Den on demise of Martin v. Lucey, 5 N.C. 311, 1 Mur. 311 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 311, 1 Mur. 311

Den on demise of Martin v. Lucey.

!• From Ansoil.

Sale of lands for taxes.

It is not incumbent on a purchaser of lands sold for taxes acknowledged to be due, to''shew on the trial of an ejectment brought against him by the person who was bound and who failed to pay the taxes», any thing more by way of defence, than the Sheriff’s deed for the lands so sold.

. If such purchaser be Plaintiff in the ejectment, he must also shew that the title to the lands is out of the State.

The title being out of the State, the taxes are a lien upon the lands, into whosesoever hands they may pass; and it behoves the present holder of the lands to see that the taxes have been paid; for

■ IF the Sheriff, in Ids advertisement of sale for the taxes, mistake the name of the owner of the lands, or then' local situation, the purchaser at such sale shall hold the landsi

The acts which make it the duty of the Sheriff to advertise the sale in some newspaper printed in the State, and at three public places in the county, and set forth the names of the owners of the lands, the water courses on which the lands are situate, &c. are merely direc-, tory to tile Sheriff in the discharge of his duty. His neglect to ob-„ serve these directions may subject him to a suit for damages at the ■instance of the party injured by the neglect; but it will not affect the title of the purchaser, unless there be collusion between him and the Sheriff.

The Sheriff’s authority to sell, rests upon the fact, that the taxes have not been paid. If, therefore, it appear that the taxes haye been paid, the' purchaser at the Sheriff’s sale gets nothing by his purchase.

The lessor of the Plaintiff claimed the lands described in the declaration of ejectment under a grant from the State. The Defendant alleged, that the lands had been sold by the Sheriff of Anson for the taxes due thereon., and that he had become the purchaser. He produced a deed executed to him by the Sheriff for the lands, and ■was ready to prove a regular advertisement of the sale, published in the public papers, but could prove no other advertisement. The sale was made before the year 1798, The case was sent to this Court upon the question, Whether the Defendant was bound to shew any other mb dence of title than the Sheriff’s deed, it appearing by the Plaintiff’s own shewing, that the title was out of the State ?

This case was argued by Duffy, for the lessor of the Plaintiff, and by M’Bryde for the Defendant,

The argument chiefly relied upon by the former, was this : that the Sheriff has no authority to sell lands for the taxes due thereon, until he has advertised the sale in the manner prescribed by the acts of 1794, ch. 15, and 1796, ch. 1. The latter act declaring, in express terms, that it shall not be lawful for the Sheriff to make such sale, until he has so advertised. It must, therefore, appear to the Court, that the Sheriff had authority to sell, before any validity can be attached to his deed : and this can be shewn in no other way, than by proving that he has done all those things which are required to be done before it shall be lawful for him to sellthat is, his having advertised the sale in some newspaper printed in this State, and also at three public places in the county in which the lands lie.

M’Bryde, for the Defendant, contended, that to give to the acts of 1794 and 1796, the construction contended for on the part of the lessor of the Plaintiff, would entirely defeat the objects of those acts and tlie intention of the Legislature. Those 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 mischiefs. In the year 1792, it was found necessary to subject lands to sale for the taxes dfle thereon. It was Well known, that large tracts of land were owned by persons resident in other States, and in' many instances by foreigners. Those persons had no personal property in the counties wlier'e 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 act of 1794, ch. 15, sec. 3, declares, “ that if any owner of land lying in this State, or any owner of town property in this State, shall fail, by himself, agent or attorney, to give in a list of the same, in the counties in which the said lands or town lots are situated, the Sheriffs of the said counties in which the same are respectively situated, shall advertise the said lands or town property, at three of the most public places within the county, and at the court-house of the district wherein the lands are situated, and also in the Gazette of the State, the printer of which is hereby required to publish the same : and if no person pays the tax on the same, shall* sixty days after such advertisement, sell the said lands or town lots, or so much thereof as may be necessary to pay the said tax, with contingent charges.” )

The act of 1796, ch. 1, sec. 5, declares, “ that from and after the passing of this act, it shall not be lawful for any of the Sheriffs in this State, either by themselves or their deputies, to sell lands for their taxes, until, the same hath been first advertised for sale in tiie North-Carolina Journal, &c. for the space of one month, and also in the county in which they are situated, in manner as heretofore required by law$ the whole of the expense attendant on which shall be chargeable on such lands, and shall he made accordingly j in which advertisements shall be mentioned, the situation of the lands, the streams near which or on which they lie, the estimated quantity, the names of the tenants in possession, if cultivated, and the name or names of the reputed owner or owners, where the same can be ascertained.” It is a maxim, that the Lawr requires impossibilities of no man, and yet it would be impossible for purchasers in general, to shew that the Sheriff has minutely attended to and exactly complied with all the directions given by these acts. It ^01,1(1 be absurd to suppose, that before a man could safe]y purchase, nay before he could think of becoming a bidder, lie must carefully procure certain newspapers, go on the land and see that the situation is accurately described, know the name of the stream on which the land lies, the quantity, the name of the tenant in possession, the real or supposed owner; that he must then hunt up the Sheriff’s advertisements in the different parts of the county, till he finds throe at least, and then be able’ to shew that they were put up in the most public places in the county. At the time the lands in question were sold, he must have gone also to the district court-house, to search for the advertisement at that place, and when all this shall be done, he may not be the purchaserano-ther person may overbid him, or the tax may be paid before the sale. If proof of ail these particulars could be made immediately after the sale, could it be expected ten or fifteen years afterwards ? If such proof be necessary at one time, it must he equally necessary at another.

The act of 1801, ch. 13, supports the position maintained by the Defendant’s counsel, and shews the understanding of the Legislature upon tluTsubject. This act authorises a succeeding Sheriff to execute deeds for lands sold for taxes by his predecessor in office, and the following requisites only are pointed out. 1st. That the sale be bona jkle. 2d. That satisfactory proof be made, to the County Court, that the claimant purchased and paid the purchase money. 3d. That the claimant has duly paid the taxes since the sale ; and 4th. That the plat be registered. (This last point being in conformity with the act of 1798, makes no part of the present case.) Upon these proofs being made, the County Court are directed to order the Sheriff to convey the lands so sold. Here the Legislature does not direct the County Court to make any enquiries how the Sheriff conducted the sate ? whether he complied with all the directions of the acts of Assembly relative to the advertising of the sale, &c. ? Yet they would have imposed this enquiry upon the Couuty Court, had they thought a conveyance illegal or insufficient without,a strict compliance with such requisites.

The Sheriff being a public officer, the Court will presume that he has done his duty in all respects, otherwise we throw insurmountable obstacles in the way : we require proof of points which are only directory to the Sheriff, and which merely point out the mode in which he should conduct his sales. The advertisements, and the manner of advertising, were not intended to give the delinquent owner of lands a further notice than the Law had already given to him : they were, intended for public benefit, that bidders might know when and where to attend sales, and what lands were to be sold. The Sheriff does not derive his authority to sell from his observing the directions of the acts of Assembly: his authority arises from the failure of the owner of the lands to pay the taxes due thereon. The mode in which a Sheriff conducts his sales of land, is in general immaterial to a stranger, who becomes a fair and honest purchaser. If he be guilty of misconduct, he and his securities are answerable to the party injured. The revenue laws of every country must be strict ,* they must be fully and faithfully executed, even if they should' produce occasional hardship and inconvenience, otherwise they will never answer the purposes for which they were intended,. It is admitted, that if the sale be fraudulent, and the purchaser be a party to the fraud, the sale is void, and nothing passes by the Sheriff’s deed. It is also admitted, that if the taxes be paid, the sale of the land is void, although the purchaser be ignorant of such payment. For if the taxes are paid, the Sheriff has no authority to sell the lands. He derives his authority to sell from the. failure to pay the taxes.

Wkight, Judge,

delivered the opinion of the Court.

The question which is presented to the consideration of the Court by this case is, whether it is incumbent on a purchaser of land sold for taxes, acknowledged to have been due at the time of sale, to shew on the trial of an action of ejectment, brought against him by the person who was bound and had failed to make payment of such taxes, any thing more then the sheriff’s conveyance for the land so sold. The determination of this question must depend upon a proper construction of the several acts of Assembly, authorising the sale of land for taxes, and the principles which have influenced decisions in analogous cases. The first act which made lands liable to be sold for the payment of taxes, was passed in the year 1792, ch. 2. The fifth section of this act, after authorising the Sheriif to distrain the land of any person failing to make payment of their public taxes, to sell the same, and make a conveyance to the purchaser, declares, “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.” And the sixth section of the same act declares, “ that if any person liable for the payment of any taxes on land, shall, before they are paid, sell the same and remove out of the county where the land is situated, the person purchasing the land shall be subject to the payment of the taxes due.thereon, and shall be proceeded against, as if he had originally given in the same.” From these sections it may be fairly deduced, that the Legislature intended that a failure on the part of any person bound for the payment of the taxes, due on any lands, should operate as a lien on such lands, and that the sale which should be made by the Sheriff'in consequence of such failure, should convey to the purchaser a good title to the lands against the delinquent, and all persons claiming under him, notwithstanding the Sheriif should fail in making the advertisements required to be made, or in the performance of any duty enjoined on him by the act. But it is said that the act of 1796, ch. 1, sec. 5, under whioh the sale was made in the present case, contains express negative words $ “that it shall not be lawful for any of the Sheriffs in this state, either by themselves or deputies, to sell lands for their taxes, until the same hath been first advertised for ■ sale in the North-Carolina Journal, the State Gazette, or the Fayetteville Minerva, for the space of one month, and also in the county in Which they are situated, in manner as heretofore required by law ,* which advertisements 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 that these words are equivalent to saying, that a sale other-, wise made is not a legal sale, and consequently a conveyance under srich sale cannot transfer any title to the purchaser. It is believed that this act was intended to impose additional duties on the Sheriffs, and that the provisions of this, as well as the othe.r act, are merely directory to them of their duty; and that although a failure in the performance of any part of it might subject them to an action, in which they would he compelled to indemnify the owner of any land which might be irregularly sold, to the extent, of the injury received fyy such sale, yet that it ought not to destroy the title of the purchaser, who. has a right to presume that a public officer known to possess the power to sell, has taken every previous step required of mm by the Law, under which he sells. This construction appears to- be in conformity with the decisions in cases of sales made of land by Sheriffs under writs of execution, which are analogous in principle to the cases of sales for the payment of taxes. The act under which the Sheriff's authority to sell is derived in cases of execution, contains negative words. The 29th section of the act óf 1777, ch. 2, after directing in what cases, and in what manner executions shall be issued against lands and tenements, declares, “ that where any Sheriff shall have levied process upon any lands and tenements in manner aforesaid, and judgment shall have been thereupon had, he shall not proceed to sell the same, until m the most public place in his bailiwick, he shall, forty days at least before the day of sale, have advertised the same.” These words are of equal import to thosé contained in the act of 1796, in as much as they declare, that the Sheriff shall not sell, without first advertising. Yet in the cases of sales of I'and under executions, the purchasers have never been considered as bound to support their titles by proof, either of the advertisement of the Sheriff, or that the Defendants in execution had no goods and chattels on which a levy could be made; but are only bound to prove by the judgment and execution, the authority of the Sheriff to sell. The same principle that would require proof of the advertisement, would require proof that it was made in the manner prescribed by the act, that is, in some one of the papers ¡nentioned in the act, in which shall be stated all the circumstances enumerated. This would so embarrass sales of this kind, and throw so many difficulties in the way of persons willing to hid a fair price for the land, that they would not be willing to purchase. For it wopld not only be necessary to prove these facts on any particular occasion, but they must preserve the evidences of them, with their titles, to be used at any distant period, whenever these titles might be made the subject of controversy. The consequences \r$uid be that not only the difficulty of collecting the public revenue would be increased, but the lands would become a subject of speculation merely, to those who would, by purchasing at very reduced prices, be willing to encounter the inconveniences and cisques of purclu «iug under these embarrassing circumstances. Let jui .jtiient be entered for the Defendant.