. Before the limitation law can operate, the de- 
 fendant must show a deed from some public officer, authorized 
 by law to sell such lands for the non-payment of taxes. Such 
 language does not apply to the general authority given by law 
 to an officer to sell land for taxes, but to his authority to sell 
 the particular land. The words of the act are, ' authorized to 
 sell such land for the non-payment of taxes.' Can it be said, 
 then, that when the auditor, as he did in this case, sells the 
 land for the non-payment of taxes short of the time, that the 
 law authorized him to sell — that he was an officer 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 suffi- 
 cient to induce the possessor of the land to think, and the law 
 
STATUTES OF LIMITATION. 575 
 
 to conclude, that there was a foundation for a possession under 
 a right which had been acquired by a purchase — not a mere 
 naked possession, but one taken in good faith by the purchaser. 
 The legislature intended to extend its protection to persons 
 yho had occupied land under a connej^ed title, prima facie 
 good against proof aliunde, which would rebut or destroy 
 such prima facie title." Judges Taney, Catron, and Grier, 
 dissented. 1 
 
 1 In relation to the legal presumption, that every man is bonnd to know the law, 
 which was relied upon to sustain the majority opinion. Chief Justice Taney says : 
 " It has no real foundation in fact, and has been adopted, because it is necessary, as 
 a general rule, for the purposes of justice. And laws are, therefore, often framed to 
 protect persons, who have acted in good faith in matters of property, from the con- 
 sequence of their ignorance of law. Thus, laws comfirming defective and void deeds 
 for real property, have frequently been passed in some of the States ; and their va- 
 lidity has been recognized by this court. Limitation laws, in regard to suits for real 
 estate, are founded on the same principle. For if the title papers of the party in 
 possession are legally executed, and made by persons who had the right to convey, 
 he does not need the protection of an act of limitation. The act before us was evi- 
 dently and especially intended to protect purchasers from the consequences of their 
 ignorance of the law. And with this object in view, it could make no difference, 
 whether the legal defect was 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 distinction 
 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 
 nuUity, 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 officer, authorized to sell for taxes. Frotil 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 required 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 con- 
 veyances, by a public officer, which the law intended to protect after a possession of 
 seven years." 
 
 Judge Catron said : " the land was assumed to be sold, by force of a lien for taxes 
 due ; such sale carried the true owner's title throughout, including the patent, re- 
 gardless of the fact in whose name the land was advertised and sold. So the laws 
 of Illinois expressly provide. The statute has no reference to titles good in them- 
 selves, but was intended to protect apparent titles, void in law, and to supply a 
 defence where none existed without its aid. Its object is repose. It operates inflex- 
 
576 STATUTES OF LIMITATION. 
 
 The construction of this statute came before the Supreme 
 Court of IlUnois, in Irving v. Brownell.^ The question arose 
 in an action of ejectment. The declaration was served Jan- 
 uary 18, 1848. The plaintiff deduced a regular title from the 
 United States. The defendant claimed title under a tax deed, 
 dated January 20, 1829, reciting a sale January 8, 1827. This 
 deed 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 com- 
 mencement 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 will be noticed presently], "There is, 
 however, another act, passed January 17, 1835, under the 
 second section of which (which is to be found in Revised Stat- 
 utes, 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 persgn authorized by the laws of the State to sell such 
 land for the non-payment of taxes, &c. The auditor's deed, in 
 this case, is just such a title. On its face it is perfect and com- 
 
 ibly, 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 adop- 
 tion of this rule. The law should be liberally construed. If the majority opinion 
 is correct, no possible conveyance, made by a public officer, which is void because 
 the requisite forms of law have not been complied with, can be maintained. All 
 must equally fall, if not good in themselves, when compared with the law, and the 
 acts required by law to be done before the sale is made." 
 1 11 Illinois. 402. 
 
STATUTES OF LIMITATION. 577 
 
 plete. No objection can be taken to its form, and if the pre- 
 requisites to the sale of the land by the auditor were shown, it 
 would, of itself, constitute a perfect and complete title to the 
 land ; and, without pi'oof 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 resi- 
 dence thereon, under such title, for seven years. If this were 
 not so, the statute would have no meaning ; for to require a 
 party, in such a case as this, to show that the prerequisites to 
 the sale for taxes, by the auditor, had been complied with 
 previous to such sale, would be to require him to make out a 
 perfect title, under the tax deed ; and in that event, he would 
 have no need to resort to proof of possession to protect him in 
 the enjoyment of the land. His title would be paramount to 
 any other without possession, and the act passed to protect him 
 in his possession, would be perfectly nugatory. The word 
 ' title,' as used in the act of 1835, should not, therefore, be con- 
 strued to mean a perfect title ; nor is the word, in its ordinary 
 acceptation, understood in such a restricted sense. There are 
 perfect titles, and apparent or imperfect titles. Even a naked 
 possession constitutes a species of title, though it may be the 
 lowest degree. The meaning of the word is, therefore, to be 
 ascertained from the connection in which it is used ; and there 
 can be no question, when the whole act of 1835 is examined, 
 that the legislature never intended, by the term ' connected 
 title,' a perfect and complete title. ' The title contemplated can 
 mean nothing more than such a 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 residence thereon, for seven years, when 
 this action was commenced ; he was not, therefore, in a situa- 
 tion to claim the protection of the act of 1835." On the other 
 hand. Judge Drummond, of the United States Court for the 
 District of Illinois, holds, that the authority of the officer, to sell 
 
 49 
 
578 STATUTES OF LIMITATION. 
 
 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 \a,w prima 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 w. 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 suffering the land to be sold for the taxes of 1844, 
 and purchasing it himself, was not equivalent to a payment of 
 the tax for that year. Trumbull, J., said : " This brings us to 
 a consideration of the first section of the act of March 2, 1839, 
 entitled ' An act to quiet 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 \inder consideration, 
 reads as follows : ' That hereafter every person in the actual 
 possession of land or tenements, under claim and color of title 
 made in good faith, and who shall, for seven successive years 
 after the passage of this act, continue in such possession, and 
 shall, also, during said time, pay all taxes legally assessed on 
 such land or tenements, shall be held and adjudged to be the 
 legal owner of said land or tenements, to the extent and accord- 
 ing to the purport of his or her paper title.' The object of this 
 statute clearly was to protect those who, supposing that they had 
 
 1 Ante, p. 564. 
 ^ 1 1 Illinois, 402. 
 « Ante, p. 576. 
 
STATUTES OP LIMITATION. 579 
 
 a good title to land, should take and continue the actual posses- 
 sion 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. Pie 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 stat- 
 utes in other States and in England, it has been uniformly 
 held, that a person relying upon his possession to defeat a re- 
 covery by the party having the legal title, must show that his 
 possession has been adverse ; that is, under claim of title, 
 although the stJPtutes are silent as to the character of possession 
 necessary to bar a recovery in such a case. It would seem, 
 therefore, that the legislature intended to require a different 
 sort of title to protect a party claiming under the seven year 
 law, from what had been required under the limitation act of 
 twenty years, else why require that claim and color of title, 
 made in good faith, should be essential to protect a party claim- 
 ing under the fornjier act ? We are bound to give these words 
 some meaning, •fend 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 reason- 
 able 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 th« circumstances should be such 
 that a reasonable man might know 'that the title he was ob- 
 taining 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 
 
580 STATUTES OF LIMITATION. 
 
 of title, made in good faitli,' must, l^ierefore, 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 unat- 
 tacked, as if no better title was shown — that is, a prima facie 
 title. Such a title, connected with seven years' actual posses- 
 sion and payment of taxes, becomes invincible. The auditor's 
 deed, offered in evidence in this case, as has already been 
 shown, was not such a title, as, unaccompanied with other 
 proof, it did not afford prima facie evidence of title, and it was 
 not, therefore, admissible in evidence, for the purpose of show- 
 ing 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 defend- 
 ant, for the reason that the evidence was not shown that he 
 had actual possession of the premises in dispute, for seven suc- 
 cessive years previous to the commencement of the action ; nor 
 does it show that he paid all taxes assessed upon the land, 
 during said seven years. The action was commenced 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 contem- 
 plated by the statute. As the legislature, in reducing the 
 time of possession, thought it expedient, as has alfeady been 
 shown, to require stricter proof of apparent title to the land 
 than was requisite under the old limitation of twenty years, so 
 also, and for the same reason, they have thought proper to 
 require that the possession under the act of 1839 should be 
 more open, marked, and manifest, than under the former law. 
 It would be unreasonable, when the legislature have used lan- 
 guage clearly manifesting a different intention, as to the char- 
 acter of the possession requisite under the two acts, to give the 
 same liberal construction to both. The legislature, undoubt- 
 edly, meant what they have said, that the possession must be 
 actual; that is, visible, open, and exclusive, either by an 
 
STATUTES OF LIMITATION. 581 
 
 enclosure, the erection of buildings, or in some other way, 
 actually appropriating and using the land, in such an open, vis- 
 ible manner, as to give the real owner notice that the person 
 in possession was occupying and claiming the land as his own. 
 The defendant is equally at fault, in his attempt to show pay- 
 ment 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 succes- 
 sive 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 
 pretended that possession was taken before the fall of 1840, 
 and there was no evidence of the payment of taxes, by the de- 
 fendant, 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 tlie chance of get- 
 ting a tax title upon the land. It is only lands upon which 
 taxes are not paid, that can be sold. In no view of the case did 
 the defendant put himself in a situation to have the benefit of 
 the act of March 2, 1839." [So where H. obtained claim and 
 color 6f title in 1842, and in 1845 conveyed to B., who allowed . 
 the land to be sold for the taxes of 1847, and bought it himself, 
 and paid the taxes from 1849 to 1856, inclusive, but in 1853, P., 
 the minor heir of a person who had died seized of the patent title, 
 redeemed from the sale of 1847, by paying to the clerk double 
 the amount of the purchase-money, and all the. taxes, with in- 
 terest for five years, being up to the time of the redemption, 
 it was held, that this redemption by P. entirely obliterated the 
 tax sale of 1847, and the payment of the taxes for the five 
 years by B., and that the grantees of B. could not defend un- 
 der the act of 1839, without showing payment of taxes for 
 seven years, exclusive of the five years from 1848 to 1853.^] 
 
 1 Holloway v. Clark, 27 Illinois, 484. 
 49* 
 
582 STATUTES OP LIMITATION. 
 
 • 
 
 The decision in Irving v. Brownell, has been substantially 
 followed by Judge Drummond. It has been held in his court, 
 1. That the tax deed must be prima facie evidence of title, in 
 order to avail the possessor under this statute. 2. That a tax 
 sale and certificate, under which the defendant entered, and 
 continued in possession seven years, did not constitute claim 
 and color ; and that if the tax deed was executed and delivered 
 within the seven years, in pursuance of the sale, it could not 
 have relation back to the sale or entry, so as to protect the pos- 
 session. 3. That a tax deed, void upon its face, did not give 
 color ; and this doctrine he applied, on repeated occasions, to 
 deeds which, upon their face, showed a sale on the wrong day, 
 and to a deed made in pursuance of a sale on the first Monday 
 in March, 1839, for taxes assessed in 1838, the sale being 
 made, as recited in the deed, after the repeal of the law of 
 1883. 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 pur- 
 chaser, or where he was in possession at the time of the assess- 
 ment and sale. 
 
 The decisions in Illinois, upon the construction of the limita- 
 tion acts of 1835 and 1839, have not given general satisfaction, 
 and it is very evident that the construction is a strained one. 
 Under the statute of January 6, 1827, the possession of the de- 
 fendant must be under claim and color of title, made ih good 
 faith ; but it is not necessary for the possessor to have any 
 written evidence of it.^ The statute of January 17, 1835, 
 required possession by actual residence under a connected 
 title, deducible of record, &c., while the act of March 2, 1839, 
 required in terms, 1. Actual possession for seven years; 2. 
 Under claim and color of title made in good faith; and, 3. 
 Payment of taxes for seven years. The apparent intention of 
 the Tegislature seems to have been to make the law of 1839 
 more effectual in protecting the bona fide settler, than the pre- 
 vious laws. The court, in Irving v. Brownell, have frustrated 
 this intention. Indeed, the law of 1839, according to that de- 
 
 1 Taylor v. Buckner, 2 A. K. Marshall, 18; McCall v. Neely, 3 Watts, 72. 
 
STATUTES OF LIMITATION. -583 
 
 cision, is a dead letter upon the statute book. " A title which, 
 tested by itself, would appear to be good," would, when accom- 
 panied by s&ven years' actual residence upon the laud, .be a 
 protection to the settler under the law of 1835. This is con- 
 ceded 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 
 
 — written evidence of the claim, and actual residence are un- 
 necessary. The law of 1835 requires actual residence under a 
 connected title, deducible of record, &c. ; and by the true rule 
 of construction, there must be a chain of paper title — prima 
 facie good, that is, when tested by itself, and not with the para- 
 mount title. If the latter test is requisite, the law would be 
 useless. Now, the law of 1889 was really designjed 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 enclosure, cultivation, 
 residence, or any of the various acts which, according to the 
 principles of the common law, are evidence of a possession. 
 And besides " claim and color of title," and " actual posses- 
 sion," 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, continued his 
 possession for seven years, made improvements upon the land 
 
 — without which he could not have actual possession — and 
 paid all taxes assessed against the land during that period, this 
 would afford conclusive evidence of an abandonment by the 
 owner of his paramount title. In the construction of this stat- 
 ute, 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 purchas- 
 ing of one who he knew had no title, or ■ with actual notice 
 of a paramount title in another, or with notice that his own 
 
584 STATUTES OF LIMITATION. 
 
 title was defective. He must believe his deed to be valid, and 
 that it conveys to him a good title to the land, although it may 
 turn out that another has a better title. He must enter under 
 a claim of right. His claim must be colorable, that is, give 
 him an apparent right. He must not be guilty of fraud. This 
 is all^the law requires.^ The statute ought to be construed lib- 
 erally — for it is intended for repose.^ [And in a recent case in 
 lUinois,^ it was held that a tax deed, regular on its face, was 
 sufficient to give color of title, under the act of 1839, and that 
 the purchaser was not bound to show that the prerequisites of 
 the statute had been complied with. So a quitclaim deed 
 gives a claim and color of title under the same act.] , 
 
 The conclusion to be drawn in view of this process of reason- 
 ing is, that while the act of 1835 was intended to embrace only 
 connected titles, deducible of record, which are 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 had, prima facie 
 or not, so that it was acquired in good faith. The only dis- 
 tinctive difference between the law of 1827 and' 1839 being, 
 that the latter reduces the time of limitation from twenty to 
 seven years, and as a compensation, requires paper title, and 
 payment of taxes. Indeed, as has been remarked, " possession 
 under claim and color of title, made in good faith," as used in 
 the act of 1839, is the identical definition of an adverse posses- 
 sion under the law of 1827. Thus much for general limitation 
 laws. 
 
 There are, however, special laws enacted with solg reference 
 to the protection of purchasers at tax sales. There is a statute 
 in Arkansas which provides, that " All actions against the pur- 
 chaser, his heirs or- assigns, for the recovery of lands sold by 
 any collector of the revenue for the non-payment of taxes, and 
 
 ^ McCaU 0. Neely, 3 Watts, 72; Moody?;. Fleming, i Georgia, 119; Den v. 
 Hunt, 1 Spencer, 493 ; Jackson v. Thomas, 16 Johnson, 301 ; State Bank v. Smy- 
 ers, 2 Strobhart, 28; Angell on Limitations, 435; Adams on Ejectment, 471. 
 
 * Conyers v. Kenan, 4 Georgia, 317 ; Fain v. Garthright, 5 Georgia, 6. 
 
 2 Holloway v. Clark, 27 Illinois, 484. 
 
STATUTES OF LIMITATION. 585 
 
 for lands sold at judicial sales, shall be broiiglit within five 
 years after the date of such sale, and not after." Another 
 statute of that State, in declaring the legal effect of a tax sale 
 and conveyance, provided, that " The deed so made by the 
 collector shall be acknowledged and recorded as other convey- 
 ances of lands, and shall vest in the grantee, his heirs and 
 assigns, a good and valid title, both in law and equitj^ 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 defendant set up a tax title under the law last 
 cited, and relied upon it as a paramount title, and as a suffi- 
 cient title under the statute of limitations above recited, but 
 judgment was rendered against him, and he prosecuted his 
 writ of error, and succeeded in reversing the judgment. On 
 the point as to the statute qf limitations, Judge Grier, who de- 
 livered the opinion, remarks : " In order to entitle the defend- 
 ant to set up the bar of this statute, after five years' adverse 
 possession, he had only to show, that he and those under whom 
 he claimed, held under a deed from a, collector of the revAue 
 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 com- 
 plied with, in order to make the deed a valid and indefeasible 
 conveyance of the title. If the court should fequire 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, before he could be entitled to it. Such a construc- 
 tion would annul the act altogether, which was evidently in- 
 tended to save the defendant from the difficulty, after such a 
 length of time, of showing the validity of his tax title." [Similar 
 views have led to like decisions in other States."'^] 
 
 The Pennsylvania statute provides, that " no action for the 
 recovery of land sold for taxes shall lie, unless the same be 
 
 1 13 Howard (U. S.), 472. 
 
 2 See Edgerton v. Bird, 6 Wisconsin, 527; Sprecker v. Wakelef, 11 Wisconsin, 
 532 ; Hill v. Kricke, 11 Wisconsin, 442 ; Vaucleaye v. Milliken, 13 Indiana, 105 ; D 
 V. Hearick, 14 Indiana, 245. 
 
586 STATUTES OF LIMITATION. 
 
 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 represent- 
 atives, 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 pur- 
 chaser takes possession ? In the first case in which this ques- 
 tion occurred, it was held that the period of limitation began 
 to run from the time of sale, by the express words of the act ; 
 and that, for the purpose of enabling the owner to sue and re- 
 cover in ejectment, when no one was in actual possession, the 
 law would presume the purchaser- in possession. That, how- 
 ever, 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 
 ofi'^ed to give it up to the plain tiff.^ In a later case, the ques- 
 tion was reconsidered, and the decision was, that the five years 
 began to run from the time the purchaser took possession, and 
 not from the sale ; becaiise, 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 v. Stevens, 3 Sergeant & Rawle, 298. 
 
 " Wain V. Shearman, 8 Sergeant & Rawle, 357. 
 
 8 Cranmer v. Hall, 4 Watts & Sergeant, 36 ; Bigler v. Kams, 4 Watts & Sergeant, 
 137 ; McCall v. Himebaugh, 4 Watts & Sergeant, 164 ; Bayard v. Inglis, 5 Watts & ■ 
 Sergeant, 465. 
 
 * Eobb V. Bo wen, 9 Barr, 71. 
 
IMPROVEMENTS. 587 
 
 CHAPTER XL. 
 
 OP COMPENSATION FOR IMPROVEMENTS MADE BY PERSONS IN 
 POSSESSION UNDER TAX TITLES. 
 
 According to the strict rule of the common law, the owner 
 recovers his land in ejectment, without being subjected to the 
 condition or obligation of paying for the improvements which 
 may have been made upon the land by an adverse possessor. 
 The improvements are regarded as annexed to and forming a 
 part of the freehold, and pass by the recovery, to the owner of 
 the latter. Every adverse possessor makes all improvements 
 upon the land at his peril, and upon eviction, is entitled to no 
 remuneration whatever. It is even held, that they do not con- 
 stitute such a consideration as will support an express promise 
 by the owner to pay for them.^ The only instance in which the 
 commonJaw 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 eqifita,ble set-off, and the value thereof recouped.^ The rule 
 of the civil law was more equitable in its character. It was, 
 that the bona fide possessor was entitled to be reimbursed, by 
 way of indemnity, the expenses of beneficial improvements, so 
 far as they augmented the property in value.^ The common 
 
 1 3 Kent, Com. 334 ; 5 Johnson, 272 ; 1 A. K. Marshall, 444. 
 
 2 2 Johnson, Cases, 441 ; 1 Johnson, Cases, 281 ; 1 Johnson, Ch. 387 ; 8 Whea 
 ton, 81, 82. 
 
 8 2 Kent, 336. 
 
588 IMPROyEMENTS. 
 
 law proceeds upon the assumption, that it is the duty of govern- 
 ment to assist the rightful owner of property in recovering the 
 possession of it, when he has heen unjustly deprived of it ; and 
 that he ought not to be clogged with onerous conditions in the 
 prosecution of his remedy ; that the improvements may be of 
 such a costly character as to be beyond the ability of the claim- 
 ant to refund ; that he may have a just affection for the prop- 
 erty on account of home associations connected with it ; that it 
 may have answered all of his necessities and desires in its orig- 
 inal 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 pur- 
 chasing,-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 general rule, this reasoning ?s entitled to great 
 weight, but a distinction ought to bcmade between ignorance 
 and want of 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 Illinois held, that where a deed — commonly 
 called a quitclaim — purporting only to convey the present 
 interest of the grantor, was executed and delivered at a time 
 when he had no title, in law or equity, to the land, and he 
 afterwards acquired the legal title, the subsequently acquired 
 title enured to the benefit of his grantee. Upon the faith of 
 that decision, a title is acquired to, possession taken of, and 
 improvements made upon land similarly situated. Afterwards 
 the Supreme Court overrule their former opinion, an innocent 
 
 1 Ante, pp. 576, 577. 
 
IMPROVEMENTS. 
 
 589 
 
 purchaser is deprived of his land, and the fruits of his labor. 
 Who will say, under such circumstances, 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, eqixity 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 de- 
 fendant is allowed to deduct therefrom the full amount of im- 
 provements made to the benefit of the estate by him, and thus, 
 to recoup them from the rents and profits.^ And where the 
 true owner of an estate holds only an equitable title thereto, 
 and seeks the aid of a court of chancery to enforce it, this aid 
 will only be given on the terms of making compensation for the 
 beneficial improvements made by the defendant.^ 
 
 And it is very strongly intimated by Judge Story, that the 
 courts will go one step further, and sustain a bill brouglit by 
 the possessor to recover against the owner, after a suit at law, 
 the plaintiff's expenditures for improvements.* Upon a review 
 of all the cases which have been decided in this country, in 
 whatever form they may have been presented to the court, it 
 may be safely affirmed that equity will grant relief to the bona 
 fide possessor who has made lasting and valuable improvements 
 upon the land.^ The right of a bona fide possessor to sustain 
 
 1 6 Johnson, Ch. 68, 69 ; 1 Schoales & Lefroy, 73 ; 1 Story's Eq., sec. 388 ; 
 Bradley v. Suyder, 14 Illinois, 263. 
 
 ■^ Bright V. Boyi, 1 Story, 478. 
 
 " Bright V. Boyd, 1 Story, 478. 
 
 * Bright V. Boyd, 1 Story, 478. 
 
 5 Parkhurst v. Van Cortlandt, I Johnson, Ch. 274 ; Botsford v. Burr, 2 Johnson, . 
 Ch. 405 ; Benedict v. Gilman, 4 Paige, 58 ; Stuke's case, 1 Bland, 57 ; Southall v. 
 McKeand, 1 Washington, Va. 336 ; Dellet v. Whitner, I Cheves, 213, part 2 ; . 
 
 50 
 
590 IMPROVEMENTS. 
 
 a bill for compensation, after an eviction at law, is denied in 
 Winthrop v. Huntington.^ Where the occupier has been guilty 
 of fraud, or had notice of the defect in his own title, or of a su- 
 perior outstanding title, he is not entitled to compensation.^ 
 Such is believed to be the equity rule in regard to compensa- 
 tion for improvements made by a possessor who has acted in 
 good faith.^ 
 
 For the purpose of remedying the injustice of the common 
 law rule, and assimilating as nearly as possible to the more 
 just and equitable principles of the civil law in this respect, 
 many of the States have from time to time enacted laws for the 
 protection of the bona fide occupant, and securing to him full 
 compensation 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 constitu- 
 tional, standing upon equitable principles and public policy for 
 their support.* They are sustainable upon the same principle 
 that statutes of limitation and acts curing or confirming void 
 and defective titles, are held valid, where they do not affect 
 
 Gillis V. Martin, 2 Devereux, Ch. 470 ; Withers v. Yeadon, 1 Richardson, Ch. 324 ; 
 Kennedy v. Kennedy, 2 Alabama, 571 ; Goodwin v. Lyon, 4 Porter (Alabama), 297 ; 
 Herring v. Pollard, 4 Humphreys, 362 ; PuUiam v. Robinson, 1 Monroe, 228 ; 
 Stevenson v. Dunlap, 7 Monroe, 134 ; Ballard v. Stephenson, 7 Monroe, 364 ; Ham- 
 ilton V. Hamilton, 5 Littell, 28 ; MeCampbell v. McCampbell, 5 Littell, 92 ; Richard- 
 son V. McKinson, 6 Littell, 320; Thompson v. Mason, 4 Bibb, 195; Hewitt v. 
 Berryman, 5 Dana, 162 ; Taylor v. Whiting, 9 Dana, 399 ; Barlow v. Bell, 1 A. K. 
 Marshall, 246 ; Griffith u. Depew, 3 A. K. Marshall, 177 ; Bell </. Barnet, 2 J. J. 
 Marshall, 5)6; Hawkins v. Lowry, 6 J. J. Marshall, 55. 
 
 1 3 Ohio, 335. 
 
 ^ Van Home v. Fonda, 5 Johnson, Ch. 388 ; Putnam v. Ritchie, 6 Paige, Ch. 390 ; 
 McKim ii. Moody, 1 Randolph, 58 ; Morris v. Terrell, 2 Randolph ; 6 Pomeroy v. 
 Lambeth, 1 Iredell, Ch. 65; De Brahm o. Fenwick, 1 Desaussure, 114; Belton v. 
 Briggs, 4 Desaussure, 465 ; Dellet v. Whitner, 1 Cheves, 213', part 2 ; Harrison v. 
 Fleming, 7 Monroe, 537 ; Harrison o. Baker, 5 Littell, 250; Scroggs a. Taylor, 1 
 A. K. Marshall, 247 ; Patrick v. 'Marshall, 2 Bibb, 40. 
 
 " Ross V. Irving, 14 Illinois, 176-178. 
 
 " Ross V. Irving, 14 Illinois, 171, and cases there cited. The only cases which 
 maintain the opposing doctrine are Nelson v. Allen, 1 Yerger, 360, and Green v. 
 Biddle, 8 Wheaton, 1. 
 
IMPROVEMENTS. 591 
 
 i 
 
 vested rights. The owner is bound to take notice of the general 
 law, which prescribes the time within which, he must malte 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. 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 improvements made 
 under tax titles, and what kind of a tax title will constitute a 
 proper basis for a claim of compensation, will depend upon the 
 peculiar phraseology of each particular statute. The only case 
 reported where a claim for improvements was set up by one in 
 possession under a tax title, after eviction, is that of Ross v. 
 Irving.i The statute of Illinois exempted the adverse possessor 
 of land held under " a plain, clear, and connected title in law 
 or equity, deducible of record, without any actual notice of a 
 paramount title," &c., from an action for the mesne profits, and 
 gave him compensation for lasting and valuable improvements 
 made prior to the receipt of such notice. In the case cited, 
 where the defendant was in possession, and made improvements 
 under a tax deed which was not evidence per se of title, and 
 who failed to prove a compliance .by the officer, with the re- 
 quirements of law, in the making of the sale and conveyance, 
 and where the Supreme Court had held, that his deed was not 
 even " a claim and color of title " under the limitation law of 
 1839, it was held, that he was entitled to the benefit of this 
 law. It would therefore seem to be the settled rule in Illinois, 
 that every possessor under a tax title, of whatever grade, is pro- 
 tected in his improvements, and exempted from a suit for the 
 back rents and profits. 
 
 The Pennsylvania statute of April 8, 1804, declared : ." That 
 
 1 14 Illinois, 171. 
 
592 IMPROVEMENTS. 
 
 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 insana, and residing 
 within the United States, five years after such disability is re- 
 moved, shall be allowed such person, or persons, their heirs or 
 legal representatives, to bring their suit or action for recovery 
 of the lands so sold ; but where the recovery is effected in such 
 case, the value of the improvements made on the land so sold, 
 after the sale thereof, shall be ascertained by the jury trying 
 the action for recovery, and paid by the person or persons re- 
 covering the same, before he, she, or they shall obtain posses- 
 sion of the land so recovered." ' In the consti-uction of this 
 statute it has been held, that the purchase.r is entitled to com- 
 pensation 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 redemption from the sale.^ 
 Where the laud 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 pur- 
 chaser, and cannot recover compensation for his improvements. 
 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 ille- 
 gality in the sale, is not entitled to compensation.^ It was, 
 however, held that, although the sale of land exempt from tax- 
 
 l 1 Sergeant & Rawle, 38 ; 4 Smith, Laws, 202, sec. 3. 
 
 ^ Creigh v. Wilson, 1 Sergeant & Eawle, 38. 
 
 8 M'Kee u. Lamberton, 2 Watts & Sergeant, 107 ; Hockenbury v. Snyder, 2 
 Watts & Sergeant, 240 ; Miller v. Keene, 5 Watts, 350 ; Cranmer v. Hall, 4 Watts 
 & Sergeant, 36 ; Lambortson v. Hogan, 2 Barr, 22. 
 
IMPROVEMENTS. 593 
 
 ation was absolutely void, yet the purchaser was entitled to the 
 value of his improvements under this statute.^ 
 
 In another case, it was held, that the purchaser was entitled 
 to recover the value of his improvements, wherg the taxes for 
 which the land was sold had been paid before the sale.^ This 
 latter ease luys down the broad principle, that under this 
 statute, compensation is incident to every recovery for irregu- 
 larity in the assessment, process, or sale; in fine, that it was 
 designed for the protection of every bona fide purchaser at a 
 tax sale, who has expended money or labor on the faith of the 
 title he acquired.^ [And in Liggett v. Long,* it was held, that 
 although the treasurer omitted to sign the deed, but attached 
 to it the receipt of the tax rents, and the surplus due, and 
 acknowledged the deed in open court, which acknowledgment 
 was duly certified on the deed and entered on the records of 
 the court, the purchaser was not deprived of the benefit of im- 
 provements made on the faith of his title. But in Robson v. 
 Osborn,^ it was held, that a tax purchaser was not a possessor 
 in good faith, and not entitled to improvements, if his deed 
 was void, and if by proper diligence he might have known this 
 want of power in the officer to sell.] And it seems to be con- 
 ceded, that, in all cases where the purchaser knew of the ille- 
 gality of the sale, he is entitled to no compensation whatever. 
 Bu,t it is difficult to reconcile these cases upon principle. 
 Whether the land is seated, exempted from taxation, or the 
 taxes had in fact bseu paid at the time of the sale, the officer 
 had no authority to sell, and all of these cases should stand 
 upon the same footing in construing the statute. The only 
 conceivable difference is, that where land is seated, the pur- 
 chaser is bound, at his peril, to take notice of the fact. This 
 is undoubtedly the rule in reference to a purchase made by one 
 
 1 Coney v. Owen, 6 Watts, 435. In this case Judge Kennedy dissented. 
 
 2 Gilmore v. Thompson, 3 Watts, 106. 
 
 s See also. Coney v. Owen, 6 Watts, 436. 
 * 7 Harris (Penn.), 499. 
 6 13 Texas, 307. 
 
 50* 
 
594 
 
 IMPROVEMENTS. 
 
 individual from another, where a third person is in possession 
 under the vendor, or even adversely ; but no rule is remem- 
 bered which devolves upon a bidder at a tax sale, before any 
 right has become vested jn him, and when the State is offering 
 lands for sale, in hostility to the title of the true owner, to 
 make inquiry. The fair construction of the statute would be, 
 to compensate all purchasers at tax sales, for money and labor 
 expended in improving the land purchased, unless the illegal- 
 ity of their titles appears upon the face of the proceedings 
 under which they claim. 
 
OF THE INTERPRETATION AND CONSTRUCTION, ETC. 
 
 59^ 
 
 CHAPTER XLI. 
 
 OF THE INTERPRETATION AND CONSTRUCTION OF STATUTES 
 AFFECTING REAL PROPERTY. 
 
 Rights of property depend for their existence upon natural 
 law. But the evidence of those rights, and the remedies to 
 enforce and protect them, are the inventions of civil society. 
 Lord Camden remarks, that " the great end for which men en- 
 tered 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, execu- 
 tions, forfeitures, taxes, &c., are all of this description, wherein 
 every man, by common consent, gives up that right for the sake 
 of justice and the general good." i 
 
 The American constitutions, as we have seen, furnish many 
 safeguards for the protection of property from legislative spolia- 
 tion and private invasion. The government can take it but in 
 one or two ways, viz. : for a public tax, levied upon principles 
 of ^ust equality, and for public use, upon making just compen- 
 sation to the owners. And it is universally conceded to be the 
 duty of the government to furnish adequate remedies to the 
 owner, not only to recover the possession of it when wrongfully 
 or unjustly withheld from him ; but, also, to protect him in the 
 possession and use of it, by the 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 col- 
 
 1 Entick V. Carrington, 19 Howell's' St. Tr. 1066. 
 
596 OP THE INTERPRETATION AND 
 
 lection of just debts, by subjecting the estate of the debtor to 
 theii' payment. The only additional power over private prop- 
 erty, which may be exercised by strangers, is that implied in 
 the common-law riiaxim, " Salus populi est suprema lex." 
 
 There is an implied assent on the part of every member of 
 socie'ty, that his own individual welfare shall, in case of neces- 
 sity, yield to that of the community ; and that his property 
 shall, under certain circumstances, be placed in jeopardy, or 
 even sacrificed, for the public good. The instances given of 
 this class of powers are, the pulling down of private houses, or 
 the raising of bulwarks upon private property, for the necessary 
 defence of the State against a public enemy, and the demolition 
 of a house, in a populous place, for the purpose of arresting the 
 progress of a fire, and preventing a general conflagration. 
 Upon the same principle, a private mischief must be endured, 
 rather than a public inconvenience ; thus, if a public highway 
 be out of repair, and impassable, a passenger may lawfully go 
 over the adjoining land. In every instance above given, an in- 
 terference with private property is obviously dictated and justi- 
 fied summa necessitate — by State or private necessity — by a 
 due regard to the public good and" safety, or by the immediate 
 urgency of tlie occasion. Tlie sale of land to pay debts is an 
 exception, that being founded upon 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 strictly ■ — especially 
 where they are penal in their character or effects.^ 
 
 The various rules of interpretation and construction wMch 
 have a direct bearing upon this class of statutes, have been in- 
 cidentally cited and discussed in the' preceding portions of this 
 work, especially those which govern statutes conferring powers 
 to be exercised over real property. It is now proposed -^ con- 
 trary to the original plan of the work — to conclude this chap- 
 
 1 Smith's Com. 854 ; Sharp v. Speir, 4 Hill, 76 ; Smith v. Spooner, 3 Pickering, 
 229 ; Wales v. Stetson, 2 Massachusetts, 146 ; 9 Gill & Johnson, 479 ; Broom's 
 Legal Maxims, 3-6 and 465 ; ante, Chapters 1 and 2. 
 
CONSTRUCTION OF STATUTES. 597 
 
 ter with a concise statement of those rules which are generally 
 applied in the interpretation and construction of statutes of 
 every class, inasmuch as they indirectly aid in arriving at a 
 proper conclusion in the exposition of statutes affecting real 
 estate. 
 
 " There is a primeval principle in man which ever urges him, 
 with irresistible power, to represent outwardly that which 
 moves him within ; a pressing urgency of utterance." ^ What- 
 ever may be our thoughts, emotions, will, desires, or commands, 
 the object we have in view can alone be accomplished by resort- 
 ing to outward manifestations. There is no direct communion 
 between the minds of men. Signs are the only mediums of 
 communication. " The signs which man tises — the using of 
 which implies intention — for the purpose of conveying ideas or 
 notions to his fellow-creatures, are very various ; for instance, 
 gestures, signals, telegraphs, monuments, sculptures of all 
 kinds, pictorial and hieroglyphic signs, the stamp on coins and 
 seals, beacons, buoys, insignia, ejaculations, articulate sounds, 
 or their representatives — that is, phonetic characters, on stones, 
 wood, leaves, paper, &c., — entire periods or single words, 
 names in a particular place-, and whatever other signs — even 
 the flowers, in the flower language of the East — might be 
 enumerated." ^ A tear, a blush, or a contortion of the counte- 
 nance, may convey the emotion or thought of a human being, 
 as clearly as aii articulate sound, or a written statement. These 
 signs are, therefore, used to convey ideas ; and interpretation, 
 in its widest sense, is the discovery and representation of the 
 true meaning of them. The true meaning of any sign is that 
 which the person who used it is desirous of expressing. In 
 legal literature, we seldom-deal with any other signs than words, 
 written or spoken. All laws were originally written, or have 
 been reduced to writing by judges and commentators. Statute 
 laws, of course, are invariably in writing or print. The signs 
 used by the legislature, are words. With the interpretation of 
 
 1 Lieber's Legal and Political Hermeneutics, chap. 1, sec. 2. 
 
 2 Lieber, chap. 1. sec. 3. 
 
598 OF THE INTERPRETATION AND 
 
 such signs as are used by the law-making body, we purpose to 
 deal. There is a manifest distinction between intejrpretation 
 and construction, though they are frequently confounded, and 
 used as synonymous terms. Interpretation is tlie 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 communicate. Construction, on the other hand, is the 
 drawing of conclusions, respecting subjects that lie beyond the 
 direct expression of the text — conclusions which are in the 
 spirit, though not within the letter of the text. Construction 
 must, therefore, be bridled by the true principles of interpreta- 
 tion, else it becomes a dangerous weapon in the hands of a 
 judge, giving to him a species of legislative discretion. The 
 legislature may iise words which every one understands, and 
 which, for the case put in the text, are sufficiently clear ; but 
 if you were to ask each individual composing that body, as to 
 the exact limits to which he wishes to see the rule extended, or 
 put to him a number of cases in progressive connection with 
 each other, he himself would be doubtful, in most instances, 
 how far he would extend the application of the rule. The con- 
 sequence is, that interpretation ma^ 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 ex- 
 tended sense ; it is this which creates the necessity of interpre- 
 tation. The human mind is incapable of anticipating, in an 
 order or law, every possible combination of facts which may 
 arise, and fix a definite rule by which every case may be gov- 
 erned ; this gives rise to the doctrine of construction. Inter- 
 pretation gives effect to the intention of the legislature, as mani- 
 fested by a sound exposition of the words of the text ; while 
 construction resorts to analogies, and treating the text as simply 
 putting cases by way of example, holds, that all cases which 
 stand upon the same footing of reason aud 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 
 
CONSTRUCTION OF STATUTES. 599 
 
 that discretionary power which the doctrine of construction gives 
 rise to, make some remarkable decisions. Indeed, the tendency 
 of the doctrine is to drive the judges to extremes, neither of 
 which is permissible on general principles. 
 
 A statute may be defined to be the written will of the legisla- 
 tive 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, public or private. A general or 
 public act is a universal mle, that regards the whole commu- 
 nity ; of which the courts are bound to take notice jiidicially 
 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 persons and private concerns. Of these, the 
 courts are not bound to take notice, unless they be formally 
 shown and pleaded. Statutes are also either declaratory of the 
 common law, or remedial of some defects therein. A declara- 
 tory statute is one passed for the purpose of putting an end to 
 a doubt as to what the common law was at the time of its en- 
 actment, 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 
 which are made to supply the defects, or abridge the superflui- 
 ties which experience may prove to exist in the common law. 
 This class is subdivided into enlarging statutes, by which the 
 common law is rendered more comprehensive and extended 
 than it was before ; and into restraining statutes, whereby the 
 common law is narrowed down to that which is regarded by the 
 legislature as just and proper. The term remedial is also ap- 
 plied to statutes which confer upon parties a new right and a 
 new remedy to enforce it, or which simply recognize a common- 
 
600 OF THE INTERPRETATION AND 
 
 law right, and give to the injured party a cumulative remedy .^ 
 Another division of statutes is into tempoi-ary and perpetual. 
 A temporary statute is one which is limited in its duration at 
 the time of its enactment ; whereas a perpetual statute is one 
 which is not limited by express words, and, consequently, con- 
 tinues 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 tlie'officer evidence of the due 
 and legal execution of the deed, is an affirmative statxite, and 
 does not take away the conm:ioii-law mode of proving the exe- 
 cution of the deed by the subscribing witnesses, or in any other 
 mode known to the common law. A negative statute, on the 
 other hand, is expressed in negative terms, and so controls the 
 common law, that it has no force in opposition to the statute. 
 Examples of this class of statutes may be thus given : The re- 
 cording 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 brought where- 
 by the defendant shall be charged with the debt of another, 
 unless the promise is in writing and signed by the defendant ; 
 and tlie stamp acts provide that no written instrument shall be 
 received in evidence, unless regularly stamped, &c. In all of 
 these instances, the statutes supersede the common law — 
 repeal itby implication, because both cannot be enforced. And, 
 lastly, some statutes are called penal. 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 corporations or in- 
 dividuals in derogation of common right ; those made in dero- 
 gation of the common law ; those which affect property ; those 
 which are technically called disabling acts ; and statutes which 
 impose restrictions upon trade or common occupations, or 
 
 1 1 Blackstone, Com, 85, 87. 
 
CONSTRUCTION OF STATUTES. 601 
 
 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 violation of the established maxims 
 of the common law. The- civil law division of statutes recog- 
 nized but tljree classes, real, personal, and mixed. Real stat- 
 utes 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 work on " Legal and Political Her- 
 meneuticSj" thus defines the different species of interpretation : 
 1. Close — where for just reasons connected with the formation 
 and character of the text, we are induced to take the words in 
 their narrowest meaning. 2. Extensive — that which induces 
 us towards the adoption of the more or most comprehensive 
 signification of the words. 3. Extravagant — that mode of in- 
 terpretation which substitutes such meaning as is evidently 
 beyond the true meaning, and hence not genuine. 4. Free or 
 unrestricted — that which proceeds simply on the general prin- 
 ciples of interpretation 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 precon- 
 ceived views, or some object he desires to arrive at. This 
 seems to be frequently adopted as the rule of action by judges 
 and lawyers. It seems to be an artful rule, devised by the cun- 
 ning,' to prove that a text means something which never entered 
 into the mind of the author of it. Aiid, 7. Authentic — or 
 that which proceeds from the author himself Professor Lieber 
 also divides construction into close, comprehensive, and tran- 
 
 51 
 
602 OF THE INTERPRETATION AND 
 
 scendent or extravagant, and thus defines them : 1. Close — 
 that which inclines to the directest possible application of the 
 text, or the principles it involves ; to new or unprovided cases, 
 or to contradictory parts — in short, to subjects which lie be- 
 yond the words of the text. 2. Comprehensive — or that which 
 inclines to an extensive application of the text, or the princi- 
 ples which it involves ; to new, unprovided, or not sufficiently 
 specified cases or contradictions. 3. Transcendent — or that 
 which is derived from, or founded upon, a principle superior to 
 the text ; and, nevertheless, aims at deciding on subjects be- 
 longing to the province of that text. 4. Extravagant — is that 
 which 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 character, the 
 more it approaches to this. The difference between transcend- 
 ent and extravagant construction is this :' the former remains, 
 in spite of its transcendency, within the spirit of the law, or 
 document to be construed ; while extravagant 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 con- 
 struction, Lieber proceeds to note the following principles of 
 interpretation, to be applied to every kind of text. 1. We 
 must convince ourselves of the genuineness of the text to be 
 interpreted. 2. No sentence, or form of words, can have 
 more than one true sense, and it is this we must inquire for. 
 This is the basis of all interpretation. Interpretation without 
 it has no meaning. Every man or body of persons making use 
 of words, does so in order to convey a certain meaning ; and 
 to find tliis precise meaning is the object of all interpretation. 
 To have two meanings in view is equivalent to having no 
 meaning — and amounts to absurdity. 3. In no case of hu- 
 man life, in which we are called upon to act — to apply rules 
 or to understand what others say — can we dispense with com- 
 mon sense and good faith ; but they are peculiarly requisite in 
 interpretation, because its object is to discover something that 
 
CONSTRUCTION OV STATUTES. 603 
 
 is doubtful, obscure, vailed ; which therefore may admit of differ- 
 ent explanations. If without common sense, we make, even of 
 strict syllogism, an instrument, apparently, to prove absurdi- 
 ties, how much more are those two ingredients of all honesty 
 necessary in interpretation. Common sense and good faith are 
 the leading stars of all genuine interpretation. Good faith and 
 interpretation means that we conscientiously 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 
 subtei'fuges, 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, ety- 
 mological, or classical, if the text be sxich that we cannot faii-ly 
 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 contemporaneous interpreta- 
 tion is founded upon this principle. 7. If technical terms, be- 
 longing 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 di- 
 rect. 9. The special, particular, and inferior, cannot militate 
 with the general and superior. 10. We must endeavor to 
 arrive at the sense in which words are used, as much as possi- 
 ble from the words themselves, and bring to our assistance ex- 
 traneous principles, rules, or other aid, in that measure 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 unu- 
 sual ; the easy to the difficult ; the intelligible to the unintelli- 
 gible. 12. We are to follow the special rules of interpretation 
 which have been prescribed by proper authority. 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 
 
604 OP THE INTERPRETATION AND 
 
 not understand the words, we try whether its connection in a 
 sentence will shed light upon it ; if we do not succeed, we en- 
 deavor to derive assistance from the period ; if this be unavail- 
 ing, we examine the whole instrument or work ; if that leads 
 us to no satisfactory result, we examine other writings, &c., of 
 the same author ; and if that does not suffice, we resort to con- 
 temporaneous writers, or declarations, or laws similar to that 
 which forms our text. 
 
 The rules of construction laid down by Lieber are, 1. That 
 the principles of interpretation, when applicable at all, consti- 
 tute valid rules of construction. 2. That the main guide of 
 construction is analogy, or rather reasoning by parallelism. 3. 
 That tlie 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 understood to 
 demand impossible things. 6. That privileges, or favors, are 
 to be construed so as to be least injurious to the non-privi- 
 leged or unfavored. 7. That the more the text partakes of the 
 nature of a compact, or solemn agreement, the closer ought to 
 be its construction. 8. That a text imposing a performance, 
 expresses the minimum, if the performance is a sacrifice to the 
 performer ; the piaximum, if it involves a sacrifice or suffer- 
 ance 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 construction must be in certain cases. 
 12. That nothing contributes more to the substantial protection 
 of individual liberty, than an habitually close interpretation 
 and construction. 13. It is important to ascertain whether 
 the words were used in a definite, absolute, and circumscribed 
 meaning, or in a generic, relative, or expansive character. 14. 
 Let the weak have the benefit of a doubt, without defeating the 
 general object of the law ; let mercy prevail, if there be real 
 doubt. 15. A consideration of the entire text or discourse is 
 
CONSTRUCTION OF STATUTES. 
 
 605 
 
 necessary, in order to construe fairly and faithfully. 16. Above 
 all, be faithful#n all construction. It is not the object of con- 
 struction to force extraneous matter into a text. The same 
 principles constitute the basis of interpretation and construc- 
 tion in the civil code.^ The best classification of the several 
 species of construction and interpretation is that of Rutherford 
 — he divides them into literal, rational, and mixed. 1. Lit- 
 eral — where we collect the intention from the words only, as 
 they lie before us. 2. Rational — where the words do not ex- 
 press that intention perfectly, but exceed, or fall short of it, 
 and we are to collect it from rational or probable conjecture 
 only. 3. Mixed — where the words, though they do express 
 the intention when they are rightfully understood, are of them- 
 selves 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 simi- 
 lar to those laid down by Liebe'r. 
 
 The common law, though it resorts to the same principles, 
 for the purpose of ascertaining the true intent of the law-giver, 
 is more simple in the classification of the species. There are 
 but two modes of interpreting and construing statutes known 
 to that law — liberally and strictly. To expound a statute 
 strictly, is to adhere precisely to the words or letter of the law, 
 which includes, of course, fewer particulars than a freer con- 
 struction. To interpret it liberally, largely, or comprehen- 
 sively, is to carry the meaning of the law-giver into more com- 
 plete 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 partic- 
 ular 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 profes- 
 sion. The author is aware that there are many other rules of 
 
 1 Smith's Commentaries, ch. 12; Vattel'sLaws of Nations, ch. 17. 
 51* 
 
606 OF THE INTERPRETATION AND 
 
 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. 
 
 MAXIMS AND RULES OF INTERPRETATION AND CONSTRUCTION. 
 
 1. Courts have notliing to do with the propriety or expe- 
 diency of a statute. 3 Scammon, 153 ; 8 Johnson, 51. 
 
 2. The rules and maxims of interpretation and construction, 
 laid down by the sages of the common law, must be adhered 
 to. 3 Scammon, 157 ; 7 Cranch, 52 ; 2 United States, Oond. 
 412 ; 1 Kent, Com. 465 ; 10 Johnson, 479. 
 
 3. The common law enters largely into the construction of 
 every statute, and a just interpretation is ever controlled by 
 that law. 10 Johnson, 586. 
 
 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 ; 1 P. Williams, 252 ; 1 Saunders, 240 ; 
 10 Johnson, 279 ; Douglas, 27 ; 1 Burrows, 445 ; 1 Kent, 
 Com. 464 ; 6 Bacon, Abr. 383 ; Coke, Littleton, 272, b ; 
 Plowden, Com. 365 ; 3 Coke, 7 ; 4 Coke, 4. 
 
 5. When a power is given by statute, but the means of exe- 
 cuting it are not prescribed, the power must be executed ac- 
 cording to the course of the common law ; and where the pro- 
 visions of the statute are general, it is subject to the control 
 and order of th-e common law — in other words, the statute is 
 to receive such a construction as may be agreeable to the rules 
 of the common law, in cases of that nature. 6 Bacon, Abr. 
 Title Statute, 383, 384. 
 
 6. When a word is used in a statute, which has a well- 
 known and definite meaning at common law, it is presumed 
 that the legislature intended to use it in that sense. 6 Bacon, 
 Abr. 383 ; 6 Modern, 143 ; 1 New Hampshire, 565, 556 ; 4 Gil- 
 man, 205, 206 ; 8 Iredell, 147 ; Dwarris, 696. 
 
 7. When a statute makes an innovation upon the established 
 principles of the common law, it must be strictly construed. 
 
CONSTRUCTION OP STATUTES. 607 
 
 16 Johnson, 7 ; 2 Gilman, 184 and 429 ; 4 Binney, 116 ; 5 
 Denio, 119 ; 1 Barbour, 65 ; 3 Kelly, 31 ; 4 Gilman, 20 ; 
 4 Massachusetts, 471 ; 15 Massachusetts, 205 ; 9 Pickering, 
 496 ; 18 Pickering, 284 ; 3 Stewart & Porter, 13 ; 2 Hum- 
 phreys, 320. 
 
 8. The power to construe statutes is vested in the courts 
 alone. 1 Blackstone, Com. 87, note 26; 7 Johnson,. 494; 
 7 Johnson, 508, 509. 
 
 9. The legislature have no right to usurp this judicial pre- 
 rogative, by means of declaratory and explanatory laws, espe- 
 cially where they injuriously affect vested rights. -7 Johnson, 
 508, 509. 
 
 10. The rules for the construction of statutes are the same, 
 at law and in equity. Peters, C. C. R. 188. 
 
 11. There is no difference, in the rules of construction, appli- 
 cable to public and jfrivate statutes. 9 Porter, 266. 
 
 12. The validity of a rule of construction is not to be tested 
 by extreme cases. 8 Johnson, 420, 421 ; 12 Johnson, 483. 
 
 13. The intention of the legislature must always control in 
 the construction of a statute. 2 Cranch, 10 ; 2 Cranch, 358 ; 5 
 Term, 449 ; 3 Cowen, 89 ; 3 Scammon, 153 ; Brevard, 243 ; 
 Brevard, 249 ; 12 Johnson, 176 ; 15 Johnson, 358 ; 4 Gushing, 
 314; 1 Mississippi, 147; 2 Harris & Johnson, 69 ; 2 Harris & 
 Johnson, 167 ; 2 Peters, 662 ; 1 Peters, 64.; 21 Wendell, 211 ; 
 1 Green, 240. 
 
 14. All statutes, whether penal or remedialj are to be con- 
 strued according to the apparent intent of the legislature, to be 
 gathered from the entire language used, in connection with the 
 subject-matter ai;d purpose of the law. 19 Connecticut, 292. 
 
 15. The court must judge of the intent of the legislature, 
 from the language they have used to express that intent, and 
 where the language is clear and explicit, and susceptible of but 
 one meaning, and there is nothing incongruous in the act, the 
 court is bound to suppose the legislature intended what their 
 language imports. Walker, Ch. 394. 
 
 16. Although it is a fundamental rule, that every law must 
 be construed according to the intention of the makers, that in- 
 
608 OF THE INTERPRETATION AND 
 
 tention is never resorted to for any other purpose than to 
 ascertain what they, in fact, intended to do, and not for the 
 purpose of ascertaining what they have done. 3 Barbour, 
 9. 
 
 17. Where a law is plain and unambiguous, whether ex- 
 pressed in general or more limited terms, there is no room left 
 for construction, and a resort to extrinsic circumstances is not 
 permitted for the purpose of ascertaining the meaning. 9 
 Porter, 266. 
 
 18. In such cases, the legislative will must-be obeyed by the 
 courts. 2 Cranch, 358 ; 2 Gilman, 1; 3 A. K. Marshall, 489 ;. 
 2 Peters, 662 ; 1 Pickering, 45 ; 1 Pickering, 250. 
 
 19. Courts may give a sensible and reasonable intei-preta- 
 tion to legislative expressions which are obscure, but they have 
 no right to distort those which are clear and intelligible. 13 
 Massachusetts, 324. 
 
 20. The ordinary rule is, that the intention can only be de- 
 termined by the fair and natural import of the terms used, and 
 in view of the subject-matter of the law. 19 Vermont, 131 ; 3 
 Kelly, 146 ; 21 A^ermont, 152 ; 3 Missouri, 496 ; 25 Maine, 
 493. 
 
 21. Without reference to any traditional history of the occa- 
 sion of the enactment of the statute, unless that result from 
 some known state of embarrassment under the former law. 19 
 Vermont, 131. 
 
 22. Where the language is so obscure as to cloud the inten- 
 tion, or when it is couched in ambiguous terms, so that the 
 real meaning is doubtful, then every extrinsic fact and circum- 
 stance may be resorted to for the purpose of -ascertaining the 
 unexpressed intention of the legislature. 2 Cranch, 358 ; 7 
 Cranch, 52. 
 
 23. Thus, you may resort to the title of the statute. 3 
 Wheaton, 610; 2 Cranch, 358; 1 Kent, 469; 14 Johnson, 
 206 ; 2 Bailey, 334 ; 1 Hammond, 469 ; 3 Hawks, 403 ; 9 
 Porter, 266 ; 1 Kelly, 167. 
 
 24. To the preamble. 4 Term, 793; 2 Cowper, 543; 3 
 Scammon, 465; 15 Johnson, 89; 15 Johnson, 390; Coke, 
 
CONSTRUCTION OF STATUTES. 609 
 
 Littleton, 79 a ; 3 McCord, 298 ; 1 Pickering, 248 ; 1 Har- 
 rington, 285 ; 1 Kelly, 157 ; 1 Kent, 461. 
 
 25. To usage under it. 1 Term, 728 ; 1 Scammon, 71 ; 3 
 Scammon, 100 ; 3 Scammon, 470 ; 1 Louisiana, Ann. 419 ; 5 
 Cranch, 22 ; Harper, 101 ; 5 Iredell, Eq. 71. 
 
 26. To a comparison with other laws. 1 Blaokstone, Com. 
 60 ; 9 Oowen, 506. 
 
 27. To contemporaneous construction. 3 Scammon, 97 ; 3 
 Scammon, 465 : Brevard, 213 ; 1 Gilman, 517 ; 2 Gilman, 1 ; 
 1 Kent, 464 ; 16 Ohio, 599. 
 
 28. To arguments founded upon the hardship of the law. 
 9 Cranch, 203. 
 
 29. To the history and situation of the country dt the time 
 the law was enacted. 1 Wheaton, 115 ; 3 Scammon, 160 ; 3 
 Scammon, 609 ; 17 Vermont; 479. 
 
 80. To the reason and spirit of the law. 6 Cranch, 307 ; 3 
 Scammon, 153 ; 15 Johnson, 358 ; 3 A. K. Marshall, 489 ; 4 
 Comstock, 140. 
 
 31. To the inconveniences which will result from a particu- 
 lar construction. 2 Cranch, 358 ; Brevard, app. 22 ; 3 Scam- 
 mon, 153 ; Coke, Littleton, 66 a, and Butler and Hargrave's 
 note 6 ; 3 Massachusetts, 215 ; 3 Massachusetts, 523 ; 7 Mas- 
 sachusetts, 806 ; 11 Pickering, 487 ; 2 Massachusetts, 475. 
 
 32. To the absurd consequences which -will follow it. 2 
 Cranch, 358 ■; Brevard, app. 22 ; 3 Scammon, 158. 
 
 33. It is always presumed that the legislature intend the 
 most reasonable and beneficial construction of their acts, where 
 the design of them is not apparent. 4 Massachusetts, 5^4 ; 12 
 Massachusetts, 383. 
 
 84. If it is apparent, that by a particular construction of a 
 statute in a doubtful case, great public interests will be en- 
 dangered or sacrificed, it ought not to be presumed that such a 
 construction was intended by the legislature. 3 Scammon, 
 153. 
 
 35. The intention must be collected from the whole act. 2 
 Cranch, 358 ; 2 Scammon, 224 ; 8 Scammon, 35 ; 8 Scam- 
 mon, 153 ; 1 Kent, Com. 461 ; 12 Johnson, 175. 
 
610 OP THE INTERPRETATION AND 
 
 36. The most natural and genuine way of construing a stat- 
 ute, is to construe one part by another part of the same statute, 
 and so that, if possible, no sentence, clause, or word, shall be 
 treated as superfluous, void, or insignificant, and especially 
 where the two clauses are parts of the same section, insepara- 
 bly connected with, and necessarily dependent on each other. 
 Kentucky, Dec. 301 ; 4 Gill & Johnson, 1 ; 22 Pickering, 571 ; 
 1 Harrington, 285 ; 4 Blackford, 148 ; 2 Michigan (Gibbs), 
 138 ; 1 Louisiana, Ann. 162. 
 
 37. In construing a statute, courts are to look to the 
 language of the whole act ; and if they find, in any particular 
 clause, an expression not so broad in its import as those iised 
 in other parts of the statute, if, upon a view of the whole act, 
 they can collect the real intention of the legislature from the 
 broader expressions, it is their duty to give effect to them. 12 
 Georgia, 526 ; 2 Scammon, 223 ; 3 Scammon, 37, 157. 
 
 38. If any part of a statute is obscure, intricate, or 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 Maryland, 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 statutes in pari materia, whether they be re- 
 pealed or unrepealed. 3 Massachusetts, 17, 296, 418 ; 1 Pick- 
 ering, 248 ; 10 Pickering, 235 ; 2 Bailey, 541, 554 ; Cooke, 
 258; Brevard, 185, 213, 243; 3 Scammon, 144; 9 Cowen,. 
 507 ; 5 Monroe, 157 ; 15 Johnson, 380 ; 1 Kent, 433 ; 2 Bibb, 
 80, 96 ; 1 Kelly, 32 ; 3 Zabriskie, 143 ; 4 Gilman, 221 ; 19 
 Vermont, 230 ; 4 Florida, 445 ; 3 Howard, U. S. 516 ; 12 
 New Hampshire, 284. 
 
 40. In the construction of statutes, it is a rule of universal 
 application, that effect must be given to the words used by the 
 legislature, if there be no uncertainty or ambiguity in their 
 meaning. 4 M'Lean, 463. 
 
 41. Where words in a statute ai-e express, plain, and clear, 
 
CONSTIlUCTIOl?r OF STATDTES. 611 
 
 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 subse- 
 quent clause, and it should thence appear that the intention of 
 the legislature was different. 2 Maryland, 111. 
 
 42. 'The natural import of the words of any statute, accord- 
 ing to the common use of them, when applied to the subject- 
 matter of the act, is to be considered as expressing the inten- ■ 
 tion of the legislature, unless the intention so resulting from 
 the ordinary import of the words be repugnant to sound, ac- 
 knowledged principles of national policy. If that intention be 
 repugnant to such principles, then the import of the words 
 ought to be enlarged or restrained, so that it may comport with 
 those principles, unless the intention of the legislature be 
 clearly and manifestly repugnant to them. 7 Massachusetts, 
 523. 
 
 43. When terms of art or peculiar phrases are made use of, 
 it must be presumed that the legislature had in view the sub- 
 ject-matter about which such terms or phrases are commonly 
 used. 1 Pickering, 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 meaning of tlie words used, the intention of the legis- 
 lature that those words should be understood in a larger or 
 more popular sense, must plainly appear. 18 English Law & 
 Bq. 50. 
 
 45. Words are to be understood according to the most 
 known and popular use of them. 1 Kent, 46 ; 9 Oowen, 506 ; 
 1 Blackstone, Com. 60. 
 
 46. And in a lawful and rightful sense. Coke, Littleton^ 
 381, b. 
 
 47. Also according to their context. 1 Blackstone, Com. 60. 
 
 48. And the subject-matter of the statute. 1 Blackstone, 
 Com. 60. 
 
 49. But technical words are to be understood in their ' 
 
612 OF THE INTERPRETATION AND 
 
 technical sense. 1 Blackstone, Com. 60 ; 1 Kent, 462 ; 4 
 Pickering, 411 ; 1 Washington, C. C. 463 ; 3 Washington, C. 
 C. 209 ; 5 East, 10 ; 5 Humphreys, 392. 
 
 50. In the construction of a statute, a word which has two 
 significations, should ordinarily receive that meaning which is 
 generally given to it in the community ; but when this con- 
 struction would contravene the manifest intention of the legis- 
 lature, this rule must be departed from, and effect given to the 
 intention of the law. 22 Alabama, 621. 
 
 51. The words of a statute ought not to be expounded to 
 destroy natural justice. Dwarris, 716. 
 
 52. Where terms, or modes of expression, are employed in a 
 new statute, which had acquired a definite meaning and appli- 
 cation in a previous statute on the same subject, or one analo- 
 gous 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 interpreta- 
 tion of the former. 20 Vermont, 49 ; 3 Zabriskie, 143. 
 
 53. If the language in different portions of a statute is incon- 
 sistent, it should be so construed as to accord with the leading 
 object of the enactment. 1 G. Greene, 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. 351. 
 
 55. General words in a statute are to jeceive a general con- 
 struction, unless there is something in the statute to restrain 
 their operation. 12 Georgia, 526 ; 6 Shepley, 308. 
 
 56. The rule that general and unlimited terms are restrained 
 and limited by particular recitals, where used in connection 
 with them, does not require the rejection of them entirely, and 
 it is to be taken in connection with other rules of construction, 
 such as that an act shall be so construed as to carry out the 
 declared intention of the legislature. 2 Strobhart, 474. 
 
 57. If a statute makes use of a word, in one part of it, sus- 
 ceptible of two meanings, and in another part, it is used in a 
 definite sense, it is to be understood throughout in the latter 
 'sense, unless the object to which it applies, or the connection 
 
CONSTRUCTION OF STATUTES. . 613 
 
 in whicli it stands, requires it to be differently understood in 
 the two places. 1 Harrington, 285. 
 
 58. If a statute, which grants a right or privilege, admits of 
 two ■ interpretations, one of which is extensive, and the other 
 more restricted, so that a choice is fairly o^pen, and eithelr 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 adgpted. 2 Gilman, 
 198. 
 
 59. General words in a statute do not ordinarily bind the 
 sovereign power ; the State is bound only by express words, or 
 necessary implication. Crabbe, 307 ; 11 Coke, 66 ; 7 Monroe, 
 443 ; 7 Iredell, 48. 
 
 60. Where a statute speaks of persons, natural persons alone 
 are intended. Brevard, app. 10 ; 1 Scammon, 178. 
 
 Contra. — It will include corporations, if not inconsistent and 
 absurd. 15 Johnson, 358; 11 Wheaton, 392; 8 Porter, 404. 
 This is expressly declared in the dictionary clause of the Illi- 
 nois statute. Revised Statutes, 1845,- p. 462, sec. 29. 
 
 61. A law which in general terms speaks of plaintiffs and 
 defendants, applies to persons only, and States, counties, and 
 municipal corporations, are. not affected by its provisions, un- 
 less expressly named and brought within them. 4 Gilman, 20. 
 
 62. Statutes treating of inferior persons or things, cannot be 
 extended to those of a superior order or dignity. 1 Blackstone, 
 Com. 88 ; Brevard, 295 ; 1 Scammon, 140. 
 
 63. On subjects relating to courts, process, practice, &c., the 
 legislature are to be considered as speaking technically, unless, 
 from the statute itself, it appears that they used the terms in a 
 more popular sense. 4 Pickering, 405. 
 
 64. A statute, applicable in terms to particular actions, can- 
 not be extended by implication so as to embrace others stand- 
 ing upon the same reason. 1 Brockenborougli, 523, 524 ; 4 Gil- 
 man, 207. 
 
 65.. The term " void " has sometimes been construed to be 
 voidable only. 13 Massachusetts, 515 ; 6 Pickering, 483. 
 
 52 
 
614 OF THE INTERPRETATION AND 
 
 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 Poster, 9. 
 
 67. The word " such," when it is apparent that it has no 
 reference to any thing which precedes it, may be rejected. 5 
 Missouri, 91 . 
 
 68. A conjunctive clause may be taken in a disjunctive 
 sense, when it is obvious that such was the intention of the 
 legislature. 19 "\iermont, 131. 
 
 69. The words " shall forfeit," vest only a right or title, and 
 not the freehold in deed, or in law, without office to find the 
 certainty of the land. Dwarris, 743 ; Plowden, Com. 486. 
 
 70. Affirmative words in a statute may be construed as a 
 negative of that which is not affirmed. 5 Texas, 418. 
 
 71. No mere misnomer of a person or corporation in a stat- 
 ute is fatal to its validity, if the person or corporation really 
 intended can be collected from the terms of the act. 3 Sum- 
 ner, 279. 
 
 72. Where words in the same section or statute, are clearly 
 repugnant, to and irreconcilable with each other, the last will 
 supersede the first. 1 Swift, Dig. 12 ; 1 Blackstone, Com. 
 70 ; Smith, Com. .673. 
 
 73. Where the words have no signification, or a very absurd 
 one, if taken according to their literal acceptation, then it is 
 necessary to deviate from the common sense of the words, and 
 construe them in such manner as will result in a rational and 
 consistent meaning. 1 Swift, Dig. 12. 
 
 74. The general words in one clause of a statute, may be 
 restrained by particular words in a subsequent clause ; but if a 
 particular thing be given or limited in the precedent part of a 
 statute, this shall not be taken away or altered by any subse- 
 quent general words. 8 Modern, 8 ; 1 Levinz, 80 ; 1 Swift, 
 Dig. 12. 
 
 75. The meaning of a word may be ascertained by reference 
 to the meaning of words associated with it. " Noscitur a So- 
 ciis." 3 Term, 87 ; Broom, Max. 458 ; 1 Vermont, 225 ; 1 
 Barnewall & Cresswell, 644 ; 13 East, 531 ; 4 Bacon's Works, 
 
CONSTRUCTION OF STATUTES. 615 
 
 26; 2 Bulstrode, 132 ; 2 Bingham, 391 ; 4 Term, 227 ; Smith, 
 Com. 655, 658. 
 
 76. " It is, ill my opinion," observes Mr. Justice Coleridge, 
 in a recent case, " so important for the court, in construing 
 modern statutes, to act upon the principle of giving full effect 
 to their language, and of declining to mould that language, in 
 order to meet either an alleged inconvenience, or an alleged 
 equity upon doubtful evidence of intention, that nothing will 
 induce me to withdraw a case from the operation of a section 
 which is within its words, but clear and unambiguous evidence 
 that so to do is to fulfil the general intent of the statute, and 
 also, that to adhere to the literal interpretation, is to decide in- 
 consistently 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 be-, 
 ing unreasonable to impute to the legislature inconsistent in- 
 tents upon the same general subject-matter, what it has clearly 
 said in one part must be the best evidence of what it has in- 
 tended to say in the other ; and if the clear language be in 
 accordance with the plain policy and purview of the whole stat- 
 ute, there is the strongest reason for believing that the inter- 
 pretation 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 limita- 
 tions of a deed ; it must look to the whole context, and en- 
 deavor to give effect to all the provisions, enlarging or restrain- 
 ing, if need be for that purpose, the literal interpretation of 
 any particular part." 6 Adolphus & Ellis, 7 ; s. c. 33 Eng- 
 lish Common Law ; Broom, Leg. Maxims, 253, 254. 
 
 77. Where a word is evidently omitted by mistake in one 
 section of a statute, which omission is explained in another 
 part of the same statute by a reference to such section, the de- 
 fective section may be enforced according to such explanation. 
 2 Kelly, 143. 
 
 78. The word " may," is imperative, where the rights and in- 
 terests of the public are concerned, or where the public or third 
 
616 OF THE INTERPRETATION AND 
 
 persons have a claim de jure that the power should be exer- 
 cised, or the duty performed. 4 Gilman, 20 ; 5 J. C. R. 101 ; 
 5 Cowen, 195 ; 14 Sergeant & Rawle, 429'; 1 English Com- 
 mon Law, 46 ; 1 Peter, 46 ; 1 Saunders, 58, n. 2 ; 2 Salkeld, 
 609 ; Croke, Eliz. 655 ; Croke, Jac. 134. 
 
 79. Where a statute makes no exceptions, the courts can . 
 make none. 25 Mississippi, 571. 
 
 80. The exception of a particular thing or person, or class 
 of things or persons, from the general words of a statute, 
 proves that, in the opinion of the legislature, the thing or 
 person, or class of things or persons, would be within the gen- 
 eral clause but for the exception ; and the exception of the one 
 specifically is an exclusion of every other object embraced in 
 the general words. Marshall, Dec. 360 ; 12 Wheaton, 438 ; 
 12 Johnson, 290 ; 15 Johnson, 391. 
 
 81. A sfatutory rule must be construed with reference to 
 the whole system of pleading and practice of which it forms a 
 part. 14 Georgia, 674. 
 
 82. The punctuation of a statute will not vary its true con- 
 struction or sense. 1 Ohio, 385. 
 
 83. The debates in the legislative body cannot influence the 
 construction of a statute. 3 Howard, U. S. 1. 
 
 84. A recital in the preamble of a statute, does not limit the 
 general words of the enacting claiise to the cases recited in the 
 preamble. Hardin, 335. Thus, the Illinois statutes of Febru- 
 ary 23, 1819, entitled "An act to enable pei'sons to remove 
 fences made by mistake on the lands of other persons," is pre- 
 ceded by this preamble : " Whereas, in many parts of this State 
 there is much prairie, and the lines run by the United States 
 are not well known to the inhabitants even who bought the 
 lands enclosed by said lines, and frequently the inhabitants 
 have made their fences on the lands of other persons .by mis- 
 take." 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. Tliis law is held to apply as well to timber as 
 prairie lands. Gale, Stat. 433. 
 
CONSTftUOTION OF STATUTES. 617 
 
 85. In construing a revised code of laws, tliey are to be con- 
 sidered as contemporaneous acts, parts of. one entire system of 
 law. 1 Chipman, 348. 
 
 86. The common law relative to any subject is superseded 
 by a revision of the whole of that subject by the legislature. 
 10 Pickering, 37. 
 
 87. Where, in the revision of statutes, by incorporating 
 several former statutes into one, the construction of the words 
 would give a meaning clearly at variance with the intention of 
 the legislature, the true construction may be arrived at by 
 giving such words the meaning in which they were used in the 
 old statute. § Zabriskie, 180. 
 
 88. Where a provision in a statute has received a judicial 
 construction, and is afterwards inserted in another statute, the 
 same construction will be given to it. But if the clause varies, 
 it shows a different intent on the part of the legislature. 1 
 Pickering, 154 ; 5 Massachusetts, 462. 
 
 89. Where a statute law, previous to a revision, "is settled, 
 either by clear expressions in the law itself, or by 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 intention on the part of the legislature to effect such 
 change. 2 Caines, Ca. 151 ; 4 Johnson, 359 ; 6 Texas, 34 ; 7 
 Barbour, 191 ; 4 Sandford, 374. 
 
 90. Butwhere, in a revising statute, words in the old law, 
 embracing a particular case or class of cases, are omitted, this 
 is evidence of an intent to change the law. 1 Pickering, 45-; 
 4 Gilman, 207 ; 31 Maine, 34. 
 
 91. Where the common and statute law conflict, the latter 
 is to be regarded. 1 Blackstone, Com. 89 ; 8 Johnson, 331 ; 3 
 Zabriskie, 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, 518. 
 
 93. Where an old and new statute differ, the latter must 
 prevail. 1 Blackstone, Com. 89 ; 1 Ohio, 10 ; 2 Carter, 440 ; 
 7 Blackford, 314 ; 14 Illinois, 106. 
 
 52* 
 
618 OF THE INTERPRETATION AND 
 
 94. Courts cannot supply defective enactments, by an at- 
 tempt to carry out fully the purposes, which may be supposed 
 to have occasioned those enactments. 27 Maine, 285. 
 
 95. A casus omissus in a statute cannot be supplied by judi- 
 cial interpretation. 4 Gilman, 208; 14 Johnson, 479; 15 
 Maine, 167 ; 6 Pickering, 362 ; 9 Porter, 669 ; 6 Missouri, 257 ; 
 7 Wendell, 241 ; 2 Binney, 279 ; 8 Johnson, 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 Pickering, 506. 
 
 97. Where the reasons of an enactment are made known by 
 any authentic document, they may be referred to in construing 
 a statute which is ambiguous. Davies, 38. 
 
 98. Parties arc not estopped from questioning the truth of 
 recitals in the preamble to a statute. 9 Gill, 105. 
 
 99. Where a positive enactment, contained in a code of 
 laws, is at variance with the dictionaiy clause of the code, the 
 latter mus't be regarded as modified by the clear intention of 
 the former. 1 Louisiana, Ann. 435. , 
 
 100. It is the duty of courts, so far as it is practicable, to 
 reconcile the different provisions of a statute, so as to make the 
 whole act consistent and harmonious ; and where this is impos- 
 sible, to give effect to that which was manifestly the controlling 
 idea of the legislature. 2 Michigan (Gibbs), 138. 
 
 101. If the meaning of a statute be doiibtful, the courts 
 will seek for the meaning of the legislature, by looking at the 
 occasion and necessity of the law, the mischief felt, and the 
 object and remedy had in view.- 2 Michigan (Gibbs), 486 ; 4 
 Comstock, 140. 
 
 102. An erroneous construction merely acquiesced in, but 
 never disputed or judicially litigated, is not binding. Douglass, 
 68 ; 1 Caines, 191 ; 1 Caines, Ca. 54 ; 1 Scammon, 165. 
 
 103. But the maxim " communis error facit jus,'' is occa- 
 sionally applied in the construction of statutes.' Broom, Leg. 
 Max. 104 ; 3 Ohio, 140 ; 3 Barbour, Oh. .528. 
 
 104. When the legislature adopt the statute of another State 
 or aountry, the construction of that statute by the courts of the 
 
CONSTRUCTION OF STATUTES. 619 
 
 State or conntry from whence it was borrowed, will be adopted 
 by the courts. 3 Scammon, 288 ; 2 Peters, 1 ; 21 Vermont, 
 256 ; 23 Mississippi; 213 ; 13 Illinois, 15. 
 
 105. But in 'matters of practice, the rule is not inflexible. 
 4 Scammon, 402 ; 3 Ohio, 479, 480. 
 
 T06. Nof where tlie construction in the foreign place is not 
 applicable to the condition and mode of practice of the adopt- 
 ing State. • 6 Ohio, 121. 
 
 107. Two acts, passed at the same session, upon the same 
 subject-matter, must be construed as one act. 3 Monroe, 80. 
 
 108. To constitute a public act, it is not necessary that it 
 should be equally applicable to all parts of the State. It is 
 sufficient, if it extends to all persons within the territorial limits 
 described in the statute. 9 Greenleaf, 54. 
 
 109. Or contains prorisions in which the public have a direct 
 interest, and which provisions are general in their operation. 
 2 Greenleaf, 303 ; 2 Pennsylvania, 1050 ; 1 Missouri, 24 ; 1 
 Devereux & Battles, 116 ; 6 Alabama, 289 ; 4 Blackford, 234. 
 
 110. So where it is recognized in a public act. 2 Greenleaf, 
 301. • 
 
 111. Or relates to a public corporation. 7 Massachusetts, 
 9 : 10 Massachusetts, 91 ; 8 Shepley, 58 ; 4 Shepley, 69. 
 
 112. Where the means for carrying into effect any particu- 
 lar 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 Picker- 
 ing, 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 eacli, if it can be. 4 Howard, U. S. 37. 
 
 114. The intention of the draftsman of a st|tute, or of the 
 legislature which passed it, not expressed in the statute itself, 
 affords no legitimate ground to control the judicial construc- 
 tion of it. 3 Zabriskie, 180. 
 
 115. Where an old statute has received an early practical 
 construction, which, if it were res integra, it might be difficult 
 
620 OF THE INTEKPKETATION AND 
 
 to maintain, it will be adhered to, especially if great mischief 
 woxild follow a contrary construction. 2 Massachusetts, 475 ; 
 17 Massachusetts, 122 ; 3 Pickering, 517. 
 
 116. When a known statute is reenacted in terms, its 
 known interpretation will be presumed to have been adopted 
 by the legislature. 6 English, 594. 
 
 117. Where a statute has received a judicial construction, 
 and is then repealed or expires by its own limitation, and after- 
 wards it is reenacted .in the same terms, the legislature will be 
 held to have adopted such construction. 27 Maine, 9. 
 
 118. Statutes enacted at the same session are to be taken in 
 pari materia, and they should receive such a construction as 
 will give effect to each, if possible. 2 Blackford, 249 ; 2 Brock- 
 enbrough, 325. 
 
 119. Where two statutes were passed in 1844, on the same 
 day, one limiting a judgment lien to two years, and the other 
 extending it to five years ; and a statute passed two years 
 afterwards recognized the former statute as existing and in full 
 force; it was held, that it would prevail over the other. 11 
 Smedes & Marshall, 43. 
 
 120. The decision of a State court, in the construction of a 
 statute of that State, is binding upon the coiirts of every other 
 State. 3 Strobhart, 269 ; 3 Zabriskie, 690. 
 
 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 Massa- 
 chusetts, 472. 
 
 122. A special statute is sometimes regarded as merged in a 
 general statute passed subsequently, if the provisions of the 
 two are repugnant. 4 Pickering, 399. 
 
 123. Wher| 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 statutie 
 must be pursued. 23 Pickering, 36; 3 Metcalf, 380; 1 
 Metcalf, 130, 553 ; 2 Metcalf, 599 ; 13 Barbour, 209 ; 82 
 
CONSTRUCTION OF STATUTES. 621 
 
 Maine, 553 ; 5 Johnson, 175 ; 1 Blackford, 405 ; 7 Hill (N. 
 Y.), 575 ; 1 Manning (Mich.), 193. 
 
 124. If a statute merely gives a new remedy where one 
 existed at common law, it is cumulative, and the'injured party 
 has his election to pursue either. 1 Shepley, 371 ; 13 Wendell, 
 341 ; 5 Cowen, 165 ; 5 Johnson, 175 ; 10 Johnson, 389 ; 10 
 Pickering, 383 ; 1 Blackford, 405 ; 2 Gaines, 169. 
 
 125. But if the statute contains negative words, denying or 
 withholding the common-law remedy, that provided by statute 
 alone can be resorted to. 1 Shepley, 371. 
 
 126. Where a statute creates an offence, and does not pre- 
 ■ scribe a mode of prosecution, an indictment, or other appropri- 
 ate common-law remedy, may be adopted. 1 Metcalf, 232 ; 2 
 Metcalf, 599. 
 
 127. Where a statute prohibits tlie doing of an act, any 
 thing in contravention of the prohibition must be adjudged 
 inoperative and void, if the stattite cannot otherwise be made 
 effectual to accomplish the object contemplated by its enact- 
 ment. 17 Vermont, 73. 
 
 128. But where a penalty is superadded, this implies a pro- 
 hibition, and renders any act done in violation of the law void. 
 1 Story, 106 ; 14 New Hampshire, 294 ; 14 Johnson, 273 ; 1 
 Binney, 110. 
 
 129. In construing a statute, if there be a mistake apparent 
 upon the face of the act, which may be corrected by other lan- 
 guage in the act itself, the mistake is not fatal. 3 Sumner, 
 279. 
 
 130. A statute cannot become obsolete by disuse, or con- 
 trary usage, or by any adjudication whatever. 1 Bland, 550. 
 
 131. Statutes are not to.be construed retrospectively, unless 
 the intention is palpable. Brevard, 224, 295 ; 1 Scammon, 
 335 ; 3 A. K. Marshall, 138 ; 5 Monroe, 129, 140 ; 4 Burrows, 
 2460 ; 7 Johnson, 477 ; 3 Maine, 333 ; 9 Gill, 105 ; 1 Denio, 
 128; 3 Shepley, 134; 2 Scammon, 499; 10 Massachusetts, 
 437 ; 12 Massachusetts, -383 ; 16 Massachusetts, 215 ; 14 Smedes 
 & Marshall, 127 ; 3 English Law & Eq. 30. 
 
622 
 
 OP THE INTERPRETATION AND 
 
 132. Nor will a previously existing right or remedy be con- 
 strued away by implication. Brevard, 296. 
 
 1.33. "Where rights are infringed, fundamental principles 
 overthrown, and the general system of the laws is departed 
 from, the legislative intention must be expressed with irresist- 
 ible clearness to induce a court of justice to suppose a design 
 on the part of the legislature to effect such objects. 1 Peters, 
 Cond. 425. 
 
 134. Nor should a. statute be construed against the plain 
 and obvious dictates of reason. 7 Johnson, 502. 
 
 135. Statutes must be so construed as to suppress the mis- 
 chief, advance the remedy, and preserve fundamental princi- ■ 
 pies. Coke, Littleton, 381, b ; 8 Johnson, 41 ; 10 Johnson, 
 467. 
 
 136. And so that no innocent man be punished or endam- 
 aged. 7 Johnson, 482, 495, 496 ; Coke, Littleton, 360, a. 
 
 137. They are never to be construed so as to work injustice. 
 7 Johnson, 495, 496. 
 
 138. Nor the destruction of a previously-acquired right. 6 
 Johnson, 103 ; 7 Johnson, 503. 
 
 139. The province of a proviso toa statute or constitution, 
 is not to enlarge the enacting clause ; it can only restrain, 
 qualify, or explain it. 1 Scammon, 258 ; 4 Scammon, 342. 
 
 140. A saving clause, in the form of a proviso, in a statute, 
 restricting the operation of the general language of the enact- 
 ing clause, is not void, because the language of both clauses is 
 repugnant. 23 Maine, 360. 
 
 141. The terms of a proviso may be limited by the general 
 scope of the enacting clause, to avoid repugnancy. 19 Ver- 
 mont, 129. 
 
 142. A limitation of an authority to do a thing contained in 
 the proviso to a statute', is a negation thereof. 2 Barr, 218. 
 
 143. Where a statute specifieg 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 
 
CONSTRUCTION OF STATUTES. 623 
 
 the statute, the designation of the time must be considered a 
 limitation of the power of tlie officer. 22 Alabama, 116 ; ante, 
 pp. 156, 157. 
 
 144. This rule is alike applicable to pftblic interests. 22 
 Alabama, 116. 
 
 145. In computing time under a statiite which requires an 
 act to be performed within a limited time, the day of the date 
 upon which the act is performed, is to be excluded in the 
 computation. 2 Alabama, 494 ; 6 Shepley, 106 ; 1 Douglass 
 (Mich.), 450. 
 
 146. Where a statute uses the word " month," a lunar 
 month is intended. 3 Johnson, Ch. 74 ; 6 Term, 226 ; 7 John- 
 son, 217 ; 15 Johnson, 119 ; 1 Johnson, Ca. 99 ; 4 "Wendell, 
 512 ; Smith, Com. 730. Unless upon the whole law a differ^ 
 ent intention is apparent. 10 Wendell, 393 ; ante, pp. 435, 
 436. In Massachusetts and Pennsylvania, it is held, that 
 calendar months will be intended. 2 Massachusetts, 170 ; 4 
 Massachusetts 460; 19 Pickering, 532; 2 Dallas, 302; 4 
 Dallas, 144 ; 3 Sergeant & Rawle, 184. 
 
 147. Where a statute gives a new power, and at the same 
 time provides the means of executing it, those who claim the 
 power can execute it in no other way. 6 Massachusetts, 40 ; 
 14 Massachusetts, 286 ; 1 Blackford 39; 1 Missouri, 428 ; 1 
 Missouri, 147 ; 2 McCord, 117. 
 
 148. Where an act requires a thing to be done in a particu- 
 lar way, that way alone can be pursued.) 3 Brevard, 396 ; 15 
 Massachusetts, 205 ; 9 Pickering, 496 ; 13 Pickering, 284 ; 3 
 Stewart & Porter, 13. 
 
 149. If a power is given by statute, every thing essential to 
 the exercise of that poWer is impliedly given. 1 McCord, 546. 
 
 150. A statute giving joint power to five commissioners, 
 does not made valid the act of four of them. 1 Bay, 354. 
 
 151. Where a statute gives authority to one person ex- 
 pressly, all others are excluded ; a special power is ever to be 
 strictly pursued. Dwarris, 767 ; 11 Coke, 59-64. 
 
 152. Where a statute enacts that a public functionary may 
 
624 OF THE INTERPRETATION AND 
 
 act in a certain way wliich is beneficial to third persons, he 
 must act in that -way. 9 Howard, U. S. 248. 
 
 153. Statutes seemingly repugnant should be so construed, 
 if possible, that both should stand and harmonize with each 
 other. 8 Smedes & Marshall, 9. 
 
 154. Where a statute gives a power to any court or officer 
 to hear and determine an offence in a summary way, it is nec- 
 essarily implied and supposed, as a part of natural justice, that 
 the party be first cited by summons, and hdve an opportunity 
 to be heard and answer for himself. Dwarris, IGY, 168 ; 1 
 Hawkins, chap. 64, sec. 60 ; 1 Scammon, 515. 
 
 165. Whei-e a statute provides that a criminal prosecution 
 shall be based " on complaint," it must be under oath or affir- 
 mation — this is implied as a part of the technical meaning of 
 the expression. 4 Shepley, 117. 
 
 156. In a grant by statute, any words which express the in- 
 tention of the legislature to invest the party with title, are 
 sufficient. 3 Monroe, 161. 
 
 157. Ordinarily, statutes take effect from their passage, and 
 any act done contrary to the statute, on the day of its passage, 
 will be governed by it, although it was impossible that the ex- 
 istence of the law should, have been known at the time and 
 place when and where the act was performed. 8 Alabama, 
 119 ; 8 Georgia, 380 ; R. M. Charlton, 537 ; 1 Alabama, 312 ; 
 2 Alabama, 26 ; 1 Scammon, 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 momeiit when it received the governor's 
 assent. 1 California, 406. 
 
 169. Where the means for carrying into effect any particular 
 constitutional or statutory power are not specified, those means 
 which interfere with established relations^ and violate existing 
 rights and obligations, as fixed by law, will not be presumed to 
 be intended, unless they are strictly necessary. 24 Pickering, 
 227. 
 
 160. Where the words of a statute, in their primary mean- 
 ing, do not expressly embrace the case before the court, and 
 
CONSTKUCTION OF STATUTES. 625 
 
 there is nothing in the context to attach a different meaning to 
 them, capable of expressly embracing it, the court cannot 
 extend the statute, by construction, to that case, unless it falls 
 so clearly within the reasons of the 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 inten- 
 tion of the statute embraces the specific case, though it be not 
 enumerated, 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 presup- 
 posed 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. 
 174. The literal interpretation of a statute is not, therefore, 
 always adhered to. The words of the statute are not the only 
 signs of the legislative will. Paley's Works, 26 ; 4 Littell, 
 377. 
 
 161. Cases within the reason — though not within the letter 
 of the law — are sometimes construed to be embraced in its 
 provisions. 4 Littell, 377 ; 7 Johnson, 486 ; 15 Johnson, 381. 
 
 162. And cases within the letter, but without the reason, are 
 sometimes withdrawn from its operation. 4 Littell, 377; 15 
 Johnson, 381. 
 
 163. But this rule is not of general application. 1 Oilman, 
 572 ; 4 Gilman, 194; 15 Johnson, 394 ; 1 Bibb, 214. 
 
 164. Equitable constructions of statutes are not tolerated, 
 as a general rule. 10 Johnson, 580 ; 22 Pickering, 387. 
 
 165. But such a construction is occasionally allowable. 
 Coke, Littleton, 24, b ; Coke, Littleton, 290, a ; 2 Bosanquet 
 & Puller, 255 ; 10 Johnson, 457 ; 12 Johnson, 290 ; 14 Massa- 
 chusetts, 88 ; 1 Pickering, 248 ; 12 Massachusetts, 383. 
 
 166. Thus, it has been extended so as to embrace persons 
 not named. Coke, Littleton, 272 ; Coke, Littleton, 290, a. 
 
 167. And to actions not named. Coke, Littleton, 365, b. 
 
 53 
 
626 OF THE INTERPRETATION AND 
 
 168. And to another form of conveyance than those enumer- 
 ated. Coke, Littleton, 365, b. 
 
 169. So the generality of words have been restrained by 
 the equity of the statute, and effect given to rights opposed to 
 the letter of the law. Coke, Littleton, 290, a. 
 
 170. It is only when statutes are ambiguous in their terms, 
 that the courts exercise the power of so controlling the lan- 
 guage, as to give effect to what they may suppose to have been 
 the intention of the law makers. 1 Manning (Mich.), 469. 
 
 171. A literal interpretation, which would defeat the pur- 
 poses of a statute, will not be adopted, if any other reasonable 
 construction can be given to it. 20 Alabama, 54. 
 
 172. Where the literal interpretation of a statute would lead 
 to a gross absurdity of restriction, the court will extend its ap- 
 plication to cases within the same equity, though at the expense 
 of forcing the construction of the words. 17 Vermont, 479. 
 
 173. If the general meaning and object of a statute should 
 be inconsistent with the literal import of any particular clause 
 or section, such clause or section must, if possible, be construed 
 according to the spirit of the act ; but, to warrant the applica- 
 tion of this rule, the intention of the legislature must be clear 
 and manifest. 1 Pickering, 248 ; 10 Pickering, 235 ; 20 Pick- 
 ering, 267. 
 
 174. Where the manifest intention of the legislature may be 
 gathered from prior existing laws, and from the prevailing tone 
 of other sections of the act, conflicting words may be diverted 
 from their literal meaning, in order to harmonize with more 
 explicit portions ; and they may be restrained, enlarged, or 
 qualified, so as to give effect to the obvious intention 'of the 
 legislature. 1 G. Greene, 325. 
 
 175. Every statute must be construed so as to give it a rea- 
 sonable effect. 3 Massachusetts, 523 ; 5 Massachusetts, 380 ; 
 7 Massachusetts, 458; 15 Massachusetts, 205; 2 Pickering, 
 571 ; 23 Pickering, 93. 
 
 176. And it is the duty of courts to put such a construction 
 upon statutes, if possible, as to uphold and carry them into 
 effect. 10 Georgia, 190. 
 
CONSTRUCTION OF STATUTES. 627 
 
 177. Such a construction as will defeat the purpose of the 
 law must never be given to it. 9 Wheaton, 81. 
 
 178. Courts ought not so to construe a statute as to suffer 
 it to be eluded. 15 Johnson, 361. 
 
 179. A fraud upon, or evasion of a statute, will not be toler- 
 ated. 9 Johnson, 356 ; 10 Johnson, 461 ; 15 Johnson, 510. 
 
 180. A statute shall never have an equitable construction to 
 overthrow an estate. Dwarris, 729 ; Kentucky, Dec. 301. 
 
 181. -A statute which takes away the common law, ought 
 not to receive an equitable construction. Dwarris, 729. 
 
 182. Equitable constructions, though they may be tolerated 
 in remedial, and, perhaps, some other statutes, should always 
 be resorted to with great caution, and never extended to penal 
 statutes, or mere arbitrary regulations of public policy. 22 
 Pickering, 387 ; ante, p. 60. 
 
 183. An act confirming and quieting the title of bona fide 
 purchasers, ought to be liberally construed. 15 Johnson, 114. 
 
 184. A statute treating of superior courts, cannot be ex- 
 tended to those of inferior dignity. 16 Johnson, 243. 
 
 185. A toll-bridge charter was so construed as to secure to 
 the corporation their legal tolls, and protect those who used it 
 from imposition. 7 Johnson, 185. 
 
 186. Declaratory or explanatory statutes are construed ac- 
 cording to the letter of them. 7 Johnson, 497. 
 
 187. So are statutes which take away or «log a common-law 
 remedy. 7 Johnson, 497 ; 10 Johnson, 580. 
 
 188. So of a statute which takes away a remedy given by a 
 prior statute. 7 Johnson, 497. 
 
 189. Acts of incorporation are to be construed favorably to 
 the public at large, amidmost strongly against the corporators. 
 2 New Jersey, 623 ; Brevard, app. 10 ; 2 Cowen, 419. 
 
 190. They will not be extended beyond their express words, 
 or their clear import. 7 Georgia, 221. 
 
 191. In expounding remedial statutes, the courts will extend 
 the riemedy so far as the words will admit, upon a liberal con- 
 struction. 7 Ohio, 247 ; 6 Term, 429 ; 1 Maryland, Ch. Decis. 
 342 ; 2 New Jersey, 623 ; 9 Georgia, 253 ; 1 Pennsylvania, 
 
628 OF THE INTERPRETATION AND 
 
 211 ; 1 Hammond, 256, 385, 481 ; 2 Hammond, 74 ; 1 Bar- 
 bour, 65 ; 3 Massachusetts, 254 ; 4 Massachusetts, 439. 
 
 192. But where the language of the statute is clear, direct, 
 and positive, leading to no absifrd results, and affording a suit- 
 able remedy for an existing evil, courts are to be governed by 
 the obvious meaning and import of its terms, and not to extend 
 its operation because they suppose the legislature intended to 
 give a more effectual remedy. 3 Kelly, 146. 
 
 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 vrithout doing actual vio- 
 lence to its terms. This rule was laid down in reference to the 
 laying out of public highways under a general statute. 19 
 Connecticut, 597. 
 
 194. Statutes of limitation are to receive a liberal construc- 
 tion. 4 Wheaton, 207 ; 3 Massachusetts, 206 ; 1 Peters, 351 ; 
 
 3 Peters, 278, 279 ; 3 Wendell, 189. 
 
 195. The statute of frauds is to* be construed liberally and 
 beneficially. Coke, Littleton, 268, b ; 1 Blackstone, Com. 88 ; 
 
 4 Cranch, 224. 
 
 196. Revenue statutes are to be construed most favorably 
 to the .citizen. Dwarris, 743, 749 ; 10 Wendell, 186 ; 9 Pick- 
 ering, 414 ; 8 Georgia, 30 ; 1 Devereux & Battles, Eq. 218 ; 
 Dudley, 132. Contra. — 1 Speers, 343 ; 2 Monroe, 27 ; 1 Mc- 
 Mullen, 421 ; 2 Story, 369 ; 4 Florida, 402. 
 
 197. Penal statutes are to be construed strictly. 1 Black- 
 stone, Com. 88 ; 5 Wheaton, 76, 94, 96 ; 2 Wheaton, 119, 121 ; 
 2 Johnson, 379 ; 4 Massachusetts, 473 ; 2 Cowen, 419 ; 6 
 Cowen, 567 ; 7 Cowen, 252 ; 2 Massachusetts, 512 ; 4 Binney, 
 13 ; 3 Burrows, 1284 ; 2 Strange, J105 ; 2 Scammon, 461, 
 561 ; 2 New Hampshire, 623 ; 20 Ohio, 7 ; 8 Pickering, 370, 
 514 ; 1 Pennsylvania, 210 ; Minor, 143 ; 6 Greenleaf, 268 ; 4 
 Connecticut, 61 ; 18 Alabama, 687 ; 3 Hill, 96 ; 8 Porter, 
 564 ; 2 Story, 202 ; 1 Story, 251 ; 12 New Hampshire, 255 ; 
 6 Watts & Sergeant, 269. 
 
 198. But the plain and manifest intention of the legislature 
 ought to be regarded. 13 Johnson, 498 ; 5 Wheaton, 76, 94. 
 
CONSTRUCTION OF STATUTES. 629 
 
 199. And a statute which is penal as to some persons, may 
 be equitably construed, provided it is generally beneficial. 13 
 Johnson, 497 ; Coke, Littleton, 54, b. 
 
 200. The rule requiring penal statutes to be construed 
 'strictly, means only that they are not to be so extended, be- 
 yond the legitimate import of the words used in them, as to 
 embrace cases or acts not clearly described by such words, and 
 so as to bring them within the prohibition or penalty of such 
 statutes. 19 Connecticut, 292. 
 
 201. But this rule does not apply to a case where the party 
 has a remedy at common law, and the statute merely gives an 
 increase of damages. 10 Missouri, 781. 
 
 202. If a statute be both penal and xemedial, it is to be con- 
 strued strictly. 9 Shepley, 541. 
 
 203. A statute which creates a right of action in an indi- 
 vidual, or a particular class of individuals, is not penal, but 
 remedial. 12 Georgia, 104. 
 
 204. Statute of costs construed strictly. 2 Strange, 1105 ; 
 
 3 Burrows, 1284-1287 ; 4 Biriney, 13 ; 2 Massachusetts, 612. 
 
 205. A statute which extends human liberty is to be liber- 
 ally construed, but a statute which restrains it, is to, be strictly 
 construed. 1 Blackstone, Com. 88, note ; 12 Johnson, 373 ; 
 
 4 Shepley, 255. 
 
 '206. Statutes authorizing suits against the State, are to be 
 liberally construed. 7 English, 321. 
 
 207. Statutes of a local character, which refer to persons, 
 places, or things, unless otherwise expressed, are to be confined 
 to such persons, places, and things, as existed at the time of 
 their passage. 2 Ohio, 7. 
 
 208. Laws exempting property from taxation, are to be con- 
 strued strictly. 19 Ohio, 110 ; ante, p. 409. 
 
 209. Laws which have reference to the public welfare, or the 
 policy of a State, are to be liberally construed. 4 Florida, 445. 
 
 210. Statutes giving summary remedies, are to be strictly 
 construed. Dudley, 105 ; 7 Blackford, 556. 
 
 211. Statutes against frauds, are to be liberally construed, 
 in suppression of the frauds prohibited. Dudley, 182. 
 
 53* 
 
630 OF THE INTERPRETATION AND 
 
 212. Where a statute requires a thing to be done in a par- 
 ticular way, that way alone must be pursued. 3 Brevard, 306. 
 
 213. Where a statute prescribes the form of any order, or 
 summary proceeding, it must be followed as far forth as is con- 
 sistent with the nature and exigency of the particular proceed-' 
 ing. 22 Wendell, 132 ; 1 East, 64. 
 
 214. Private statutes, conferring new and extraordinary 
 powers of a special nature, upon particular persons, affecting 
 the property of individuals, should receive a strict interpreta- 
 tion. Dwarris, 750. 
 
 215. A statutory power, derogatory to private property, 
 ought to be construed strictly, and not enlarged by intendment. 
 Dwarris, 750. 
 
 216. A statute which takes away the right of trial by jury, 
 oxight to receive the most strict construction. Dwarris, 749. 
 
 217. If a statute provide a remedy unknown to the common 
 law, and by which no notice to the person proceeded against is 
 required, it will be strictly construed. 1 California, 162. 
 
 218. Statutes giving jurisdiction to inferior courts are to be 
 construed strictly. 3 Yerger, 62. 
 
 219. Statutes which are in derogation of the common law, 
 and which have tlie effect to divest or affect the title to real 
 estate, are to be strictly construed. 2 Michigan (Gibbs), 486. 
 
 220. A statute which autlaorizes a court " to render such 
 judgment as substantial justice shall require," means, that the 
 court shall render substantial legal justice, ascertained and de- 
 termined by fixed rules and positive statutes, and not the 
 abstract varying notions of equity entertained by each individ- 
 ual or jxidge. 1 California, 94. 
 
 221. The power to take land for public purposes is in dero- 
 gation of the common law, and is to be construed strictly. 4 
 Hill, 76, 92. 
 
 222. Statutes which impose restrictions on trade or common 
 occupations, or which levy an excise or tax upon them, must 
 be construed strictly. 9 Pickering, 412. 
 
 223. Statutes, which for any cause disable persons of full 
 age and sound mind to make contracts, are to ' be construed 
 
CONSTRUCTION OF STATUTES. 631 
 
 strictly ; for though founded in policy and a just regard to the 
 public welfare, they are in derogation of private rights. 3 Pick- 
 ering, 229: 
 
 224. In enforcing a summary remedy given by a statute, it 
 must be strictly pursued. 7 Blackford, 556. 
 
 225. Laws conferring bounties are to be construed liberally. 
 
 1 Peters, 655. 
 
 226. Where particular powers are granted to a company or 
 corporation, if they enter upon any man's land, they must 
 clearly show their authority ; and if the words of the statute 
 upon whicli 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 hold land, 
 is to be construed liberally. 2 Edwards, 304. 
 
 228. If a statute be so defectively drawn, that in one part it 
 appears that it is to be executed in a summary manner, and in 
 another part in the usual way, the latter is to be preferred. 3 
 Gaines, 259. 
 
 229. Statute provisions for indemnity for losses sustained by 
 one citizen, by means of special privileges conferred by the leg- 
 islature upon another citizen, ought to receive a liberal con- 
 struction in favor of the citizen damnified. 2 Pickering, 83 ; 
 
 2 Massachusetts, 33. 
 
 230. Private statutes made for the accommodation of partic- 
 ular citizens or corporations, ought not to be construed to 
 affect the rights or privileges of others, unless such construc- 
 tion result from express words, or from necessary implication. 
 4 Massachusetts, 140 ; 2 Massachusetts, 143 ; 3 Massachusetts, 
 263 ; 7 Massachusetts, 263. 
 
 231. Where the words of a statute, prescribing compensa- 
 tion to a public officer, are loose and obscure, and admit of two 
 interpretations, that which is most favorable to the officer 
 should be adopted. 3 Story, 87. 
 
 232. Statutes made relative to the administration of justice, 
 are to be liberally construed for the attainment of that impor- 
 tant object. 1 Gill, 66. 
 
632 OF THE INTERPRETATION AND 
 
 283. Statutes in favor of particular persons or corporations, 
 are to be construed strictly. 3 Kelly, 31. 
 
 234. Attachment laws to be strictly construed. 1 Morris, 
 97, 456. 
 
 236. A statute specifying a time within which a public offi- 
 cer is to perform an official act regarding the rights and duties 
 of others, is directory merely, unless the nature of the act to be 
 performed, or the phraseology of the statute, is such that the 
 designation of time must be considered as a limitation of the 
 power of the officer. Ante, p. 157. 
 
 236. It has been resolved, that, for the true and sure inter- 
 pretation of all statutes, be they penal or beneficial, restrictive 
 of or enlarging the common law, four points are to be consid- 
 ered: 1. What was the comnfon law before the making of the 
 act ; 2. What was the mischief and defect for which the com- 
 mon law did not provide ; 3. What remedy the parliament 
 hath resolved and appointed to cure the disease of the Common- 
 wealth ; and, 4. The true reason of the remedy; — and then 
 the office of the judges is always to make such construction as 
 shall suppress the. mischief, and advance the remedy. Smith's 
 Com. 660'; 3 Coke, 7. 
 
 237. There is a known distinction between circumstances 
 which are the essence of the thing required to be done by a 
 statute, and clauses merely directory. 1 Burrows, 447 ; 1 
 Swift, Dig. 13. This distinction is fully explained in Chapter 
 14, ante, p. 260. 
 
 238. If a statute repealing another be afterwards repealed, 
 the first statute is revived without any express words, by mere 
 implication. 1 Swift, Dig. 13 ; 1 Institutes, 315 ; 1 Black- 
 stone, Com. 90 ; Broom, Max. 27. 
 
 239. Statutes at variance with the laws of God, are void. 1 
 Blackstone, Com. 58 ; Broom, Max. 58 ; Doctor & Student, 
 15 ; Dwarris, 642 ; 2 Barnewall & Cresswell, 471. 
 
 240. Epressio unius est exclusio alterius. The express 
 mention of one thing implies the exclusion of another. Coke, 
 Littleton, 210, a ; Broom, Max 505. 
 
 241. Where a statute is passed for the benefit of a railway, 
 
CONSTRUCTION OF STATUTES. 633 
 
 canal, or other company, it is regarded as a contract between a 
 company of adventurers and the public, the terms of which are 
 set forth in the act, and the rule of construction in all such 
 cases is fully established to be, that any ambiguity in the law 
 of the coutract, will operate against the adventurers, and in 
 favor of the public, the former being entitled to claim nothing 
 which is not clearly given by the act. 2 Barnewall & Adolphus, 
 793 ; 2 Scott, N. R. 226, 370 ; 2 Scott, N. R. 228 ; 11 East, 
 685 ; 3 Scott, N. R. 803 ; 6 Scott, N. R. 831 ; 1 Mylne & Keen, 
 195 ; 4 Meeson & Welsby, 482 ; Smith, Com. 650 ; Broom, 
 Max. 7. 
 
 242. A statute is not to be nullified because some of its pro- 
 visions are absurd, repugnant, or untrue ; it should be so con- 
 strued as to make it effective, rather than destroy it. If enough 
 remains, after rejecting the parts which are inappropriate, to 
 sliow what the legislature intended, this will suffice. 6 Hill 
 (N. Y.), 616 ; 2 Rolle, 127 ; Hobart, 93, 97 ; 10 Coke, 57 ; 1 
 Pickering, 105. 
 
 243. Sometimes the makers of a statute put the strongest 
 cases, and, by construction, the lesser shall be included: here 
 the cases are put by way of example, and not as excluding 
 other things of a similar nature. Where, moreover, the words 
 are general, and a statute is only declaratory of the common 
 law, it shall extend to others besides the persons or things 
 named. Sometimes, on the contrary, the expressions used are 
 restrictive, and intended to exclude all things which are [not] 
 enumerated. Thus, where certain specific things are taxed, or 
 subjected to any charge, it seems probable that it was 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 exempt certain persons 
 from the effect and operation of its provisions, it excludes all 
 exemptions to which the subject might have been before en- 
 titled at common law ; for the introduction of the exemption is 
 necessarily exclusive of all other independent extrinsic excep- 
 tions. 3 Bingham, N. C. 85 ; 5 Maule & Selwyn, 240; 3 
 
634 CONSTKTJCTION OF STATUTES. 
 
 Term, 442 ; 5 Term, 21 ; 2 East, 166 ; 7 Term, 60 ; 5 Bast, 
 478 ; Dwarris, 712 ; Smith, Com. 655. 
 
 244. In construing a doubtful clause in a statute, it will 
 often be a question whether the clause be a substantive inde- 
 pendent clause, or only a qualification of an antecedent one. 
 It is difficult to lay down any precise rule applicable to all such 
 cases. But when a section is- by way of proviso, or in the 
 nature of an exception, it must be regarded as dependent, 
 unless a manifest intent, apparent upon an examination of the 
 entire act, forbids it. Smith, Com. 711. 
 
 245. A saving clause must relate to a thing in esse. The 
 nature of a saving clause is to preserve a former right, and 
 not to create a new one. It may restrain or qualify the pur- 
 view, or body of the act, but is never allowed to overturn or 
 enlai-ge it. Smith, Com. 711. 
 
 246. There is a known distinction in law between an excep- 
 tion in the enacting and in the proviso clause of a statute. If 
 in the former, it must be negatived in pleading — if in the 
 latter, it need not be. Smith, Com. 712 ; Dwarris, 661 ; 1 
 Term, 114 ; 8 Term, 542 ; Poster, 430 ; Bast, P. C. 167. 
 
 247. Where it is apparent that a statute, in the delegation 
 of a power, reposes a special trust and confidence in the ap- 
 pointee of it, it cannot be delegated. 11 Coke, 64 ; Smith, 
 Com. 713; '26 Wendell, 485. 
 
APPENDIX 
 
 FoK the convenience of the profession, and with a view to the completeness of 
 this work, the author appends an abstract of a tax title, which, he trusts, will be ac- 
 ceptable, especially to conreyancers. The law of Illinois, enacted February 26, 1839, 
 is the basis of the abstract, and that is selected because it is more familiar. The bar 
 and conveyancers will be enabled to obtain, from an abstract foupded upon that stat- 
 ute, the general requisites of such a document. Nothing more can be expected, in- 
 asmuch as the abstract must vary according to the provisions of the respective stat- 
 utes under which the tax sales may have been made. 
 
 ABSTKACT 
 
 Of si tUnf STftle to Tiox 1, Block 1, in the Okiginal Plat of the Citt of 
 Chicago, Illinois, acquired 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 fol- 
 lowing oath of office, to wit : 
 
 State of Illinois, 1 ag_ 
 Cook County, ) 
 
 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, accord- 
 ing to the best of my skill and judgment. 
 
 John Doe. 
 
 :] 
 
 Subscribed and sworn to before me, " 
 this the 8th day of March, 1839. 
 
 Louis D. Hoard, 
 Clerk of the Circuit Court of Cook County, Illinois, 
 
 March 9, 1839, the clerk of the County Commissioners' Court delivered to the 
 said assessdjfen abstract of the taxable lands in the said assessor's district. 
 
636 
 
 APPENDIX. 
 
 May 1, 1839, the said assessor returned to the county clerk his assessment list, iu 
 substance as follows, to wit : 
 
 " List of Property in the First District, in the County of Cook, with the Names of the 
 Oumers, and the Value of the Property, assessed by John Doe, for the year 1839. 
 
 Description. 
 
 Lot 1, Block 1, original 
 plat, Chicago. 
 
 Valuation. 
 
 82,000.00. 
 
 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 required by law. 
 
 3. The County Commissioners' Court of Cook County, at the June term, 1839, 
 by an order of record, levied a tax of four mills on each dollar's worth of taxable 
 property in the county. 
 
 4. The amount of tax charged upon the lot in question, for the year 1839, was as 
 follows, viz. . 
 
 Valuation, $2,000.00. 
 
 State tax $4.00. 
 
 County tax, ., 8.00. 
 
 Total tax, . 
 
 $12.00. 
 
 5. August 20, 1839, the lists of taxable property returned by the assessors, were 
 delivered by the clerk of the County Commissioners' Court, to the collector aforesaid, 
 and a duplicate receipt thereof was filed in the clerk's ofBce. This list is a transcript 
 of the assessor's return. 
 
 6. March 10, 1840, the collector advertised, in the " Chicago Democrat," the de- 
 linquent 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 Illi- 
 nois, upon which the taxes remain due and unpaid, for the year herein set forth. 
 
 Bescription. 
 
 Owner. 
 
 Tax. 
 
 Costs. 
 
 Interest. 
 
 Tear for which 
 tax due. 
 
 Lot 1, Block 1, ) 
 
 original plat, J 
 
 Chicago. ) 
 
 John Jones. 
 
 fl2.00. 
 
 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 he 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 sajiCounty of 
 
APPENDIX. 
 
 637 
 
 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 re- 
 spectively, and specifically mentioned in the said list ; and the said owners, and 
 others interested, are further notified that, on the second Monday next succeeding the 
 said term of the said court, I shall expose to public sale all of the lands and other 
 real estate against which judgment shall be pronounced by the said court, and for 
 the sale of which such order shall be made, for the amount of taxes, interest and 
 costs due thereon. 
 
 ElCHABD EOE, 
 
 Collector of Cook County ^ Illinois. 
 Chicago, March 10, 1840. 
 
 To this advertisement is appended a certificate of the printer and publisher of the 
 Chicago Democrat, in these words, namely : 
 
 "I, John Wentworth, printer and publisher of the Chicago Democrat, a weekly 
 newspaper printed and published in the City of Chicago, in the County of Cook and 
 State of Illinois, do hereby certify that the foregoing list, and notice thereto attached, 
 was published in said newspaper on the 10th day of March, 1840 ; and that the num- 
 ber 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 ac- 
 customed mode of business in said office. 
 
 John Wektworth, 
 Printer and Publisher of the Chicago Democral. 
 
 Chicago, March. 12, 1840." 
 
 7. A copy of said advertisement, together with the certificate of the said printer 
 &c., was filed in the office of the clerk of the said circuit court. May 1, 1840. 
 
 8. On the said first day of May, the collector aforesaid made a report of the de- 
 linquent list to the said court in these words : 
 
 " List of lands and 'other real estate, situated in the County of Cook and State of Illi- 
 nois, on which taxes remain due and unpaid for the year herein set forth : 
 
 Names 
 
 of preseht 
 
 owner. 
 
 COBt. 
 
 Interest. 
 
 Amount 
 of 
 tax. 
 
 Tear for 
 
 which tax 
 
 is due. 
 
 Valuation. 
 
 Description. 
 
 County. 
 
 J. Jones. 
 
 14 
 
 16 
 
 ©12,000 
 
 1839 
 
 ■ 
 
 82,000.00 
 
 Lot 1, Block 1, 
 
 origioal 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 1 839, 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. 
 
 Richard Rob, Collector. 
 
 54 
 
638 
 
 APPENDIX. 
 
 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 
 delinquent list, in these words, to wit ; 
 
 State of Illinois, ) 
 
 Cook County, j ^'^''^• 
 
 Whereas, Richard Roe, collector of said county, returned to the circuit court of 
 said county, on the first day of May, 1840, the following tracts and parts of tracts of 
 land, as having been assessed for taxes by the assessor of said county of Cook, for 
 the year 1839, and that the taxes thereon remained due and unpaid on the day of 
 the date of the said collector's return, and that the respective owner or owners have 
 no goods and -chattels within 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 
 
 Chicago. 
 
 »2,000.00 
 
 $12.00 
 
 14 
 
 16 
 
 Cook. 
 
 And whereas, due notice has been given of the intended application for a judg- 
 ment against said lands, and no owner hath appeared to make defence or show cause 
 why judgment should not be entered against the said lands for the taxes, interest 
 and costs due and' unpaid thereon, for the year or years herein set forth: Therefore, 
 it is considered by the court, that judgment be, and is hereby entered against the 
 aforesaid tract or tracts of land, or parts of tracts, in the name of the State of Illinois, 
 for the sum annexed to each tract or parcel of land, being the amount of taxes, in- 
 terest 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 for each of them 
 . to satisfy the amount of taxes, interest and costs annexed to them severally, be sold, 
 as the law directs. 
 
 11. The precept issued May 13, 1840, and was in these woi;^s : 
 
 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 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 retmn, 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 ptat of 
 
 Chicago. 
 
 $2,000.00 
 
 812.00 
 
 14 
 
 16 
 
 Cook. 
 
APPENDIX. 
 
 639 
 
 And whereas, dne notice has been given of the intended application for a judg- 
 ment against said lands, and no owner hath appeared to make defence or show cause 
 why judgment should not be entered against the said lands for the taxes, interest 
 and costs due and unpaid thereon, for the year or years herein set forth : Therefore, 
 it is considered by the court, that judgment be, and is hereby, entered against the 
 aforesaid tract or tracts of land, or parts of tracts, in the name of the State of Illinois, 
 for the sum annexed to each tract or parcel of land, being the amount of taxes, in- 
 terest and costs due sererally 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. 
 
 And to which precept this certificate was added : 
 State of Illinois, ) 
 Cook Codnty. j ' 
 
 I, Louis D. Hoard, clerk of the Circuit Court, within and for said county, do cer- 
 tify that the foregoing precept is a full 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. 
 
 Witness my hand and the seal of said court, at the City of Chicago, 
 this 13th day of May, 1840. 
 
 Louis D. Hoard, Clerk. 
 
 [seal.] 
 
 12. The sale book relating to this parcel of land is in these words, namely: 
 Begister of Sales for Taxes on the 18th day of May, 1840. 
 
 Owner. 
 
 DeecriptioD. 
 
 Valuation. 
 
 Tax. 
 
 Cost. 
 
 Interest. 
 
 Total. 
 
 Purchaser. 
 
 John 
 Jones. 
 
 Lot 1, Block 1, 
 Orig Plat., 
 Chicago. 
 
 §2,000.00 
 
 • Jfl2.00 
 
 14 
 
 16 
 
 S12.30 
 
 John 
 Smith. 
 
 13. Certificate of sale, dated May 19, 1840, assigned to John Johnson. 
 
 14. Tax deed to Johii Johnson, dated May 20, 1842, in these words : — 
 
 "Knoto all men is O^se ^Presents, that whereas, at the May term, 1840, of the 
 Circuit Court of Cook County, a judgment was obtained in said court, in favor of 
 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, as- 
 sessed upon said tract of land for year 1839 ; and whereas, on the 18th day of May, 
 1840, I, Bicharii Eoe, sheriff of the county aforesaid, by virtue of a precept issued 
 out of the Circuit Court of the county aforesaid, dated the 13th day of May, and to 
 me directed, did expose to public sale at the door of the court house, in the county 
 aforesaid, in conformity with all the requisitions of the statute in such case made 
 and provided, the tract of land above described, for the satisfaction of the judgment 
 so rendered as aforesaid : and 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 thirty cents, for the whole parcel, which was the least quantity bid 
 for the said tract was stricken off to him at that price. And whereas, it appears 
 
640 APPENDIX. 
 
 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 sum of twelve dollars and thirty cents, to me in hand paid 
 . by the said John Smith, at the time of the aforesaid sale, and by virtue of the statute 
 in such case made and provided-, have granted, bargained, and sold, and by these 
 presents do grant, bargain, and sell, unto the said John Johnson, his heirs and as- 
 signs, Lot 1, in Block 1, Original Plat, Chicago. To have and to hold, unto him, 
 the said John Johnson, his heirs and assigns, foi'ever ; subject, however, to all the 
 rights of redemption provided by law. In witness whereof, I, Richard Roe, sheriff 
 as aforesaid, have hereunto subscribed my name, and affixed my seal, this 20th day 
 of May, 1842. 
 
 Richard Roe, [seai..] 
 Sheriff of Cook County, and ex-offido Collector. 
 
 This deed was acknowledged before the Clerk of the Circuit Court, May 20, 1842, 
 and duly recorded May 21, 1842. 
 
 Ordinarily such an abstract, or one as full, alone can enable counsel to 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 Roe, collector, for the 
 :year 1839, each of whom were duly qualified. 
 
 2. March 9, 1839, the clerk delivered the abstract to the assessor. 
 
 3. List returned by assessor May 1, 1839, regularly authenticated. Valuation 
 $2,000.00. 
 
 4. County tax of four mills levied Jufle 6, 1839. 
 
 5. List delivered to the collector August 20, 1839 — these regularly authenti- 
 ' cated. 
 
 6. The advertisement was published in the Chicago Democrat, March 10, 1840, 
 and is in conformity with the law, and regularly certified, with these exceptions : 1. 
 There is no caption to the list. 2. Tlie amount of costs and interest is omitted. 3. 
 
 ■ The certificate of publication does not show in what paper the list was puijlished. 
 -4. The notice does not show where the sale will be held. 
 
 7. Collector's report made May 1, 1840, and is regular, with thi^ 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 ex- 
 ception : 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. 
 
APPENDIX. 641 
 
 •12. The deed is in the form prescribed, except it omits a recital of the precept. 
 This deed bears date May 20, 1840, was duly aclcnowledged and reported May 22, 
 1842. 
 
 Memo. — The description of the lot and tlie 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 
 Chicago," simply describing the lot as "lot 1, bloclc 1, Chicago." 
 
 An accurate conveyancer making such an^abstract, will be able, in the above com- 
 pass, to give all the information necessary to enable counsel to give an opinion upon 
 the question as to the regularity of the tax sale. 
 
 54* 
 
INDEX. 
 
 A. 
 
 ABS^TRACT OF A TAX TITLE (Appendix), 
 ABUSE OF AUTHORITY IN SALE OF THE LAND, 
 ACKNOWLEDGMENT OF TAX DEED; 
 ACTS EST PAIS, 
 
 party claiming title must prove, 
 ACTS OF RECORD, 
 ADJOURNMENT OF SALE, . 
 ADMINISTRATOR'S 
 
 sale under order of court, 
 
 deed, form of, . 
 ADVERSE POSSESSION, 
 ADVERTISEMENT OF SALE, . 
 
 essential in tax proceedings, 
 
 contra, . , , . 
 
 a non-essential in sheriffs' sales, 
 
 mast purport to be an official act, 
 
 may be made by an officer de facto, 
 
 must be signed, .... 
 
 must be published in the paper designated, 
 
 change in name of newspaper, ..... 
 
 State papef authorized to publish — ceased to be recognized as 
 such, 
 
 when insertion required in several papers must be complied with, 
 
 must not be published until the time designated, 
 
 foi-m and requisites of, 
 
 when form prescribed must be pursued, .... 
 
 when none prescribed — substance of statute requirements to be 
 followed, .... 
 
 description of the land, 
 
 when amount of the tax must be stated, 
 
 should state time of sale, 
 
 and place of sale, 
 
 PiOB 
 
 635-641 
 437 
 370 
 
 71 
 
 58 
 287 
 
 55 
 
 42 
 
 566 
 
 213-250 
 214 
 
 note, 215 
 214 
 218 
 218 
 216 
 219 
 220 
 
 220 
 220 
 222 
 223 
 223-225 
 
 225, 233 
 
 225-230 
 
 231 
 
 233 
 
 233 
 
644 
 
 INDEX. 
 
 ADVERTISEMENT OF SALE— Continued. 
 names of the owners to be inserted, 
 must be published the requisite length of time, 
 number of insertions, 
 
 in several languages, . . • • 
 
 in newspaper having the greatest circulation, 
 in extra sheets of a newspaper, 
 strictness required in the advertisement, . 
 posting of additional notices, . 
 consent will not dispense with, 
 presumptions of regularity seldom indulged in, 
 date of, prima facie evidence of time when published, 
 mistake in date cannot be aided by parol, 
 proof of, ..... 
 when presumed, 
 AGENTS, 
 
 public and private, 
 AMENDMENT, 
 
 of the proceedings, 
 ASSIGNMENT, 
 
 of the certificate of purchase, 
 AUTHORITY, 
 
 abuse of, in the sale of the land, . 
 excess of, in the sale of the land, . 
 power to sell land for taxes, a common law, • 
 depends upon statute, ' . 
 is special, .... 
 
 and a naked power, .... 
 depends upon the high prerogative of the State, 
 to sell land for taxes a special one, . 
 a special, to be strictly pursued, . 
 must be proved in all cases, . 
 AUTHORITIES, 
 
 distinction between general and special, 
 
 power to sell land for taxes special, 
 
 nature of an authority over real property, 
 
 statutory, ..... 
 
 under statute of uses, 
 AUTHORITY TO COLLECT, 
 
 essential, . ... 
 
 distinction to be taken between this and authority to sell, 
 
 variously denominated, .... 
 
 in the nature of an execution, . . . . 
 
 must be made out by proper ofBcer, . 
 
 and delivered to proper officer, . . . . 
 
 must be legally authenticated, 
 
 delivered after day named by statute, void. 
 
 235 
 236 
 240 
 241 
 241 
 243 
 244 
 245 
 249 
 
 249, 531 
 248 
 249 
 514 
 
 520-523 
 
 51 
 
 358 
 
 376 
 
 437 
 437 
 441 
 33 
 33 
 33 
 33 
 42 
 65 
 76 
 
 35 
 44 
 54 
 38 
 37,38 
 
 168 
 167 
 167 
 168 
 168 
 168 
 169 
 170 
 
INDEX. 
 
 645 
 
 AUTHORITY TO COLLECT— Conimtied. 
 
 so when delivered before the day, 
 
 must recite tlie statute, 
 AUTHORITY OF THE OFFICER TO SELL, . 
 
 distinction between this 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, 
 AUTHENTICATION 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, 
 
 170 
 170 
 
 251-259 
 167 
 251 
 251 
 252 
 255 
 256 
 257 
 258 
 258 
 259 
 259 
 
 345-351 
 345 
 347 
 348 
 349 
 349 
 349 
 350 
 
 B. 
 
 BIDS, PUFFING, 
 BIDDERS, 
 
 highest, entitled to the property, 
 who are the highest, 
 frauds among the, vitiates the sale, 
 BODY SOMETIMES SEIZED IN 
 TAX, 
 
 SATISFACTION OF THE 
 
 399 
 
 276 
 276 
 398 
 
 176 
 
 CAVEAT EMPTOR, 58, 65 
 
 CERTIFICATE OF SALE, 
 
 nature and effect of, ..... . 296 
 
 interests which are acquired by, .... . 297, 298 
 
 right which vests after time of redemption expires, . . 298 
 right acquired by, descends to heirs, and does not vest in executor, 298 
 transfers a vested interest, protected by the constitution, . . 299 
 interest which passes by, prior to the expiration of the period of re- 
 demption, ....... 300 
 
 must be recorded in Missouri, ..... 300 
 
 CITIZEN, 
 
 immunities to which he is entitled under federal constitution, . 5 
 
646 . INDEX. 
 
 COLOR OF TITLE, 
 
 defined, . . .... 564,576,581 
 
 COMMON LAW, 
 
 enters largely into the construction of statutes, . . 45 
 
 CONDEMNATION OF LAND FOR PUBLIC USES, 4,39 
 
 CONDITIONS SUBSEQUENT TO THE SALE, . . .303 
 
 gene,ral doctrine as to conditions, . • 300, 301 
 
 return of sale, ... ■ 304,310 
 
 lodging deed, . ... 308 
 
 record of proceedings, ..... 310,314 
 
 record of certificate of purchase, ..... 314,315 
 
 execution and filing of surplus bond, . . . .315,320 
 
 notice to redeem, . ..... 320, 342 
 
 distinction between conditions imposed upon the purchaser and 
 
 ofiicer, ■ 342-346 
 
 common law, ...... 31-32 
 
 CONDITIONAL ESTATES, 
 
 defined, ...... 300 
 
 how may arise, ....... 301 
 
 depending on conditions precedent, .... 302 
 
 subsequent, . . . 302 
 
 CONFIRMATION OF .SALE, 
 
 essential when required by law, ..... 352-354 
 
 CONSENT OF OWNER, 
 
 to irregularities in the proceedings, . . 445 
 
 CONSIDERATION, 
 
 inadequacy of, ..... . 43 
 
 CONSTRUCTIVE NOTICE, . .... 44 
 
 CONSTITUTIONALITY OF TAX LAWS, . . . 26,30 
 
 • CONSTITUTION, 
 
 definition of, ... ... 9 
 
 guarantees in favor of life, liberty, and reputation in, . 10, 11' 
 
 property, . . . . .11,12 
 
 distribution of power under the, . . . . 12,16 
 
 CONTINUING POWER, . .... 312 
 
 CORPORATIONS, . . •. . . 447 
 
 no implied power to sell land for taxes, .... 448 
 
 power may-be delegated to them, .... 448 
 
 must exercise the power according to the principles of the consti- 
 tution, . . ..... 448 
 
 and in conformity with their charter, .... 448 
 
 no powers by implication, ..... 448 
 
 assumpsit the appropriate remedy to collect taxes by, . 448 
 
 no power to convey, unless expressly granted, . . . 448 
 
 cannot exempt property from taxation, . . . 448 
 
 cannot declare tax deed prima facie evidence, . . . 448 
 
 corporation taxes are not public taxes, .... 449 
 
INDEX. ' 
 
 647 
 
 450 
 
 450 
 450 
 
 450 
 
 CORPORATIONS —Cmtinued. 
 
 no power to levy double taxes, ..... 
 
 when permitted to assess taxes " according to law " means law in 
 force when assessment made, ..... 
 
 no power to defeat the policy of the general laws, . 
 
 whea charter silent as to the mode, &c., must follow the general 
 
 law, . . . _ . 
 
 facts necessary to be proved by one claiming under a corporation 
 
 tax sale, . . . . . . . .451 
 
 sales by private corporations, ..... 451,457 
 
 proprietary tax sale, ....... 457 
 
 COURTS GRANT NO INDULGENCE TO TAX PURCHASER, 68 
 
 and never lean in his favor, . . . . . 68 
 
 COVENANTS OF THE OFFICER WHO SELLS AND CON- 
 VEYS, '^ 442 
 
 CREDIT SALES, . ...... 278 
 
 D. 
 DEED, 
 
 definition of a tax deed, ...... 364 
 
 operation or legal effect of, . . . . 364 
 
 must be written or printed, ..... 365 
 
 mus.t be on parchment or paper, .... 365 
 
 must be sealed, ....... 365 
 
 must be delivered, . . . , . 367 
 
 must recite the power of officer; . . . . 368 
 
 form of deed, ....... 369 
 
 date of deed, ....... 369 
 
 acknowledgment of, . ... 370 
 
 recording of, ... . . . .371' 
 
 when to, be made, .... . 371 
 
 power to execute a continuing one, ..... 372 
 
 mandamus lies to compel its execution, .... 373 
 
 so a bill in equity, ....... 373 
 
 what officer must execute, .... 374 
 
 to whom to be executed, '...... 376 
 
 death of owner of land does not deprive officer of power to execute 380 
 
 several tracts may be included in one deed, . . . 380 
 deed which shows upon Its face a non-compliance with the law, 
 
 void, ........ 380 
 
 must give a certain description of the land, . . . 381 
 
 wiien it takes effect, . ..... 383 
 
 relation of, . . . . . . . 383-386 
 
 power to execute a deed depends upon express grant, . . 386 
 
 covenants in, ...... . 442 
 
 construction of statutes declaring deed primayaCTe evidence, . 79-85 
 
 power of legislature to declare deed conclusive, ... 79 
 
648 . INDEX. 
 
 DEMAND OP THE TAX, 
 
 essential, ..... 172 
 
 tax no debt until demanded, .... 172 
 
 cannot seize body, \ 
 
 distrain goods, or \ until demanded, . . . . 172 
 
 sell land, \ 
 
 DEPUTY, 
 
 when one may act by, . .... 375 
 
 DESCRIPTION OF LAND LISTED AND SOLD, . 123,281,381 
 
 DIRECTORY REQUIREMENTS, 
 
 there is a distinction between positive and, . . . 260 
 
 the distinction has not been pointed out, . . . 260 
 
 there is a plain rule as to time, . . . 261 
 
 no general rule is safe, . . . . 261 
 
 it is a rule of discretion, . .... 261 
 
 easier to comply than to assign reasons for non-compliance, . 261 
 courts should seldom hold a provision directory, . . 262 
 the principle is that a sound discretion must be exercised in con- 
 struing the statute, .... 262 
 
 the application to tax laws denied, . ... 262 
 
 one case attempts to apply the rule and lay down a principle, . 263 
 for sensible rules, see ...... 264, 265 
 
 DISCRETIONARY POWERS, . . . . 42 
 
 DOOMING, . . .30 
 
 DOUBLE TAXATION, 
 
 not favored, . ..... 1 66 
 
 how collected, .... 30 
 
 DUTY OF OWNER' TO PAY TAXES, . . " 67 
 
 E. 
 
 EMINENT DOMAIN, 
 
 distinction between, and taxing power, . . 1 
 
 EVIDENCE, 
 
 amis probandi on purchaser, ..... 65-90 
 
 best evidence requisite, . . . . • 510 
 
 secondary evidence, . . 512 
 
 office books, ... ... 513 
 
 certificates not evidence, .... 513-515 
 
 proof of publication, .... 514 
 
 officer a competent witness, .... 514 
 
 presumptive evidence, ..... .'515,533 
 
 EXCESS OF AUTHORITY- IN THE SALE OF THE LAND, 437 
 
 EXECUTIONS, 
 
 sales under, . , ... 55 
 
 EXEMPTION, 
 
 sale void where land exempt from taxation, . 406 
 
INDEX. 
 
 619 
 
 EXEMPTION— Conimaed. 
 
 owner not bound to enjoin, 
 constitutional exemption, 
 by compact, 
 statutory, 
 
 constitutionality of exemption laws, 
 exemption laws construed strictly, 
 corporations no power to exempt, 
 lands belonging to State, exempt 
 EX PARTE PROCEEDINGS, 
 EXTENDING EXECUTIONS, . 
 
 406 
 
 406 
 
 406 
 
 406 
 
 407,409 
 
 409 
 
 410 
 
 410 
 
 44 
 
 52 
 
 F. 
 
 FEOFFMENT, 
 
 31 
 
 FORFEITURES OF LAND TO THE STATE, 
 
 # 
 
 defined, ....... 
 
 459 
 
 equity will not aid, ..... 
 
 460 
 
 court of law leans against, ..... 
 
 460 
 
 and requires strict proof, .... 
 
 460 
 
 foundation of the right to forfeit, .... 
 
 460 
 
 whether inquisition necessary, . . . . . 
 
 460, 471 
 
 redemption of forfeited lands, .... 
 
 471 
 
 waiver of forfeiture, ..... 
 
 471 
 
 forfeiture by tenants for life, ..... 
 
 472 
 
 FORM, 
 
 
 of tax deed, ...... 
 
 369 
 
 must be adhered to, . 
 
 365 
 
 FRAUDULENT SALES, 
 
 
 fraud will vitiate a tax sale, . . . . . 
 
 396 
 
 positive frauds, . .... 
 
 396 
 
 constructive frauds, ..... 
 
 396 
 
 partnerships to purchase at tax sales are fraudulent. 
 
 397 
 
 agreements among the bidders not to bid against each other, 
 
 398 
 
 puffing bids, ....... 
 
 399 
 
 purchase by those who are legally bound to pay the tax. 
 
 399 
 
 1. Mortgagor, ..... 
 
 399 
 
 2. Mortgagee, ...... 
 
 q99 
 
 3. Possessor, ...... 
 
 400 
 
 4. Heir, ....... 
 
 400 
 
 5. Vendee, . . . , . 
 
 400 
 
 6. Agent to pay tax, &c., . ' . 
 
 401 
 
 7. Tenant in common, .... 
 
 401 
 
 8. Tenant for life, . . . . . 
 
 401 
 
 9. Judgment creditor, .... 
 
 402 
 
 10. By the officer who sells. 
 
 402 
 
 55 
 
 
650 
 
 INDEX. 
 
 G. 
 
 GOVERNMENT, 
 
 origin of, 
 
 duty of, 
 
 powers of, 
 
 the declared ends of, 
 GUARDIAN'S SALES, 
 
 9 
 
 9 
 
 8-10 
 
 8-10 
 
 55 
 
 HEIR, 
 
 how to prove title of, 
 
 ILLINOIS STATUTE OF 1839, 
 
 when court has jurisdiction under, 
 
 report of collector under, 
 
 notice of application and sale under, 
 
 requisites and form of judgment under, 
 
 form and requisites of precept under, 
 
 purchaser must prove judgment and precept, 
 
 requisites relative to deed under, 
 
 facts to be established by purchaser under, . 
 
 who may attack the deed under, . 
 
 what facts may be proved to overthrow deed, 
 IMPLIED POWERS, 
 
 not permissible in tax proceedings, . 
 IMPROVEMENTS, 
 
 compensation for, made under tax titles, 
 INTERPRETATION, 
 
 necessity of, .... . 
 
 definition of, . 
 
 distinction between interpretation and construction, 
 
 species as defined by ethical writers, 
 
 1. Close, .... 
 
 2. Extensive, .... 
 
 3. Extravagant, 
 
 4. Free or unrestricted, 
 
 5. Limited or restricted, 
 
 6. Predestinated, .... 
 
 7. Authentic, i , 
 ethical rules of intei-pretation, 
 
 1 . Is the text genuine, 
 
 2. There is but one true sense, 
 
 3. Good faith and common sense requisite, 
 
 . 190-212 
 
 199 
 
 199 
 
 201 
 
 202 
 
 206 
 
 210 
 
 210 
 
 210 
 
 211 
 
 211 
 
 274, 389 
 
 587-594 
 
 597 
 598 
 599 
 
 601 
 601 
 601 
 601 
 601 
 601 
 601 
 
 602 
 602 
 603 
 
INDEX. 
 
 651 
 
 INTERPRETATION —Continued. 
 
 4. Words to be taken in their moat probable sense, . . 603 
 
 5. Doubtful words to be ascertained by reference to other 
 
 passages of the same text, .... 603 
 
 6. And from competent sources which are extraneous, . 603 
 
 7. Technical terms to be interpreted according to the art 
 
 or science from whence taken, . . . 603 
 
 8. Tropes to be taken as tropes, &c., . . . 603 
 
 9. Special, particvilar, and inferior, cannot overthrow gen- 
 
 eral and superior, ..... 603 
 
 10. The words themselves to be first resorted to, and ex- 
 
 traneous principles only under compulsion, . . 603 
 
 1 1 . The probable, fair, easy, customary, and intelligible, is 
 
 preferable to their opposites, .... 603 
 
 12. To follow prescribed rules, .... 603 
 
 13. Must resort to that which is near, in preference to that 
 
 which is distant, ..... 603 
 
 rules of the civilians, 
 
 1. Literal, ....... 605 
 
 2. Rational, ...... 605 
 
 3. Mixed, ....... 605 
 
 common-law rules, 
 
 1. Strict, ....... 605 
 
 2. Liberal, ....... 605 
 
 "ITA LEX SCRIPTA EST," 60 
 
 J. 
 
 JUDGMENT, 
 
 void, unless court had jurisdiction, . 
 
 1 . Of the person, ..... 
 1. Of the subject-matter, .... 
 conclusive on parties and privies, 
 
 reversal of, will not affect the title of a purchaser under it, . 
 under the tax laws of Tennessee, 
 
 Indiana, .... 
 
 Ohio, .... 
 
 Illinois, .... 
 
 "JUDGMENT OF HIS PEERS," 
 
 meaning of expression, ..... 
 JUDICIAL PROCEEDINGS, 
 
 must intervene in some States, .... 
 
 tax proceedings are quasi, .... 
 
 JURISDICTION, 
 
 over the person, .'.... 
 
 subject-matter, ..... 
 distinction between courts of general and special jurisdiction, 
 when jurisdictional facts must appear of record, . 
 
 184 
 184 
 184 
 184 
 187 
 188 
 189 
 189 
 190-212 
 
 17, 24 
 
 184, 212 
 44 
 
 184 
 184 
 184 
 
 184 
 
652 
 
 INDBX. 
 
 JURISDICTION —Confenuerf. 
 
 when presumed, ....... 
 
 strictness required in tlie exercise of jui-isdiction, in the execution of 
 the taxing power, ...... 
 
 184 
 185 
 
 K. 
 
 KNOWLEDGE OF THE PURCHASER, 
 
 how far he is chargeable with. 
 
 65,66 
 
 L. 
 
 "LAW OF THE LAND," 
 
 meaning of the expression, ..... 17-24 
 
 "LEGAL REPRESENTATIVE," 
 
 who is, ........ 296 
 
 LEVY OF THE TAX, 
 
 essential, ........ 154 
 
 onus on purchaser to prove, . . . . . .155 
 
 a municipal act, ....... 155 
 
 must be levied when the statute directs, . . .156 
 
 power to levy a tax a limited one, . . . . 159 
 
 excessive levy vitiates sale, . . . . . .159 
 
 one of several levies illegal, sale void, . . . . 160 
 
 " de minimus non curat lex " not applicable, .... 162 
 
 overlayings excessive, and sale void, . . . . 161 
 
 less tax than allowed, sale sustained, . . . .162 
 
 for illegal purpose, sale void, . . . . . 162 
 
 several taxes ought not to be blended together, . . . 163 
 
 back taxes may be levied, . . . . . 163 
 
 legislature may delegate the power to levy a tax to local tribunals, 164 
 
 power of corporation to levy must be clear, . . . .165 
 
 illegal tax may be recovered back, . . . . 165 
 
 statutes levying J;axes to bo strictly pursued, . . . 165 
 
 not to be construed as authorizing double taxes, . . 166 
 
 LEGISLATIVE POWER, 
 
 over property, ....... 7-300 
 
 to establish rules of evidence, ..... 80 
 
 whether competent to declare a tax deed conclusive evidence of 
 
 title, ........ 80-82 
 
 XIEN OF THE STATE FOR TAXES, 
 LIMITED, 
 
 all powers are, 
 LIMITATION, 
 
 statutes of, tax titles under, 
 LISTING, 
 
 essential to validity of tax title, 
 
 definition of, . 
 
 28, 646-650, and note. 
 
 54 
 
 561 
 
 106 
 108 
 
INDEX. 
 
 653 
 
 iulSTlSG— Continued. 
 
 onus on pui'chaser, ..... 
 
 evidence of, .... . 
 
 must be an official document, 
 
 power to list conferred upon several, all must consent, 
 
 list must be verified by official signature, 
 
 power to list is special and limited 
 
 if property beyond jurisdiction of assessor, list void, 
 
 return and lodging copy of, essential, 
 
 must be returned in time prescribed, 
 
 description must be certain and accurate, 
 
 listing depends upon character of the land, . 
 
 of unseated lands, ..... 
 
 of non-resident lands, .... 
 
 of lands of unknown owners, 
 
 must be in owner's name, .... 
 
 each tract must be listed separately, 
 LOCATION, 
 
 of the land sold, ..... 
 
 109 
 
 109, no 
 
 112 
 
 112-lU 
 
 112 
 
 114 
 
 114-117 
 
 117 
 
 117-123 
 
 137-151 
 
 137 
 
 137 
 
 145 
 
 144 
 
 143, 144 
 
 146 
 
 355-359 
 
 M. 
 
 MANDAMUS, 
 
 to compel execution of tax deed, 
 
 53 
 
 N. 
 
 NOTICE, 
 
 is of the essence of things required to be done, . . . 213 
 
 essential in all judicial proceedings, .... 213 
 
 where statute is silent, notice is implied, .... 213 
 
 in special proceedings, notice must appear of record, . . 214 
 
 must appear at large, recital insufficient, .... 214 
 
 notice in sheriff's sale unessential, . . . . 214 
 
 essential in tax sales, . . . . . . 215 
 
 of application for judgment, ..... 201 
 
 requisites of a valid notice, ...... 172,233 
 
 , where law requires to be posted in a public place, . . 245 
 
 by proclamation, ....... 246 
 
 consent of owner will not dispense with a legal notice of a tax sale, 249 
 
 by posting, " ... . . . . 245 
 
 by advertisement, . . - . . . . . 213-250 
 
 0. 
 
 OATH, 
 
 whether essential to title of officer, 
 power to administer, judicial, 
 
 55* 
 
 91-105 
 257 
 
654 
 
 INDEX. 
 
 OFFICE, 
 
 
 definition of an, . 
 
 92 
 
 no such thing as an office de facto, . . . ■ ■ 
 
 92 
 
 OFFICER, 
 
 
 where a right is derived under one who purports to act in an official 
 
 
 , character, the fact that he was an officer must appear, . 
 
 91 1 
 
 definition of an officer de jure, ..... 
 
 92 
 
 defacto, ..... 
 
 92 
 
 acts of an, defacto, when valid, . . . . • 
 
 93 
 
 this principle applicable to tax sales, .... 
 
 96 
 
 acts of an assessor defacto, when valid, .... 
 
 98,99 
 
 when void, .... 
 
 99 
 
 a collector &7acto, wlien valid, .... 
 
 103 
 
 void, .... 
 
 102-4 
 
 Onus probandi, ........ 
 
 65-90 
 
 upon the purchaser in tax sales, ..... 
 
 73 
 
 reasons, ........ 
 
 65-90 
 
 exceptions to the rule, ...... 
 
 74 
 
 how far this rule changed by legislature, 
 
 79-90 
 
 OWNER, 
 
 
 who is, ....... ■ 
 
 420 
 
 OWNERSHIP, 
 
 
 defined, ........ 
 
 426 
 
 P. 
 
 PATENTS, 
 
 distinction between, and tax titles, .... 78 
 
 PAYMENT OF THE TAX, 
 
 sale void when tax paid before sale, ..... 412-417 
 
 how proved, . . .... 417 
 
 mistake as to tract paid upon, ..... 413 
 
 by owner of an interfering survey, .... 413 
 
 by a tenant in common, ... . . 413 
 
 PENAL STATUTES, 
 
 definition of, ...... 53 
 
 PERSONALTY TO BE FIRST EXHAUSTED BEFORE SELL- 
 ING THE LAND, 176 
 
 PLEADING, 
 
 manner of, a tax title, ...... 500-509 
 
 POSTING NOTICES, 245 
 
 POWERS, 
 
 at common law, ....... 31 
 
 under statute of uses, ...... 32-36 
 
 statutory, ........ 33-38 
 
 distinction between naked and those coupled with an interest, . 44 
 POWER TO SELL LAND FOR TAXES, 
 
 a stranger to the common law, . . . . . 31 
 
INDEX. 
 
 655 
 
 POWER TO SELL LAND FOR TAXES— Coniimed. 
 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 tfe open and exclusive, . 
 PROPERTY, 
 
 security of, under constitution, 
 PUBLIC DOMAIN, 
 
 wljether it may be taxed by the States, . 
 PURCHASE 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, .... 
 
 
 33 
 
 
 33 
 
 3C 
 
 -44 
 
 
 33 
 
 
 34 
 
 71 
 
 -73 
 
 515- 
 
 -528 
 
 528- 
 
 -533 
 
 
 533 
 
 
 532 
 
 7-10 
 
 542- 
 
 -544 
 
 
 297 
 
 300- 
 
 -303 
 
 
 300 
 
 299-300 
 
 534 
 
 -550 
 
 Q. 
 
 QUANTITY OF LAND "WHICH MAY BE SOLD, 
 QUO WARRANTO, 
 
 proper mode of testing title to an office, 
 QUASI JUDICIAL PROCEEDINGS, 
 
 .286 
 
 89 
 44 
 
 R. 
 RECITALS IN TAX DEED NOT EVIDENCE^ 
 RECORDING OF THE TAX DEED, . 
 REDEMPTION, 
 
 defeats title of purchaser, 
 
 who may redeem, 
 
 redemption laws to be construed liberally, 
 
 minors cannot redeem under designation of " orphani 
 
 widow cannot redeem her dower interest, 
 
 agent may effect redemption — no authority required 
 
 must be made within the time prescribed, 
 
 mode pointed out must be pursued, 
 
 precise sum due must be tendered, . 
 
 to whom a tender must be made, 
 
 offer to redeem, 
 
 receipt for redemption money, evidence, . 
 
 mandamus lies to compel a, . 
 
 notice to redeem, .... 
 
 73 
 371 
 
 _418 
 420-431 
 432 
 432 
 432 
 432 
 433 
 433 
 434 
 434 
 434 
 435 
 435 
 320-344 
 
656 
 
 INDEX. 
 
 RELATION OF A TAX DEED, 
 
 REMEDIES, 
 
 origin of, .... • ' • 
 
 when common law remedies may be adopted, 
 REMEDIES OF OWNER, 
 
 sale may be enjoined, . . ... 
 
 deed may be cancelled in equity, . . . . . 
 
 tax title not favored in equity, . ... 
 
 complainant must offer to refund tax, &c., . . . . 
 
 redemption may be enforced by mandamus, 
 REMEDIES OF CREDITORS AGAINST TAX SALE, . 
 REMEDIES OF PURCHASER, 
 
 may compel execution of deed by mandamus, 
 
 or bill in chancery, ....... 
 
 whether when he purchases an equity he may compel a conveyance 
 of the legal title, ...... 
 
 cannot recover possession by forcible entry and detainer, 
 
 ejectment is the appropriate remedy, .... 
 
 no defects in title aided in equity, ..... 
 REPEAL OF LAW UNDER WHICH SALE MADE, &c., 
 
 effect of, . 
 REPRESENTATIVE, 
 
 who is the " legal representative," . . . . . 
 
 RETURN OF DELINQUENT LIST, 
 
 basis of power to sell, ... . . 
 
 RIGHTS, 
 
 derived from nature, .... . . 
 
 of property, ....... 
 
 guarantees in favor of, ..... . 
 
 383 
 
 7,8 
 46 
 
 488-491 
 491-492 
 492 
 492 
 492 
 491 
 
 492 
 492 
 
 492 
 
 492 
 
 492 
 
 492-496 
 
 470 
 
 298 
 
 181 
 
 8-10 
 9-29 
 9-29 
 
 s. 
 
 SALE OF THE LAND, 
 
 when no authority, void, ... . . 251-266 
 
 must be public, ....... 266 
 
 and at the time designated in notice, .... 268 
 
 and at the place named, ...... 274 
 
 may be conducted by a deputy, ..... 275 
 
 power of the officer to adjourn sale, ..... 275 
 
 must be to highest bidder, ..... 276 
 
 and for cash — a sale on credit void, . . . . . 278 
 
 part of the land liable to sale — part not — the sale is illegal, . 280 
 sale must be according to the description contained in the anterior 
 
 proceedings, ....... 281 
 
 sale of the interest of a tenant in common, . . . 283 
 
 how the land is to be located, ..... 283 
 
 several parcels belonging to the same person — must be sold for 
 
 their separate tax, ...... 285 
 
INDEX. 657 
 
 SALE OF THE JjAtfT) —Continued. 
 
 quantity which may be sold, . . . . 286-529 
 
 sale after county divided, ..... 295 
 
 certificate of sale, ... ... 296 
 
 SHERIFF'S SALE, 
 
 advertisement not essential, ... . 214 
 
 purchaser must show judgment and execution, ... 95 
 
 SPECIAL PROCEEDINGS, 
 
 affecting properly, ...... 38-42,184 
 
 STARE DECISIS, 
 
 relative to tax titles, ... ... 556 
 
 STATUTES, 
 
 1. Definition of, ... . . . 599 
 
 2. Division of, 599 
 
 1 . General or special, . . . . . 599 
 
 2. Public or private, .... 599 
 
 3. Declaratory, ...... 599 
 
 4. Remedial, ...... 599 
 
 1. Enlarging, ...... 599 
 
 2. Restraining, ..... 599 
 
 5. Temporary, . .... 600 
 
 6. Perpetual, ...... 600 
 
 7. Affirmative, • . . . . . .600 
 
 8. Negative, .... . ' 600 
 
 9. Penal, ....... 600 
 
 3. Construction of, 
 
 1. Definition of construction, .... 597-601 
 
 2. Distinction between construction and interpretation, . 598 
 
 3. The dififerent species of construction, as defined by 
 
 ethical writers, ..... 604 
 
 4. Ethical rules of construction, . . . 604 
 
 5. Species of, as defined by the civilians, 
 
 1. Literal, ...... 605 
 
 2. Rational, ...... 605 
 
 3. Mixed, . . . • . 605 
 
 6. Common law species, 
 
 1. Strict, ...... 605 
 
 2. Liberal, ...... 605 
 
 7. Common law rules of construction, 
 
 1. Courts nothing to do with the expediency of a, 
 
 statute, ...... 606 
 
 2. The rules and maxims of construction to be ad- 
 
 hered to, .... . 606 
 
 3. Common law enters largely into the •construction 
 
 of statutes, ..... 606 
 a just intei'pretation is ever controlled by 
 
 that law, ..... 606 
 
658 INDEX. 
 
 STATUTES —Continued. 
 
 the best construction is to approach as near to 
 the rule and reason of the common law as 
 possible, ..... 606 
 
 and to conform to the course which that law 
 observes in similar cases, . . 606 
 
 where power is given by statute, but the means 
 of executing it are not prescribed, it must be 
 executed according to the course of the com- 
 mon law, ..... 606 
 
 and where the provisions of a statute are gen- 
 eral, it is subject to the control and order 
 of the common law, . . . 606 
 
 the statute is to receive such a construction as 
 may be agreeable to the rules of the common 
 law, in cases of a similar nature, . . 606 
 
 where a. common law word is used, we must 
 
 resort to that law for its meaning, . 606 
 
 a statute which makes an innovation upon, or 
 is in derogation of, the common law, must be 
 strictly construed, .... 606 
 
 4. The power to construe statutes is judicial, . 607 
 
 the legislature, no right to usurp this judicial 
 prerogative, by means of declaratory and ex- 
 planatoiy statutes, .... 607 
 
 5. Rules of construction same at law as in equity, 607 
 
 6. And are equally applicable to pnblic and private 
 
 statutes, ..... 607 
 
 7. The validity of a rule of construction is not to be 
 
 tested by extreme cases, .... 607 
 
 8. The intention of the legislature, the polar star of 
 
 construction, .... 607 
 
 this rule applicable to all classes of statutes . 607 
 
 this intent to be gathered from the words used, 607 
 
 the words are never departed from but to ascer- 
 tain intent, .... 608 
 when the words are plain and unambiguous, 
 
 they must be followed, . . . 608 
 
 courts may give a sensible interpretation to 
 words which are obscure, but they have no 
 right to distort those which are clear, . 608 
 
 the fair and natural import of the words in con- 
 nection with the subject-matter, is the true 
 • mode of ascertaining the intent, . . 608 
 
 and this without reference to any traditional 
 
 history of the occasion of the enactment, 608 
 
 unless the statute was the result of some 
 
 known state of public embarrassment, . 608- 
 
INDEX. 659 
 
 STATUTES —Continued. 
 
 when the language is obscure or ambiguous, 
 
 then every extrinsic fact may be resorted to, 608 
 
 thus, you may have resort to the 
 
 1 . Title of the statute, . . .608 
 
 2. To its preamble, . . 608 
 
 3. To usage under it, . . . 609 
 
 4. To a comparison with other laws, 609 
 
 5. To contemporaneous construction, . 609 
 
 6. To the hardship of the law, . 609 
 
 7. To the history and situation of the 
 
 country, .... 609 
 
 8. To the reason and spirit of the stat- 
 
 ute,, .... 609 
 
 9. To the inconvenience of a particular 
 
 construction, . . . 609 
 
 10. To the absurd consequences which 
 
 will follow it, . . . 609 
 
 11. To the public interests, . . 609 
 it is always presumed that the legislature in- 
 tend the most reasonable and beneficial con- 
 struction of their acts, . . . 609 
 
 the intention must be collected from the whole 
 
 act, ...... 609 
 
 and effect given to every clause, sentence, and 
 
 word, ..... 610 
 
 the most natural mode of construction is to 
 
 give effect to every part of a statute, 610 
 
 the broader expressions are to control the less 
 
 comprehensive, . . . . 610 
 
 statutes in pari materia may be considered 
 where the intention is obscure or doubtful, . 610 
 
 9. The general rule is that effect must be given to the 
 
 words of the statute, . . . 610 
 
 they ought to be understood according to their 
 
 natural and genuine signification, . . 610 
 
 unless by giving to them such meaning, an in- 
 consistency or contradiction would arise be- 
 tween the meaning thus given and other 
 parts of the statute, . . . 610 
 
 they are to be understood with reference to the 
 
 subject-matter, . . . . 610 
 
 words to be understood according to their most 
 
 known and popular use, . . . 611 
 
 but technical words must be regarded as em- 
 ployed in their technical sense, . . 611 
 
 all words must be taken in a lawful and right- 
 ful sense, . . . . . 6U 
 
660 INDEX. 
 
 STATUTES — Continued. 
 
 and according to their context, . ' . 611 
 
 and the subject-matter of the statute, . 611 
 
 when susceptible of two meanings, they must 
 
 be construed as generally understood, . 611 
 
 they ought not to be expounded so as to de- 
 
 sti'oy or impair natural justice, . . 612 
 
 when words which had a definite meaning in 
 an old statute, are used in .i new one, they 
 shall be construed alike, . . . 612 
 
 when words used in different parts of a statute 
 conflict, they should be construed according 
 to the leading object of the enactment, . 612 
 
 when the words of the enacting clause are more 
 general than those used in the title, the 
 former must prevail, . . . 612 
 
 general words to receive a broad construction, 612 
 
 unless restrained by other words in the same 
 
 statute, . . . . . 612 
 
 but general and less comprehensive words 
 should be so construed as to harmonize with 
 each other, ..... 612 
 
 when a statute uses a word which is suscepti- 
 ble of two meanings, and in another part of 
 the statute it is used in a definite sense, the 
 latter is the true meaning, . . 612 
 
 unless its context requires a different construc- 
 tion, ...... 613 
 
 when the words of a grant are susceptible of 
 two meanings, one extensive and the other 
 restrictive — and a choice is fairly open and 
 either may be adopted without violating the 
 object of the grant — that which will give 
 the fullest effect to the grant ought to be 
 adopted, ..... 613 
 
 general words do not embrace the State, . 613 
 
 the word persons means natural persons, 613 
 
 contra — corporations will be included, . 613 
 
 the word plaintiff or defendant will not include 
 
 States, counties, and municipal corporations, 613 
 
 statutes treating of inferior persons and things 
 will not be construed to embrace those bf a 
 superior dignity, .... 613 
 
 statutes speaking of courts, process, practice, 
 &c., must be regarded as using technical 
 language, ..... 613 
 
 statutes relating to particular actions cannot be 
 extended to others of the same species, . 613 
 
INDEX. 661 
 
 STATUTES —Continued. 
 
 void — sometimes means uoirfoi/e, . . 613 
 
 " which " and " said " relate to the last antece- 
 dent, ..... 614 
 
 " such " may be rejected, when, . . 614 
 
 a conjunctive clause may be taken in a dis- 
 junctive sense, ..... 614 
 
 the words "shall forfeit," give only a right to 
 
 enforce the forfeiture, and not the right itself, 614 
 
 affirmative words may be construed as a nega- 
 tive of that which is not affirmed, . . 614 
 
 a misnomer, in a, statute, of a person or cor- 
 poration, will not defeat the act, if intention 
 is apparent, .... 614 
 
 where the words of a statute or section are re- 
 pugnant to each other, the last must prevail, 614 
 
 when a word, taken according to its literal im- 
 port, would have no effect, or an obscure 
 one, it must have a more effective construc- 
 tion, ...... 614 
 
 general words may be restrained by more par- 
 ticular ones, . . . . 614 
 
 but where a thing is given or limited in the pre- 
 cedent part of the statute, it shall not be 
 taken away or altered by subsequent general 
 words, ..... 614 
 
 the meaning of a word may be ascertained by 
 reference to the meaning of words associated 
 with it, . . . . . 614 
 
 when the natural import of the words may be 
 
 departed from, .... 615 
 
 a word is omitted in one section, and the omis- 
 sion is supplied in another section, by refer- 
 ence to the section which omits the word, the 
 defective section may be enforced according 
 to such explanation, . . . 615 
 
 the word " may," is imperative, when, . . 615 
 
 10. When a statute makes no exceptions, the court 
 
 cannot, . . . . . 616 
 
 an exception implies, that but for the excep- 
 tion the thing or person excepted would be 
 within the statute, .... 616 
 
 and the exception of one thing, is proof that 
 every other thing is embraced within the 
 general words, . . . . 616 
 
 11. A statutory rule relating to pleading or practice, 
 
 must be construed with reference to the whole 
 system of which it forms a part, . . 616 
 
 56 
 
662 INDEX. 
 
 STATUTES —Continued. 
 
 12. Punctuation will not vary the constrnction of a 
 
 statute, ..... 616 
 
 13. The debates in the legislative body cannot influ- 
 
 ence the construction of a statute, . ' 616 
 
 14. A recital in the preamble of a statute will not limit 
 
 or restrain the enacting words of the statute, 616 
 
 15. In construing a revised code, they are to be con- 
 
 sidered as contemporaneous acts, . . 617 
 
 the common law is superseded by a revision of 
 the subject-matter, by the legislative au- 
 thority, ..... 617 
 
 words in a prior statute, which are incorpora- 
 ted in a revision, are to be construed as 
 though they were in the original statute, . 617 
 
 when words in a statute have received a judi- 
 cial construction, and are afterwards incor- 
 porated in a revised code, the same construc- 
 tion will be adhered to, . . . 617 
 
 when a, statute, previous to a revision, is clear, 
 a change in the phraseology of the revision 
 will not authorize a diflFerent construction, . 617 
 
 unless there is an intent to eifect a change, 617 
 
 16. Where the common and statute law differ, the lat- 
 
 ter must prevail, .... 617 
 
 but an afBrmative statute does not repeal the 
 
 common law, . . . . 617 
 
 where an old and new statute differ, the latter 
 
 must prevail, .... 617 
 
 17. Courts cannot supply defective enactments, a casus 
 
 omissus cannot be helped by the courts, . 618 
 
 a mere failure of justice is not a reason for con- 
 struing a statute against its clear meaning, 618 
 
 18. Where the reasons of a law are made known by 
 
 any authentic document, the latter may be re- 
 ferred to in construing a doubtful statute, . 618 
 
 19. Becitals in a statute are not conclusive upon any 
 
 one, 618 
 
 20. Where a positive enactment of a code is at vari- 
 
 ance with the dictionary clause of the code, the 
 
 latter must give way to the former, . . 618 
 
 21. Courts must reconcile conflicting provisions of a 
 
 statute, ...... 618 
 
 22. In doubtful cases, the occasion and necessity of the 
 
 law, the mischief felt and the object and remedy 
 
 had in view, may be considered, . . 618 
 
 23. " Communis error facit jus," , . , 618 
 
INDEX. 663 
 
 S TATUTES —Continued. 
 
 24. The adoption of a statute of a sister State, or for- 
 eign nation, carries along with it the con- 
 straction put upon it in the state or country 
 from whence it was derived, . . 618 
 
 in matters of practice, the rule is not inflexible, 619 
 
 nor where the law is not applicable to the con- 
 dition of the people, . . . . 619 
 Hb. Two statutes, at same session, oh same subject, to 
 
 be considered as one act, . , . 619 
 
 26. Definition of a public act, .... 619 
 
 27 . Where the means of carrying a constitution or stat- 
 
 ute into effect are not prescribed, those means 
 which do not intenfere with established relations 
 and rested rights may be adopted, . . 619 
 
 28. Conflicting statutes must be reconciled, if possible, 619 
 
 29. Intention of the draftsman oif a law is entitled to 
 
 no consideration,* . . . . 619 
 
 30. Custom is entitled to weight in construing an .old 
 
 statute, . . , 619 
 
 31. An old statute re-enacted, the construction former- 
 
 ly given to it mast be adhered to, . . 619 
 
 32. Statutes enacted at the same session to be con- 
 
 strued in pari materia, . . . 62(B 
 
 33. Two statutes passed on the same day, which are 
 
 in direct conflict, and afterwawls another statute 
 is passed which recognizes one of thean in force, 
 the recogaized statHte will be regaided as con- 
 taining the true rule, .... 620 
 
 .34. The decision of a court <*f another State upon a 
 statute of that State, will be receiTedas the true 
 construction in this State, . . . ^626 
 
 35. A special statute is sometimes merged in a general 
 
 one, ...... 620 
 
 .36. Whether statsite remedies supersede the commca 
 
 law, ....... 62® 
 
 37. A statnite penalty implies a prohibition, . . i621 
 
 38. Where there is a mistake in a statute Trhich may 
 
 be corrected by other parts of the statute, it is 
 
 not fatal, ..... '621 
 
 39. A statute cannot beoome obsolete by disuse, . 621 
 
 40. Statutes cannot be construed retrospectively, . .621 
 
 41. A right or remedy will not be construed away by 
 
 implication, ...... 622 
 
 42. Where rights are infringed, fundamental principles 
 
 are overthrown, and the general system of the 
 ,3aw is departed from, the legislative intentioE 
 
664 INDEX. 
 
 STATUTES —Cmtinued. 
 
 must be clear to induce a court to suppose that 
 
 the legislature designed these consequences, . 622 
 
 43. Statute not to be construed against reason, . 622 
 
 44. They must be construed to suppress the mischief, 
 
 advance the remedy, and preserve fundamental 
 principles, ..... 622 
 
 45. And so that no innocent man be punished or en- 
 
 dangered, ..... 622 
 
 46. Not to be construed so as to work injustice, . 622 
 
 47. Nor the destruction of a preTiousIy acquired right, 622 
 
 48. The province of a proviso, .... 622 
 
 the terras of a proviso may be limited by the 
 
 scope of the enacting clause, . . 622 
 
 a limitation of an authority to do a thing con- 
 tained in the proviso to a statute, is a nega- 
 tion thereof, ..... 622 
 
 a saving clause repugnant to the body of the 
 act is not void in all cases, . . 622 
 
 49. When time is directory, and when not, . . 623 
 
 50. In computing time, day of the date excluded, . 623 
 51: Word month means calendar or lunar, according 
 
 to circumstances, .... 623 
 
 52. Where a statute gives a new power and provides 
 
 the means of executing it, those means must be 
 adopted, ..... 623 
 
 53. When a statute requires a thing to be done in a 
 
 particular way, that way alone can be pursued, . 623 
 
 54. Where a statute confers a power, every thing essen- 
 
 tial to its exercise is implied, . . 623 
 
 55. Joint power given by statute to five, fotir or any 
 
 less number cannot exercise it, . . . 623 
 
 56. Where a, statute gives an authority to a particular 
 
 person or officer, all others are excluded, . 624 
 
 57. Where a statute declares that a public officer may 
 
 act in a certain way, which is beneficial to third 
 persons, he must act in that way, . . 624 
 
 58. Repugnant statutes to be reconciled, . . 624 
 
 59. Where a statute directs judicial proceedings — no- 
 
 tice is implied, ..... 624 
 
 60. Construction of the word " complaint," relative to 
 
 criminal proceedings, . . . 624 
 
 61. Words necessary to a statute grant, . , 624 
 
 62. Statutes take effect from their passage, . 624 
 
 63. Statutes will not be construed to affect vested 
 
 rights, 624 
 
 64. How far statutes may be construed according to 
 
 their equity, 625 
 
INDEX. 665 
 
 STATUTES —Continued. 
 
 65. Statutes must have a reasonable eflFect, . . 625 
 
 courts must uphold them, . , . 625 
 they should never be eluded, . . . 625 
 a fraud upon or evasion of, will not be toler- 
 ated, ..... 625 
 
 66. Statutes which are construed liberally. 
 
 1. Those confirming titles and granting pos- 
 
 session, ..... 625 
 
 2. Statutes of limitation, . . . 625 
 
 3. Statutes of frauds, .... 625 
 
 4. Remedial statutes, . . . 625 
 
 5. Statutes authorizing suits against the State, 629 
 
 6. Statutes relative to the welfare or policy of 
 
 the State, . . . .625 
 
 7. Laws conferring bounties, . . 631 
 
 8. Laws authorizing an association to hold 
 
 land, ..... 631 
 
 9. Statutes relative to the administration of 
 
 justice, .... 626 
 
 67. Statutes which are to be construed strictly. 
 
 1. Declaratory and explanatory statutes, . 626 
 
 2. Statutes which take away or clog common- 
 
 law remedies, . . . 626 
 
 3. Statutes which take away a remedy given 
 
 by a prior statute, . . . 627 
 
 4. Acts of incorporation, . . . 627 
 
 5. Eevenue statutes, .... 628 
 
 6. Penal statutes, .... 628 
 
 7. Statutes which are both penal and remedial, 629 
 
 8. Statutes of costs .... 629 
 
 9. Statutes aflFecting human liberty, . 630 
 
 10. Laws exempting property from taxation, , 629 
 
 11. Statutes giving summary remedies, . 629 
 
 12. Statutes affecting property, . . . 630 
 
 13. Statutes which take away the right of trial 
 
 by jury, .... 630 
 
 14. Statutes providing a remedy unknown to 
 
 the common law, . . . 630 
 
 1 5. Statutes giving jurisdiction to inferior courts, 630 
 
 16. Statutes in derogation of the common law, 630 
 
 17. Statutes taking private property for public 
 
 uses, ..... 630 
 
 18. Statutes imposing restrictions upon trade or 
 
 common occupations, . . . 630 
 
 19. Statutes which disable persons, . . 630 
 
 20. Statutes in favor of particular persons, . 631 
 
666 INDEX. 
 
 STATUTES —Continued. 
 
 21. Attachment laws, . . . ' 632 
 
 68. Construction of a toU-bridge charter, . . 628 
 
 69. Statutes of a local character, . . . 739 
 
 70. Statutes prescribing the form of doing a thing, . 630 
 
 71. Statutes authorizing a court to render substantial 
 
 justice, ..... 630 
 
 72. Where a statute gives a remedy and it may be con- 
 
 strued as a summary or usual common-law rem- 
 edy, the latter will be intended, . . 631 
 
 73. Statutes in relation to tlie fees of public officers, 
 
 the constraction ought to lean in favor of the 
 
 officer, ..... 631 
 
 74. Statute time — mode of computation, . . 632 
 
 75. In construing statutes we must look to the old law, 
 
 the mischief and the remedy, . . 632 
 
 76. Directory statutes, ..... 632 
 
 77. Repealing law — repealed — first law revived, . 632 
 
 78. Statutes at variance with the law of God, . . 632 
 
 79. The expression of one thing is the exclusion of 
 
 another, ..... 632 
 
 80. Railway and canal company acts, . . . 633 
 
 81. A statute not to be nullified because some of its 
 
 provisions are absurd, repugnant, or untrue, 633 
 
 82. Cases which may be regarded as within or without 
 
 the words of a statute, . . . 633 
 
 83. Distinction between a dependent and independent 
 
 clause, ...... 634 
 
 84. Office of a saving clause, . . . 634 
 
 85. Distinction between an exception in the enacting 
 
 and proviso clause of a statute, . . . 634 
 
 86. A statutory power cannot be delegated, . 634 
 
 87. Statute declaring tax deeds prima facie or conclu- 
 
 sive evidence of title, construed rigidly and 
 
 strictly, ...... 83-90 
 
 STRICTNESS, \ 
 
 required in tax sales, ...... 34-64 
 
 reason of the rule, ...... 35-59 
 
 degree of strictness exacted, ..... 59-65 
 
 STEICTI JURIS, 
 
 tax sales are regarded as, ...... 69 
 
 SUMMARY PROCEEDINGS, . . .45 
 
 T. 
 TAX, 
 
 distinction between a public and private, .... 84 
 
 definition of a, ... . . . l 
 
INDEX. 
 
 667 
 
 TAX — Continued. 
 
 not a judgment, 
 
 not a contract, 
 
 cannot be set off, 
 
 not a debt until demanded, 
 
 levy of, essential, 
 , must be levied by competent authority, 
 
 and within the time limited, . 
 
 levy of, a municipal act, . 
 
 power to levy a, a limited one, 
 
 too much, sale void, 
 
 overlayings render sale void, 
 
 part legal — part illegal — sale void, 
 
 maxim, " de minimus," &c., no application, 
 
 for an illegal purpose, void, 
 
 too little, sale valid, . 
 
 several taxes levied, ought not to be blended 
 
 back, may be levied, . 
 
 State a lien for the, 
 TAXES, 
 
 causes of non-payment of, 
 TAXATION, 
 
 limited, ..... 
 
 equality of, . 
 
 objects of, .... 
 
 TAXING POWER, 
 
 what included within the, 
 
 distinction between the, and eminent domain 
 
 no existence in a state of nature, 
 
 government begets its necessity, . 
 
 the creature of civil society, . 
 
 indispensable to every government, 
 
 an incident of sovereignty, 
 
 expressly granted in Federal constitution, 
 
 implied in State constitutions, 
 
 no limitation of the, as to amount or objects, 
 
 extends to all persons or property, . 
 
 limited in some respects, . 
 
 limitation of, in State constitutions, . 
 
 limitations by compact, . 
 
 limitations upon, in Federal constitution, 
 TAX LAWS, 
 
 have a double intent, 
 
 construed strictly, 
 TAX SALES, 
 
 rule of strictness required in, 
 
 reasons of this strictness, 
 
668 INDEX. 
 
 TAX SALES— Continued. 
 
 degree of strictness required in, ..... 60-65 
 
 TENANTS IN COMMON, 
 
 sale of their interest, ....... 283 
 
 TERM, 
 
 one day in law, ....... 272 
 
 TIME, 
 
 when directory in a statute, ...... 260-262 
 
 of tax sale, ....... 268 
 
 TITLE OF THE PUECHASEK, 534-555 
 
 U. 
 USURPER, 
 
 defined, . . . . . . . . 92,93 
 
 his acts void, ........ 102 
 
 V. 
 
 VALUATION, 
 
 essential, ........ 147-153 
 
 VARIANCES, 
 
 between different documents, . . . . 392-395 
 
KF 685 T2 B63 186k 
 
 1 
 
 
 Author 
 
 Blackwell, Robert S 
 
 Vol. 
 
 Title 
 
 A Practical treatixe on the 
 
 Copy 
 
 pwwer 
 
 to sexx xana ror tne . 
 
 * * • 
 
 Date 
 
 Borrower's Name 
 
 
 
 
 
 
 
 
 
 
 
 
 
m 
 
 i