Hogins v. Brashears, 13 Ark. 242 (1853)

Jan. 1853 · Arkansas Supreme Court

13 Ark. 242

Hogins vs. Brashears.

The plaint) ff offering, and being permitted, to read in evidence a certified copy of an entry made in tire books of one of theland offices in this State, and it not appearing that any suspicion was thrown upon its authenticity or that there was any such specification of want of authentication' as to bring that question here for revision, this court will presume that the court below used every proper precaution to prevent being imposed upon by a forged instrument, and that there 'was no error in permitting it to be read in evidence.

A deed for land of a non-resident sold for taxes, may be acknowledged and recorded as other conveyances of land, and it need not be acknowledged in the same manner as deeds'for land sold under execution, as is- directed for deeds of lands of residents sold for taxes.

Although it is the policy of our laws to uphold tax titles by every liberal intendment, consistent with the rules of law, as shown by several provisions of our statutes, yet this court has no authority to depart from these rules of law in order to sustain any pretended sale of property by a collector of taxes under color of his office beyond the true boundary of his authority.

And the authority of such officer, in reference to the sale of lands, is no general authority to sell, but only to sell such lands as are liable by law to be sold for taxes, and these only in the manner prescribed by law; and thus he may not only pass his defined boundary in the act of selling; but in- the mode of the- act; and when he does- so, his acts, although under color of authority, are in law but the acts of a private person.

The party who sets up title, must therefore furnish the evidence necessary ter support it; and when he relies upon a tax collector's grant, he must exhibit all the substantial pre-requisites to his authority (it being special and not' general) to make the grant — the authority of the officer must be strictly pursued and strictly proven.

Hor has the Legislature changed these general rules of law as to tax collectors' authority, otherwise than in prescribing the mode in which the performance of these pre-requisite acts shall be shown by recitals to be contained in the deed prescribed, and in declaring its effect, w-hen-so executed-,-both as an operative grant, and as an instrument of evidence to sustain its operation as such;,and having done so, has left no ground to presume that any other mode of sale and grant was intended to be set on foot or provided for, for lands sold for taxes by the tax collectors.

A deed for the land of a non-resident sold for taxes, showing on its face that the land was sold by an ex-collector, after the term-of his office had expired, and that the land -was not sold on the first Monday of November, bnt on a different day, and reciting no order of the county court fixing another day for the sale of such land, is invalid, and not competent evidence to sustain the title of the purchaser in an action of ejectment brought by him for the land.

Nor are the defects of such deed aided by the act of 13th January, 1843, for the relief of Henry A. Engles.

Appeal from, Johnson Circuit Court.

This was .an action of ejectment, brought by Jesse Brashears, against Orrin D. Hogins, for the south-half of the north-east quarter of section number one, in township number eight, north of range number twenty-five west, situate in Johnson county.

The case was submitted to the court, sitting as a jury, on issue to the plea of not guilty.

The plaintiff offered in evidence an instrument of writing purporting to be (says the bill of exceptions) a certified copy of an entry made in the register of certificates granted to purchasers of public lands by the Register of the Land Office at Fayetteville, Arkansas, which was as fpllows:

“Register of certificates granted in pursuance of law to purchasers of public lands, by James McKisick, Register of the Land Office at Fayetteville, Arkansas.”

Then followed a memoradum, showing that, on the 18th February, 1839, Joseph Stout purchased the tract of land in controversy — authenicated as follows:

“ I, John Bruton, Register of the Land Office at Clarksville, Arkansas, do hereby certify that the above and foregoing is a true and correct transcript of the entry of land .above stated, as the same appears on the Register of certificates in my officer.

Witness my hand, as such Receiver, at Clarksville, this 11th day of September, A. D. 1848.

JOHN BRUTON, Register”

The defendant objected to the reading of the above transcript, on the ground (as stated in the bill of exceptions) that John Bru-ton, whose name is subscribed to the certificate thereto annexed, was, at the time of making the same, the Receiver of the Land Office at Clarksville, and not the Register; and because the transcript was not properly authefficatad; but the court overruled the objection, and permitted the transcript to be read.

Plaintiff then produced, and offered to read, in evidence, a deed, of which the following is a copy:

“This indenture of bargip and sale, made and entered into this 4th day of March, A, D. 1848, by and between James M. Hamilton, as sheriff and ex-officio assessor in and for the county of Johnson, in the State of Arkansas, of the first part, and Jesse Brashears of the same county and State of the second part; Wit-nesseth, That, whereas, one Abraham Sinclair, who was then sheriff and ex-officio assessor of the county of Johnson, and State of Arkansas, did immediately, after the first day of January, 1842, proceed to assess the taxable property of said county of Johnson, for the year aforesaid, and, amongst other taxable property in said county, did then and there assess the following described tract of land, to wit; the south-half of the north-east quarter of section number one, in township number eight, north of range number twenty-five west, containing sixty-three acres and twenty-five hundredths of an acre, of the value of three hundred and seventy-nine dollars, as the property os Joseph Stout, who was a nonresident of the county of Johnson aforesaid, and that said sheriff and ex-officio assesor, on the 22d day of March, A. D. 1842, did file in the office of the clerk of the county court, of said county of Johnson, the original assessment list so made out by him, together with a certified copy thereof, and did give notice by one advertisement at the most public place in each township in said county, that he had filed the same, and that the same would be laid before the next county court, within and for the county and State aforesaid. And whereas, also, afterwards, to wit: at the term of said county court, commenced and holden on the third Monday of April, A. D. 1842, the said assessment list was adjusted by said county court, and the State and county tax stated thereon, and by the said adjustment of the said county court, the said land was taxed one-eighth of one per cent on the dollar of its appraised value for State taxes, and one-fourth of one per cent. on tlie dollar of its appraised value for county taxes; and, whereas, a tax list made out by the clerk of the county court aforesaid au-thenicated by the seal of said court, to which was attached a warrant, under the hand of said clerk and the seal of his office, reciting and commanding as the statute in such case provides, was afterwards, to wit; on the tenth day of May, A. D* 1842, placed in the hands of said Abraham Sinclair, who was sheriff and ex-officio collector of said county, to be by hint, as such, collected; and, whereas, the said Abraham Sinclair, after receiving said tax book, and before the taxes on the land hereinbefore described had been paid, to wit; on the 4th of July, A. D. 1842, did depart this life, leaving said office of said sheriff vacant; and, whereas, afterwards to wit: on the first day of August, A. D. 1842, one William Adams was düly commissioned as sheriff of said county of Johnson, and by virtue thereof was collector for the same county, and said tax list placed in his hands as such sheriff and collector, to be by him collected: and, whereas, on the 2?th day of May, A. D. 1843, the said taxes on the said land hereinbefore described being still unpaid, the said William Adams, whose term of office had then expired, and who was ex-sheriff and collector of said county of Johnson, did make out and file in the office of the clerk of the county court of said county of Johnson, a list and description of said land, Setting forth the owner’s name as the same is described in the tax book, and charged therein the taxes due for the year 1842, together with a penalty of twenty-five per cent, on the amount of taxes due, and did then and there cause the copy of such list to be set up at the court-house door of his county, and caused the same to be published in the Arkansas Intelligencer, a newspaper printed in this State, in the town of Yan Burén, on the 27th day of May, A, D. 1843, to which list he did attach a notice that the whole of the several tracts of land, described in such list, or as much thereof as would be necessary to pay the taxes and penalty thereon, would be sold at the court-, house of Johnson county, on the first day of July, 1843, unless such taxes, penalty, and expenses of advertising should be paid before that time; and the said William Adams, as ex-sheriff and collector as.aforesaid, before the day of sale mentioned in such notice, caused to be recorded in the office of the clerk .of the county court such list and notice, which record was made from the list and'notice published in said newspaper; and, whereas, on the first day of July, A. D. 1843, at and before the hour of ten .o’clock, A. M. of .said day, the said taxes, penalty and costs being still unpaid, the said sheriff and collector did attend at the court-house door, in said county, and then and there proceed to .offer for sale each tract of land separately, at which time and .place, for the south-half of north-east quarter of section number one, in township number eight, north of range number twenty-five west, containing sixty-three .acres .and twenty-five one hundredths of an acre, and on which the taxes, penalty, and costs amounted to the sum of two dollars and ninety and a half cents, one Elijah B. Alston then and there offered to pay the s.aid taxes, .penalty, and costs, on said tract of land for the whole of said tract of land,. ,and no person offering to pay the s.ame for a less .quantity thereof, and the said Elijah B. Alston having then and there paid the full amount of the taxes, penalty and costs on said tract of land, did, then and there become the purchaser thereof; .and, whereas, also on the first day of July, A. D. 1843, the said William Adams, as ex-sheriff and ex-officio collector as aforesaid, did make out, and deliver, to the said Elijah B. Alston, a .certificate of purchase for the said tract of land as aforesaid, therein describing said land as the same was described on the •tax book, and stating therein the amount of taxes and penalty for which the same was sold, and payment of said taxes, penalty and costs on .said lands, had been made to said ex-sheriff and collector bj the said Elijah B. .Alston. And, whereas, afterwards to wit: on the 9th day of July, 1847, the said Elijah B. Alston, by his endorsement in writing, did assign said certificate to said Jesse Brashears, by which assignment he then and there conveyed to said Jesse Brashears all suchright, title,claim, and interest as he the said Elijah B. Alston had in and to said tract of land afore-.described; and did then deliver said certificate so assigned to .said Jesse Brashears. And, whereas, also the term of office of said William Adams, sheriff and ex-officio collector of said county has expired, and the said James M. Hamilton has been duly commissioned and sworn as sheriff of said county, and is now acting as such, and is thereby ex-officio collector for said county; and, whereas, also the space of one year has elapsed since the sale of said tract of land as aforesaid, and the same- is still unredeemed;' and, whereas, the said Jesse Brashears has this day produced and delivered to me, the said James M. Hamilton-, as sheriff and ex-officio collector as aforesaid, the said certificate of purchase by the said Elijah B. Alston, as aforesaid endorsed and assigned to the said Jesse Brashears as aforesaid, and requested me to execute and deliver him a deed for said tract of land therein described. New, therefore, in consideration of the premises aforesaid, and of the said several sums of money, and of the sum of one dollar to me in hand' paid, I, the said James M. Hamilton, as sheriff and collector as aforesaid, do hereby bargain, grant, sell and convey to the said Jesse Brashears all the right, title, claim, and interest of the said Joseph Stout, or of any other person or persons whatever, which I might in and by the premises aforesaid legally bargain, grant, sell- and convey, in and to the said south-half of the north-east quarter of section number one, in township number nine, north of range number twenty-five west, containing sixty-three acres, and twenty-five-hundredths of an acre.

fn testimony whereof,” &c.-, &e.,

JAMES M. HAMILTON, Sheriff. [Seal.]”’

To which deed is appended certificates, in the usual form, showing that' it was acknowledged before the clerk of the circuit court of Johnson county, on the 4th day of March, 1848, and filed with the Recorder of said county, to be recorded,- and recorded on the same day.

To-the reading of the above deed in evidence, the defendant’s attorney objected on the following grounds: 1st.- It was not properly authenticated; 2d. Its execution was not proven either' by oral testimony, or' by any sufficient certificate of acknowledgment; 3d. It is not recited and shown in and by said deed that William Adams, the ex-sheriff, had the power and authority to sell the land therein mentioned after his term of office had expired; 4th. No authority is shown for the sale of land for taxes on the day of sale or any reason assigned why said land was not sold the first Monday of November, the time fixed by law for the sale of lands for taxes; 5th: It appears from the face of said deed, that the land was sold by Adams, after his term of office had expired; 6th: The deed does not set forth all the matters and things essential to the validity of the sale; 7th;, The recitals in said deed, admitting them all to be true, do not show that the statute under which the sale was made, was observed and complied with, or that the person selling had sufficient authority to sell; and, 8th. Said deed is informal, insufficient, &c.

The .court overruled the objections, and permitted" the .deed to be read in evidence. ■

Plaintiff then proved that defendant had possession of the land described in the declaration, demand of possession .and refusal, before suit brought, and that defendant had cut from the land, tod converted to his own use $80 worth of timber.. ;,

. Upon- this evidence, the court found for, and.rendered judgment in favor of the-plaintiff; .defendant moved for. a new trial, which was refused by the-court, and he excepted and s,et out, the evidence, .

W, Walker, for the appellant^

The sheriff actually in office being the only person authorized by law to sell lands "for taxes, the deed, under which plaintiff claimed title, is void upon its face; because it recites that the land thereby .conveyed was sold by the ex-sheriff after his term of office had expired; Rev. Stat., ch'. 128, secs. 95, 98.

The most liberal construction which could be given to the act entitled: “Anaet fortherelief of Henry A.Engles,latesheriff of Independence county,” approved January 12,1843, could not give validity to the deed, because it does not show the facts authorziing the sale at the time it was made.

Fowler, contra^

Mr. Justice Scott

delivered the opinion of the Court.

This was an, action of ejectment for atractofland claimed under a tax collector’s deed, tried in the court below upon the general issue.

At the trial there, the plaintiff was allowed to read in evidence? against the objection of the defendant, a certified copy of an entry made in the register of certificates granted to purchasers of public lands at the Land Office at Fayetteville,by which it appeared that one Joseph Stout had purchased the land in question from the General Government, in January, 1839; and also a paper purporting to be a duly recorded deed executed by one Hamilton as sheriff and tax collector of Johnson county, granting the land in question to the said plaintiff upon the surrender by him of a certificate of purchase at a tax sale, that, some five years before, had been issued by one William Adams, as ex-sheriff and ex-of-ficio tax collector of Johnson county, to one Alston, who had assigned it to the plaintiff.

The main question that arises in this case, is as to the admissibility in evidence of these two papers; the other suggested, as to a formal defect in the bill of exceptions, being untenable as we think.

As to the first mentioned paper, it is, upon its face, within the provision of our statute (Dig., p. 490, ch. 66, sec. 6.) Andasitdoes not appear that any suspicion was thrown upon its authenticity, or that there was any such specification of want of authentication as to bring that question here for revision, we must presume that the court below used every proper precaution to prevent being, imposed upon by a forged instrument, and shall therefore hold that, in allowing, it to be read in evidence, there was. no error.

With regard to the reading of the alleged deed, however,, a more difficult matter is to1 be determined, involving.not only its authenticity, but its validity. As to the former, however, it seems, well enough authenticated, because, purporting to b© a deed for lands of a non-resident sold for táxes, it was sufficient that it was. “acknowledged and recorded as other conveyances of land,” (Dig. p. 888, ch. 139 sec. 112); and it waa not necessary that it should have been acknowledged in the same manner as deeds for land sold under execution, as is directed for lands of residents of the county, where sold for taxes. (Dig., p. 885, ch. 139, sec. 91. Ib. 505, sec. 62).

But as to the latter, although it is thepolicy of our laws to uphold tax titles by every liberal intendment consistent with the rules-of law, as is manfest by the provision of the statute that “No exception shall be taken to any deed made by a collector for lands sold for the payment of taxes,, but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intention of the General Assembly,” Dig., p. 889, sec. 113), and from other provisions of the revenue law and of the law for the limitation of suits for land; (Pamph. Acts of 1850, p. 145,) nevertheless, we have no authority to depart from these rules of law in order to sustain any pretended sale of property by a collector of taxes under color of his office beyond the true boundary of his authority. And this, in reference to the sale of lands, is no general authority to sell, but only to sell such lands as are liable by law to be sold for taxes; and these only in the manner prescribed by law. And thus he may not only pass his defined boundary in the act of selling, but in the mode of the act; and when he does so, his acts, although under color of authority, are in law but' the private acts of a private person.

The party, who sets up title, must furnish the evidence necessary to support it. When, for this purpose, he relies upon a tax collector’s grant, whose authority is not general but limited, as we have seen, both in its scope and in the mode of its exercise, to sustain its operative force as such, he must exhibit all the substantial pre-requisites to his authority to make the grant. Because it is alone from these substantial pre-requisites, that the authority to make the grant can spring, and beyond theirpale it can have no vitality. Héncethe rule in such cases of authority, whether entrusted to an officer or to an individual, that it must be strictly pursued and strictly proved. And hence, too, the obligation upon one setting up such a grant to show the performance of these substantial pre-requisites, nothing being presumed as to their performance.

Nor has our legislature changed these general rules of law as to tax collectors’ authority, otherwise than in prescribing the mode in which the performance of these pre-ilquisite acts shall be shown by recitals to be contained in the deed prescribed, and declaring its elfect, when so executed, both as an operative grant and as an instrument of evidence to sustain its operation as such. And, having done so, has left no ground to presume that any other mode of sale and grant was intended to be set on foot or provided for, for lands sold for taxes by the tax collectors.

When tested by these principles, the recitals contained in the alleged deed in question, after allowing every aid that can be afforded them by the liberal provisions of the statute above quoted, fall far short of a statement of all the substantial pre-requisites of the tax collector’s authority to sell and convey the land in question. And to this extent at least, the recitals in such a deed must be regarded as one of its essential elements.

The sale was not made on the first Monday of November, the day fixed by law for the annual sales of non-resident’s lands, (Dig., p. 886, sec. 95), and it was not lawful for it to have been made on any other day, unless “upon good cause shown,” the county court had fixed another day in an order, in which the time so fixed had been expressed. (Ib., sec. 129). And there is no recital in the alleged deed that any such order was ever made.

Nor can this substantial omission in the statement of authority to sell on the day on which the sale of the land in question seemed to have been made, be in any way aided by all the possible benefits of the act for the relief of Henry A. Engles, approved the 12th January, 1843, (Pamph. Acts of that year, p. 197), because that act does in no way necessarily dispense with the action of the county court in fixing a day other than the regular one appointed by law for the sale of non-residents’ lands: On the contrary, seems rather to confirm it in the provision that En-gles should “have full power to coerce payment by all the or-din ary legal means prescribed by law,” the limit fixed in that act (the 1st day of July) being but the limit of the extraordinary privileges conferred upon him. And besides, the benefits of this act were afforded to Engles himself, only upon the terms of his paying into the State treasury all the moneys for which he was liable, other thanlhe moneys for the non-residents1 lands that he had failed to sell, and no other sheriff or ex-sheriff could have claimed its advantages, unless they had done the like, if any thing was due from them. And there is no recital in the alleged deed that ex-sheriffAdams had done so, or was notliable. And this latter objection applies with equal force to the other broad objection that the sale in question was made by an ex-collector after the end of his term of office.

It is clear, therefore, in our opinion, that for want of any recital as to the action of the county court in fixing the day of sale in question, (the same not having been upon the day fixed by law,) and because the sale was made by an ex-collector after the expiration of his term of office, that the alleged deed is inoperative as such under our general revenue law, and is equally so under the particular act of the legislature cited and relied upon, for the same reason as to the want of the action of the county court, as well as for the additional reason that it contains no recitals, either general or special, whereby any authority can be derived from the act. We therefore hold that the alleged deed as of no validity, and that the court below erred in permitting it to be read in evidence. The judgment must be reversed.

Mi\ Justice Walker did not sit in this case.