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exccution out of season, or for any fault of the sheriff in not following the statute, if the court has jurisdiction of the cause in which the execution emanated. Hubbard v. Barnes, 29 Iowa, 289; Armstrong v. Jackson, 1 Blackf. (Ind.) 210; Barkley v. Screren, 1 N. & M. (Eng. K. B.) 408: Thompaw v. Tohnie, 2 Pet. (U. S.) 157; Henry v. Ferguson, 1 Bailey (S. C.), 512.

In Mississippi the issuing of an execution and sale after the death of the defendant does not affect the sale when attacked in a collateral proceeding. Harper v. Hill, 35 Miss. 63. But it is held otherwise in Erwin v. Dundas, 4 How. (U. S.) 58.

A deed made to a third person at the request of the purchaser will be valid, but if so made without authority it will be void. Landrum v. Hatcher, 11 Rich. L. (S. C.) 54.

111. Public Documents as Muniments of Title-The General Rule.-The rule is well settled that every public document which is required by law to be executed by a public officer, and preserved 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 rule applies to the execution of all public authorities, whether conferred by general or special laws, where the exercise of the power affects the property of the citizen. The authority is conferred without his consent, he is not consulted in the selection of the agent, he can not 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 in the man. He acts in an official capacity. But for the protection of the law he would be a trespasser in exercising the power, and responsible to the citizen for his acts. When, therefore, he attempts to execute the power, he must recognize the source from whence he derives it, follow the requirements of the law and perform all acts in that character alone which the law recognizes, otherwise the act is a nullity.'

$112. Unauthenticated Documents.--Documents which are not authenticated in any way, either as originals or copies of

Keller v. Savage, 20 Me. 199; Blackwell on Tax Titles, 409; Johnson v. Goodridge, 15 Me. 29; Sibley

v. Smith, 2 Mich. 498; Taylor v. French, 19 Vt. 49.

Isaacs v. Shattuck, 12 Vt. 668.

TAX SALES AND TITLES.

503

public or official records, are not admissible as evidence in actions for the recovery of the possession of real estate. So where, in an action involving the title to lands in Wisconsin, originally forming part of an Indian reservation, a table of births in a book once used as a record of the proceedings of the tribe and afterward of the supervisors of the town, and an entry in a merchant's account book, and in another and otherwise blank book looking like an attempted copy of some survey or allotment of lands of the tribe to its members and their families, were held inadmissible as evidence.'

Execution of document: In ejectment brought, plaintiffs introduced a land patent issued to their ancestor by the State, but lacking the State seal; it was excluded until the plaintiffs introduced evidence to show that the seal was on it when issued. The court then allowed it to go to the jury, but required them to find whether or not the seal was attached when the patent issued: Held, erroneous, as the patent should have gone to the jury with an instruction from the court that its validity depended on its due legal execution. Carter's Heirs v. Edwards, Va. Legal News, Sept. 5, 1891.

Certified copy: After the refusal of the court to allow the patent to go to the jury, plaintiffs introduced a duly certified copy of said patent to show that the patent, when issued, had been duly signed, sealed, etc., but on exception, the court excluded it: Held, this was error, as it excluded from the jury the most conclusive proof of the regularity of the patent. Ibid.

113. Tax Sales and Titles-The General Rule.-It is a principle of elementary law that statutory provisions in derogation of the common law, by which the title of one person to real estate is to be divested and transferred to another, must be strictly pursued, and any condition and requisite of such statutory provisions having the semblance of a benefit to the owner must be strictly complied with in order to divest his title. The subject under discussion is very well illustrated by the proceeding for the sale of lands for the non-payment of taxes.

§ 114. Tax Deeds as Muniments of Title.-The interests of mankind in modern times seems required that the landed estate of the citizen should contribute its share to the common burdens of the government, and hence involuntary alienations became more or less frequent. The power in the sovereign to sell and

Fowler v. Shafer, 69 Wis. 23; 32 N. 299; Stillwell v. Swartout, 81 N. Y. W. Rep. 292 (1887). 109; Ellwood v. Northrop, 106 N. Y. 172; 12 N. E. Rep. 590.

2 Atkins v. Kinnan, 20 Wend. (N. Y.) 241; Battell v. Torrey, 65 N. Y.

convey land for the refusal of the owner to discharge these burdens was utterly unknown to the common law. The power to impose a tax upon real property and sell it for non-payment is derived wholly from the statute and not from the consent of the owner. The statute creates the power, selects the agent to execute it, and prescribes the formalities which shall attend its execution.'

Precedent. -In

§ 115. Preliminary Steps-Conditions powers of this nature a series of preliminary acts are required by law to precede the execution of the power. Each and every step, from the listing of the land for taxation, to the consummation of the title by the delivery of a deed to the purchaser, is a separate and 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 record falls to the ground for want of sufficient authority to support it.2

§ 116. The Validity of a Tax Sale and Deed.-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, transfer the title of the rightful proprietor. He must act in conformity with the law, from which his power is derived, and the purchaser is bound to inquire whether he has so acted. It is, therefore, held to be a condition precedent to the passing of the title at such sales, that all of the proceedings of the officers who have anything 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,

1 Doughty v. Hope, 3 Denio (N. Y.) 595; Sharpe v. Spier, 4 Hill (N. Y.), 86; Hodge v. Wilson, 12 S. & M. (Miss.) 498; Natchez v. Minor, 10 S. & M. (Miss.) 257; Williams v. Peyton, 4 Wheat. (U. S.) 77; 4 Pet. Cond. (U.S.) 394; Varick v. Tallman, 2 Barb. (N. Y.) 115-16; Ronkendorff v. Taylor, 4 Pet. (U. S.) 349; Powell v. Tuttle, 3 Comst. (N. Y.) 401; Sherwood v. Reed, 7 Hill

(N. Y.), 431; Striker v. Kelly, 2 Denio (N. Y.), 330; James v. Gordon, 1 Wash. C. C. (U. S.) 335; Fitch v. Pinckard, 4 Scam. (Ill.) 69.

2 Blakeney v. Ferguson, 3 English (Ark.), 277; Brown v. Veazie, 25 Me. 362; Doughty v. Hope, 3 Denio (N. Y.), 595; Varick v. Tallman, 2 Barb. (N. Y.) 114; Ritch v. Casey, 2 G. Greene (Iowa), 300.

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must be in strict compliance with the statute authorizing the sale.'

§ 117. Recitals in the Deed, Not Evidence, etc.-As a general rule the recitals in a tax deed are not evidence against the owner of the property, but the matter so recited must be established by proof from some other source. Nor is the deed itself upon any conceivable principle of law prima facie evidence that the prerequisites of the law have been complied with by the various officers of the law. The burden of proving the regularity of these proceedings rests upon the purchaser at the sale or upon those claiming under him. He must show affirmatively step by step that everything has been done which the statute makes essential to the due execution of the power conferred upon the officers of the law.' The rule, however, is confined to

1 Judevine v. Jackson, 18 Vt. 472; Early v. Doe, 16 How. (U. S.) 610; Lyon v. Burt, 11 Ala. 295; Doughty v. Hope, 3 Denio (N. Y.), 595; Smith v. Bodfish, 27 Me. 295; Varick v. Tallman, 2 Barb. (N. Y.) 113; Blakeney v. Ferguson, 3 Eng. (Ark.) 277; Young v. Martin, 2 Yeates (Pa.), 312; Shearer v. Woodburn, 10 Barb. (Pa.) 511; Morton v. Reed, 6 Mo. 74; Parker v. Rule, 9 Cranch (U. S.), 64; 3 Pet. (U.S.) 308; Ronkendorff v. Taylor, 4 Pet. (U. S.) 349; Nalle v. Fenwick, 4 Rand. (Va.) 585; Yancy v. Hopkins, 1 Munf. (Va.)419; Farnam v. Buffum, 4 Cush. (Mass.) 267; Holt v. Hemphill, 3 Ham. 232; 1 Ohio, 551; Lessee of Perkins v. Dribble, 16 Ohio, 433; Fitch v. Casey, 2 G. Greene (Iowa), 300; Reed v. Morton, 9 Mo. 128; O'Brien v. Coulters, 2 Blackf. (Ind.) 421; Dentler v. State, 4 Blackf. (Ind.) 258; Scales v. Avis, 12 Ala. 617; Bishop v. Lovan, 4 B. Mon. (Ky.) 116; Wilson v. Bell, 7 Leigh, 22; Jesse v. Preston and Keith v. Preston, 5 Gratt. (Va.) 120; Thames Manufacturing Co. v. Lathrop, 7 Conn. 550; Cushing v. Longfellow, 26 Me. 306; Hobbs v. Clement, 32 Me. 67; Brown v. Smith, 7 N. H. 36; Brown v. Dinsmore, 3 Ibid. 103; Mason v.

Fearson, 9 How. (U. S.) 248; Moore v. Brown, 4 McLean (U. S.), 211; Jackson v. Esty, 7 Wend. (N. Y.) 148; Langdon v. Poor, 20 Vt. 13; Chandler v. Spear, 22 Vt. 388; Taylor v. French, 19 Ibid. 49; Burch v. Fisher, 13 S. & R. (Pa.) 208; Huston v. Foster, 1 Watts (Pa.), 478; Foust v. Ross, 1 W. & S. (Pa.) 501; Delogny v. Smith, 3 La. 418; Carmichael v. Aikin, 13 Ibid. 205; Alvord v. Collin, 20 Pick. (Mass.) 418; Brooks Rooney, 11 Geo. 427; Boisgerard v. Johnson, 23 Miss. 122; Bussey v. Leavitt, 3 Fairf. 378; Garrett v. Wiggins, 1 Scam. (Ill.) 335; Graves v. Bruen, 11 Ill. 437; Williams v. Peyton, 4 Wheat. (U. S.) 77; Jackson v. Shepherd, 7 Cow. (N. Y.) 88; Thatcher v. Powell, 6 Wheat. (U. S.) 119.

V.

Keith v. Preston, 5 Gratt. (Va.) 120; Jackson v. Esty, 7 Wend. (N. Y.) 148; Jackson v. Shepard, 7 Cow. (N. Y.) 88; Hall v. Collins, 4 Vt. 316; Brown v. Wright, 17 Ibid. 97; Mussey v. White, 3 Greenl. (Me.) 302; Smith v. Corcoran, 7 La. 46.

Nalle v. Fenwick, 4 Rand. (Va.) 585; Nancarrow v. Weathersbee, 6 Martin (Lou.) 347; Christy v. Minor, 4 Munf. (Va.) 421; Holt v. Hemphill,

controversies between the owner of the tax title and the original owner of the land or those claiming under him.'

This rule is founded upon the analogies of the common law. In some States, however, it has been changed by statutory enactments, and in some a different doctrine is held, founded probably upon the presumption that all public, ministerial officers perform their duty according to law."

§ 118. The Presumption Discussed. The existence of these statutory requirements is not to be made out by intendment, it must be proved. It is not a case for presuming that public officers have performed their duty; but what they have in fact done must be shown. By the common law, which views every invasion of the sanctity of property with peculiar jealousy, an authority to divest the title of another is to be strictly pursued, and as the maxim, "omnia rite presumunter," is appropriate but to judicial proceedings, no intendment in respect to the

3 Ham. (Ohio) 232; Thompson v. Gotham, 9 Ibid. 170; Latimer v. Lovett, 2 Doug. (Mich.) 204; Emery v. Harrison, 13 Pa. St. 317; Westcott v. McDonald, 22 Me. 402; Lessee of Dunn v. Games, 1 McLean (U. S.), 319. In Kentucky a tax deed is held prima facie evidence of title, and the onus lies upon the former owner to show irregularity in the sale. Curry v. Fowler, 5 J. J. Mar. (Ky.) 145; Blight v. Banks, 6 Mun. (Ky.) 206; Oldham v. Jones, 5 B. Mon. (Ky.) 458; Bodley v. Hoard, 2 A. K. Marsh. (Ky.) 244; Allen v. Robertson, 3 Bibb. (Ky.) 326: Jackson v. Shepard, 9 Cow. (N. Y.) 88; Dresback v. McArthur, 6 and 7 Ohio, 307; Scott v. Detroit, Y. M. Soc. 1 Doug. (Mich.) 119; Latimer v. Lovett, 2 Ibid. 204; O'Brien v. Coulter, 2 Blackf. (Ind.) 421; Love v. Gates, 4 Dev. & B. (N. C.) 363; Pope v. Headen, 5 Ala. 433; Watson v. Stucker, 5 Dana (Ky.), 581; Terry v. Bleight, 3 Mon. (Ky.) 270; Bishop v. Lovan, 4 B. Mun. (Ky.) 116; Allen v. Smith, 1 Leigh (Va.), 231; Chapman v. Bennett, 2 Ibid. 329: Jesse v. Preston and Keith v. Preston, 5 Gratt. (Va.)205; Matthews v. Light, 32 Me. 305; Wal

dron v. Tuttle, 3 N. H. 340; Minor v. McLean, 4 McLean (U. S.), 138; Mayhew v. Davis, Ibid. 213; Jackson v. Esty, 7 Wend. (N. Y.) 148; Beekman v. Brigham, 1 Seld. (N. Y.) 366; Hall v. Collins, 4 Vt. 316; Brown v. Wright. 17 Ibid. 97; Frost v. Ross, 1 Watts & S. (Pa.) 501; Dikeman v. Parrish, 6 Barr. (Pa.) 210; Morris v. Crocker, 4 Lou. 147; Reeves v. Towles, 10 Ibid. 276; Baker v. Towles, 11 Ibid. 432; Emery v. Harrison, 13 Pa. St. 317; Alvord v. Collins, 20 Pick. (Mass.) 418; Stevens v. McNamara, 36 Me. 176.

Bellows v. Elliot, 12 Vt. 569: Huston v. Foster, 1 Watts (Pa.), 488; Foster v. McDivit, 9 Watts, 341; Foust v. Ross, 1 Watts & S. (Pa.) 501; Dikeman v. Parrish, 6 Barr. (Pa.) 210; Dejarnett v. Haynes, 23 Miss. 600; Smith v. Bodfish, 27 Me. 289; Robinett v. Preston, 4 Gratt. (Va.) 141. 2 Statutes of Illinois, 1887, 895.

Curry v. Fowler, 5 J. J. Marsh. (Ky.) 145; Blight v. Banks, Mon. (Ky.) 206; Oldham v. Jones, 5 B. Mon. (Ky.) 458; Bodly v. Hoard, 2 A. K. Marsh. (Ky.) 244; Allen v. Robertson, 3 Bibb (Ky.), 326.

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