author: Mr. Chief Justice "WatKINS

text:
    Roane Ex. vs. Rives.
    ■A .gift to a 'trasteo, in trust for the use of a married woman and her increase forever to their use, &o., of a negro woman and her increase, without other words, becomes at once a use executed, passing- the legal and beneficial interest to the cestui que use; and the marital rights of the husband attach immediately.

      Appeal from Jefferson Circuit Qowrt in Chmeery.

    Tbe Hon. Jorra: C. Murray, Circuit Judge.
    Curran & Galla&her and Pike & CuMMiNS, for tbe appellant.
    When title to personalty is vested in a trustee, who holds a naked legal title without other duties to perform, and tbe whole beneficial interest is vested in tbe wife, tbe husband tabes tbe property precisely as if tbe legal title to tbe property bad been vested in tbe wife directly. Lamb vs. Mibies, 5 Ves. 517; IA/ndsa/y vs. Ilwr-rison, 3 Eng.302; Mallet vs. Thompson,8Pcdge 585;Kewriok vs. Becmolerk, 3 B. & O. 175; Tyl&r vs. Lake, It. <& M. 189; Mill on Trustees 421; White S Tud. Eg. Gas. 28, 42; Mmldmg vs. Scott et al., 13 Ark. 88; 2 Story’s Eg., sees. 1381, 1388.
    Yell, contra.
    No precise set of words is necessary to create a trust; the intent only being regarded by comts of equity. Fisher et al. vs. Fields, 10 J. It. 483. Parol proof is admitted to sup-, port a trust. Smiling vs. Utterbaok, 1 Bibb. .609.
    The deed of trust, clearly and without controversy, places the negro Betsey and her increase, out of the reach of any right of the husband, the words, “ to Ann E. Hives, and her increase forever, to their use,” &c., fixes the property beyond question in complainant and her children, and beyond the control of her husband: this is too plain to need argument or authority.
   Mr. Chief Justice "WatKINS

delivered the opinion of the Court.

The appellee, who is the widow of Thomas. II. Hives, by her bill of complaint, sought to recover a slave named Betsey, and her increase, together with hire of the negroes, then in possession of the defendant, as executrix of Sam C. Koane, deceased. It appears that, in the year 1832, in the State of Virginia, Hives sold and delivered the negro woman Betsey, for value received, to Martha Kowlet, to whom ho executed his bill of sale, and upon which she endorsed the following instrument:

“OiiESTEREiELD OouNty, March 1st, 1832.

■ I do give to my brother, Thomas W. Ilill, in trust for the use of my daughter, Anne Eliza Hives, and her increase forever, to their use, &c., the within negro woman and increase. Given •under my hand and seal, this date above written.

MAHTHA BOWLET.”

In the year 1838, Hives came to Arkansas, where ho sold, among other slaves, tbe negro woman Betsey and her child, to Boane, in whose possession and that of his executrix, they have ever since continued. Bives was joined by his family in the year 1840, resided in this State, until his death in 1852, and the complainant exhibited her bill in the year following. There were some allegations in the bill, to the effect that Boane bought the negroes in bad faith, and with a knowledge that they had been settled' in trust for the wife of Bives; but these allegations are not proven, and the evidence, on the part of the- defendant, tends to establish that her testator paid full value for- them, supposing that he got a good title, and in ignorance of any doubt or dispute about it. The Court below decreed that the negroes in controversy be delivered up to the complainant, and that the defendant pay the sum of sixteen hundred dollars, assessed as ■ the value of their hire and services.

Leaving out of view any other question, made in-the cause, the decree appealed from must be reversed, upon the construction of the instrument executed by Martha Bowlet. According to the cases of Lindsey vs. Harrison, 3 Eng. 302; Sadler vs. Bean and wife, 4 ib. 202; Maulding vs. Scott, 13 Ark. 88, and Cox vs. Morrow, 14 ib. 603, without going into an examination of other cases cited for the appellant, the conclusion is unavoidable that the character of the instrument is not changed by the intervention of a trustee. No duties are specified or required of him to be performed, which would mate it an executory trust, but it became at once a use executed, passing the legal as well as the beneficial interest, to the oestwi gue use. Tested by the cases which have gone farthest upon the construction of wills, the beneficiary here took an absolute estate, divested of any remainder in her increase; the phraseology in the connection used, being clearly words of limitation, andnot of purchase. Itmay be true in point of fact, that the intended beneficiary was at the time a married woman, the wife of Bives, and that the object of the donor was to secure the slave to her separate use; but the conveyance to a third person in trust for her use, merely, and without any thing more, will not, according to the authorities, be sufficient for that purpose at the common law, the case not being affected by any statute for securing to married women their separate property. Without some further expression, on .the face of the instrument, indicative of an intention to exclude- the marital rights of the husband, they attach immediately, and the property becomes his, subject to his disposal like any .other chattel of the wife, reduced to possession during coverture.

The decree will be reversed, and the cause remanded, with instructions to decree in favor of the defendant, dismissing the bill.


source: Caselaw Access Project

author: Hon. S.H. Hempstead, Special Judge,

license: Public Domain

text:
    Merrick & Fenno vs. Hutt.
    It was not the intention of the statute {Dig. 893 ) to make the tax-title, derived from the Auditor, valid against all objections; but to make -the Auditor’s deed prima fade evidence of title; and cast -upon the assailant of the tax-title, the burden of proving that any requisite of the law had not been complied with.
    It is not necessary that the Auditor’s deed, for land sold for taxes, should contain recitals: it is sufficient if it describe the property sold and the consideration, and convey to the purchaser all the right, title, &c., of the former owner and of the State.
    The particular land taxed-stands liable for the tax, no matter who may bo the owner, or into whose hands it may pass: and the sale is valid, if regular in other respects and the taxes were due and unpaid, no matter in whose name the land may have been assessed and advertised.
    An attachment levied upon land, which has been struck off to the State for non-payment of taxes, only binds such interest as the owner had at the time, which is a right of redemption within two years.
    An attachment on land does not divest the owner of his general property, but constitutes a lien from the time of the seizure; of which all persons are bound to take notice: it is, however, subject to all liens existing at the time.

      Appeal fro'n PulasTci Gi/rcmt Oov/rt i/n Ghaneery.

    Hon. William: H. Feild, Circuit Judge.
    TeapNAll and Pike & CummiNS, for the appellants'..
    Proceedings by attachment, under our statute, {sec. 8,43, ch. 17, Per. St.,) are proceedings in reon. The latter section expressly contemplates the property from the levy of the writ to a sale under execution, as remaining in the custody of the law.
    "Without such express provision, the statute would have received the- same construction. By the seizure, thz property is taken and held within the jurisdiction of the court, in the same manner, so far as the property is concerned, as is done in an admiralty proceeding, or where a court of chancery seizes property to be administered or disposed.of. Senhorn vs. Kittzedge, 20 Verm. 632/ Kme vs. Pilcher, 6 B. Monr. 651/ 7 Engl. 564.
    It follows from this principle, that the title of a purchaser under an attachment, relates to the levy of a writ, and cuts out all junior liens, incumbrances or purchasers. 12 Ala. 888/20 Verm. 187/ 17 Gown. B. 67/ 13 Mass. 73.
    The following cases show fully the nature of the lien created by, and the effect of, a levy by an attachment: 1 Iñtt. 307; 5 Momr. 73/ 1 Story Kg. 393/ 1 J. G. B. 556/ 4 id 609/ 2 Pama 408-9/ 3 AtTcms 856/ 1 McLa/m 95/ 17 PicTc. 271/ 1 Ala. 678/ 4 S. & M. 578/ 19 PicTc. 544; 4 Pev. & Bat. 388/ 6 Shep. 231/ 7 How. Miss. 658; 5 Greene 453/ PicTc. 341. j ' '5
    Because it is a proceeding imrem, wherein the property is seized openly by judicial process, forming part of the records of the country, to which all have access and of which all are bound to take notice, and over which the court has control — all the proceedings from the levy to the final sale of the property, have the force, credit and sanctity of judicial records — of the acts and judgments of the cou/rt itself. They stand in every respect in the attitude of the judgments of superior courts. They cannot be impeached, or irregularities be inquired into collaterally. Borden et al. vs. /State, use, <&c., 6 Eng. 519/ Merrick dk Fem/no vs. Avery, Wayne & Go., Mams. Op.Jaavig. T. ’54; 20 Verm. 632; 5 Watts & 8. 413; 6 Barr 212; 1 Brem 468.
    The seizure of real estate operates as notice to tbe world. 11 Gown. B. 218; 6 Iredell 233; 1 Mow. Miss. B. 658.
    No act of tbe debtor can in any way affect tbe title, after a levy. 11 Gown. B. 218; 8 Ala. 606; 4 Dev. & Batt. 388; 4 Smed. <& Ma/rsh. 519; 1 Gill <& Jolvn. 421.
    No change of possession occurs in attachments of real estate.. 16 Mass. B. 405; 13 Mass. 130.
    Any one purchasing the property after a levy of an attachment, is a purchaser pendente Ute, and takes subject to the lien of the attachment. 5 Monr. 86; Meux. vs. Anthony, 6 Eng. 411; 1 Eng.. 564, 565.
    Hutt comes into possession with notice of the subsisting proceedings, and takes subject to the lien and title to grow out of it„ which reaches back and takes priority over any demand or claim of his to the property. He is estopped in law to deny or contro-* vert this. He purchased in law, for the value of the property,. less the incumbrance, which he had a right to discharge. In other words, he was a mortgagor in possession, subject to be sold out, if the debt were not paid. This is precisely the position he-occupies in the case. Of course a mortgagor cannot acquire any title adverse to the owner of the incumbrance: any title acquired enures to the benefit of the mortgagee. The same rule applies to-other tenancies. 5 Verg. 319; 9 Verm. 31; 3 B. Mom\ 619; 3 Mam. 294; 1 A. K. Mamsh.pSO; 2 A: K. Maffsh. 366; 6 Verm 602.
    He cannot set up title in a third person. 6 John. B. 34; 5-Wend. 246; 1 John. B. 151.
    A vendee, or those claiming under him, are estopped in an action of ejectment to show title in himself or a third person, as against the vendor. 1 Oow. 631, 111; 1 Wend. 401.
    A tenant cannot resist his landlord’s recovery in virtue of a title obtained during bis lease. 2. Bvrm. 468; 1 Doma 14; 10 John. 292. So of tinder tenant. 4 Bibb. 33; 1 A. K. Mcvrsh. 245.

    A trustee can acquire no title adverse to that of his eestm que trust. 6 Dama. 176.
    See, at large, the various relations which forbid, on grounds of policy and good faith — as in cases of trustees, agents, &c., &c., purchases by one -person to the prejudice of another. 1 W/iite & Tudor’s Eq. Gas. 72 to 118.
    As to the duty of tenant to pay taxes — his inability to buy in a tax-title for his own benefit — which inability of course extends to any holder or jourchaser, going ira. pendente bite — we need only refer to 7 Mig„ 563, <&e., 586, 583, and cases cited, 7 Engl. 519.

    Where a party comes intendente lite, with his eyes open, he makes himself a trustee — he forces the other parties to accept him as trustee — to hold the property to answer on the close of the litigation. Of course, like .all other trustees in possession, he would have a valid claim against the successful party for all necessary outlays in respect to the property, payable out of the rents, or otherwise. 1 J. O. JR. 566.

    Purchasers under attachment, .stand in place of litigating parties — obtain by the purchase all their liens, privileges, andimmuties. 1 McLean 95.

    The forfeiture of. the lot at the tax sale, was void: 1st, Because Stark had ample personal estate, out of which the taxes could have been made; and he made no demand on Stark, who lived on the lot; 2d. The sheriff did not, by the levy upon Starke’s personal estate, attempt to enforce the collection of the taxes; 3d, That the sheriff made no levy upon said lot as Starke’s; 4th, It was never advertised according to law. Digest, chap. 139, sees. 48, 69,90; eh. 69, see. 52; eh. 139, see. 90, 88,155.
    Our statutes make no change in the natu/re of tax-titles. They say what shall be good evidence, primafaeie, of a valid tax-title. The burden of proof is thrown upon the party who would impeach the title. But any irregularity properly established, which would invalidate a tax-title elsewhere, would destroy it here.

      A sale of laud is void if there be personal property from which the taxes could be made. 12 Ala. 617; 3 Yerg. 355/ 4 BlackfAQ..

    No title can be valid hut upon astrict compliance with the law; even want of notice to an occupant after deed made, avoids sale¡ 16 WeM. 550/ 5 Hill 286'.
    Failure to demand taxes on premises, and make same out of personalty, avoids sale. 7 Oow. 88.
    "Want of proper notice of sale, or a sale on a day different from the one fixed, avoids the sale. 10 Ohio 139.
    It is useless to cite particular examples. The law must be strictly complied with, or the proceeding is a nullity.. Hogms ■ vs. Brashea/rs, 13 Ark. 242/ 25 Ma/i/ne B. 359/ 18 Verm. 470 / 1 Doug. 119.
    "WateiNS & CtjeeaN, for appellee.
    The first point we make in this case, is, that no lien was created by the levy of the attachment; because the attachment was not levied according to law,, as appears by the return of the officer, who did not go upon the premises, and there declare in the presence of a citizen, &c. Dig-.y ch. 17, see. 8/ Gibson et al. vs. Wilson et col., 5 Ark. 422.
    The return of the officer upon a writ of attachment, is the only record evidence of the lien; and the return must show that every requisite of the statute, which is mandatory and not directory merely, has been complied with; and no lien attaches unless the return shows that the officer has made the levy in the manner directed by the statute. See GhesMre vs. Briggs, 2 Mete. H. 486 / 5 Meetf. B. 517/ Oox. vs. Johns, Verm. 65 / Kettleridge vs. Bellows, 6 W. Ha/mp. B. 399/ 5 K. Hornp. B. 275. And the objection may be made by any subsequent purchaser or attaching creditor. 11 Metef. Bep. 244.
    Even if the levy created a lien, that lién was not connected with, or continued by, the judgment, for-the reason that there was no judgment condemning the land. Dm ex. dem. Amyeit vs. BaeJo-house, 3 Mwrph. N. G. Bap. 63. . .
    The appellee cannot, in any sense, be held to be a purchaser
      pendente Ute. lie purchased the lot, went into possession, and paid tbe consideration, before the defendant in the attachment had notice, actual or constructive, of the suit. It is not the levy ■of the attachment, but the service of the notice on the defendant, that creates the Us pendens. Demi’s Lessee vs. James c& Gilbert, 1 McLea/n Ii. 328/ 14 Deters 888/ Samdford vs. Diels, 1T (Jonn. D. 218.

    But we confidently submit that Hutt was the absolute owner •of the property in virtue of his tax-title. The lot was regularly assessed in the name of Daniels, and forfeited for non-payment of taxes, and sold at Auditor’s sale, and purchased by Hutt. It makes no difference, under our statute, whether land is assessed 'In the name of the true owner or not. It is the duty of every proprietor to see that his land is properly taxed, and the taxes paid, {Dig. eh., 139, see. 115); and if he fails to pay, and the land is advertised and not sold, for want of bidders, it is forfeited to, •and all the right, title and claim of the former owner is vested in, the State. {3., see. 116.) No levy is necessary; and, in this case, -every requisite prescribed by the statute, was complied with. The case of Uogins vs. BrasJvecm, is not in point, because it appeared on the face of the deed that the sale was made on a day not authorized by law.
    A tenant or trustee in possession, cannot purchase in an outstanding title, and use the same against his landlord or eestuA que trust, but Hutt held in his own right, paid the purchase money, ■obtained an absolute deed, and cannot be said to be a tenant, and may well rely upon Ms tax title. DUght’s Lessee vs. Doehester, 1 Wheat. D. 535/ S. O., 5 Gond. 335/ Wa/rden at al. Bodley, 14 Peters Pep. 162/ Jaehson vs. Llarsen, 1 Gon. D. 323/ Walker’s ■JSfo. vs. Ogden, 1 Dcma 250.

    Starke had no interest in the lot, at the time the attachment is claimed to have been levied — consequently nothing was attached. The land was forfeited to the State, and .the title transferred to her.
   Hon. S.H. Hempstead, Special Judge,

delivered tbe opinion of the Court.

Tbe lot in controversy appears to bave been taxed, for 1840, in tbe name of J ames Daniels as a non-resident, as well as in tbe name of J ames T. Starke, as a resident of Pulaski county. Tbe latter was tbe equitable owner of tbe lot; but tbe legal title was in Darwin Lindsey. /■ It does not appear tbat James Daniels bad any right to tbe lot. He was, however, a non-resident, and the lot seems to bave been regarded as non-resident property. After advertising it as such,'it was offered for sale for the taxes of 1840, at the time and place prescribed by law, and was forfeited to the State in the name of Daniels. The collector, in his settlements for that year, received credit for the taxes charged on the lot.

The taxes for 1840, were not paid on it by any one, either as tbe property of Daniels or Starke, nor do any steps appear to have been taken that year to collect tbe taxes from the latter, who is proved to have been able to pay them.

The lot remained unredeemed for two years, and, on the 13th of February 1843, was sold at Auditor’s sale, to Hutt, the defendant, who received the usual deed, and under which he asserts paramount title. He has been in actual possession of the lot since January, 1842, having then purchased it from Starke, for a full and valuable consideration, and, as far as appears, without actual notice that there, was any incumbrance upon it, of any description whatever. He purchased it for a family residence, paying two thousand dollars, its full value, and took a deed directly from Lindsey to himself ; Lindsey not having made title to Starke, although the latter had paid the purchase money. A. B. Bailey, on the 22dof July, 1841, sued out of the Pulaski Circuit Court, a writ of attachment against Starke, which was executed by seizing this lot as the property of Starke; and various proceedings being had, judgment was finally obtained in December, 1845, and the lot was sold under a special execution, on the 19th of October, 1846, and the complainants became purchasers at the sum of twenty-one dollars, and claim to be the owner's of the lot.

The statute expressly declares that Auditor’s deeds shall vest in tbe grantee, bis heirs, or assigns, a good and valid title, both in law and equity, and shall be received in all courts in this State as evidence of a good and valid title in such grantee, his heirs or assigns, and shall be evidence that all things required by law, to be done to make a good and valid title, were done both by the collector and Auditor. ” Digest 893'.

A more comprehensive provision could' hardly be found, and it might seem, at first view, to make the tax title, derived from the Auditor, valid against all objections. But that was not the design. The evil to be- remedied was, that the entire burden of proof was cast on the purchaser to show that every requisite of the law had been complied with, and the’ deed of the officer was not evenprimafacie evidence of the facts therein stated. The general and prevailing principle was, that to divest the owner of land by a sale for taxes, every preliminary step must be shown to be in conformity with the statute; that it was a naked power not coupled with an interest, and every prerequisite to the exercise of that power, must precede it; and that the deed was not prima facie evidence that these prerequisites had been observed.. Williams vs. Peyton’s Lessee, 4 Wheat 77; Stead’s Executors vs. Course, 4 Cranch 403; Rollendorf vs. Taylor, 4 Peters 349; Gains vs. Stiles, 14 Peters 322; Bloom vs. Burdick, 1 Hill 130; Sharp vs. Spier, 4 Hill 76; Leygett vs. Rogers, 9 Barb. 407.

The intention and scope of the statute were to change this rule, so far as to cast the onus próba/ncH upon the assailant of the tax title, by -making the deed prima faeie evidence of title in the purchaser; subject to be overthrown by proof of non-compliance with the substantial requisites of the law. Steadman vs. Planter’s Bank 2 Eng., 425; Jackson vs. Morse, 18 John 440. And the Supreme Court of the United States so held in passing upon our statute in the case of Pillow vs. Roberts, 13 How. S. C. R. 412; 7 Eng. 822.

Proof then that any of the substantial requisites of the law have been disregarded; or that the taxes have been paid, no matter by whom, would be sufficient to destroy tbe tax title, (18 John. 440,) whether emanating from the Auditor or Collector. And so where it appears, from the deed itself, that any substantial requisite of the law has not been observed, the deed can have no effect, and the sale is void. Moore vs. Brown, 11 How. S. C. R. 424. As where a sale is made at a different place from that prescribed by law, or on a different day, as was the fact in Hogins vs. Brashears, (13 Ark. 242,) or by a person not having authority to sell, or without notice. In these, and like cases, the deed could not be operative, and so corild not be regarded as prima fade evidence of title.

The deed of the Auditor, is not required to contain recitals. All that is necessary is, to describe' the property sold, and the consideration, and convey to the purchaser all the .right, title, interest, and estate, of the former owner; as well as all the right, title, interest, and claim, of the State to the land. (Digest 893.) The deed te Ilutt conforms to this provision, and was duly executed, acknowledged, and recorded. The objection principally urged against his title is, 'that Daniels was not the owner of the lot at all, and that it was impi'operly taxed in his name, and that the sale to Ilutt was void. But the statute answers that objection, by declaring, that no sale of any lands or town lots, for the payment of taxes, shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful ownei*, if such land or lot be in other respects sufficiently described in the tax book, and the taxes, for which -the same is sold, be due and unpaid, at the time of such sale. ” Digest 889.

This provision is founded in sound policy. In the new States, where lands are cheap and abundant, and there is an almost entire absence of that .strong attachment to the soil, which exists in a striking degree in older- communities, conveyances of real estate are constantly made from one to another. The owner today ceases to beso to-morrow. If it were necessary to go into questions of actual ownership, the land taxed would indeed be in a precarious condition, since changes of ownership, either real or simulated, would render the collection of a tax difficult, if not impracticable.

The name of'the owner is comparatively unimportant. The description of the land in such manner as that it may be identified, and the non-payment of the tax, are the two considerations of the most importance in a tax sale. Indeed, the latter is vital, because no matter how formal and exact the proceedings may have been whenever it is made to appear that the taxes have been paid by any one, the sale is utterly void. The authority to sell is founded on the fact of non-payment. The statute intended to divest the title of the former owner for the non-payment of the tax, and for that only.

The particular land taxed, stands liable for it, no matter who may be owner, or into whosoever hands the land may pass. The State has, by express legislation, made the tax on lands a charge against them, notwithstanding any change of title by deed, judgment, or otherwise (Digest 885.) And this is not only constitutional, but entirely proper, in any point of view, in which it may be considered. It is a proper preference for a State to give herself, in order to insure certainty in the collection of the means necessary to carry on the government. The legal effect of it is to make the State first creditor for the taxes, and give her a lien on the land, paramount to all individual claims or pretensions. It is a charge which attaches to the thing under all circumstances, and, without exception, to be discharged only by payment. No judicial proceeding can impair, displace, or postpone, this lien; nor can it be done by the acts of parties. Payment alone is effectual to discharge it, and relieve the land from the incum-brance.

Taxation should not be regarded with odium; nor should courts, by injurious and astute construction, attempt to evade the force of the revenue law; but, on the contrary, give it a fair and liberal interpretation, and countenance only such objections as apply to the real merits of the case. (13 How. S. C. R. 476.) If the stat-nte is to be enforced at all, tbis objection tó tbe title of Hutt, acquired at tas sale, cannot prevail; for it was to meet sucb cases, that tbe provision was made -as to taxing property in tbe name of a person not tbe true owner.

Tbe attachment of Bailey was levied on tbe lot, on tbe 22d of July, 1841, after tbe lot bad been struck off to tbe State, as tbe property of Daniels. Tbe attachment only bound sucb interest as Starke bad in tbe lot at tbe time, which was a right of redemption, within two years, as former owner-. ” Digest 889. After tbe expiration of two years, be bad no sucb right; and tbe land was subject to be sold by tbe Auditor in tbe manner prescribed by law. Any person who has a legal or equitable interest in land sold for taxes, is properly considered tbe owner for purposes, of redemption. (Black vs. Percifull, 1 Ark. 473.) There can be no doubt that Bailey, the plaintiff in tbe attachment suit, bad sucb an interest as to justify him in redeeming, in order to make bis attachment effectual, and to relieve tbe lot from a prior charge, of which all persons were bound to take notice. It would have been analogous to tbe case of a subsequent encumbrancer, who discharges a prior one to protect bis own and make it available. But neither Starke nor Bailey, redeemed, nor offered to redeem ; nor were tbe taxes of 1840, paid, until tbe purchase by Hutt, of tbe Auditor, in 1843. "Whatever right Starke bad, was forfeited, and the purchasers of tbe lot under execution, succeeded to no greater right than be possessed.

It follows that tbe tax title of Hutt was .paramount; unless be occupied sucb a position as to inhibit him front purchasing on bis own account, and for bis own benefit.

It is a general rule,, that tbe tenant is not allowed to dispute tbe title of bis landlord. Tbe same relation subsists between a trustee and tbe oestw que trust. Nor can tbe tenant, in tbe one case, nor tbe trustee, in tbe other,- purchase outstanding titles for their own benefit, to be set up against those for whom they bold. (14 Peters 162.) And yet tbe rule is subject to exceptions. If tbe tenant disclaims tbe tenure, and claims the fee in bis own right, of which the landlord has notice, the relation of landlord and tenant is ended, and the tenant becomes a trespasser, and is liable to be turned out of the possession, though the period of his lease has not expired. (3 Peters 47; 14 Peters 162.) But it is difficult to perceive how Hutt can be held as a tenant or trustee, lie had purchased the lot, and had received a conveyance as purchaser, and certainly between himself and Starke, no other relation than that of vendor and vendee subsisted. lie held adversely, not under him. In Blight’s Lessee vs. Rochester, (7 Wheaton 548,) Chief Justice MaRshajx, delivering the opinion of the court, said: The propriety of applying the doctrines between lessor and lessee, to a vendor and vendee, may well be doubted. The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor, are intended to be extinguished by the sale, and he has no continuing interest in the maintainance of his title unless he should be called on, in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract, violated by it. ” 14 Peters 162; 3 Littell 34; 4 Littell 274; 7 Cowen 323.

That Hutt was a trustee for Bailey, cannot be seriously insisted on. No fiduciary relations existed between them; and, under the circumstances of the case, to imply a trust would be to take one step beyond the shadowy boundary of constructive trusts, already extended beyond any safe and reasonable limits, and, in many instances, as easy to imagine as they are difficult to define.

If it was the duty of Hutt to pay the taxes accruing while he was in possession, it was certainly not his duty to pay those which accrued before that time for the benefit of any other person than himself; and so whether a tenant must pay taxes and assessments, is a question quite foreign to the case in hand,. and tbe authority to that point, cited by tbe appellant’s counsel, lias' no application: Nutt cannot be considered in the light of a purchaser pendente lite. The true position he occupies, is that of purchaser under proceedings to obtain the satisfaction of a first incumbrance, and pending which a subsequent incumbrance attaches. To say that he is a purchaser pendente Ute, under the second, would be to reverse the natural order of things, and postpone the first to the second incumbrance, and utterly destroy it. This cannot be tolerated.

The law requires the owners of land to see that the taxes are paid; and if they neglect it, they, or any one claiming under them, have no right to complain of the consequences of their own negligence. If, for disregarding this first and highest obligation a citizen owes the State, the loss of his property, charged with the tax, shall seem a disproportionate penalty, it must be remembered that to excuse it would produce the most serious embarrassments, if it did not eventually work the destruction of civil government itself.

As has been said, the lien of the State for taxes is paramount,, under all circumstances; and hence, no suit or Us pendens between individuals can affect the right of the State to sell for taxes,, and which may not inaptly be assimilated to a proceeding inrem in admiralty, in which the whole world, it is said, are parties, and the condemnation binding on all who have an interest in the thing. 9 Cranch 144.

The right to sell does not depend on the fact whether the property is taxed in the name of the rightful owner, but on the fact that the taxes are due and unpaid; and that the land is charged with them, to which charge or lien all claims and pretensions must yield, and of which all persons must take notice at their peril.

It is undoubtedly true, as argued by the counsel for the appellants, that an attachment on land constitutes a lien from the time of the seizure, of which all persons are bound to take notice; closely resembling, in. that respect, a proceeding in rem in admiralty. All who deal witb regard to land attached, must do so subject to this lien, and tbe litle of the purchaser under attachment relates to the levy of the writ, and gives him priority over all intervening liens, incumbrances or sales. 1 McLain 95; 7 Peters 464; 1 Ala. 678; 8 Ala. 606.

And although Hutt does not appear to have had actual notice of the attachment in this case, yet that could not protect him, for he was chargeable with constructive notice; and, were it not for the tax title, acquired at the Auditor’s sale, the title of Merrick & Fenno would have, to prevail; not because Hutt could not purchase from Starke after the levy of the attachment, but because it would be a junior incumbrance. An attachment constitutes a lien, merely, upon the land; but the general property of the owner is not divested, and he may just as well sell, subject to that lien, as any other. The effect of the sale is to pass the general property incumbered by the attachment. If that is extinguished by the settlement or failure of the suit, the purchaser will hold fr¿e of the incumbrance. It never was doubted that real estate under attachment might be conveyed, as well as if unincumbered. Arnold vs. Brown, 24 Pick. 95; 3 McLain 355; 6 Humph. 151.

The attachment, however, is subject to all claims, liens,incum-brances, or charges existing against the land at the time, and these may render the attachment entirely ineffectual.

That is the precise predicament of the lot in question. It had been charged with the tax of 1840, and had been struck off to the State when the attachment was levied. Supposing Starke had an interest in the lot, subject to attachment, but having failed to redeem, and the attaching creditor having failed to do so, the prior lien for the taxes ripened into a perfect tax title in Hutt, the defendant, and thus rendering the attachment unavailing, and as Hutt has the paramount title, the decree dismissing the bill should be affirmed.


author: Mr. Chief Justice WatKINS

text:
    Sexton vs. Brock.
    Where some of the counts of the declaration are bad, and a general verdict is returned, this court will not, under the statute, award a new trial, if it shall appear from the hill of exceptions that there was evidence, applicable to the good counts, upon which the jury might have been warranted in finding their verdict.
    The defendant filed the plea of the statute of limitations, but the record states that the parties went to the jury, “the defendant abandoning his plea of the statute of limitations ” —such plea is out of the case, and will be so treated at any subsequent trial.
    Where the bill of exceptions refers to papers with, sufficient identification, without incorporating- them at full length, they constitute a part of the record.
    The interrogatory, “Do you know whether Brock was ever prosecuted for stealing a horse,- if so, by whom and where ? ” is not objectionable as a leading question.
    A general-objection taken to the admissibility of all the testimony, without specifying the grounds of objection, is unavailing, if any portion of itwas admissible.
    One party has no right to read the depositions of his adversary, against his objection, which, though filed and published, he had never offered in evidence.
    In an action for malicious prosecution, the important inquiry is, whether the defendant, at the time of the arrest, had reasonable or probable ground of suspicion that the plaintiff had committed the crime imputed to him.
    The mere judgment, without the entire record, in respect to the right of property, may be conclusive, against the plaintiff in the action, as to the right of property at the time of the judgment, but not as to any previous tima
    There isa wide difference between a felony and a trespass; andifone has reason to believe that another took or retained proporty openly and under color of claim, not used as a pretext for larceny, a charge of stealing is without probable cause, and raises a presumption of malice.
    After two successive verdicts, this court would not be inclined to disturb the verdict for excessive damages, unless the record disclosed some evidence that it was the result of passion, prejudice, or corruption, on the part of the jury, if there be evidence to support it.

      Appeal from Drew Cvrcmb Court.

    Hon. SbeltoN Watsoet, Circuit Judge, presiding.

      Pike & CujimiNS, for the appellant,
    contended that tlie evidence clearly shows, that the damages are grossly excessive; that the verdict must have resulted from mere prejudice, or other improper motive; and that Sexton had probable cause for causing tlie arrest. {De JBawi vs. Beebe, 3 JEhiq. 510.) That the mere judgment offered as evidence was, of itself, inadmissible; the whole record should have been produced, (28tcvrTc. 371, 291,) and no parol evidence could be given of the existence of a judgment; that a party, who has taken depositions in a common law cause, cannot be compelled to read or produce- them, nor can the opposite party do so without his consent. That, as some of the counts are clearly bad, the judgment must be reversed. Oh. PI. 448.
    Tell, for the appellee,
    contended, upon the facts, that the plaintiff had shown there was no probable cause for the arrest; that the defendant was bound to show that he had probable cause for the arrest and prosecution, (2 Sta/rk. JR. 389 / 2 Fsj>. W. P. 529 ;) that malice is always implied from the want of probable cause, (Ma/rsh. 224/ 1 Bibb 413/ 3 Litt. JRep. 335/) if tho damages be considered by the court as excessive, still the quantum of damages in actions of tort is peculiarly and exclusively within the province of the jury. (2 Bibb 6/ 3 Ma/rsh. 2 J. JR. 63/ 5 Taunt. 277/ 1 Burr. 609/ 2 Wilson 405/ 8 Bibb 34.) That the defendant, not having withdrawn his depositions from the files, they were evidence in the case, and the plaintiff had the right to use them. Teaten' vs. Fry, 5 Gra/neh 335 / 2 Cond. JRej>. 273.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

This was an action on the case for malicious prosecution, commenced by Brock against Sexton, in the Desha Circuit Court, where the plaintiff obtained a verdict for five thousand dollars; and, a new trial being granted, the venue was changed, on the application of defendant, to the county of Drew, where the plaintiff again had a verdict and judgment for the same amount; and the defendant prosecutes this appeal upon exceptions to the decision of the court below, overruling his motion for new trial. The declaration contains several counts, and it is argued, for the appellant, that some of them are bad, and the jury having returned a general verdict, the judgment ought, for that cause, to be arrested or reversed, and venire de novo .awarded. The statute, (Digest, title. Praetioe at Lam, see. 128,) provides that, where there are several counts in the declaration, and.entire damages be given, the verdict shall be good, notwithstanding one or more of such counts may be defective. The effect of this statute is to require of the defendant to meet the objectionable counts by demurrer in the court below, or by moving for appropriate instructions to cause the jury to discriminate between the good counts, and any defective ones, upon which, taken separately, no valid judgment could be rendered, and.to which the evidence could not apply. When the facts appear upon the record, or the entire evidence is set out by bill of exceptions, this eorirt, having sanctioned the practice of allowing error after a motion for new trial, could no doubt be called upon to look into the sufficiency of the evidence; but would not award a new trial, if it shall appear, from the bill of exceptions, that there was evidence appli-ble to the good counts; upon which, though conflicting, the jury might have been warranted in finding their verdict.

2. Tire defendant had pleaded, with the general issue, the statute of limitations of one year, upon which an issue was made up ; but it appears, from an entry of record, that, on the first trial of the cause, the parties went to the jury, “the defendant abandoning his plea of the statute of limitations. ” It is contended that this meant only an abandonment of it for that trial. The effect of such an entry was to put the plea out of the case, and it would be so treated at any subsequent trial, unless the defendant had caused it to be reinstated by some new agreement of parties or order of court.

3. The objection is urged, by the appellee, that the defendant below failed to reserve any exception, according to Berry & Sin ger, 5 Eng. 484, and Clay vs. Notribe, 6 ib. 634. The bill of exceptions states that tbe plaintiff read in evidence, to the jury, the depositions of certain witnesses, naming each one, which depositions are here now among the papers of this canse, marked; “ filed March 22d, 1852, T. E. Eoyal, clerk, exhibit A. and are ordered to remain on file herein, and to form and constitute a part hereof, as fully in every respect as if herein literally copied,” then follows a package of depositions corresponding, in every respect, with such reference, except that it no where appears to be marked “ Exhibit A. ” Clearly we think the identification of the paper sufficient, and that the objection applying to this and other papers similarly referred to, without incorporating them at full length in the bill of exceptions, in all other respects regular and formal, is not sustained by the cases referred to.

4. The defendant below moved to exclude that portion of the deposition of Thomas Caulk, a witness for the plaintiff, in which he stated, incidentally, that “ he was on the jury when Brock recovered the hofse,” referring to the one in respect of which Brock had been prosecuted. It is true, that if Brock recovered the horse from Sexton, in a civil suit, the fact would have to be proved by the production of the record. But, on the supposition that the plaintiff subsequently produced the record, the testimony objected to, would either become unimportant, or it would be admissible for the purpose of identifying the horse. The second interrogatory to Boyd, specially objected to as leading, and which is as follows: Bo you know whether Benjamin Brock was ever prosecuted for stealing a grey stud horse; if so, by whom and where,”is not objectionable on that ground. The general objection, taken by the defendant to the admissibility of all the testimony offered by the plaintiff, without specifying the grounds of objection, is unavailing, it any portion of it was competent.

5. During the progress of the trial, the plaintiff, in order to make out his case, and before the defendant had offered any evidence, proposed to read the depositions of two witnesses, which had been taken by and on the part of the defendant, the package containing tbesame, with, other depositions, having been published, and they were then on file among the papers of the cause-The plaintiff, though notified of the time and place of taking the depositions in question, did not attend or cross-examine the witnesses. The court below permitted him to read the depositions; against the objetion of the defendant. TJnder the statute, there are two modes of taking depositions by commission: the one being a general commission, where the opposite party must be notified in due season of the time and place of taking the examination ; the other, a special commission, addressed to a particular officer, which goes out accompanied with interrogatories and cross-interrogatories, to which the examination must be confined, the same having been settled in the first instance before the judge or court, where the suit is pending. But all depositions, in common law cases, are taken de hene esse, and can only be read as if the witnesses “ were present and examined in open comt, ” upon certain conditions, as if it be shown the' witness is dead, sick or infirm, or residing without the county, and the like, so as to excuse his personal attendance. Depositions are required to be filed, and, when published,' must remain on file, for security, and as a precaution against alteration, and it is argued that this was also designed to make them common property, so as to entitle either party to use them at pleasure. Each party is expected to make out his case in evidence, and is presumed to know what witnesses will be required for that purpose, and to have taken the proper steps to compel their attendance, or procure their depositions.— There is some plausibility in the argument for the right of one party to read his adversary’s depositions, but it will not bear examination, and the introduction of such a practice would be a serious innovation. Depositions in common law cases, are but a substitute, and an imperfect one, for the personal attendance of the witness when that is impossible or inconvenient to be obtained. Though the witnesá be present, the party, who caused him to be summoned, is under no obligation to offer him. If he offer a witness on one trial, he is not bound to do so at any subsequent trial. Though a deposition once admitted without objection, cannot, as a general rule, be afterwards objected to, that does not make the deposition unconditionally evidence for the party who had it taken, or authorize him to dispense with the personal attendance of the witness, if to be had at any subsequent trial. The after objection is not allowed, because it would operate as a surprise upon the party again entitled to offer it. But, strictly .speaking, a party taking a deposition, is no more obliged to read it again, than he would be to offer the same witness at a second trial, merely because he had once used him. If, having once read a deposition, the opposite party is induced to believe that it will again be used on the second trial, it might, on the other hand, operate as a surprise upon him, and be ground for setting aside a non suit, or granting a new trial, in the discretion of the court. Of course, where depositions are taken pursuant to any agreement or understanding, of which the Court will take notice, that they are to be read at the trial, they become the property of both parties, so that either party may read them, if taken for their joint benefit, or compel his adversary to do so, if taken in his behalf. When a witness has once been examined, or his deposition. read in a judicial proceeding, where there was a cross-examination, or an opportunity for it, and he dies, or becomes insane, is gone abroad, or kept away by contrivance, so that it is impossible to procure his testimony, proof is admissible of what he swore on the former trial, whether preserved in a bill of exceptions, notes of the testimony, the recollection of persons present,, or by the deposition itself. If, under such circumstances, either party, deeming it material, has a right to prove what a deceased witness swore on the former trial, that becomes a new fact subject to counter proof; it comes iniinder'the head of secondary evidence, being hearsay, and is admissible from necessity, because it is supposed to be the best evidence which the nature of the case admits of. The lost testimony is reproduced, as near as it can be, in its former condition, in chief and on cross examination. But depositions are not in the first instance original evidence, though a substitute for it. The party taking it upon due notice, may be entitled, upon showing, tbe death, infirmity, or absence of the witness from the county, to read it. There is no reason, from the necessity of the case, why the opposite party, if he desired the testimony, could not have procured it by deposition, or enforced the attendance of the witness. 'It maybe the misfortune of either side that material testimony is lost. In this view, what the court say in Crary vs. Sprague, 12 Wend. 46, is in point, even though it may not be thought applicable to a case of secondary evidence, which that was. Here, the depositions had never been read before, and the plaintiff offered them merely because they had been taken by the defendant, and were on file. lie then could only propose to read them as original testimony, and yet he was allowed to do this without" showing any compliance with the conditions prescribed by the statute, or any effort to procure the attendance of the witnesses by subpoena. The plaintiff is supposed to introduce them as his own witnesses, but they not being present in court, the defendant had no opportunity for cross-examination, the great test of truth, upon which the admissibility of all evidence, whether original or secondary, depends. If to be admitted because the deponents were the defendant’s, witnesses, he may be taken at a disadvantage, because he was restrained from putting leading questions on his examination in chief, and if the deponents continue to be his own witnesses, he could not impeach or discredit them. Even if the plaintiff had appeared and cross-examined, that would not have given him a right to use the depositions as his own. ' As held in Williams vs. Kelsey, 6 Geo. 375, whether the deponent be cross-examined or not, he .is the witness of the party introducing him; and when the examination in chief is read, the cross-examination, if there be one, follows, and may be read by either party as parcel of one entire deposition. "We think the rule of practice is' correctly laid down by' the Supreme Court in Massachusetts, (Dana vs. Underwood, 19 Pick. 104,) that, where one party takes a deposition, it is at his option to use it or not, as he thinks fit; and if he declines using.it, the other-party cannot read, it without consent. The court there say: “A party may try the experiment of taking the depositions of a person known to be a willing witness for the other side; or believing that he is favorable to his own side, finds the contrary in the progress of the examination. The adverse party finding him a willing witness on his side, puts leading questions, and gets out answers which he could not do, if he were his own witness. Now, if this deposition, instead of being used at the option of the taker, may be used by the adverse party, without and against his consent, it would be wholly reversing the rules of examination, and going counter to the reasons on which those rules were established. ” See also, Elliot vs. Shultz, 10 Humphries 234. The case is not stronger than that of an answer to a petition for discovery in aid of a suit or defence at law, which the party calling for it may use or not as he chooses, but if he decline, the answering defendant will not be permitted to read it as evidence in his own behalf. Conway & Reyburn vs. Turner & Woodruff, 3 Eng. 356.

It must be conceded the question is not free from difficulty, and several authorities are to be met with of a contrary import, but most of them appear to have been decided upon some statute or rule of court, varying in every State. The case of Yeaton vs. Fry, 5 Cranch 335, (2 Cond. Rep. 273,) is a most unsatisfactory foundation for the superstructure that has been built upon it. There, the defendant excepted to his own depositions, because he did not produce proof of his having given notice to the plaintiff, who had admitted notice. Chief justice Maeshall treated the exception as frivolous, in the aspect of the case before him, by saying: “The admission of notice by the plaintiff, is certainly sufficient, if notice to him was necessary, to enable him to use the defendant’s depositions. ” In Rogers vs. Barnett, 4 Bibb 481, the court assign, as a reason for admitting a deposition to be read against the objection of the appellants, who had caused it to be taken, that they had every opportunity of a cross-examination, which would hardly hold good of their own witness. In Gor don vs. Little, 8 Serg. & Rawle 549, the court held, that when a deposition is taken and filed, it becomes the property of both parties, but that neither could read it, unless he had used the proper •diligence to obtain the personal .attendance of the witness. The •court, in Green vs. Chickering, 10 Missouri 111, in .a -doubtful and hesitating manner, follow the -lead of those cases. The Supreme Court’of Alabama first decided, that, where a deposition •is read, the party thus using it, admits it to be proper evidence, and it may be used on - a subsequent trial o'f the same-cause, by the opposite ¡party; but, that the mere filing of a deposition, does -not-license the-party, against whom-it was taken, toread it as .an admission to the jury-; because, “'before using the deposition, the party taking it may have discovered that it was inadmissible for him, or that the facts -it .proved were unfavorable to his interest, or were in themselves -false. ” Hallett vs. Walker, 1 Ala. 585. In the subsequent case of Stewart vs. Hood, 10 ib. 607, -the same -court hold that the opposite party may use a deposition, when he has been cited to attend the taking, and has cross-examined; butthe-only authorities referred to, in support of the position, are Yeaton vs. Fry, and Rogers vs. Barnett. In Polleys vs. the Ocean Ins. Co., 14 Maine 142, a majority of -the court were of opinion that their rules of court, by implication, gave -one party a right to use a deposition which the adverse party had caused to be taken, to be used on a former trial of .the same cause, but was not used, the deponent having been present and sworn as a witness. In Iowa., by statute, all depositions taken in pursuance of the act, when returned -into court, may be read by either party on the trial of the cause to which .they relate. Nash vs. the State, 2 Iowa 299.

An examination of those -cases, does not shake our conclusion that the corat below err-ed in permitting the plaintiff toread depositions of the defendant which he had never offered in evidence, and against his objection.

6. The plaintiff below introduced, and was allowed to read, against the objection of the defendant, a certified copy of the record entry of a judgment obtained by Mm in an action of re-plevin as administrator of Iskam Brock, against Sexton, tbe defendant here, for the recovery of a certain stud' horse, elsewhere proved to be the same, for the alleged stealing of which Sexton had caused Brock to be arrested. This eopy, not purporting to-be a complete transcript of the record' in that suit, does not contain the declaration, or any of the proceedings had therein previous to the judgment entry. Neither does the essential'fáct appear from it, when the action of replevin was commenced, from which period the recovery would have shown title out of Sexton. In this kind of action, the important enquiry is, whether, the defendant, at the time he caused the arrest, had reasonable or probable ground of suspicion that the-plaintiff had committed the of-fence imputedto Mm: True, so far as the ownership of the horse* was material; in this enquiry, if could be proved by parol; but' the introduction of a partial record' was injurious to Sexton, because the recovery might have-- been had upon some title acquired by Brock, subsequent to the arrest complained of. If the: record had been complete, it would have been conclusive of the-fact of the recovery, and that, at the time the action was commenced, Sexton had1 not title to the horse; but though raising a. strong presumption against the defendant, the record of a subsequent recovery could not, under any circumstances,, be said to< be conclusive of the want of probable cause.. The modification-given by the court, to the instruction asked for by the defendant,., on this point, was- erroneous, inasmuch as the copy of the record produced did not conduce- to prove, even in connection with other evidence, in whom the right to the horse was before or at the-time when Sexton caused the plaintiff to be arrested.

7. The court below refused to give an instruction askedfor by the-defendant, to this effect: that, if the jury believe, from the evidence-that John Brock by himself, or with Benj. Brock (the plaintiff,), took the horse in question from Sexton’s negro, who. was peaceably using him, and Sexton had had peaceable possession of the horse as-above assumed, and he, immediately or on the next morning, pursued the parties to Napoleon, ancl there found John Brock escapingin haste by the Mississippi river, and Ben. Brock retained the horse, and left Napoleon with him, threatening -violence if interrupted . — Sexton had probable cause for causing the plaintiff to be arrested for stealing or harboring said horse, and unless the plaintiff not only had .good title to the horse, but Sexton actually knew it, the jury are bound to find for the defendant. It is correctly argued, for the appellant, that,, in-order to make-out his defence to this action, it was. not necessary that he should have been the •-owner of the horse. Though a mere bailee, or a stranger to the title, it might have been not only his right, but his duty to the public, to set on foot the prosecution, if he had reasonable or probable 'cause to believe that .the plaintiff was guilty of felony. But the instruction was objectionable, and properly refused.- — ■ There is .-a wide difference between a felony and a trespass, which Brock might have committed under color or claim of right, and without any felonious intent. In order to show <a want of probable cause, it was not necessary for the plaintiff to have proved either that he had good title to the horse, or that the defendant actually'knew it. True, the public have a concern that all criminals should be brought to justice, and hence a prosecutor without malicious motives will be excused, though his reasonable suspi•■cions turn out to have been unfounded. In this respect, the action for malicious prosecution differs from malicious arrest for debt, or any malicious prosecution of a civil suit, wherein the plaintiff has the means of knowing personally, or of being well advised, whether he has probable cause for instituting -it. But good motives will not shield any one who charges another with ■crime upon a frivolous pretext. If Sexton had reason to believe •that Brock took-or retained the horse, openly and under color of ■claim, not' used as a pretext for larceny, the charge of stealing was withput probable cause, and raised a presumption of malice.

8. It is urged, for the appellant, that the damages are excessive, that the verdict is not warranted by the evidence, and is contrary to instructions given. These are causes for which this court will sometimes, though rarely, set. aside the verdicts of juries, and award new: trials. But,, after two successive verdicts, and the refusal of the j,udge¿.who presided at the circuit, to offer the alternativa of a new trial, or a reasonable remittitur, if he thought the- damages excessive, this court would not be inclined to disturb the verdict, unless the record disclosed some evidence that it was the result of passion, prejudice, or corruption, on the part of theg'ury. Our. impression of the testimony, as set out in the bill of exceptions, might be that it. is. unsatisfactory, but it cannot be said that the-verdict was .without evidence to support it.

Bor the errors before indicated,.the judgment will be reserved, and the. cause remanded,, with instructions- to grant a new trial.

Mr; Justice Soott, said v

Although concurring very fully with the Chief Justice, in- the opinion, delivered by him. in this case, I may myself, perhaps somewhat more distinctly, express my own ideas as to the main point upon which the judgment must be reversed.

Depositions are the creatures of the statute, and to the extent that they are allowed in cases at law, they militate directly against those rules of the common law which require the personal attendance of the witness in open court, that his demeanor may be- observed,.not only as one of the tests of his credibility, but that his statements may be more accurately understood and weighed, to the- end that the truth may be more fully and clearly ascertained. Of so much importance to the party, against whom a witness may be called to- testify, is this common law right, “to meet the witness face-to-face”. — regarded, that, in criminal prosecutions, it is secured from invasion by our bill of rights,. (Sec. 11, Const. Ark.;) leaving the.right, as t® civil cases, subject to.the-legislative will.

If a statute, which invades this right as to-- civil cases under specified circumstances, were construed liberally, and made to extend to cases not clearly embraced within: its terms, it is plain enough that such a construction would be in the teeth of that cardinal rule wbicb forbids snob a construction of a statute delegating from common right. And: accordingly this court refused to recognize any such- liberal notions of this- statute, in the cases-, of Crary vs. Barlow & Taylor, 5 Ark. 210, and! Crittenden vs. Johnson, 6 Eng. R. 92, and required in substance that a party offering to read a deposition should show himself within the cases-specified before he should be permitted to do so. •

Not only has a party this common law right, to be confronted in open court with a witness brought to testify against him, but the further right to sift this testimony through the ordeal of a cross-examination. And this ordeal, when sustained by acumen and judgment, judicial experience- has proven to be-tho highest test of truth known to the law. So long as the right to read the deposition, is confined to the party who takes it, this right cannot be invaded; but if the opposite party be allowed to do soj, against the consent of the-former, it must necessarily be otherwise, because the rules of law regulating the respective modes of examination in chief and cross-examination, are essentially different. True, this right of cross-examination, is also at the legist lative will, subject to be regulated and qualified; that, however,, is not the question, but whether it has in fact been done by the-deposition statute. In the terms of the act, there is certainly nothing to indicate such an intention with any tolerable degree of certainty; and there is no necessity fon it at all, so-long as the witness can be found and retains a deposing memory. If such a rule-were to- obtain, as it does in-some of the States, by express legislation, and, in others, by rules of court, it would seem to be indispensable, in order to prevent frequent cases of surprise-, thats a party, intending to read any of his adversary’s cast-off depositions, should make his election to do so known, a sufficient time before the trial, to allow his adversary to-procure-evidences,, if desired, to. discredit the witness, or- repel his testimony. It is true that it may be-well said, that there- is no more hardship in holding a party to a deposition that proves to be against him^ than in holding him. to the testimony of a witness who has-been foisted upon liim in the witness box; but, to allow the opposite party to read such á deposition, is to say much more than that; because -it is to say, that a party is not only to be held to such, testimony at -the one trial, but also at all future trials; which is not the rule as to the witness, who testifies in the witnessbox. So it may be said that a party may always make -out his own case, if he can, by means of his .adversary’s witness ; but this is true ■only of the trial in progress, .and it does not follow, from that, that his adversary has to furnish like testimony for another trial, .and that, too, at the sacrifice of his own common law light of •cross-examination.

To suppose that it was the intention of the Legislature to place «either party, in reference to evidence taken by deposition, in a more advantageous position than the same party would be in, if the witness was actually present at the trial, is to suppose an absurdity ; because that would be to suppose that the representative or shadow -of the thing, which -was tolerated merely because the thing could not be had, was-designed to be greater than the thing itself, which was more desirable.

But, inasmuch as a party is to be held to the testimony of a wit-mess, who is foisted upon him in the witnessbox, during that particular trial, shouldhe not,-in like manner, beheld to a deposition for one trial at least? ■ Unquestionably no; for the reason, that the deposition, although on file and published by order of court, is not in evidence in the cause.

When a party, by means of the process of the court, has procured a deposition,' its filing and its publication have placed it in ■the custody of the law, to prevent its alteration; he has done nothing more towards the preparation for the trial of the facts of his case by the Jury, than when, by process of the same court, he has procured the attendance of his witnesses, had then sworn, and placed in the custody of the sheriff, under the rule, that they may not he tampered with. Under such circumstances, in criminal cases, .according to the English practice, the defendant might •examine, as upon cross-examination, such of the king’s witnesses as were not put upon the stand.. The preponderance of the American authorities, however, are against that practice; and, according to these, if the’ defendant desires to examine any of such witnesses, he must make them his own, and the State may then cross-examine them. Austin vs. The State, 14 Ark. R. 563.


author: Mr. Chief Justice "Watkins

text:
    Drennen vs. Lindsey.
    The statute authorizing either party to make a •witness of the opposite party in suits! hefore justices of the peace, ought to-be so construed as to allow such privilege om the trial de novo, in the Circuit Court on an appeal from the justice.
    But if either party shall call his adversary as a witness, he will not be allowed to disprove or impeach his testimony by calling other witnesses.
    A witness may be discredited by proving that he has testified' or stated differently im any materialrospeeton some former occasion, but the witness should first be enquired! of concerning such former statement.

      Ajypeal from Lcmrmee Cwcmt Qowrt-
    Hon. B. H. Neely, Circuit Judge,
    EÁrROHXLD, for the appellant.
    Byees & PattebsoN, contra,
   Mr. Chief Justice "Watkins

delivered the opinion of the Court,

This suit was originally commenced before a justice of the peace, by Lindsey against Drennen, and on the trial in the justice’s court, the plaintiff, in order to make out his case, called upon the defendant to testify as a witness, and he was required to do so, under the statutory provision to that effect. Digest, title Justices of the Peace, sec. 108. Judgment being given against the defendant, he appealed, and on the trial de novo in the Circuit Court, the plaintiff, against the objection of the defendant, introduced, as a witness, the justice, before whom the case had been tried, and was allowed to prove by him what he understood the defendant to have admitted, when so testifying as a witness, ■at the call of the opposite party. And, thereupon, against the ■objection of the defendant, he was also required, at the instance of the plaintiff, to testify in the cause, on the trial de novo in the 'Circuit Court.

Although the statute, before referred to, enabling either party to make a witness of the adverse party to establish the demand sued for, or set off, and in a case of default when summoned, or refusal to testify, allowing the claimant of such demand or set off" to be sworn as a witness in his own behalf, to establish the same, is applicable in terms to suits before justices of the peace, and not to suits originating in the Circuit Court, the statute, in our opinion, ought to be so construed that, the privilege of calling the adverse party, attaching to suits commenced before justices of the peace respecting matters of contract with its consequences, adheres to and follows them into the Circuit Court, when removed there by appeal for trial de novo, upon the same cause of action and set off, if any, which was tried before the justice. All the reasons continue to exist why that class of cases, inconsiderable as to the amount involved in controversy, should be cheaply and expeditiously tried, with as little regard to forms of pleading, and in as summary manner as can be clone, consistently with the due administration of justice. That practice may be regarded, to some extent, as a substitute for the attainment of the same end by petition for discovery, and to obviate the expense and delay usually attending such a proceeding.

But it seems clear, in this particular case, that an error was committed oneway or the other against the appellant; and seeing that according to our view of the matter, the plaintiff, on the appeal •of tbe defendant, bad tbe same right, and to tbe same extent, of -calling bim as a witness on tbe trial in tbe Circuit Court, wbicb .be bad and availed bimself of, before tbe justice, it follows that tbe ¡plaintiff, still wishing to use tbe testimony of tbe defendant for any ptupose, was bound to .call bim as tbe original and best evidence, and mate an effort to produce bis attendance as a witness, instead of resorting to proof of bis statements-or admissions on tbe previous trial. It might Tie different, if the defendant in tbe mean time bad died, or for any other recognized disability'it bad 'become impossible for tbe plaintiff to have bim sworn on tbe second trial, and in such case no doubt bis testimony might be .reproduced, .like that of any other deceased, insane or absent witness, by proof according to established rules of what be testified on tbe former trial.

Moreover, tbe statute in question, making partial change in tbe law of evidence, has some peculiar features. Though it may be supposed tbe privilege would bo seldom refused, neither party has tbe absolute right to call tbe other as a witness, but may be allowed to do so in tbe discretion of tbe justice or court, if no • evidence be given to establish tbe demand or set-off in contro■versy, or if tbe evidence given be insufficient for that purpose. If tbe party called upon refuse to testify or make default, when summoned as a witness, tbe demand or-sot off is not admitted, 'but tbo party claiming it is permitted to establish it by bis own testimony; and if either party, called upon, does testify, tbe ■ statute is express, that, after bis examination, no further evidence shall be given in relation to such demand or set-off.” That is to say, tbe plaintiff or both plaintiff and defendant in turn, if a set-off be filed, may make a'witness of tbe other; but when be does ; so, it .is an election to rest bis side of tbe case upon tbe testimony of tbe adverse party, wbicb be is not allowed to disprove or impeach by calling other witnesses. Tbe perjury of such a witness may be a public offence, but for tbe purposes of tbo civil suit, be is not to be discredited by tbe party calling bim to testify. A witness may be discredited by proving that be has testified or stated differently, in any material respect, on some former occasion, bnt in order to do tbis, according to tbe rules of evidence, it is necessary that tbe witness should be enquired of concerning sucb former statement, and with sufficient certainty of specification to direct bis attention to them. Herej tbe defendant, when examined in tbe Circuit Court, was not interrogated about any statements made by bim on tbe first trial or on any previous occasion. Even if it bad been allowable, under tbe statute, for tbe plaintiff to discredit bis own witness, that has been tbe indirect result of tbe proceeding complained of, and regarding tbe defendant as a witness, and not as a party, be' would stand contradicted by proof of bis fomer statements, about which be was not interrogated, and bad no opportunity to explain or-justify.

It becomes unnecessary to go into a detailed statement of the-plaintiff's cause of action, and the evidence by wbicbit was sought to be established. It is sufficient to say, that, leaving out of view tbe objectionable testimony of tbe j ustice of tbe peace, as to bis understanding of tbe defendant’s admissions on tbe trial of tbe cause, before bim sitting as a jury, we are unable, after a careful examination of the- bill of exceptions, to find any satisfactory evidence conducing to show what interest, if any, tbe plaintiff bad in tbe subject matter of tbe alleged contract, or-that tbe defendant ever promised to pay bim tbe sum of money charged in tbe account, or that there was any consideration for such promise.

Tbe judgment will be reversed, and tbe cause remanded, with instruction to sustain tbe motion of tbe defendant for new trial.


author: Mr. Justice Scott

text:
    Patrick vs. Davis.
    Although, a collector execute, deliver, and acknowledge, to a purchaser of land at tax sale, a deed containing recitals of every pre-requisite prescribed by the statute, yet, if the land was misdescribed in the advertisement of the tax sale, the owner is not divested of 'his title and estate in the land.

      Appeal from St. Francis Gi/rewit Gov/rt.

    Hon. Charles W. Adams, Circuit Judge.
    Pike & CuMMiNS, for the appellant.
    "We submit i£hat the purchaser, at a tax sale, 'Cannot -be disturbed by -reason of any irregularity liere alleged': that the -sheriff’s deed is conclusive. Bees. 112, 113, eh. 139, Rev. Btat./ Pillow vs. Roberts, 7 Ark. 822/ ATewtotb vs. State Bcmk, 14 Ark.

   Mr. Justice Scott

delivered the opinion of the Court.

3n opening and examining this record, we were forcibly and very favorably impressed with tbe lawyer-like manner in which this case was gotten up, and is presented for our 'decision by the united professional skill of the learned court and counsel.

It was an action of ejectment by Patrick, who claimed the land in controversy, under sheriff’s deed, made on a sale for taxes against Davis, the patentee andowner. The cause was tried and determined upon the general issue, (before the Hon. Charles W. Adams, Judge,) in the St. Francis Circuit Court, the parties having waived a trial by jury, and requested the court to find the facts as on special verdict, which was done.

Prom this, it appears, that the lands were patented to the defendant, Davis, who has held possession of them eversince. That, up to the 24th of December, 1850, he was a non-resident of the State of Arkansas. That, in tbe year 1849, tbe lands were regularly listed for taxation in bis name, and tbe State and county taxes duly assessed upon them in tbe county of St. Francis, where they are situated.. That tbe taxes, so assessed, not baying been-paid,, tbe collector attempted to advertise these lands for sale in-pursuance of tbe statute, but described them as being situated in range-numbeivtbree east, instead of three west, their true description.: In other respects,, tbe advertisement conformed to tbe provisions of tbe statute. That tbe defendant bad a resident agent in St. Francis county, authorized to pay tbe taxes in question,, who, in due. season, before tbe lands were advertised, applied to tbe collector, to pay them, but was informed by that officer that tbe lands bad been omitted to-be listed and assessed for that year,, and would be- double taxed the ensuing year. That afterwards, when this advertisement appeared, this agent again called on the-collector, and pointing out tbe mistake, was informed by that officer, that for tbe reason of this error tbe lands would not be-offered for sale as advertised; and, in consequence, tbe agent did. not attend tbe sale. That, nevertheless, at tbe time and place-advertised, tbe collector did offer tbe lands described in tbe patents, and so misdescribed in bis advertisement, and tbe plaintiff became tbe purchaser at tbe price set out in tbe deeds. That, in pursuance of that sale, tbe plaintiff received tbe usual certificate of purchase for the lands correctly described, kept them for a period beyond one year, and then, upon presenting, them to tbe collector, received in exchange deeds for tbe lands in controversy; which are set out m hm verla, and were duly acknowledged and recorded. These deeds do not in any way exhibit tbe misdescription of tbe lands in tbe advertisement; but, on the contrary, recite, among other things, that the collector “ did proceed to advertise, and give at least thirty days’ previous notice, according to law, that he-would sell, &c., the said tracts of land,” &c., the lands having been correctly described in a previous recital contained in tbe deeds. It also was found that tbe defendant owned no other lands, in St. Francis county, than those described, in bis patents and in the declaration, and that be wasintbe possession off them at the time of the-service of the writ. TJpon this state of facts,, tbe court being of opinion that the law was fbr the defendant — to-which opinion the plaintiff excepted, and tookhis bill of exceptions-!

. — the finding, as-npon special verdict, was in accordance with this, opinion of the court. And final judgment having been rendered; upon this finding for the defendant, the plaintiff, appealed to this-court.

The appellant’s counsel submit that,.under our revenue laws, it was the intention of the Legislature to place the validity of tax. sales upon the same footing with execution sales under the authority of the Circuit Courtand that inasmuch as, in the latter-class of cases, the want of actual advertisement,.when returned; by the sheriff as having been made, (Newton vs. The State Bank, 14 Ark. R. 9,) cannot be urged against an innocent purchaser,, the only redress in; either case- should be through a, proceeding; against the officer for any damage which may have-resulted frank his negligence.

It has Ibng been the prevailing doctrine, as was remarked in; the case of Merrick & Fenno vs. Hutt, decided at the present:, term, that to divest the owner of his titlfe and estate in lands, by a sale for taxes, it is necessary that it should be shown that every substantial step, prescribed by the statute, had preceded the-sale. This was the principle of law recognized and applied by this court, in the case of Hogins vs. Brashears, 13 Ark. R. 242, and which had been almost universally recognized both inthe> Federal and in the State Courts. So much so, that it- cannot but be presumed, that it was within the knowledge of. the Legislature,., at the time of the enactment of our revenue-laws.. Indeed, some-of the provisions of these laws indicate- that they were enacted; in direct reference to a recognition of'this doctrine;. Thus,in the warrant to be attached to the tax books, the form; of which is; prescribed, {Digest, eh. 139,. see. 40,) if taxes are not paid within ten days after being demanded, the collector is affirmatively “commanded to levy and make the same, or the part remaining unpaid', with, costs, in the mannei’ and by the proceedings prescribed by law,” &c., and the same mandate is negatively repeated in the provisions of the 48th section, that this levy and sale shall be made in the same manner as under judgments and executions at law, “when not inconsistent with the provisions of this act.” And then the further provision is made in the 113í7¡; section, that no exceptions shall be taken to any deed, which, by other regulations, is to contain a recital of these proceedings, “ but such as shall'apply to the real merits of the case, and are consistent with a fair interpretation of the intention of the General Assembly.” Indicating, when taken together, not only a recognition of the doctrine in question, but enacting a modification of it, on a point where the drift of the decisions of the courts had practically made it objectionable, by the double error of a too ready ear to trivial matters of non-conformity to the statute, and the failure to discriminate between those matters, which are really conditions precedent to the validity of the sale, and those which are directory merely, and designed for the information of the officers and to promote method, saystem and uniformity, in the mode of proceeding. And in the same category may be included that cajú-tal provision of the statute, according with the legislation of several of the States, which, when the deed is regular upon its face, reverses the onus proba/ncbi, and subjects the tax title, when thus sustained, to be overthrown, only by proof of a non-conformity in the proceedings to some one of the substantial prerequisites to the sale.

True,,the Legislature had equal authority to abolish the doctrine in question as to modify it; but it would only be that character of modification which would be inconsistent with the doctrine itself, that would work its abolition by implication, in the absence of express legislation.

If this doctrine rested upon the simple ground, that the power in question was a naked power — not coupled with ,an interest,' then there would be more room, both for question as to its soundness, and for plausibility in the position assumed for the appellant; because, in this respect, it does not perhaps differ at all from the sheriff’s power, when selling land under execution from the Circuit Court; but it rests upon a much wider and more solid legal basis. Not only is it, in its- nature, a special and limited ppwer, but its operation is penal, in a summary manner, out of ■the cause of the common law, and against common right, and there are, therefore, at least three concurring, though distinct, legal reasons, why it should' be strictly pursued. Such a power is as much a special one, as that vested in militia officers and courts- marshal, to enforce the performance of military duty; and the obligations of the citizen to pay taxes and render military services, grow out of the same political contract. It is created by the statute, and the mode of its exercise specifically pointed out in a course different from that of the common law.. It provides the resident tax payer no day in court upon the important question, whether or not he has neglected or refused to pay within ten days after demand; and it is upon this only that he1 can be put in default, and that the right to levy upon and seU. his land, arises. It is, therefore, strongly against common right. If his land is sold, it is not because any comt has adjudged him in. default, but because a ministerial officer, in the double capacity of judge and witness, has passed upon his case ex parte.

If, as against a purchaser, ’ at a collector’s sale, all inquiry is cut off as to the advertisement, and the injured party turned over to the officer for redress, upon the principle contended for, the like would be the result as to the fact of refusal to- pay within the ten days after demand, and as to all the other acts- in pais. And if this rule is to prevail, it would seem that the collector’s bond, unless greatly enlarged in amount beyond double the sum; of the State and county taxes, would be a very inadequate security for the land owners of a county, against all of whose lands he would annually have process of execution;. while the sheriff would not perhaps have like process against an equal quantity of land within a half century.

Such a power, as that defined for the collector of taxes by the ‘current of authority, lives only in.the authoritative acts prescribed to be done by him — ^the power to do the succeeding act ¡arising from -his having authoritatively done the .preceding one. When, therefore, - one of -these acts is omitted, the chain of his ,power is broken, and he having no .general authority to -invoke, •to sustain any subsequent act, it is necessarily without power.

Not so, however, with the power'of a sheriff, when selling land ’•under a valid execution, issued from a Circuit Court xrpon a subsisting unsatisfied judgment of that'COurt;because.his power lives mot only in his acts .prescribed to be done Iby the statute, but in ¡.the judgment and execution concurrent with the statutory regulations for its exercise. These regulations prescribe the form of the process of execution, and the mode in which execution shall be done, and, in doing so, recognize and authenticate, at the same ' iiime, that they, to -some degree, extend the ’.inherent constitutional power of the-Circuit-Court to execute its own judgments. When, therefore, -in doing -execution, ;a sheriff should deviate ifrom the modequ’escribed by the statute, althoixgh to this extent the proceedings would be erroneous, there could not be any absolute defect of .powei’, because his act 'would still be within the ¡scope of the general constitutional powers of the court under whose authority he acts. -Not unlike some of the acts of an executor, which, although not in conformity to the provisions of the statute regulating his duties, would nevertheless be upheld, because- of his authority being derived from the testator and living fin. his will, although the statute prescribes the mode of fits probate, the form of the grant of letters testamentary, and makes ¡regulations for his representative action. These provisions of the ■statute being but in recognition and authentication of the power ’-conferred by the will, the exercise of which they also regulate.

But, however well or fill-founded in legal reason this doctrine anay be, it was too well established by the almost uniform .-current of decisions to have escaped the notice of the Legislature.; and if it had been the intention to overturn -it by our revenue laws, instead of simply modifying it on those points, where its practical operation bad pressed most severely against tbe validity of sales, it is fair to presume there would have been a far more distinct intimation of tbe legislative will to tbis effect, than can be gathered from any fair construction of tbe various provisions made. Indeed, some of tbese strongly indicate tbe contrary, as those made by tbe 91st and 92d sections of tbe law, which, after providing that tbe deeds'for lands of residents sold for taxes shall be executed and acknowledged in tbe same manner as deeds are made for lands sold under execution, enacts that “such deed shall vest in tbe grantee, bis heirs and assigns, a good and valid title, both in law and equity, and shall be evidence of tbe legality and regularity of tbe sale of such land, until tbe contrary be made to appear.” Sec. 92. So, also, tbe 113th section provides that, “No exception shall be taken to any deed made by tbe collector for lands sold for taxes, but such as shall apply to tbe real merits of tbe case, and are consistent with a fair and liberal interpretation of tbe intention of tbe General Assembly.” While .the provisions, as to sheriff’s deeds for land sold under execution, are simply that when acknowledged, or proved, and recorded, they shall be evidence, without further .proof, {¡Digest, ch. 67, sec. 64,) and that tbe recitals contained in them, shall be evidence of tbe facts recited, (id., see. 60,) without further verbiage. Although tbis discrepancy may have no very strong legal bearing, it may, nevertheless, be regarded as one of tbe signs, by which tbe true intention of the Legislature, as to the doctrine in question, may be arrived at. Tbe principal evil of tbe doctrine, as it originally stood, was the difficulty, amounting almost to impracticability after tb e lapse of a few years, of the purchaser establishing, by proof,'tbe various acts m pads of tbe collector, upon which the validity of bis deed depended. That has been remedied in our revenue laws, by tbe provisions of tbe 92d and 112th sections, making tbe deeds, when regular upon their face, evidence of tbe regularity of tbe proceedings, and thus casting tbe onus prdbcmdd upon tbe party who questions tbe validity of tbe sale. Another evil was, that the invalidity of tbe sale was often declared, upon grounds of trivial nonconformity of tbe proceedings to tbe provisions of tbe law, wbicb in no way touched tbe real merits of tbe case. For tbis, tbe 113th section provides a remedy, in tbe provision that sucb objections shall not be allowed.

Tbe objection in tbe case before uswhich is substantially, as is in effect conceded by tbe counsel, a failure to- advertise the lands for sale — -makes it necessary that we should ascertain whether tbis nonconformity with tbe provisions of tjre statute, requiring that the lands should be advertised, is cured by tbe last cited section of tbe revenue law.

It may be stated, as a reasonable proposition,.that all those provisions of tbe statute, wbicb are mere regulations of business, designed for tbe information of tbe assessors and collectors, tbe county court,,and the-auditor, in tbe routine of their respective duties, touching tbe revenue, and intended to promote method, system and uniformity,, in tbe mode of proceeding, tbe noncompliance with wbicb can, in no respect, injuriously affect tbe inr dividual rights or interest of tbe tax-paying citizen, cannot be said to touch tbe merits of any case be may make against tbe validity of a sale of bis lands for taxes. Whereas, all those provisions,, which, are intended, or wbicb maybe of a character to operate practically, for bis protection, security or benefit, tbe noncompliance with wbicb would consequently be likely so to affect sucb rights or. interest, would,, without doubt, be of tbe merits of sucb a case. Tbe former, class of regulations may be, therefore, well regarded as purely directory, tbe noncompliance with wbicb, although subjecting tbe recusant officer to legal animadversion, would not invalidate tbe sale; while tbe latter class may, with equal reason,, be regarded as conditions precedent to tbe legality and validity of tbe sale. It was to-enforce tbis plain, and, to some extent recognized, distinction, (Torry vs. Millbury, 21 Pick. R. 67; Brainard et al. vs. Con. River Rail Road Co., 7 Cush. R. 505,) and to suppress tbe mischief wbicb bad resulted from its having been too often, overlooked, doubtless, that our Legislature ••enacted the 113iA section, and which disallows objections for non ■conformity of the former class.

From this exposition>of the law, it is plain that the objection in'question is fatal. The advertisement, required by the legislature, had too capital objects in view. 1st, To apprise the 'owner of the property;-and 2d, To .give -notice-to persons desirous of purchasing. Both objects are of importance. It is necessary for the interest of the owner, that he should be informed of a proceeding, which, unless arrested by the payment of the tax, would divest him of his property. And it was of equal, if not greater importance, that the property should be so accurately and definitely described that no purchaser could be at a loss to ascertain .its situation and estimate its value. In the case of Roukendorff vs. Taylor’s Lessee, 4 Peters R. 373, it was held that although all this information should be given to the purchaser at the sale, “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 description of the property to be sold, cannot be cured by any communication made to bidders, on the day of the sale, by the auctioneer.” In all the cases we have examined, where the question has arisen, it has been uniformely held, that •a misdescription of the land in the advertisement, is fatal. And, in this State, there is an additional reason, that it should be so held, in the fact, that under our laws, lands may be as well assessed, taxed, and sold in the name of a stranger, as in that of the true owner. Revenue Law, sec. 115.

Besides this fatal objection, facts were found in this case strongly 'tending to show fraud in the officer- making this sale.

The judgment will be affirmed.