I think there can be no reason in this case for granting a new trial. It is set forth on the record that a tender was made of the taxes due on the, land; that tender, as to this question, was tantamount to a payment of them; and if no taxes were due, the marshal had no authority to sell. The consequence is, that the deed executed by him is of no more validity than if it had been executed by any other unauthorized person; and in this opinion my brethren concur.
Den on demise of Franklin v. Terrell, 10 N.C. 283, 3 Hawks 283 (1824)
Dec. 1824
·
Supreme Court of North Carolina
10 N.C. 283, 3 Hawks 283
Den on demise of Franklin v. Terrell and Camp.
") I From Rutherford? J
A sale of land by the marshal for taxes, after a legal tender to the marshal by a part owner of all that was due, vests no title in the purchaser.
E/ectment, tried below before Badger, Judge.
The jury found a verdict for the plaintiff) subject to the opinion of the Court on the following case. The land mentioned in the plaintiff’s declaration (of which the defendants are in possession,) was granted to Mary FranhIfy, the elder, about the year 1780. On the death of Mary *284 Franklin; intestate,- the, premises descended upon Mary, the lessor of the plaintiff, Thomas Franklin, and others,' children and heirs at law of the grantee.
On the 1st of July, 1808, the marshal of the district of North Carolina conveyed the lands to Camp, for the sum- of, two dollars and thirty-eight cents, that being the amount of tax due thereon by virtue of an act of congress of July 14, 1-798, to satisfy which the land was sold. About one year previous to the sale for taxes, Thomas Franklin, then a part owner of the land, made a legal tender to the collector of- all that.was due to the United States upon this land: the collector refused to receive it, and no demand was made of the tax until the sale, of the land.
Since the conveyance to Camp, Thomas Franklin and the other children and cd-heirs, have released and conveyed their interest in the premises to the lessor of the plaintiff.
If the Court shall be of opinion that the defendant has a good title under the marshal’s deed, then the verdict to be set aside and a nonsuit entered; otherwise, judgment to be entered upon the verdict for the plaintiff. The Court gave judgment for the plaintiff, and defendants appealed.
For the defendant it was argued, that on a sale for taxes, it was only necessary for the purchaser to show* that the tax was unpaid, and that the sheriff had sold and conveyed. It is not necessary to show an advertisement. ■
On the other side, it was said, that in every exercise of a naked power, it is necessary that every circumstance prerequisite to the exercise of the power should precede it, and the person claiming under it must show that it did precede it. If a party claim under the deed of a marshal selling for a direct tax, he must show every act in pais necessary to precede such sale. The deed is not prima facie evidence that the land was subject to such *285sale, or that the acts in pais which give validity to the deed did exist. 4 Wheaton 79. and 5 Ibid 116. 119. were referred to.