text:
    Ezekiel S. Haines vs. David Tharp.
    In an action on the indorsement of a promissory note, a plea that the causs of action did not accrue within six years, is bad.
    A general replication, taking issue on such plea, is good.
    Such issue is an immaterial one — a rcpleader will not be awarded, but judgment given for plaintiff.
    This is an Action or Assumpsit reserved in Brown County. The facts in the case are stated in the opinion of the Court.
   Wood, C. J.

This ease was submitted at the April term, A. D. 1846, of the Supreme Court for the County of Brown, and reserved for the consideration of all the Judges in Bank.

The action is brought by the indorsee against the indorser of a promissory note for $350, made by Elias Tharp to the order of David Tharp, payablé three months from the 6th day of June, 1834, at the Franklin Bank, in the city of Cincinnati. The indorsement is in these words:

Pay Ezekiel S. Haines or order.” “ David Tharp.”

The defendant pleaded, first: the general issue of non-assumpsit ; secondly: a special plea in bar, that the cause of action did not accrue within six years before the commencement of the suit. The plaintiff replied to the special plea, taking issue upon it, and all the facts', as -well as the law of the case, are now before us for adjudication. - •

In Bank.

Dec. Term, 1846

It is insisted by the counsel for .the defendant, that the proof of notice of the dishonor of the’ note is entirely insufficient' to charge the indorser. This proof, therefore, must be examined. The protest speaks for itself, and' shows the note was presented at the- Franklin Bank on the 9th day of• September, 1834, at the close of banking hours, and payment thereof’demanded-by, the notary, which was refused. The deposition of this officer has been taken, and proves, that on the same day.h'e made diligent'inquiry for the indorser,-but was unable to find him, and he therefore left notice of the protest under his door, on New street, east of Broadway, being informed that the indorser and his family were- on a visit in the country. ' He does not. recollect; definitely, the' precise location of the said David Tharp’s dwelling,' but believes it was • a few doors from the corner of Broadway and New-street, and his impression is, it was at that time oh the north side of-New street. He was-informed by, some of the immediate neighbors of Tharp’s absence' in the country,'and does not'recollect whether he left the. notice at the place from his own personal knowledge of his residence, or from information obtained in the vicinity, but'in-all such cases, he'always.m'ade the mpst'diligen.t inquiry. ./ " .

Another witness,testified, that at the time of the date of the protest the residence of the indorser- -was on New street, four doors' east of Broadway, on the south side. ' ' -.

On this evidence, we are of the opinion the notice' was left at the residence of the .indorser. ■ -Suppose .tlie notary. had no knowledge of the location personally, with 'the diligence with which, he swears he made-inquiry in such-case?, and in this cáse, either that he left the notice'upon-his own. personal knowledge of the place or from-.information obtaineddn the immediate vicinity, the probability is, .that he-was-not mistaken: • He was certainly on the .right-street; this'is -proved- by another witness, and, if so, if is more likely that his impression, after the lapse of so many- years, is .wrong, that the -residence of the indorser was on the north instead of the south side of the street, than be was misled by those- in the immediate vicinity, who must have known and had no interest in deceiving him.

The next question is raised on the issue taken by the replication to the special plea in bar. The cause of action in this case arose in 1834, and is controlled by the statute of 1831. Under this statute, actions founded on simple contracts, not in writing, are barred in six years; if in writing, they are barred in fifteen years. The defendant insists that the plea is sufficient, but that the replication is insufficient for the introduction of proof of a new promise within six years of the commencement of the suit. On such a question the authority of Chitty will not be denied, and he lays down the rule thus: 44 When the statute of limitation has been pleaded, either that 4 the defendant did not undertake, or that the cause of action 4 did not accrue within six years before the exhibiting of the 4 plaintiff’s bill,' and the plaintiff can prove a promise or ac-4 knowledgment within that time, the replication may deny the 4 plea generally, and conclude to the country.”

But is the plea itself a bar 1 It is said to be sufficient, because the indorsement is not the foundation of the action — that the contract on which the action is based, is by parol — that if the note be demanded at maturity, not paid, and the indorser duly notified thereof, then he will pay; and as these obligations which the law imposes on the indorser, and without the performance of which the plaintiff cannot recover, are not embodied in the indorsement, the indorsement cannot be the foundation of the action. This position is unsound. An indorsement is, in fact, a bill of exchange. It is, an open letter of request, drawn by one person upon another for the payment of a sum of money to a third person. But no action will lie on a bill of exchange without presentment for acceptance or payment, refusal and notice to the drawer; and the argument is, therefore, that if declared upon specially, it is not the foundation of the action, but the obligations on the plaintiff himself to present and give notice are; and he is, therefore, suing himself on a penal contract which arises out of the written one. There is no foundation for such an argument. An indorsement is a written contract of . which the law declares the effect; and when counted upon, it is the foundation of the action, and a plea that the cause of action did not accrue within six years, is no bar under the statute. From this state of the pleadings it follows that the issue made by the replication is an immaterial issue; and the question arises, can the Court legally give judgment for the plaintiff, or must a repleader be awarded ? On this issue, if a verdict was found for the defendant, the Court ought nevertheless to give judgment for plaintiff non obstante veredicto. This may be done, says Chitty, where the plea is good in form, but not in fact, and a re-pleader will not then mend the case, and the Court ought immediately to,give judgment; 1 Chit. Pl. 694. A repleader is awarded where the form and manner of pleading is bad, not the title; and where a cause of action is confessed, but not avoided by the plea, a repleader is unnecessary. — Idem.

N. H. Swayne, for Plaintiff,

N. Barreré and J. II. Thompson, for Defendant.

The plaintiff is in no worse condition than if a verdict was found against him on this issue, and which would be no objection.

Judgment for Plaintiff.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Lessee of Jacob Hannel vs. William Smith.
    The list of forfeited lands furnished by the Auditor of State to the County Auditors, for sale, must be authenticated by his official seal and signed by himself i or his Chief Clerk.
    A sale of such lands will not be valid unless they have previously been listed for taxation by some pertinent description.
    This case comes before the Court by Writ op Error to the Supreme Court of Hamilton County.
    The original action is ejectment. In the declaration the premises in controversy are described as a lot in Cincinnati, “ beginning on the western side of Western row, fifty-five feet ‘south from Chesnut street; thence southwardly with Western ‘ row thirty feet for the front of said lot, and extending back ‘ the same width, one hundred feet more or less.”
    At the last term of this Court in Hamilton county, the case was submitted to the Court without the intervention of a jury, and upon hearing the evidence the Court found the issue joined for the defendant, and rendered judgment accordingly.
    Thereupon, the plaintiff tendered his bill of exceptions in the following form: “ In the trial of this cause, the plain- ‘ tiff, to support the issue on his part, produced the following ‘ deed, marked exhibit A., from the Auditor of Hamilton ‘ County to the plaintiff’s lessor, and rested. The defendant ‘ then offered in evidence a record book from the office of the ‘ Auditor of Hamilton County, which contained the following ‘documents and entries: 1. The original letter of John ‘ Brough, Auditor of State, a copy of which follows, marked ‘ B. 2. A certificate of Hugh McDougal, Auditor of Hamil- ‘ ton County, a copy of which follows, marked C. 3. The ‘ following extract from the advertisement of forfeited lands ‘ and town lots, marked D. Also, exhibit E. Upon this evi- ‘ dence the defendant, by his counsel, prayed the Court to enter ‘ judgment, which the Court did.” Which bill of exceptions was sealed by the judges holding the court, and is made part of the record.
    The deed referred to, is a deed from the County Auditor of Hamilton County, conveying the land in controversy to the lessor of the plaintiffs, by metes and bounds, as set forth in the declaration. It was recited in the deed, that the land was offered for sale and sold as land forfeited for the nonpayment of taxes, on the second Monday of December, 1843, to the lessor of the plaintiff, and that the boundaries of, the land had been ascertained by the surveyor of the county pursuant to law.
    The letter referred to, as contained in the record book of the Auditor of Hamilton county, and noted in the bill of exceptions as marked as Exhibit B, is as follows :
    "AUDITOR OF STATE'S OFFICE, >
    “ Columbus, Ohio, June 5, 1843. )

      11 Auditor of Hamilton County :
    “ Vou will carefully examine the foregoing list, and strike from it such lands or lots as you may know to be erroneously forfeited, taking care that none escape the duplicate of taxation; you will then proceed to advertise and sell the remainder, according to the original act, for the sale-of forfeited lands, and the amendatory act, passed .February 15, 1842. Send me .a paper containing your advertisement. '

      “ Very respectfully,
    “ JNO. BROUGH, Auditor of State.

    “ By J. B. Thomas.”
    Exhibit C, is a certificate from Hugh McDougal, Auditor of Hamilton county, bearing date 11th December, 1843 ; stating, among other things, that the annexed list of lands had been offered for sale, and forfeited to the State, for the nonpayment of taxes; that they had been again duly advertised for sale the length of time required by law, the sale to commence on the second Monday of December, being the 11th day of the month, and to continue from day to day until all the lands should be sold ; that the sale was actually opened on the said 11th day of December, and continued from day to day until the lands were sold.

      The number of tracts of land and town lots offered for sale, was uPwai'ds twelve hundred.
    Exhibit D, is as follows: “ Smith, Thos. heirs, 30 feet, b. ‘ Ches, and Eliz.; value $210, taxes $19.90 — sold for $10, ‘ to Jacob Hannel. Sold on the 21st day of December, 1843.”
    Exhibit E, is also a certificate of the Auditor of Hamilton county, showing that the property in controversy was entered for taxation on the duplicate, for the year 1841, as follows:— “ Thos. Smith’s heirs, SO ft., b. Chesnut & Eliz’th sts.; yalue $210; tax for 1841, $5.25.” That the taxes not being paid, it was returned delinquent, and was again,,in the year 1842, placed on the duplicate, substantially in the same form, charged with the tax, interest and penalty of 1841, and the tax of 1842; that it was offered for sale on the last Monday of December, 1842, for the tax, interest and penalties, and, not being sold, was forfeited to the State; that, after orders received from the Auditor of State, it was offered for sale, as forfeited land, in December, 1843, the sale commencing on the 11th day of the ■ month, and continuing from day to day until the 21st, when this land was sold.
    The following errors are assigned :
    First: The Court erred in deciding that the Auditor of Hamilton county was not duly authorized by the Auditor of State to sell .the lot.
    Second: The' Court erred in deciding that the description of the lot was insufficient.
    Third: The Court erred in deciding that the sale was void, because made on the 21st day, and not on the second Monday of December.
    Fourth: The Court erred in giving judgment for the defendant, when judgment should have been given for the plaintiff.

      D. RaymondI, for Plaintiff.
    The only evidence on the part of the plaintiff, was a regular deed from the Auditor of Hamilton county, on a sale for taxes. On behalf of the defendant, the record book of sales for taxes, in December, 1843, was produced, from which it appeared, that the authority to sell was not signed by the Auditor of State, but by his chief Clerk, and the State Auditor’s seal was not affixed thereto.
    It also appeared, by the same record, that the description of the lot in the advertisement was as follows :
    Thomas Smith’s heirs, 30 feet, between Chesnut and Elizabeth streets — value $200; and that the sale was on the 21st of December, and not on the second Monday of December.
    The plaintiff’s counsel will contend for the following propositions :
    First: The State of Ohio has a perpetual lien on each lot or tract of land in Ohio, for the taxes assessed upon it. This lien can only be discharged by paying the taxes in full. Swan’s Stat. 913, sec 25.
    Second: The tax laws of Ohio are not penal laws, but they are just and equitable laws, and must therefore be construed by equity, and not by the letter. They are to be construed according to their spirit and meaning, so as to carry into effect the intention of the Legislature, and not literally, so as to defeat the object of the Legislature. Special powers are to be strictly pursued; but tax laws are not special powers. Cowp. 26.
    “It is for the interest of all concerned,” says Judge Hitchcock, in 5 Ohio Rep. 230, “ that tax sales should be sustained whenever they can be.” In McMillan’s Lessee v. Robbins,

    5 Ohio Rep. 13, Judge Hitchcock also says, that “ Courts have £ been astute to find defects in tax sales — so much so, that in ‘ this State, at least, it has become the general, if not universal ‘ opinion, that a title derived under such a sale cannot be sup- £ ported. Whether Courts have done wrong in this, it is not £ for us to say. The consequences however, as members of the £ community, we cannot but regret.” The consequences are, that, at tax sales, land will not sell for enough to pay the taxes, and the State is defrauded of its revenue.

      Penal Jaws are criminal laws, and are to be construed strictly; but tax laws are not criminal laws. And the charge of 25 per cent, upon the delinquent taxpayer, is for the purpose of paying the extra expense the State is put to on account of the delinquency, and is no more a penalty, in the true sense of the word, than the costs of suit are a penalty; nor is there any forfeiture, in the true sense of the word. The delinquent tract or lot is put up at auction; and, if nobody will bid the amount of the taxes for it, the State becomes the purchaser, for the amount of the taxes, and then gives the owner two years to redeem it, on paying the taxes and costs. This, instead of being a harsh and penal law, is a very lenient and equitable law, and should therefore be construed by equity. If the owner does not redeem in two years, then the State makes an absolute sale.
    Third: The tax laws of Ohio, as well as the tax laws of all other States, make it the duty of the owner of both real and personal property, to list it for taxation, and, in listing it, he must describe it; and, if he fails to do this, he is in default, and can never after take advantage of his own wrong. If the owner fails to list and- describe, the assessor is required to- do it for him; and this act of the assessor is deemed to be his act, and he may be made responsible for it, to threefold the amount of his taxes on the property. Swan’s Stat. 910-11, secs. 16, 17, 20; Ibid. 922, sec. 60.
    It.would be a gross absurdity to allow an owner of property to exempt himself from the liability to pay taxes on it, by neglecting to list it, or by giving an imperfect or erroneous description of it; yet such would be the effect of allowing the owner to come in and avoid á sale on account of an imperfect description made by himself.
    The statute requires a “pertinent description of the property, so as to identify the same;” Swan’s Stat. 109, sec. 19; Ibid. 910, sec. 10. What, then, is a pertinent description of apiece of property, so as to designate and identify the samé ? Such a description as will enable the surveyor to find the lot or tract of land, and survey it — id certum est quod reddi certum potest. Unless the surveyor can find the lot, and survey it, the auditor can make no deed, and the sale is void, and the purchase money must be refunded. Swanjs Stat. 928, sec. 85.
    The surveyor usually takes the- auditor’s certificate, and goes to the recorder’s office, and there he finds a full description of the lot, from which he makes his survey.; and' this, Í take it, is. sufficient to justify, or rather require, the auditor- to make a deed; Swan’s Stat. 928,' sec, 85. This was done in the present case, and is all sufficient. It is not ,pretended that we-have not got the identical lot that; was delinquent,, and was forfeited and sold by the-State to the. plaintiff. What more can be required to identify the lot I am at a loss to conceive.
    Fourth: The official acts-of-:all- public officers, are done under the responsibilities of their official oaths ; and, as they are competent witnesses to prove their own official acts, whatever they say respecting those acts, must be received as true till the contrary- is, made to appear. ' .The return of a public officer is prima facié evidence of its truth, at common law. The survey of the surveyor is prima facie evidence of its truth. The auditor’s deed is prima facie evidence of'its truth; and the statute, which declares that the auditor’s deed shall be prima facie evidence of title, is merely in affirmance, of the common law. — • Swan’s Stat. 928, sec. 6; 9 Ohio Rep. 1175.
    Fifth: If a public officer has. an official public seal, his official acts, authenticated by that-seal, are. conclusive evidence at common law, and cannot be rebutted. If, then, the Auditor of Hamilton county has a public seal, the effect of the statute is to reduce the auditor’s deed from conclusive- to prima facie evir dence. 4 Cranch, 421; contra, 412.
    But, it is contended by defendant that the sale was void, because the Auditor of Hamilton county was not duly authorized by the Auditor of State to sell the lot— 1st, Because the authority is not under the official seal of' the Auditor of State; 2d, Because it is signed by the chief clerk, and not by the auditor himself.

      1. The sale was made under the act of 15th February, 1842, which does not require either the hand or seal of the auditor. The language of the statute is — “ it shall be the duty of the ‘ Auditor of State to transmit to the auditors of the respective ‘ counties, lists of ¿11 lands, town lotsj” &.c., without designating the mode of transmitting. Even the act of 1831 does not require the authority to be under hand and seal, except for the year 1831. The 5th section of that act requires the Auditor of State to forward to the county auditors lists of the forfeited lands, &c., but does not require it to be under hand and seal. The 3d section provides for the forfeited list of 1831, and requires the auditor to affix thereto the seal of his office. 2. The Auditor of State is expressly authorized, by the act of 31st of January, 1831, to appoint a chief clerk, who is authorized to do and perform the several duties required of the auditor.— Swan’s Stat. 122, secs. 21, 23.
    The defendant also contends that the sale is void, because the sale was not made on the second Monday of Deceniber, 1843.
    The statute does not require the lands and lots to be sold on the second Monday of December, but that they shall be exposed to sale at the Court House on that day. Exposing to sale and selling are two distinct acts. A piece of property may be exposed to sale for a week or a month, without being sold. The lots were all exposed to sale on the second Monday of December, although many of them were not sold for several days afterwards. There were upwards of twelve hundred lots advertised for sale, and they could not all be sold in one day. The auditor is required to “ offer each lot separately, beginning with ‘ the first lot in the list, and so continuing on through the list, ‘ till they are all sold.” This was done; and notice was given, in the advertisement, that the -sale would be continued from day to day until they were all sold. The statute has, therefore, been strictly complied with in every particular.

      W. R. Morris, for Defendant.
    There were three objections taken to the plaintiff’s title, on the trial below — .
    First: That the list transmitted by the Auditor of State to the Treasurer of Hamilton County, of forfeited lands, under which the sale was made, was not signed by the Auditor of State, and was not certified by him under the seal of the Auditor of State.
    Second: The sale was not made on the second Monday of December, as required by law, but upon a day subsequent.
    Third: That the description of the land sold contained in the assessment was void, for uncertainty.
    As to the first objection :
    The statute requires the auditor to keep a seal, and that all official copies taken from the records or other documents in his office, shall be certified and signed by the auditor. Swan’s Stat. 120, sec. 3.
    The statute specifically requires the list of forfeited lands for taxes to be made out and certified by thé Auditor of State, and requires him, to sign the certificate and affix thereto the seal of his office: See Swan’s Stat. 927, sec. S2. This last act was passed March 14, 1831.
    By the act of the 15th February, 1842, which was merely amendatory of the act of 1831, the fifth section directs the Auditor of State to transmit the list of forfeited lands to the auditors of the several counties on or before the first Monday of June, 1843, and requires the same and the proceedings in all things to be conducted according to the provisions of -the act of 1831: See 40 Ohio Laws, 6, sec. 5. The act of 1842 is silent as to the mode in which the list should be certified; signed and sealed. But this is not material, as the act of 1831 provides how the Auditor of State should sign, seal and.certify, and the act of 1842 was not intended to make any change in that particular, or to dispense with the signing by the Auditor of State, or the seal of his office.-

      As to the second objection:
    The statute of 1831 provides, expressly, that the land forfeited for taxes, &c., shall be exposed for sale by the auditor of the several counties, on the second Monday of December. See Swan’s Stat.- 928, sec. 4.
    The act of 1842 provides, that the lands and lots not sold at the first sale in December, should be continued and offered at the next sale, on the second Monday of December following, without further order from the Auditor of State, under the fifth section of the law of 1831. • See 40 Ohio Laws, 6, sec. 5. , . '
    Neither of these statutes authorize any saje except on the second Monday of December, and I claim it is a simple question of power, and unless practiced strictly, the act of the county auditor is. not valid..
    As to the third objection r It seems to me unanswerable. The description is in every way. uncertain and void. The question does not arise, whether the description could be aided by parol proof, for none such is offered. It is simply a question. whether the description at bar is sufficient to enable a surveyor to identify and ascertain the lot sold. And the question arises, on reading the description, what thirty feet are intended; on which side of the street will you find them ? Are you to obtain thirty feet square, or thirty square feet, or thirty front feet? And of what length .or depth is the lot? Where is to be the commencing point, and in what place, town or city is the lot to be located by .the surveyor ? That the lot of the defendants, thirty feet in front and one hundred deep, in Cincinnati, has been surveyed'by order of the purchaser and plaintiff, may be true, but that does not help out the description of the assessment.- See' 4 Cranch. Rep. 402.; 3 Ohio-■Rep. 232; 2 Ohio Rep. 231; Ibid, 287; 5 Ohio Rep. 458; . 4 Pet. Rep. 350.
   Hitchcock, J.

The record shows, that' this case was submitted to the Court upon -an issue in fact, which issue, after hearing the evidence, the Court found in favor of the defendant. There is, it is true, a bill of exceptions in the record, but it does not appear from that bill of exceptions, that there was any question of law raised upon the trial; that there was any objection to any part of the testimony, but all was submitted to the Court, the parties waiving a jury. There is nothing to show that the Court made any one of the decisions claimed in the assignment of error as being erroneous, except that the Court rendered judgment for the defendant, instead of rendering judgment for the plaintiff. The ground upon which that judgment was rendered, no where appears. If it was wrong, being either against law or evidence, the course of the plaintiff was plain. He should have moved for a new trial. Under such circumstances, we have uniformly refused to reverse judgments, holding that the finding of the Court upon a matter of fact, could no more be reviewed by writ of error, than could the verdict of a jury.

The case might be left here, but as it has been so elaborately and cogently argued, we are willing to depart from our usual practice, and consider it as if it had come before us on motion for a new trial. But considering it in .that light, it is proper to say, that the bill of exceptions, with the exhibits attached, does not disclose all the evidence which was exhibited on the trial.

The exhibits, as they are called, are, in reality, but extracts from that evidence. The record books of the auditor of the county were in evidence. This is shown by the bill of exceptions. But the copies or exhibits are merely extracts from those books, or- certificates to show what they contain. In truth, some of these documents, as they aré now presented, would have been incompetent evidence.

The first question raised by the assignment of errors is, whether, from the testimony before the Court, there was sufficient evidence to show that the Auditor of Hamilton County had power to sell the land in controversy in the way and manner he did.

It must be remembered, that this land had been forfeited for the nonpayment of taxes — whether properly or not, is not the question — and was intended- to be sold as such forfeited land. Now, what was necessary to be done that the county auditor might have power to sell such lands ? It is not sufficient, that the lands had been forfeited. A right to sell did not immediately follow upon the forfeiture. The act of March 14, 1831, (Swan’s Stat. 927,) “ to provide for the sale of such lands,” makes several provisions upon this subject. The first part of the act has reference to lands which had been previously forfeited. In the third section, the Auditor of State is required to transmit to the several county auditors, lists of lands which had then been forfeited for the nonpayment of taxes in their respective counties, said lists to be certified and signed by the Auditor of' State, and to have thereto affixed his seal of office. This having been done, the respective county auditors are required, after having complied with the law as to advertising, &c., to sell the lands in the list contained, unless the taxes shall have been paid, &c. The fifth section of the act has reference to subsequent forfeitures. It requires the 'Auditor of State, annually, after the year 1831, to enter in a book, provided for that purpose, all the lands which should thereafter become forfeited, and once in two years to make out a list of such forfeited lands and forward the same to the respective county auditors, and these latter are required to proceed and sell the same in the mode prescribed in the law.

It is apparent, from this law, that the authority of a county auditor to sell forfeited land is derived from this list, thus transmitted to him by the Auditor of State. As well might a sheriff, without execution, sell lands to satisfy a judgment, as a county auditor undertake to sell without this list. The act of 14th March, 1842, (40 Ohio Laws, 4,) referred to by' plaintiff’s counsel, although amendatory to the act of 1831, does not make any change in this respect.

In what manner is this list to be made out ? Here, it must be remembered, that there is a difference made in the law between delinquent and forfeited lands. Lands which are charged with a tax upon the duplicate, and which tax is not paid within the year, are said to be delinquent, and the amount of delinquencies are returned to the Auditor of State, to enable him to make settlement with the county treasurers. The lands, however, are entered upon the duplicate of the next succeeding year, charged with the tax, interest and penalty of the year when delinquent, together with the tax of the current year. If these are not paid within, the time limited by law, the land is offered for sale at public auction, and if not sold for want of bidders, is said to be forfeited, and -these forfeited lands, or a list of them, are returned to the Auditor of State, who, as we have already seen, under the law of 1831, is bound to record them in a book to be by him kept in his office for that purpose. The lands thus forfeited are not, while in that situation, placed upon the county duplicate for taxation; but at, the times required by law, the auditor transmits a list of these lands, or such of them as have not been redeemed, to the respective county auditors, charged with the amount of taxes for the nonpayment of which they were forfeited, together with the taxes which shall have accrued thereafter.

Now, to the question as to the manner- in which the list of forfeited land is to be made. The statute itself answers the question. The third section of the act, already referred to, regulating the sale of forfeited lands, provides: “ that the Au- ‘ ditor of State, at the time he transmits the county duplicate ‘ for the year 1831 to the several county auditors, shall also c transmit to each county auditor a list of the forfeited lands ‘ lying in such county, which list shall set forth the name or names of the person or persons to whom such lands stand c charged with taxes, the amount due thereon for each year, in- eluding the year 1831, and for what years, and shall certify c and sign said list and affix thereto the seal of his office Here we are informed what this list is to contain, with an express provision, that it shall be certified and signed, and verified by the official seal of the officer.

It seems to be admitted by plaintiff’s counsel that this formality was necessary as to the lands which were forfeited previous to 1831; but it is strongly denied that it'was necessary as to any subsequent forfeitures. And this argument is based upon the fact, that it is not. expressly enacted that the list of such lands shall be verified by the official signature and seal of the auditor. It is true, that in the 5th section of the act (Swan’s Slat. 928) which has reference to land subsequently to be forfeited, although it is provided that the auditor shall, “ once in two years, make out a list of such forfeited lands, and forward the same to the several county auditors,” it is not expressly said that such list shall be certified, signed and sealed by the auditor. But it is at least reasonable to suppose, that the Legislature having once, in the same act, made this express provision, .deemed it unnecessary to repeat the identical words in every clause of the statute where this list of forfeited lands was treated of. At least we shall so understand that. body upon this subject, until some reason shall be assigned why a list of lands, forfeited before 1831, should be thus certified, signed and sealed, while similar lists of lands forfeited subsequently to that period, should not require such verification. The same remark will apply to the act of 1842, which is merely amendatory to the act of 1831.

But if neither of these acts had required this list to be certified, signed and sealed by the Auditor of State, we apprehend that it must have been so done, before a county auditor w'ould be authorized to sell. The act of January 31, 1831, “ prescribing the duties of the Auditor, Treasurer, and Secretary of State,” in the 3d section prescribes, “ that the auditor £ shall keep a seal, with the device of, ‘The Seal for the Auditor of Ohio,’ and all official copies taken from the ‘ records, or other documents in his office, shall be under said £ seal, and shall be certified and signed by the auditor.” To provide against contingencies, it is enacted in the 22d section of the same act, ££ that the Auditor of State may appoint a £ chief clerk, whose appointment shall be evidenced by a cerc tificate thereof, under the official seal of the auditor, and shall ‘ continue during the pleasure of the auditor.” And in the 24th section, that in case of the absence or inability of the { auditor, the chief clerk shall do and perform the several du- ties required by the auditor.”

It is said, however, by counsel, that these provisions of the law do not bear upon this case, because this list is merely a list of forfeited lands, while only copies of records and other documents in his office are required to be under the hand and official seal of the auditor. But how is this list made out? As we have already, seen, it is the. duty of the auditor to keep a book, in which are recorded all forfeited lands; and if such lands are not redeemed, as they may be, he copies from this book a list of those remaining, which is called the list of forfeited lands. It is literally a copy from the records in his office, and as such, must be verified in the manner pointed out by the law.

Now the question-arises, whether there was evidence before the Court on the trial of the case under consideration, that previous to the sale of the land in controversy, such list as the law requires, had been transmitted to the auditor of Hamilton county; or, more properly speaking, was there' evidence to satisfy the Court that no such list, verified as the law directs, had been transmitted. The plaintiff having introduced his deed, which was admitted as prima facie evidence, of title, the burden of proof was thrown upon the defendant to show that the land was sold without authority of law. For this purpose the book of records of the auditor’s office of Hamilton county was produced. In that book was found the letter marked as copy B in the bill of exceptions. It is as follows:

“AUDITOR OF STATE’S OFFICE,
Columbus, Ohio, June 5,1843.
Auditor of Hamilton County:
“You will carefully examine the foregoing list, and strike from it all such lands as you may know to be erroneously forfeited, taking oare that none escape the duplicate of taxation. You will then proceed to advertise and sell the remainder., according to the original act for the sale of forfeited lands, and the amendatory act passed February 15,1842, &'c..
“JOHN BROUGH, Auditor of State.
« By J. B. Thomas,”

It is apparent from this document, that it was annexed to a list called a list of forfeited land, but it was not such a verification of that list as the law required. It was not even signed by the auditor, but by J. B. Thomas. And who is J. B. Thomas ? Plaintiff’s counsel answer, the deputy of the Auditor of State; and the Auditor of State signed by his deputy. By what authority ? It is replied, by the authority which every public officer has to act by deputy. I know that some public officers may act by deputy, such as sheriffs, clerks, &c.; but I have yet to learn that the Auditor of State of Ohio can act by any other authority than the one prescribed by law: that is, the chief clerk in his office. Thomas, however, does not sign as deputy, nor as chief clerk. ■ This instrument is not only without the signature of the auditor, but it is not verified by his official seal, nor is it therein certified that the list to which it is attached, is correct. It is defective, and would no more authorize the county auditor to sell the land contained in the list, than a letter written by a clerk of a court, and directed to a sheriff, informing him that a judgment had been rendered in a certain case, would authorize that sheriff to levy upon and sell the lands of a judgment debtor.

But it is said that- it does not appear from the record but that there might have been the requisite certificate. The records of the auditor of the county were before the Court. The question agitated was, whether the list of forfeited lands was properly authenticated. It is strange, indeed, that if there was any proper certificate, it was not at that time discovered by the astute counsel of the plaintiff. Strange that it was not made part of the bill of exceptions. There was not in fact any such certificate. The letter before recited was the only document contained in the record, which was claimed, in connection with the list to which it was attached, as being sufficient to authorize the county auditor to sell. The Court, hearing the case upon the circuit, thought otherwise, and held that the authority was not sufficient. In so deciding, this Court are of opinion there was no error. .

The next error complained of is, that the, Court decided that the description of the lot upon the duplicate was defective qr insufficient. - ■

■ ;The description is as follows: “ Thomas Smith’s heirs; 30 ‘ feet b. Chesnut and Eliz. sts.; value, $210; tax for 1841, ‘$5.25.”

This was the description of the land upon the duplicate of 1841, the year in which thd land was returned delinquent. It was entered upon the duplicate of 1842 by a similar descrip-* tion. The taxes not being paid, the land was offered for sale, and not being sold, was returned to the Auditor of State as forfeited. ,.

It is admitted by plaintiff’s counsel, that, according to numerous decisions of this Court, heretofore made upon this subject, this description is defective; but' it is claimed that these decisions are all wrong, and that this Court have been led into error by following the decisions of the Supreme Court of the United States, in the case of Stead’s Executors v. Course; Cranch’s Rep. 412; and the opinion of Judge Marshall, in that cáse, has been commented upon with no little severity. It may be that counsel is right, and that this Court, and the Supreme Court of the United States, are all wrong. But we generally feel that we are pretty well fortified if our decisions are sustained by the authority of the highest court in the Union.

Whether, as a matter of policy, the strictness with which tax sales, have been scrutinized, has been most conducive to the public good, is perhaps questionable. But if this Court has been too rigid in this respect, the Legislature can easily apply a proper remedy; and many of the arguments of plaintiff’s counsel would be' much more applicable untó a legislative body than to a judicial tribunal. Where a principle of law has been established by a long course of judicial decisions, it should not be changed fór light and trivial reasons. It does not so much matter what the law is, as that it should be well understood. A change of the laws by the Legislature can do but little harm, as their acts are only prospective in their operation; but a change of, decisions by this Court interferes with previously acquired rights. Our decisions, in this respect, have a retro spective operation.

But, aside from the decisions of this Court, is the description of the land, as entered upon the duplicate, sufficient? The law requires a “ pertinent description of the property so as ‘ to identify the same.” The description of this land is as follows : “ Thomas Smith’s heirs; 30 feet, between Chesnut and Elizabeth streets; value,” &c. The number of the lot is not given. It is not stated whether it is an entire lot, or a part of the lot. It does not appear whether it is thirty feet front or thirty feet square. And if thirty feet front, it is not stated upon what street it fronts. There is, in fact, nothing in the description by which the land can be identified. . It is said, however, that it has been identified by a surveyor; ■ and so' it appears from -the deed given in evidence. The deed purports to convey to the lessor of the plaintiff, “ the following lot in ‘ Cincinnati, as per survey, beginning on the west side of Wesc tern Row, fifty-five feet south of Chesnut street; thence, ! southwardly with Western Row, thirty feet for the front of the lot, and extending back one hundred feet, more or less.” This description is well enough; but it is entirely different from that in the duplicate. It shows, however, that there was more than thirty feet front upon Western Row, between Chesnut and Elizabeth streets, and I know of no law which would justify the Auditor in conveying this particular thirty feet. In fact, I see no reason why a surveyor should have been called at all. The land sold did not purport to be a part of a lot or tract, but an entire lot, and it was all sold; and, such being the circumstances, should have been conveyed substantially as described. The mode of rendering a thing certain which was before uncertain, adopted in this case, we do not well comprehend. That mode was to examine the records of the county; and if, from those records, it was found .that Th.omas Smith had any land in Cincinnati, to consider that as the land sold, regardless of the description in the duplicate.

Another error assigned, is, that the Court decided' that the sale was void, because made on the 21st day, and not on the second Monday of December.

The record does not show that any such decision was made, nor is it within the recollection of the Judges who held the Court, that any such decision was rrtade. The point was argued, but the actual decision of the Court, so far as the law is concerned, was based upon the opinion, that the description of the land upon the duplicate was vague, uncertain, indefinite and defective; and that the county auditor had no authority to make the sale. Upon the point raised by the third error assigned, we therefore express no opinion.

The last error assigned, is, that the Court rendered judgment for the defendant, when it should have been for the plaintiff. There could be no error in this. The Court having found the issue joined between the parties for the defendant, it followed, as a matter of course, that judgment should be rendered in his favor, unless some motion had been interposed, which there was not, for a new trial, or in arrest of judgment.

The record in this case shows that the list of forfeited lands in Hamilton county, contained no less than 1200 tracts, lots and parcels of land, which were sold in 1843; and this circumstance has been urged' upon the consideration of the Court, as a reason why the authority to sell should not be very closely scrutinized. It is matter of regret, it is true, that in consequence of the neglect or mistake of a public officer, these sales should all be defective. But it must be remembered, that the purchasers are not without remedy. The law has secured to them a lien upon the land, until their purchase money is restored to them. All they can possibly lose, is the profits of a favorable bargain.

Counsel for plaintiff supposes that the 4th section of the act of March 2d, 1846, for the protection of purchasers at tax and judicial sales, has a bearing upon this case. The 4th section of that act provides, that whenever lands have been, or shall thereafter be sold for taxes, the purchaser may recover possession by action of forcible detainer, and that the evidence of the 0f f[ie purchaser or his assignee to recover, shall not be impeached or set aside by evidence of any informality or irregularity in levying the tax, or in any of the proceedings previous to such sale. 44 Ohio Laws, 114.

This particular section of the statute has reference to proceedings in forcible entry and detainer, and there is nothing in it which requires that its principles should be extended to other cases. This is not a proceeding of that kind, and, of course, this statute has nothing to do with this case.

Upon full consideration of the whole case, this Court is of opinion that there was nothing erroneous in the judgment of the Supreme Court of Hamilton county, and that judgment is affirmed.

Judgment Affirmed.


author: Read, J.

text:
    Abraham Shroll vs. Joseph Klinker.
    If a vendor sell and convey land by a correct description, but, by mutual mistake of the parties, without fraud on the part of the vendor, the vendee enters upon a wrong tract, and makes improvements, he cannot sustain a bill in Chancery to recover the Yalue of his improvements.
    This is a Bill in Chancery, from Craweord County, submitted upon bill, answer, replication and testimony.
    The bill charges, in substance, that the complainant, being desirous of purchasing a certain tract of ground, situated near Osceola, in Crawford county, known as the west half of the southwest quarter of section 25, township 2, south, of range 15, in the district of lands then subject to sale at Marion, Ohio, containing 80 acres, with a deadening or partial clearing upon 25 acres of the same, represented as belonging to one Joseph Klinker, entered into a negotiation with him for that, purpose-;"that-said Klinker represen ted-himself as the owner of the land • upon which the 'deadening; was.;' that complainant was ignorant of the description of said,lot; that, relying upon, the , representations’of Klinker, complainant purchased,-for the sum of $5.50, '$50 to-'be paid'in hánd, and $250 when'respondent ' should cóme for the samei to-complainant’s house, in Crawford ; county, and-, thp. residue-in -.the ,-'spring following ] ;that Klinker; • entered iptó;a' written' agreement to convey said land, on >re-»'•chiving -the- payment ¡of. the purchase ipo'néy,' by- deed, wjtK the ' usual covenants of warranty; that'-the'land described ip this . -Written. agreement, .was The east half of.the southwest quarter of the section aforesaid '; that complainant entered;upon'and . took possession of.-the lot óf ■ land-’upon which..the d.eadehing had Been madej supposing if tó be-the sameihfe.had'purchasedj-. •/ and 'made'improvements — cleared, fenced, and built a"house 'and'Barh'; — ,'fp;tKe 'valúe;: in'all, Of ' pVei- 'one thousand dollars'; • •that 'Klinkér yisi-te'd 'the complainant whilst residing upon said lot, to receive-his purchase-money,->nd assured-him it,was the lot he, sold;, that one" Adam Bear, who had made the deade'n- ’ ing fqr Klinker, pointed out thé land to complainant'; that Klinker.'.and' wife, subsequently, by dééd, conveyed 'said'.east half to complainant,;.on the 28lh of March, 1839; that said east half was' wholly.'wild .and unimproved, and. the' .deadening was. • upon the west half; that ,the, complainant'called upon. Klinker to convey said.west half, which he refused;-.as having no title. ' The prayer of the bill is for a c'onveyance of said Vest half; ón which the. improvements áre made,, or compensation for the value .of the improvements.. , v- , < ■ ■

    In Bank.
    Dec. Term, 1846
    The answer denies, all fraud; states' that. respondent■ had never- seen the land when he purchased ; that hé took his certificaté of purchase, given -at .the’ land .office,' went tó see his land; .and was referred to. one Adam.Bear, as a suitable person to point-it opt; that Bear did .so —or pretended.'to'; thinks he showed him Kis certificate of purchase, and’engaged him to do some clearing;'that ;he had no other .knowledge of the location of the land; that he was not aware that the deadening was not made on the east half, and denies all intentional misrepresentations ; admits that he informed complainant that he had employed Bear to make an improvement on the east half; insists that it was complainant’s own fault he went upon the wrong lot; and says that, when he called for the money, he supposed, of course, that complainant had gone into possession of the right lot.
    The proof shows, that complainant’s improvements were made as claimed in the bill; that Bear pointed out to Klinker the land; that hé was often employed for this purpose, and pretended to understand the location of lands; that the complainant said he had made a mistake and got on the wrong land; that the east half was in a perfectly wild state — was of as much value as the west half, with the improvement upon it.

      John Scott, for Complainant.
    The case was submitted for complainant without argument.

      •Powell Buck, for Respondent, argued that:
    First: The statute of frauds affects this case.
    Second: The maxim, caviat emptor, is here applicable. 1 ' Sug. on Vend. 536 and note 1; Ibid. 2, secs. 3, 4, 5 ; i Story’s Eq. 161, sec. 148 ; Ibid. 159, sec. 146; 1 Sug. on Vend. 537, sec. 6 ; 1 Johns. Ch. Rep. 577, sec. 2; Caines’ Rep. 191, sec. 2.
    Third: Where the means of information are open to both parties, and each is presumed to exercise his own diligence, there is no relief; 1 Story’s Eq. 161, sec. 149; Ibid. 163, sec. 150. This rule is applicable to this case. 4 Eq. Dig. 706, .sec. 12.
    Fourth: “ Where each party is equally innocent, and there ‘ is no concealment of facts,” &c., the mistake, whether material or immaterial, is no foundation for equitable interference. “ It is strictly damnum obsque injuria.” 1 Story’s Eq. 164, sec. 151; Ibid. 160, sec. 147.

      Fifth: The fact about which there is mistake, must be material. 1 Story’s Eq. 156, sec. 147 ; Ibid. 158.
    Sixth: “ Where there is a mistake between the parties as to ‘ what was sold, the court will not interfere in favor of either ‘party.” 1 Sug. on Vend. 342.sec. 41.
    Seventh: “ A vendor, selling in good faith, is not responsible for the goodness of his title beyond the extent of the ‘ covenants in his deed5 Johns. Ch. Rep.-79. The vendee must' seek his remedy at law on the covenants, if there are any, if not, he has no remedy. 2 Johns. Ch. Rep. 519; 1 Ibid. 213; 8 Amer. C. L. 281, sec. 3.
    Eighth: Equity will not interfere where the damages are trifling. 12 Ohio Rep. 387.
   Read, J.

Taking this whole case together, it shows a mistake, for which one party is as much to blame as the other. Klinker sold the land by a right description, and if the complainant had used a little diligence he could have found the right lot. The deadening referred to by Klinker, was a matter of mistake for which Klinker was not responsible. He was himself misled as to that. He did not intend to sell or describe other land than he himself had purchased at the land office. The complainant knew as much about the land as Klinker, and probably more. Now, to hold that Klinker should lose the whole value of these improvements, would be as hard as to compel Shroll to lose , it. Both parties stand upon an equal footing — both equally innocent. No fraud, no design to cheat or overreach. Now which shall lose ? For here we cannot apportion or divide out a loss resulting from a common mistake, as may be done by the civil law. One or the other must lose the whole. We admit it to be a hard case; but we cannot discover any ground of relief. The land sold was rightly described, and complainant should have been more diligent in hunting it up.

Bill Dismissed with Costs.