author: White, J.

text:
    The Board of Commissioners of Hamilton County v. Noyes.
    1. The capacity cf the county commissioners to sue is not limited to the cases enumerated in section seven of the “Act establishing boards of county commissioners and prescribing their duties. In the cases enumerated in section seven they are not only authorized but required to sue.
    2. "Where a cause of action in favor of the county arises out of a subject-matter within the control of the board of county commissioners, suit may be brought thereon in the name of the board, unless, by statute, the suit is required to be brought in some other mode.
    8. Where work has been done on account of the county, under an agreement with the commissioners, and has been accepted and paid for, no action lies at the suit of the commissioners, in the absence of fraud or mistake, to recover back the money thus paid.
    4. In such action, where it is averred in the answer that the work was done on account of the county, in pursuance of a contract with the commissioners, the presumption is that the contract was duly entered into. If the alleged contract is sought to be impeached by the reply as being void, as against the county, for non-compliance with the requirements of the act of March 9, 1866, relating to the duties of county commissioners . (S. & S. 86), the reply ought to show that the subject-matter of the contract is within the purview of that act. Whether, if the contract were shown to be made in contravention of the act last named, it would make any difference as to there being no right to recover back the money, queere.

    Error to the Superior Court of Cincinnati.
    The original action was brought by the plaintiff in error against Edward F. Noyes, the defendant in error. The petition contains several causes of action, all of which are alike except as to the amounts of money paid to the defendant, and the date at which the payments were made.
    The first cause of action is stated as follows :
    1. Plaintiff says that, on the 28th day of November, 1868, at Cincinnati, Ohio, the defendant, while holding the office of Probate Judge of Hamilton county, Ohio, and under color of his said office, with the intent to deceive the auditor of Hamilton county, Ohio, and to defraud the said county of Plamilton, falsely and fraudulently represented to said county auditor, that he, the said Noyes, was entitled to a warrant upon the treasurer of said county, for the sum of $2,280.45, and that, by reason of said false and fraudulent representations of said Noyes, the said auditor was induced to, and did illegally draw and deliver to said Edward F. Noyes, on said day, the said warrant or order, and, on the same day, the said Edward F. Noyes wrongfully, illegally, and fraudulently drew from the treasury of Hamilton county, Ohio, the said sum of $2,280.45, no part of which sum then, or has since become due or owing to said Noyes from Hamilton county, Ohio, on said warrant so illegally issued and drawn as aforesaid, which said sum of money he received, and wrongfully, unlawfully, and fraudulently converted to his own use and has ever since retained for his own use and benefit, and has neglected and refused to refund the same or any part thereof to the plaintiff or to the treasurer of Hamilton county, Ohio; whereby the said Edward F. Noyes, defendant, became, and still is indebted to the county of Hamilton, in the sum of $2,280.45, with, interest thereon from November 28, 1868.
    The answer denied every allegation of fraud and misrepresentation contained in the petition, and then proceeded as follows:
    “ But defendant gays that he has received from the auditor of Hamilton county, as he was lawfully entitled to do, upon orders of the board of commissioners of. Hamilton county, lawfully issued to the defendant, warrants upon the treasurer of said county, for sums of money corresponding in amounts, and in their dates, with the warrants mentioned in said petition, in payment for work done by the defendant, on account of said county, in pursuance of a contract lawfully entered into by the said board of commissioners of Hamilton county with this defendant.”
    The substance of the reply to. the answer is as follows:
    That said pretended contract was illegally entered upon ; that the commissioners were not authorized by any law to contract for the said services; that the said work was unnecessary and uncalled for, and of no value to the county after its completion ; that the said pretended contract was let without -competition, no advertisement for proposals to do the work having been made, and that therefore said pretended contract was by law null and void, and the said-defendant took no rights whatever thereunder.
    The reply was demurred to on the following grounds:
    1. That the plaintiffs had not legal capacity to bring said action; and, 2. That the matters set up by the plaintiffs in their reply, are not sufficient in law to enable them to maintain their aforesaid action.
    The court at special term sustained the demurrer, and rendered judgment for the defendant; and, on error, the court in general term affirmed the judgment. The object of the present proceeding in error is to obtain the reversal. of these judgments.

      L. W. Goss, for plaintiffs in error:
    The hoard of commissioners had legal capacity to sue. S. & S. § 7, 89.
    The pleadings show sufficient facts to constitute a cause of action. Comyn on Contracts, 316, 318, 352, 407, 409, 411, 424, 429, 436; Blackstone’s Com., 163; 1 Term, 286; Owens v. Davis, 1 Bailey, 315; Douglass Rep. 693; 22 Ohio St. 546; 7 Ohio, 232; §§ 25, 27 of the Code of 1853; State v. Piatt, 15 Ohio, 15; 21 Ohio St. 575.

      Taft & Lloyd and George Hoadly, for defendant in error:
    1. The claim to recover is not based upon any contract, express or implied. The pleadings describe a common law tort.
    The principal legislative acts empowering county commissioners to sue, are: Act of 1810, 1 Chase’s Stat. 649; act of 1831, 3 Chase’s Stat. 1799 ; act of 1853, 1 S. & C. 244; act of 1868, S. & S. 89. A careful review of these statutes shows that it was never contemplated giving the commissioners power to sue or be sued in actions of torts. 7 Ohio, 232; 7 Ohio St. 109; 10 Ohio St. 515; 23 Ohio St. 600; 26 Ohio St. 364; 21 Ohio St. 648; 18 Ohio St. 9; 21 Ohio St. 643; 3 Harrison, N. J. 108; 1 Gilman, 567; 12 Conn. 404; 13 Mass. 192.
    2. The commissioners are in no proper sense the trustees of an express trust, hence section 27 of the code does not apply. 31 Ohio St. 301.
    3. It is provided by statute, 1 S. & C. 246, that the county commissioners shall have power to compound for and release in whole or in part any debt due the county; and it is further provided, in 1 S. & C. 98, that “ no claims against the county shall be paid otherwise than upon the allowance of the board of county commissioners upon the warrant of the county auditor.” It is a presumption of law that the county officers have done their duty. Hence in the allowance of this claim, and in issuing the order to the county auditor they simply acted within the scope of their powers, and their action must be regarded as a settlement and conclusive against the county as a final adjustment of this claim.

      Crickett et al. v. State of Ohio, 18 Ohio St. 9; 20 Ohio St. 496; 16 Ind. 29; 17 Ind. 437 ; 2 Denio, 26 ; 50 Barb. 573; 67 N. Y. 109; 4 Wend. 453.
   White, J.

Two questions arise in this case :

1. Whether the board of commissioners has legal capacity to sue, assuming a cause of action is shown to exist for the use or benefit of the county.

2. Whether the pleadings show such a cause of action.

The first question, in our opinion, must be answered in the affirmative; the second in the negative.

As to the first question. The seventh section of the act establishing boards of county commissioners as amended March 30, 1868 (S. & S. 89), embraces new subjects, but in all other respects the provisions of the original section are preserved. The section as found in the act of March 12, 1853 (S. & C. 244), is the same as in the act of March 5, 1831. 3 Chase, 1799. The first clause of the section provides, that the boards of commissioners, in the several counties, shall be capable of suing and being sued, pleading and being impleaded, in any court of judicature within the state. Then follows a specification of the cases in which the commissioners are authorized and required to sue in behalf of the county; but this specification was not intended to limit the capacity of the commissioners to sue to the eases enumerated in the section. This is apparent from the limited nature of the cases, as well as from other provisions of the act. Section seventeen of the act of 1853 makes it the duty of the commissioners to sue in cases not enumerated in section seven; and section eleven authorizes them to make contracts in relation to various matters provided for in that section. The power to contract carries with it the power to sue for the violation or enforcement of the contract; and the power to sue on such contracts as the commissioners are authorized to make, can not, with propriety, be limited to the particular instances or causes of action specified in the seventh section.

This section, in the act of 1831, came under consideration in the case of The State, for the use of Hamilton county, v. Piatt, 15 Ohio, 15. That was a suit, instituted by the commissioners of Hamilton county, against the clerk of the court of common pleas and his sureties, on his official bond, to recover damages for his failure to pay into the county treasury certain fines, fees, and costs. The objection was made, that the commissioners were not authorized to prosecute the suit; but the objection was overruled, the court saying that the commissioners of a county can sue for and collect debts due the county, as the representatives or guardians of the county. And, in reference to the suit not being authorized by the seventh section, the court say: “ It is supposed, by defendant’s counsel, that inasmuch as in this section certain cases are enumerated in which commissioners may sue for money due the county, that they are precluded in all other cases. If this be so, then it follows that if a person is indebted to a county in any other manner, payment can not be enforced by process of law. It would not do to establish such a principle.”

It is true the action, in that case, was prosecuted by the commissioners in the name of the state; but this was because the action was on the official bond, which had to be sued in the name of the obligee. The authority of the commissioners, to sue on such bonds, was found in the act of February 23, 1816, entitled “ an act pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators, and officers.” 2 Chase, 955. That act provided, that it should be competent for any person injured” by the misconduct of an officer to institute an,d carry on a suit, in the name of the obligee of the bond, for the use of the person so suing. It was held, in the case cited, that, in legal contemplation, the county was the person injured by the breach of duty on the part of the clerk, and that the commissioners, as the representatives of the county, were authorized to institute suit on the bonds for such injury. The case of Piatt was subsequently approved, and followed in the case of The State, for the use of the commissioners of Crawford county, v. Orr, 16 Ohio St. 522. See, also, Carder v. The Commissioners of Fayette county, id. 352.

Whether the board of commissioners can maintain an action in their own name or not is to be determined by the nature of the cause of action and their relation to the subject-matter out of which it arises; and, it seems to us, the true rule is that when a cause of action for the use or benefit of the county arises out of a subject-matter within the control of the commissioners, suit may be brought thereon in the name of the board, unless by statute the suit is required to be brought in some other mode. This principle is recognized by the cases already referred to, and is well supported by other authorities. Shanklin v. The Commissioners of Madison county, 21 Ohio St. 575; Levy Court v. Coroner, 2 Wall. 501; Overseers of the Poor of Pittstown v. Overseers of the Poor of Plattsburgh, 18 Johns. 406 ; The Supervisor of the Town of Galway v. Stimson, 4 Hill, 136.

As to the second question: There is no denial, in the reply, of the facts averred in the answer, that the warrants were issued, on the order of the commissioners, in payment for work done by the defendant, on account of the county, under a contract with the commissioners. It is alleged, in the reply, that the contract -was illegally entered upon, and that the commissioners were not authorized by law to contract for the services. But of what the services consisted is not stated, nor is there any statement of facts upon which the allegation of illegality and want of authority is founded. As the allegation stands, it is a mere averment of a legal conclusion; and, as a pleading, is of no legal effect or significance. Knox County Bank v. Lloyd’s Adm’r, 18 Ohio St. 353; Railroad Company v. Wilson, 31 id. 555; Rolling Stock Company v. Railroad, 34 id. 467; Miles v. McDermot, 31 Cal. 271.

No fraud is alleged to have been practiced on the commissioners in inducing them to allow the claim and to order its payment; nor is it alleged that the allowance or order was made under any mistake. Now, it certainly requires neither argument, nor the citation of authorities, to show that where work has thus been done, on account of the county, under an agreement with the commissioners, and has been accepted and paid for, that they can maintain no action, in the absence of fraud or mistake, to recover back the money thus paid.

True, it is averred in the petition that the defendant fraudulently represented to the auditor that he was entitled to warrants on the treasury for the amount of his claim. But there is no materiality in this averment. The authority of passing upon the validity of the claim, and of allowing or disallowing it, was not vested in the auditor, but in the commissioners. 1 S. & C. 98, § 13; id. 251, § 38.

It is claimed on behalf of the plaintiff in error, that the contract between the commissioners and the defendant, under which the work was done, is void, under the act of March 9, 1866, relating to the duties of county commissioners. S. & S. 86. The ground on which the contract is claimed to be void is the averment, in the reply, “ that the said pretended contract was let without competition — no advertisement for proposals to do the work having been made.”

The presumption is that the contract was duly entered into; and to make the objection available, the reply ought to show that the subject-matter of the contract is within the purview of that act. All contracts that the commissioners were authorized to make for services to be rendered to the county, are not embraced in the act referred to. This is apparent from the case of The State ex rel. v. Yeatman, 22 Ohio St. 546, relied upon by the plaintiff in error. In speaking of the contract then in question, the court say : We find no statute expressly empowering them ” (the commissioners) “ to make the contract. Nor do we think the power can be implied from the acts of 1851, 1857, and 1859, S. & C. 1282, from which it is claimed in argument. These acts relate to transcribing the county records, for their preservution and use in the offices to which they belong ; and the persons employed to do it are to be compensated at a fixed rate, by the hundred words.”

As already remarked, the character of the work stipulated for in the contract is not set out; and it devolved upon the party seeking to impeach the contract, to plead the facts showing its invalidity.

Ample power was conferred on the commissioners by the act of April 2,1859, supra, to contract for work to be done for the county ; and, in the absence of any showing to the contrary, the power will be presumed to have been lawfully exercised.

Whether, if the contract were shown to have been made in contravention of the act of March 9,1866, it would make any difference as to there being no right to recover back the money paid for the work, we need not decide; but such right is, to say the least, questionable. See Snelson v. The State, 16 Ind. 29 ; The Board of Commissioners v. Saunders, 17 Ind. 437 ; Supervisors v. Briggs, 2 Denio, 26 ; Commissioners of Catawba County v. Selzer, 70 N. C. 426.

Judgment affirmed.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    Stambaugh v. Carlin.
    1. Section 27 of the act of March 23, 18á0 (1 Curwen, 630), required the treasurer to “testify to the correctness” of the list of lands which were actually delinquent for the non-payment of the taxes charged thereon; henee, a verification that “the foregoing is a correct list of lands and town lots returned delinquent for the non-payment of taxes charged thereon,” is not a compliance with the statute; and a sale of lands, made in pursuance of such list, so verified, is unauthorized and void.
    2. “Where a list of lands returned delinquent, under said act, contained no marginal or other note of the reasons assigned by the treasurer why the taxes on said lands could not be collected, such return was invalid, and' did not authorize a return of the lands as delinquent for the non-payment of the taxes charged thereon.
    3. The act of May 7, 1869, “to improve the law of evidence concerning-the titles of real estate ” (66 Ohio L. 338) has no application, unless it. appears, among other things, that the land sold for taxes was, “ from and after said sale,” placed and continued on the duplicate, in the name of the purchaser, or those claiming under him.
    Error reserved in the District Court of Wood county.
    The original action was brought by the plaintiff in error to recover the possession of the south half of the northwest quarter of section 21, town 4, north of range 10, east, situate in Wood county. A jury was waived, and the cause tried to the court. Erom a bill of exceptions taken at the trial, setting out all the testimony, it appears that the plaintiff's title was derived-from a conveyance to him by Chai’les Baker, dated May 20, 1874. Baker bought the land from the government in 1835, and received his patent therefor on the 18th day of April, 1837.
    The defendant purchased the land from Emeline A. Wadsworth, on the 8th day of August, 1871, and immediately went into possession, the land being unimproved, and wholly unoccupied up to that date.
    Mrs. Wadsworth traced her title to a delinquent tax sale of the land made to her deceased husband, Wm..W. Wads-worth, in 1842, for the taxes of that year, and the delinquent taxes, interest, and penalty of 1841. The auditor’s deed was dated November 25, 1846.
    It was admitted by both parties, that the land in question was, in the year 1842, taxed on the duplicate of Wood county, Ohio, in the name of Charles Baker, and so continued to be taxed in his name until the year 1846, when it was transferred to the name of Wm. W. Wadsworth, and taxed in his name up to the year 1871, and from said time has been taxed in the name of Squire Carlin. It was further admitted by both parties that said William W. Wads-worth and the representatives of his estate paid all taxes assessed on the land from the year 1846 to 1871, and that Squire Carlin has paid all taxes assessed on said land from and including the year 1871, to the present time, and that all the tax receipts from and including the year 1846 to 1871 were to William W. Wadsworth, and in his name.

      It was admitted by plaintiff', that all tbe tax proceedings whereon said tax deed to William W. Wadsworth was founded, were regular and in all respects according to law, except the return of the treasurer of Wood county, Ohio, of the delinquent taxes of the year 1841, made in January, 1842, and his verification of the same.
    And the defendant, to show the regularity of the same, introduced a copy of said treasurer’s return, which is in the words and figures following, viz: The following is a list of lands and town lots in Wood county, Ohio, returned delinquent for the non-payment of taxes charged thereon for the year 1841, by John Bates, treasurer of said county, to-wit:

      The State of Ohio, Wood county, ss.

    I, John Bates, treasurer of said county, do solemnly swear that the foregoing is a correct list of lands and town lots returned delinquent for the non-payment of taxes charged thereon as therein stated and set forth for the year 1841, and that good reasons exist for returning the same delinquent.

      {Signed) John Bates, Treasurer.

    Subscribed and sworn to before me, this 3d day of January, A. d. 1842.
    Addison Smith, Auditor of Wood county.

    Evidence was also introduced from which the court may have found, that at the time the plaintiff purchased the land from Baker, he had knowledge of the tax sale and of the payment of the taxes on the land by Wadsworth and those claiming under him, from the date of the tax deed; and also that he had knowledge that from the date of said tax sale, they had openly and notoriously claimed title to the premises. Whereupon it was claimed, by virtue of the act of May 7,1869, to improve the law of evidence concerning the titles of real estate (66 Ohio L. 338), that such facts, as against the plaintiff, constituted conclusive proof of adverse ¡sossession of said premises, in the defendant and those under whom he claimed, for a period of more than twenty-one years previous to the date of the plaintiff’s purchase from Baker.
    The act reads as follows :
    “ Section 1. Be it enacted, etc., That in all cases where unoccupied or unimproved real estate has been or shall be sold at any tax sale in this state, and the purchaser thereof has received, or shall receive a deed therefor, and said real estate has been or shall, from and after said sale, be placed upon the tax duplicate of the proper county, in the name of said purchaser or those claiming title under him, and be so continued upon said duplicate, and said purchaser or those claiming under him, shall from and after said sale, openly and notoriously claim the title and ownership of said real estate and pay the taxes thereon from and after said sale, the same shall, as against any title acquired by deed executed after such tax sale, be held and deemed in all cases, in all courts, as prima facie proof of the possession of said real estate by said purchaser or those holding under said purchaser, from and after the date of said sale, until the said sale has been or shall be set aside in a civil action or suit, in a court of competent jurisdiction, or has been redeemed according to the laws of this state; and as to all persons acquiring title by deed executed after such tax sale, having knowledge of said sale and the payment of taxes and claims of title and ownership as aforesaid, said facts aforesaid shall be taken as conclusive proof of such possession, and be so held by all courts in this state in all cases.”
    “ Sec. 2. This act shall be in force from and after its passage, and its provisions shall apply to all tax sales heretofore or hereafter made in this state.”
    It did not appear who paid the taxes for the years 1843, 1844, and 1845. Baker, however, testified that he did not. The court gave judgment for the defendant.
    it is assigned for error that the court improperly overruled a motion for a new trial, on the ground that the finding and judgment were not sustained by sufficient evidence.

      Clayton W. Everett, for plaintiff in error:
    I. The tax title was invalid, in that the return is invalid for, First, the treasurer does not in his verification to said return state that the taxes are unpaid, or that the land is actually delinquent for the taxes of 1841; nor is there such a statement in any part of the return. The verification is simply — “ That the foregoing is a correct list of lands . . . returned delinquent.” The only statement being, that the lands in the list are the same lands returned delinquent by the treasurer. In short, the auditor correctly copied onto the list the lands the treasurer returned delinquent on his duplicate. He should have stated the lands retui’ned were actually delinquent for the taxes charged against them. The statute governing this return is section 27 of the act of March 23,1840: Statutes of 1841 (edited by Swan), page 111. This section, so far as this point is concerned, is the same as section 30 of the act of February 8, 1820 (2 Chase, 1106.) Under this statute of 1820 arose the case of Skinner v. Brown, 17 Ohio St. 33. The verification in this particular is the same in said case as in the case at bar, and this court held the verification insufficient. Second, because the treasurer did not give any reason for returning the lands delinquent. Swan’s Statutes of 1841, p. 111. Third, this return does not state what taxes are delinquent on those lands.
    II. The statute of 1869 (66 Ohio L. 338) does not apply to this case. There is no proof that Wadsworth paid the taxes for the years 1843, 1844, and 1845, and it is expressly admitted (see page 16 of the record), that the land remained in Baker’s name until some time in the year 1846, being for four years after the tax sale. In these two particulars the evidence of defendant fails. The statute expressly requires the payment of taxes and the land to be transferred on the duplicate and continued “from and after” the tax sale. The failure of one year is fatal. Irving v. Brownell, 11 Ill. 402; 1 S. & C. 107, § 47.

      Hollenbacks, for defendant in error:
    1. A tax title is valid where there is a compliance with the requisites of the statute. 2 Washburn on Real Prop. 545; 10 Cal. 589; 13 Cal. 609. All the requirements of the statute were complied with in this case. The case of Skinner v. Brown, 17 Ohio St. 33, differs from this in this, the present case was required to be made under oath and was so made. In that ease the oath was also required but was not made.
    2. The defendant claims title to the premises by reason of twenty-one years continued possession previous to the commencement of this action. Act of May 7, 1869, 66 Ohio L. 338.

      R. P. Ranney, also for defendant in error:
   Boynton, J.

The judgment of the court below can be sustained upon either of two grounds. First, that the tax deed under which the defendant claims, conveyed to Wads-worth a good title to the land in dispute; or secondly, that the rights acquired by the defendant, under the act of May 7, 1869 (66 Ohio L. 338), were such as to establish in him, as against the plaintiff, a title by adverse enjoyment. If the judgment can be sustained on neither of these grounds, it must be reversed, as the title of the plaintiffs was clearly established, unless defeated by the alleged tax title, or by rights acquired by defendant under said act.

It appears from the admitted facts that the proceedings preliminary to the validity of the auditor’s deed to Wads-worth, were in all respects in conformity to the statute, except the return of the treasurer to the auditor of the delinquent taxes of 1841, made in January, 1842, and his verification of the same. The burden of showing the return of the delinquent list with a verification of the correctness thereof, as prescribed by the statute, was on the defendant. Jones v. Devore, 8 Ohio St. 430. To meet this requirement he offered in. evidence a copy of the return of the treasurer of the list of lands returned delinquent for the non-payment of the taxes charged thereon in 1841, to which he made oath before the auditor that, “ the foregoing is a correct list of lands aud town lots returned delinquent for the non-payment of taxes charged thereon, as therein stated and set forth for the year 1841, and that good reasons exist for returning the same delinquent.” This return and verification are wanting in two vital particulars. The proceedings were had under, the act of March 23, 1840 (Swan’s Stat. 1841, p. 104). So much of that act as is under consideration reads as follows: “The auditor shall attend at his office, on the first Monday of January, annually, to make settlement with the treasurer of his county, and ascertain the amount of taxes with which such treasurer is to stand charged; and the auditor shall then take from the duplicate previously put into the hands of the treasurer for collection, a list of all such taxes as such treasurer shall have been unable to collect, therein describing the property on which such delinquent taxes are charged, as the same is described on said duplicate, and shall note thereon, in a marginal column, the several reasons assigned by such treasurer why such taxes could not be collected; and such list shall be signed by the treasurer, who shall testify to the correctness thereof, under oath or affirmation, to be administered by the auditor; . . . and after deducting the amount of taxes so returned delinquent, and the collection fees allowed the treasurer from the several taxes charged on the duplicate, in a just and ratable proportion, the treasurer shall be held liable for the balance of such taxes.” § 27.

By the terms of this provision the treasurer is required to testify to the correctness of the list, and the list is required to contain a description of the property as it appears on the duplicate, on which the treasurer has been unable to collect the taxes. It must appear from the return, as verified, that the lands were actually delinquent. It is to the fact of delinquency that the oath is required. Lands may be returned delinquent, although the taxes have in fact been paid. Brown v. Skinner, 17 Ohio St. 33, involved the construction of a similar provision in the act of 1820 (2 Chase, 1101). That act required the auditor to make out from the collector’s duplicate a list of all lands on which the taxes had not been paid to said collector, which list the collector was required to attest under oath. This had not been done. In remarking on this clause of the statute, the court say: “The object was to secure to the public a faithful account of moneys collected, and to secure the land owner against a sale for delinquent taxes until the fact of such delinquency should be established by the oath of the collector. He should, therefore, have declared under oath, that the schedule of delinquent lands which he undertook to verify, was a correct list of lands actually delinquent.” There is no material difference in the language of the two statutes as respects the character of the list to be verified. The act of 1820 required the collector to attest the list of lands on which the taxes had not been paid; and the act of 1840 required the treasurer to testify to the correctness of the list of all such taxes as he shall have been unable to collect.

But there was another omission to comply with the requirements of the statute yyhich is equally fatal to the validity of the tax deed. The statute required the auditor to note in a marginal column on the list of delinquent lands taken from the duplicate, the several reasons assigned by the treasurer, why such taxes could not be collected.

The statement in the affidavit of the treasurer, that good reasons existed for returning the lands delinquent, was not a compliance with this requirement of the statute. The reasons why the taxes could not be collected were a material part of the list to be verified by the oath of the treasurer. Seasons may have existed, which if given or noted, would have prevented a sale of the land as delinquent. The statute declares, among other things, that after deducting the amount of taxes so returned delinquent, and the collection fees allowed the treasurer, from the several “taxes” charged on the duplicate, in a just and ratable proportion, the treasurer shall be held liable for the balance of such taxes. The purpose is here manifest to hold the treasurer to the payment of all taxes on lands not returned delinquent in conformity to the statute. The act made it the duty of the auditor to ascertain the amount of taxes with which the treasurer was to stand charged, and in the performance of this duty no list should have been accepted as made in compliance with the statute, whereon the reasons why the taxes could not be collected were not noted and sworn to.

It is finally claimed in support of the judgment below, that if the tax deed be held to be void by reason of irregularity in the proceedings preliminary to the sale,,that the evidence established the fact, that the defendant had acquired title to the premises, as against the plaintiff', by adverse possession for the period of twenty-one years. Not that he and those under whom he claims have actually occupied the premises, but that the necessary facts existed to bring the case within the act of May 7, 1869 (66 Ohio St. 388.)

We, however, differ with the defendant as to the effect of the facts established, and consequently as to the application of the statute. The tax sale was in 1842. It is admitted that the lands remained on the duplicate in the name of Baker, the original owner, until 1846, when they were transferred to the name of Wadsworth. Who paid the taxes from 1842 until 1846, we are not advised. Baker, however, did not, and it may be that the inference is a just one that they were paid by Wadsworth. But granting that he paid them, the fact still remains, that the land was not transferred on the duplicate to his name until the expiration of four years from the date of sale. The statute, by its terms, makes the existence of certain facts therein enumerated, prima facie proof of possession in the tax purchaser and those claiming under him, and in the event that the purchase is made after the tax sale, with knowledge of tbe facts, they are declared to constitute conclusive proof of such possession.

One of the facts required is, that the land sold, was from and after said sale,” placed and continued on the tax duplicate, in the name of the purchaser, or those claiming under him. The omission to cause the transfer for three years, is as fatal to the application of the statute as if no transfer were made at all. To enable a party to avail himself of the provisions of the statute, all the facts must exist, which the statute declares shall constitute evidence of possession.

This conclusion renders it unnecessary to determine the constitutionality of the statute.

Judgment reversed, and cause remanded for a new trial.

Okey, J"., dissents.


text:
    Andrews v. The City of Youngstown.
    Where a judgment is reversed for error occurring on the trial, and the cause is remanded for a new trial, the party against whom the reversal is had, by voluntarily submitting to a new trial which results in a verdict and judgment, waives his right to prosecute a petition in error to reverse the judgment of reversal. Collins v. Davis, decided by the Commission (33 Ohio St. 567), approved and followed.
    Error to the District Court, of Mahoning county.
    The original action was brought in the Court of Common Pleas of Mahoning county, by Norman Andrews, the plaintiff in error, against the defendant in error, the City of Youngstown, to recover damages, caused by improving a street.
    On a second trial, a verdict and judgment was rendered in favor of the plaintiff, for $2,500. At the September term, 1872, of the district court, on petition in error, filed hy the defendant, this judgment was reversed, and the cause remanded to the court of common pleas for a new trial.
    At the January term, 1873, the cause was again tried in the court of common pleas, and resulted in a verdict and judgment in favor of the plaintiff for $2,150.
    To reverse this judgment, a petition in error was filed in the district court, by the defendant, and, at the September term, 1873, of said court, the judgment was reversed, and the cause remanded to the court of common pleas for a new trial.
    At the May term of the court of common pleas, 1874, the cause was again tried, and the trial resulted in a verdict and judgment in favor of the plaintiff for the sum' of $985.46. On this trial no errors are alleged to have occurred.
    On the 31st of August, 1875, the present petition in error was filed in this court, to reverse the judgment of reversal rendered by the district court at the September term, 1872, and to affirm the judgment of the court of common pleas for $2,500, rendered on the second trial.
    With this petition in error, the plaintiff' in error filed the original pleadings in the case, and a transcript of the proceedings in the court of common pleas, up to and including the judgment for $2,500 ; also a transcript of the proceedings in error of the district court, reversing the last-named judgment of the court of common pleas.
    The remainder of the record in the action has, since the filing of the petition in error, on leave,been brought before the court; and the defendant in error relies on the subsequent proceedings, trial, and final judgment had in the court of common pleas, as a wmiver on the jDart of the plaintiff of his right to review, on error, the judgment of the district court reversing the judgment of the court of common pleas first reversed.

      George M. Tuttle, for plaintiff in error.

      George F. Arrel, and Volncy Rogers, for defendant in error.
   White, J.

The objection made to the prosecution of the petition in error in this case was decided by the Commission, in Collins v. Davis, to be well taken, 33 Ohio St. 567. In that case, as in this, the plaintiff had recovered judgment in the court of common pleas. This judgment on application by the defendant was reversed by the district court, and the cause was remanded to the common pleas for a new trial. The new trial in that case resulted in a judgment for the defenclant. On petition in error prosecuted by the plaintiff to reverse the judgment of reversal, it was held that by again trying the ease in the common pleas, on its merits, without objection, the plaintiff waived the right to prosecute error to reverse the judgment of reversal. That case is not distinguishable from the present.

It is however contended on behalf of the plaintiff in error that he has the unqualified right to pursue both the remedy to reverse the judgment of the district court, and the remedy by a new trial in pursuance of that judgment.

In Schaeffer v. Marienthal, 17 Ohio St. 183, it was held that where a judgment is reversed for errors occurring at the trial, and the cause is remanded for further proceedings, error will lie to reverse the judgment of reversal, while the cause is still pending in the court to which it has been remanded. This decision has been followed in many subsequent cases. In these cases it is held that such a judgment comes within the provisions of the code in relation to proceedings in error. It must be admitted however that it does not seem to constitute such a judgment as is defined in section 370 of the code. 2 S. & C. 1084. That section declares that, “ a judgment is the final determination of the rights of the parties in an action.”

The effect of a judgment of reversal and the remanding of the cause for a new trial is to open the case for re-trial upon the merits, and the result is the same as if the court whose judgment is reversed had granted the new trial.

We do not mean to question the authority of Schaeffer v. Marienthal, supra, and the other cases referred to. But it seems to us that the principle decided by the Commission is a proper qualification of tbe right recognized by these eases of reviewing, on error, a judgment reversing a former judgment and ordering a new trial, on the grounds of error occurring at the first trial.

Where a new trial has been awarded and a party has voluntarily submitted to such trial, it seems to us but reasonable that he should be held, after verdict and judgment in the last trial, to have waived the right to prosecute error to reverse the judgment of reversal.

In the Texas Building Association v. Insurance Company, 34 Ohio St. 291, it was held that the execution of an order remanding a cause for a new trial, upon the reversal of a judgment of an inferior court, may be stayed by the court in which the petition in error is filed to reverse the judgment of reversal, or by a judge thereof. Such a stay would arrest the trial, where a petition in error was pending, until the case in error was determined. What the effect would be, if the stay was applied for and refused, we need not now consider. In the present case the proceeding in error was not commenced until after the last trial and judgment, and such trial as appears from the record was entirely voluntary on the part of the plaintiff.

Petition in error dismissed.


author: Boynton, J. Okey, J.

text:
    Magruder v. Esmay.
    1. A patent issued by the United States, in the name of one who had purchased the land, and made entry under the act of Congress of April 24, 1820 (8 U. S. Stat. at Large, 566), inures to the benefit of the grantee and his heirs and assigns, under a quitclaim deed executed by the purchaser before the patent issued. The patent being founded on such entry, relates back, and takes effect from the time the same was made.
    2. A record of a certificate by the county auditor, under the act of March 28, 1840 (1 Curwen, 630), that the delinquent tax list was published for four consecutive weeks prior to December first, does not show a compliance with the provisions of said act requiring the delinquent list and notice of sale to be published for four weeks, between the first day of October and the first day of December.

      8. Where the record required to he kept by section 34 of said act, fails to show that lands sold as forfeited to the state for non-payment of taxes were previously offered at delinquent sale and not sold for want of bidders, a deed to the purchaser at such forfeited sale, is invalid.
    4. The provision of the act of May 7, 1869 (66 Ohio L. 338), prescribing what shall constitute conclusive proof of possession in favor of a purchaser at a tax sale, can not constitutionally operate to set the statute of limitations running in favor of such purchaser prior to the passage of the act.
    Error to the District Court of Ottawa county.
    The action below was brought by the plaintiff to recover the possession of the southeast quarter of section 31, township 7, north of range 13 east, and the west half of the southwest quarter of section 32, same township and range, in . Ottawa county.
    A jury being waived, the cause was tried to the court, and judgment given for the defendant. A motion for a new trial, on the ground that the decision was not sustained by sufficient evidence was overruled, an exception noted, a bill of exceptions allowed containing all the evidence, and the cause carried to the district court, where the judgment was affirmed.
    The plaintiff introduced, and claimed title through, the following conveyances:
    “ Certificate, No. 17,223. The United States of America, to all to whom these presents shall come, greeting: Whereas, Alexander M. Porter, of Huron county, Ohio, has deposited, in the general land office of the United States a certificate of the register of the land office at Bucyrus, whereby it appears that full payment has been made by the said Alexander M. Porter, according to the provisions of the act- of Congress of the 24th of April, 1820, entitled ‘an act making further provision for the sale of public lands for the west half of the southwest quarter of section 32, in township 7, north of range 13, in the district of lands subject to sale at Bucyrus, Ohio, containing eighty acres, according to the official plat of the survey of the said lands returned to the general land office by the surveyor general, which said tract has been purchased by the said Alexander M. Porter.’
    “ Now, know ye, that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress, in such case made and provided, have-given and granted, and by these presents do give and grant, unto the said Alexander M. Porter, and to his heirs, the said tract above described, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said Alexander M. Porter, and to his heirs and assigns forever.”
    This patent was duly executed and delivered to said Porter on the 5th day of September, 1838.
    A similar patent was issued to Porter, on the same day, on certificate 17,222, for the quarter section above described.
    April 19, 1837, a deed from Porter to Peter J. Arnet, consideration $960, by which deed Porter remised, released, and quitclaimed unto Arnet, and his heirs and assigns forever, all those following-described pieces of land, known and described as the southeast quarter of section number 31, in township number 7, north of range number 13, containing one hundred and sixty acres, as per certificate 17,222, and signed by Joseph H. Larwell, receiver; also, the west half of the southwest quarter of section number 32 (thirty-two), in township number 7, range number 13 north, containing eighty acres, as per certificate 17,223, and signed by Joseph IL Larwell, receiver: Together with, all and singular, the tenements, hereditaments, and appurtenanees thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in equity of the said parties of the first part of, in, or to the above-described premises, with the appurtenances, unto the said party, to have and to hold the above-granted and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to their own proper use and behoof, forever.”
    September 25, 1837, a warranty deed of said premises, by Arnet to Mary Farrell, wife of James Farrell.
    August 24, 1869, a conveyance by quitclaim, by Mary and James Farrell, by attorney, of all their right and title to said premises, to said plaintiff. It was agreed, by the parties, that no one had ever been in actual possession of said land, and that the same was wild and uncultivated.
    The defendant claimed title to the one hundred and sixty acres, under a delinquent tax sale, made by the auditor of Ottawa county, to William Dougherty, on the 8th day of January, 1844, for the delinquent taxes, and interest and penalty, for 1842, and the unpaid taxes of 1843; and to the eighty acres, under a forfeited sale, made on the second Monday of December, 1847. In support of his title to the hundred and sixty acres, he introduced a tax deed from the auditor of the county to himself, as assignee of the certificate to' Dougherty, which deed was dated February 22, 1848. He also offered in evidence the record of taxes sales, from which .it appeared that said delinquent list was advertised for sale “ for four weeks prior to first of December, 1843.” This was the only evidence of the time the list was published.
    The only evidence that a copy of the notice of sale was inserted at the foot of the record on the delinquent list, and a certificate of the name of the paper, and the length of time the list and notice were published therein, was contained in the following certificate, signed by. the auditor, and attached to said record : “ It is hereby certified that the foregoing list was published for four consecutive weeks prior to the first day of December, 1843, in the Democratic Mirror, at Sandusky City, the same being in general circulation in Ottawa county.” Further evidence was offered by the defendant, tending to show the regularity of said tax sale. It appeared from the evidence, that the eighty acres was sold at the same time to Cyrus Moore, and by proceedings involving the same want of regularity that attended the sale of the one hundred and sixty acres.
    Moore failing to pay the taxes of 1845, the lands were-returned delinquent, and on the second Monday of December, 1847, were sold to the defendant, as lands forfeited to the state, for want of bidders at the alleged delinquent sale of said lands, on the second Monday of the preceding January, and a deed therefor made to him by the auditor. But there was no record of the fact that the land was-offered for sale at the delinquent sale of lands of the preceding January, and that the same remained unsold for want of bidders.
    Evidence also was offered by the defendant, from which the court may have found the existence of the facts, which, under the last 'clause of the act of May 7, 1869 (66 Ohio-L. 338), are declared to constitute conclusive proof of possession in the purchaser at a tax sale, or those claiming-under him; and finding such possession to have continued for twenty-one years, that the defendant had thereby acquired a title by adverse enjoyment.

      H. & L. H. Goodwin, for plaintiff in error:
    The deed of the lands from A. M. Porter and wife to P.. J. Arnet, dated April 19, 1837, conveyed all of Porter’s interest. No new title was acquired by the issuing of the-patent. Irvine v. Irvine, 9 Wallace, 625.
    The entry of the land and payment of the purchase-money constitute the title. Myers v. Croft, 13 Wallace, 291; 2 Greenleaf Cruise, 319 ; 20 Ohio, 562 ; Astrem v. Hammond, 3 McLean, 109, 110.
    And Porter is estopped from denying it. Myers v. Croft, 13 Wallace, 291; Lessee of Bond, v. Swearingen, 1 Ohio, 412, 413 ; Kinsman v. Wood, 11 Ohio, 478; Buckingham v. Hanna, 2 Ohio St. 556; Skelly v. Jeff. Branch Bank, 9 Ohio St. 623; 14 Id. 330.
    An assignment of the certificate will be presumed. 16-Ohio, 48.

      The deed to Arnet is for a good consideration; it purports to convey all of Porter’s interest, legal or equitable. It refers to the certificates Nos. 17,222 and 17,223 ; and to have and to hold the lands unto the grantee.
    The patents do not recite the date when entered by Porter and paid for. But they state the fact that this had been done before that time — certificates being Nos. 17,222 and 17,223, which are the same certificates recited in the deed.
    In the deed, Porter sells these very lands — says they are “ as per” these certificates.
    He and his grantees are estopped. Douglass v. Scott, 5 Ohio, 198.
    Grant that a party is not estopped by a mere release or •quitclaim. The reason is that he asserts nothing. But if in a quitclaim deed he does assert any thing, he is estopped from denying it. His seal estops him. And it is precisely the same in a quitclaim deed as in any thing else.
    The defendant’s tax title was not good. All the statutory requirements must be complied with in order to render a deed for lands sold at a tax sale valid. Lessee of Carlisle v. Longworth, 5 Ohio, 368; 3 Ohio, 234; Lessee of Holt’s heirs v. Hemphill, 3 Ohio, 233-4; Thompson v. Gotham, 9 Ohio, 175-6; Lafferty v. Byers, 5 Ohio, 450, 369 ; 19 Ohio, 318, where authorities are collected; Lessee of Miner v. McLean, 3 West Law Journal, 4; Jones v. Devon, 8 Ohio St. 430.
    It clearly appears from the above that the burden is cast on the defendant of proving that all the necessary steps have been taken, before the deed shall be held to convey a prima facie title.” 4 Wheat. 77 ; 2 Ohio, 233.
    The auditor is to cause the delinquent list to be published, at least four weeks, between the first day of October and the first day of December, 1843. He certifies that the “ list was published for four consecutive weeks, prior to the first day of December, 1843.” This would be true if he had published for four weeks before the 1st of October, 1843. Lessee of Kellogg v. McLaughlin, 8 Ohio, 114-16 ;
      Lessee of Parker v. Miller et al., 9 Ohio, 108; Lessee of Thompson v. Gotham, 9 Ohio, 170.
    The act of May 7, 1869 (66 Ohio L. 338), if retroactive, is unconstitutional. Art. 1, sec. 19; art. 2, sec. 28, of the constitution ; S. B. Monarch v. Finley, 10 Ohio, 391; Atchinson v. Miller, 2 Ohio St. 207; Green v. Biddle, 8 Wheat. 175; Bronson v. Kinzer, 1 How. 316; Ogden v. Saunders, 11 Wheat. 213; Hoffman v. Quincy, 4 Wall. 552; 6 How. 327; White v. Hart, 13 Wall. 653; Green v. Barry, 15 Wall. 622; 16 Wall. 314; 12 Ohio, 368; 16 Ohio, 599; 3 Ohio St. 468; 10 Ohio St. 582.

      John M. Lemmon, for defendant in error:
    I. That the quitclaim deed from Porter to Arnet does not convey the title Porter got from the United States, I claim is shown by the following eases: 2 Smith’s L. Oases, 721 (6th Am. edition), notes to Duchess of Kingston’s •case; Woodbridge v. Banning, 14 Ohio St. 328; Kinsman, v. Loomis, 11 Ohio, 475, 476-7. The quitclaim conveyed the then present title or right, no more. Edwards v. Varick, 5 Denio, 702; Weidman v. Hubbell, 1 Cowen, 613, 616; Gloon v. Winslow, 9 Cowen, 13-18; Sparrow v. Kingman, 1 N. Y. 247.
    No title not in esse, will pass by deed, unless deed contains covenants of warranty. 3 Washburn Real Prop. 90 (3d ed.), book 3, ch. 2, § 36, par. 17.
    And as plaintiff must recover on the strength of his own title (13 Ohio St. 304), and must trace title from government (Tyler Eject. 541, 1st ed.), he utterly fails (2 Ohio St. 270). He wholly fails to show Porter had any title, legal or equitable, when he executed the quitclaim.
    Esmay claims title to the one hundred and sixty acres by auditor’s deed, through delinquent tax sale; to the •eighty by same through forfeited tax sale.
    I maintain that we show a perfect tax title to the one hundred and sixty acres.
    We claim that when we show that the lands were on the tax duplicate, with a tax against them, were returned delinquent, sold and deed made, that we have done all required of us.
    I think the deed alone makes out our title, until overthrown by evidence from plaintiff. This land was sold under act of March 28, 1840. The 39th section declares the deed shall be . . . prima fade evidence of a good and valid title.

    If plaintiff’s argument is correct, then the deed is evidence of nothing, for he says we must prove evety step — listing, assessing, etc., else our deed is no evidence. But if we-prove all these to have been in compliance with law, then this language as to the deed being evidence is useless.
    I believe it is clearly the law of Ohio, that if the things prescribed by the auditor’s act are duly performed, the deed shall have the effect declared in section 39, and the burden is on plaintiff to prove no listing, no assessment, or any thing else beyond or outside of the auditor’s act. Stanberry v. Sillon, 13 Ohio St. 571; 5 Ohio, 370; Douglass v. Dangerfield, 14 Ohio, 522.
    The burden was on the plaintiff to show that the eighty acres was not regularly forfeited. 14 Ohio St. 595.
    II. As to adverse possession :
    This involves the act of May 7, 1869 (66 Ohio L. 338).
    It was proved by defendant and not contradicted, that from and after the sale of these parcels of land, they were put on the duplicate and kept in the name of the purchasers and their assigns: were so continued, and that they paid all taxes thereon, and openly and notoriously claimed title- and ownership of said lands.
    Magruder knew Esmay claimed said lands by tax title; was perfectly familiar with the whole matter. He bought after the act of 1869.
    At common law Magruder would have no title, for the 'lands were in the adverse possession of Esmay.
    "What is this act of 1869 ?
    It undertakes to say what shall be evidence of possession.. It defines adverse possession under tax deeds.

      There is nothing in it in the remotest degree violating any constitutional right.
    It is unnecessary to consider how this act would affect the case had Magruder got his deed before it was enacted.
    As to Magruder, there is nothing retroactive in the act. It certainly affected no vested right he had at its passage; .affected no then existing contract.
    I rely on the following authorities, 2 G-allison, 139; Rairden v. Holden, 15 Ohio St. 209; Miller v. Graham, 17 Ohio St. 1; Goshorn v. Purcell, 11 Ohio St. 641; 25 Ohio St. 597; 27 Ohio St. 23; 20 Ohio St. 157; 24 Ohio St. 554; Angell on Lira., § 418; 3 Met. 98; 5 Peters, 402; 3 Wash. R. P. 292; 15 Ohio, 190; Ogden v. Saunders, 12 Wheat. 349; Rich v. Flanders, 39 N. H. 304; Cooley’s Con. Lim. 367 (3d ed.); 1 Ohio St. 393; 5 Ohio St. 225 ; Ehle v. Brown, 31 Wis. 405; Lewis v. McElvaine, 16 Ohio, 347; Trustees v. McCaughey, 2 Ohio St. 155; Simmons v. Hanom, 23 Pick. 188; 16 Ohio St. 11; 17 How. 577.
    There is a distinction between the obligations of contract .and the remedy. Sturgis v. Crowinshield, 4 Wheat. 200; Mason v. Haile, 12 Wheat. 379; Bigelow v. Pritchard, 21 Pick. 174; Willar v. Brown Ass’n, 3 Law & Eq. Rep. 410, 412; Maryland Court of Appeals, Feb. 10, 1877.
    Now let me concede that the obligation of a contract can not be impaired. Then I ask: What contract is at all impaired by the act of 1869 ? Was there a contract between Esmay and Magruder ? or even between Earrells and Magruder?
    It seems to me the real question involved is simple. On May 7, 1869, Esmay owned the tax title under which he •claims. Magruder then had no claim or right. Had Earrells begun suit after May 7,1869, the act would in no manner have affected them. Magruder voluntarily bought with the act before him, and what did he buy? Earrells simply quitclaimed any interest they had in the lands. It is perfectly clear Magruder had no vested right in or to this land on May 7, 1869. It is equally certain that Earrell’s right to bring an action was- in no manner affected.

      For the legislature to cut off a mere possibility is not to impair a vested right. It may act on personal rights that' are not vested at the time of the passage of the law. Sedg. Stat. and Const. Law, 510, 511.
    The inchoate right of dower may be abolished. Moore v. The Mayor, 4 Selden, 110; and for other examples, see: Bronson v. Newbury, 2 Doug. (Mich.) 38; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Morse v. Goold, 11 N. Y. 281; Cooley’s Const. Lims. 287; Watson v. Mercer, 8 Peters, 88; Planter’s Bank v. Sharpe, 6 How. 301; Hawkins v. Barney, 5 Peters, 457, 466; Sedg. Stat. and Const. Law, 659; Patterson v. Gaines, 6 Howard, 550; Pierce v. Tobey, 5 McNeolf. 168; Jackson v. Lamphire, 3 Peters, 290.
    In conclusion, I may say of this act of 1869 : It is not a limitations act. It does not undertake to divest an estate. It does not take away existing rights.
    But it does undertake to prescribe a rule of evidence.
    It may be called sui generis — called for by peculiar exigencies — but is none the less valid. See 5 Peters, 290,291.
    It undertakes to declare that certain things shall, as* against one purchasing from a grantor out of possession, knowing those things, be evidence of possession.
   Boynton, J.

This is a petition in error to reverse the-judgment of the District Court of Ottawa county, affirming a judgment of the court of common pleas, and to-reverse the judgment of the latter court. The only assignments of error, which it is necessary to notice, are, that the coui’t of common pleas erred in overruling the motion for a new trial, and that the district court consequently erred in refusing to reverse the judgment. The first question arising, involves the right of the plaintiff tor recover on the proof offered by him, in the event that it! turns out that the defendant’s alleged tax title is void, and that he acquired no title by adverse possession.

The plaintiff having succeeded to the title of Mrs. Farrell, and a legal estate being essential to the maintainence of the action, the question at once presents itself, whether tbe patent to Porter so far inured to tbe benefit of Mrs. Earrell as to vest in her a legal estate. Had the deed to Arnet been with warranty of title, there is no doubt, that on the receipt by Porter of the patent from the government, an estoppel would have arisen in favor of Mrs. Earrell. Nor is there any doubt that a party is estopped from denying the operation of a deed according to its intent,, where, either by recital, admission, covenant, or otherwise,, it appears that a certain estate was intended to be conveyed.. Rawle on Covenants for Title, 338; Shepard’s Touchstone,. 82.

In Goodtitle v. Baily, Cowper, 597, it was said by Lord Mansfield, that “ the rules laid down in respect of the construction of deeds are founded in law, reason, and common sense. That they shall operate, according to the intention of the parties, if by law they may; and if they can not operate in one form, they shall operate in that, which by law will effectuate the intention.” Where the seizin of an estate is affirmed in the deed, either in express terms, or by necessary implication, the grantor and those in privity with him, whatever be the form of the conveyance, will ever afterward be estopped from denying that he was so seized at the time he made the conveyance. Van Rensselaer v. Kearney, 11 How. 325.

If an estoppel arise in such case, where the grantor assumed to be seized of the estate, a fortiori, should one arise, where he in fact owned the whole equitable interest at the time of the conveyance, with the right to the legal title. There is no doubt from the evidence in the present case, that Porter intended to convey and Arnet to receive the whole interest in the property which constituted the subject-matter of the conveyance.

The deeds referred to the certificates as containing evidence of Porter’s ownership, and in terms conveyed to Arnet “ all the estate, right, title, interest, possession, claim, and demand,-whatsoever,” belonging to Porter. He thus conveyed to Arnet the right to the legal title as fully as he possessed it himself. There was and could be no outstanding title adverse to the one conveyed to Arnet, and when the naked legal title remaining in the government, was conveyed to Porter, who had thus parted with his right to receive it, it at once inured to the benefit of Mrs. Farrell, who then owned the equitable estate.

In Lessee of French v. Spencer, 21 How. 228, it was held by the Supreme Court of the United States, that “ a patent issued to the original beneficiary, who had previously sold his right, inured to the benefit of the purchaser, and related back to the date of the entry; and the heir of the grantor, in such a deed, is estopped from setting up a legal title under the patent.” The contest, in that case, was between the heirs of the patentee, and the purchaser from him of the incipient title. And it was held to be the settled doctrine of the court, that a patent, issuing on an entry in a United States land office, no matter how long after the entry is made, shall relate to the entry, and take date from it. The doctrine of relation was declared to be, that an intermediate bona fide alienee of the incipient interest may claim that the patent inures to his benefit by an ex ¡post facto operation, and receive the same protection at law that a court of equity could afford him. See also Ross v. Barland, 1 Peters, 655 ; Landes v. Brant, 10 How. 372; Wirth v. Branson, 98 U. S. 118.

It is thus made very clear that no one standing in the shoes of the patentee, can successfully resist the right of his alienee to possession, although the latter’s interest was acquired before the issuing of the patent. It is equally clear that one in possession, who founds his right to remain, not on any title of his own, but on the mere denial that a former owner has parted with his right or title, is concluded by the same estoppel that concludes the former owner. The law attaches the same disability to all who maintain that such title is still outstanding, and attempt to found rights upon it. And such estoppel may be used,, not merely defensively, but to sustain actions for the recovery of possession. Lessee of Kinsman v. Loomis, 11 Ohio, 478. It follows, therefore, that the plaintiff was entitled to recover on the proof made, unless the defendant established a paramount right or title in himself. This he sought to do, by proof of title acquired under a sale of the land for taxes, and by adverse possession for the period of twenty-one years. As respects the title alleged to have been acquired under the sale for delinquent taxes, there are two objections, either of which is fatal to its validity. The statute then in force (1 Curwen, 630), and under which the proceedings were had, required the county auditor to publish the delinquent list, with notice of sale, at least four w'eeks, between the first day of October and the first day of December. The only proof given at the trial tending to show compliance with this requirement, was the record of the certificate of the auditor that the list was published for four consecutive weeks prior to December first. This evidence was not admissible. From aught appearing, the publication may have been in September. The law required it to be between October first and December first. In Lessee of Kellogg v. McLaughlin, 8 Ohio, 114, the record of the certificate of the auditor, that the list was published for four consecutive weeks, between the first Monday in October and the first Monday of December, was held inadmissible, as the last publication may have been made after December first.

Again, the statute, § 31, required the auditor, on or before the day of sale mentioned in the notice thereof, to insert at the foot of the record, on said delinquent list, a copy of such notice, and to certify on said record, immediately following such notice, the name of the paper, and the length of' time such list and notice were published therein.

In Lessee of Winder v. Starling, 7 Ohio, 544, it was said not to be essential to the validity of the sale, that this certificate should appear at the foot of the record. But that it must somewhere appear on the record, is a plain and indispensable requirement. There was no evidence offered at the trial showing a certificate on the record that theoiotice of sucb sale had. been published at all. The certificate declared that the foregoing list was published for four consecutive weeks. The object of the statute, in requiring this certificate to be made on the record, was to secure, in permanent form, evidence of the name of the paper, and the length of time such list and notice were published, in order that it could be readily ascertained whether or not the sale made was in conformity to law.

The record failing to disclose the existence of this certificate, and consequently the proof in the mode required by law of the time the list and notice of sale were published, the sale was invalid, and the alleged title acquired thereunder void.

¥e are next brought to consider the validity of the title acquired under the sale of the eighty-acre tract, as lands forfeited to the State. That the auditor’s deed is prima facie evidence of title, and may be given without any proof of the regularity of the proceedings resulting in the sale of the land, was held in Turner v. Yeoman, 14 Ohio, 208, and in Woodward v. Sloan, 27 Ohio St. 592.

The only effect of this rule is to shift the burden of proof, by imposing on the party asserting the invalidity of the deed, the duty of showing it to be void for want of compliance with the statute in the proceedings leading to the alleged forfeiture. This we think he has shown. Unless the lands were legally forfeited to the State, their sale, as forfeited lands, was illegal. That they were not so forfeited, and hence not subject to sale, is very manifest. The record fails to show, that, at the sale of delinquent lands on the second Monday of January, 1847, the lands in controversy, or any other lands, were offered for sale and not sold for want of bidders. Section forty-seven of the act under which these proceedings were had, provided, that every tract of land and town lot offered for sale by the treasurer, as hereinbefore provided, and not sold for want of bidders, shall be, and the same is hereby declared forfeited to the State.” Section thirty-four required the county auditor or his deputy to attend all sales of delinquent lands made by the treasurer of his county, and to-mate a record thereof in a “ substantial book,” therein describing the several tracts of land and town lots offered for sale, stating how much of each tract or lot was sold, and to whom sold; and if any tract or lot should remain unsold for want of bidders, to enter such fact - on the record. Such record is the only proof of the fact required to be recorded. Parol evidence is not admissible to establish it. Lessee of Kellogg v. McLaughlin, 8 Ohio, 116; Lessee of Ward v. Barrows, 2 Ohio St. 246. Here, then was wanting an indispensable condition to the forfeiture, and hence, any sale made of the land under the supposition or belief that a legal forfeiture had taken place, was without authority of law, and the sale consequently void.

The remaining question involves the constitutionality of that clause of the act of May 7, 1869 (66 Ohio L. 338), which makes certain facts enumerated in said act conclusive proof of possession in the purchaser at the tax sale, and those claiming under him. And we are of the opinion that in so far as it undertakes to establish possession in the purchaser at such sale, or those claiming under him, before its enactment, it is in conflict with the constitution. It not only violates section 19 of the bill of rights, which declares that private property shall ever be held inviolate, but also-that clause of section 28, article 2, which withholds from the legislature power to pass retroactive laws. It will be observed that at the time the act was passed, more than twenty-one years had elapsed since the date of either the delinquent or forfeited sale, and the transfer of the land on the duplicate to the name of the defendant. Hence, the-statute, the moment it took effect, cut off all right of action by a purchaser having knowledge of the facts. Its plain effect, therefore, if carried into operation according to its terms, is to deprive the owner of the privilege of selling the land to any one cognizant of such tax sale, and of the rights that are claimed thereunder, notwithstanding the sale as to such owner was absolutely void. It is true, that the act does not purport to affect the right of the owner to the full enjoyment of the property. He may enjoy its use as fully as if such sale had never been made; but the moment he parts with it, to one who examines the title, and who by such examination becomes acquainted with the facts which the statute makes the legal equivalent of adverse possession in the purchaser at the tax sale, the title at once inures to the benefit of the one holding under such sale, in case the necessary time has elapsed for such adverse possession to ripen into title. And this is made to result notwithstanding neither any, nor all of the facts combined, which are thus made conclusive proof of possession as against a purchaser of the land, have the least tendency to establish possession as against the original owner. That the act, with such effect and operation, impairs the value of the property to a very material extent is perfectly obvious. It substantially destroys the jus disponendi. Very few persons will venture to invest their money in real estate without becoming acquainted with the condition of the title, and finding a tax deed on record, the inquiry to which that circumstance naturally gives rise, can not fail to discover the facts to which the statute gives a conclusive effect in favor of the person claiming under such deed, as against one buying with knowledge of such facts. It follows that, in most cases, brought within the operation of the statute, there would be an almost total restriction on the right of alienation. If the owner conveys with covenant to warrant and defend the title, and the tax title claimant recovers the property from the grantee, the grantor becomes at once liable on his covenants; and the result is, he is required to refund the purchase-money to the grantee — the land in the meantime having irrecoverably gone to one, who, as against the grantor, had not the slightest color of title. A statute which, in its operation, works such results, and upon rights of property vested and fixed at the date of its passage, is not only retroactive within the constitutional meaning of that term, but is a direct infringement upon the inviolability of private property. In effect, it seizes the property of one person, and transfers it to another, without even the semblance of consideration.

But it was said in argument, that the law is curative in its nature, and, therefore, aúthorized hy the latter clause of section 28, article '2 of the constitution. The act, however, does not purport, nor was it designed, to be a curative one. Neither in terms nor by implication does it undertake to supply defects or cure irregularities in the proceedings preliminary to the tax sale. If it did, its invalidity would be quite as apparent. The legislature has no power to divest the title of the owner of property, and transfer it to another, by declaring a void tax sale to be valid. It may authorize the court to carry into effect upon such terms as maybe just and equitable, the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings arising out of their want of conformity with the laws of this state. Art. 2, § 28. This it did not undertake to do. The act was not passed either in the exercise, or the attempted exercise, of this power. It does not undertake to confer on the courts any power whatever to correct irregularities. That the effect of mere-irregularities in the proceedings preliminary to a tax sale, which might have been dispensed with by the legislature, may be obviated by appropriate subsequent legislation, is-not intended to be doubted. But it was not within the scope or object of the statute to secure any such result; there is nothing in its language or subject-matter indicating such an intention upon the part of the legislature. Nor was it either in its nature or object a statute regulating conveyances. The owner is left perfectly free to convey, and the title, upon conveyance, goes to the grantee as against the grantor as fully and completely as if the statute did not exist. Its object, as stated in its title, is to improve the law of evidence concerning the titles of real estate. Its object, in fact, was to create a title by possession in those claiming under a tax sale as against a certain class of purchasers; and this is sought to be accomplished by making the existence of certain facts conclusive proof of adverse possession. Considered as an act prescribing a rule of evidence, its validity depends upon its effect upon rights existing when put into operation.

A statute changing the rules of evidence is usually classed with those affecting the remedy, and unless it impairs the obligation of a contract, or destroys vested rights, Is not repugnant to the constitution. But where vested rights are divested or destroyed, although the statute professes or purports to affect remedies only, it is unconstitutional. Von Hoffman v. City of Quincy, 4 Wall. 535 ; Green v. Barry, 15 Wall. 622; Rich v. Flanders, 39 N. H. 304. In Cooley’s Const. Lim. *367, the author, commenting on the power of the legislature to alter or change 'the rules of evidence, and to make them, in their altered form, applicable to existing causes of action, whether in suit or not, .says:

“ But there are fixed bounds to the power of the legislature over this subject which can not he exceeded. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regulations are impartial ,aud uniform ; but it has no power to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his right. Except in those eases, which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. . . A statute, therefore, which should make a tax deed conclusive evidence of a complete title, aud preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evidence, but an unconstitutional confiscation of property.”

In the following cases it was held not competent for the legislature to make a tax deed conclusive evidence of the legality of all prior proceedings, so far as respects the essential pre-requisites for the exercise of the taxing power: McCready v. Sexton, 29 Iowa, 357; Abbott v. Lindenbower, 42 Mo. 162; White v. Flynn, 32 Ind. 46. See also Cooley on Taxation, 223; Blackwell on Tax Titles, *80.

In East Kingston v. Towne, 48 N. H. 57, it was said to be a maxim of general jurisprudence, not confined to any code, but recognized as fundamental in the law of every enlightened people,that no man’s private rights shall be concluded by any judgment, decree, or other adjudication, to which he was not so far a party that he had an opportunity to be heard, and to adduce evidence upon all points that affected his interest.”

In so far as the act under consideration operates to set the statute of limitations in motion in respect to tax sales occurring before its passage, and makes the knowledge of the existence of the facts therein enumerated conclusive proof of possession in fact, we hold it to be in conflict with the constitution. As a rule of evidence operating to conclude the party from showing rights existing when it went into operation, it can not, as wo have seen, have any effect. It can not operate as a statute of limitations, as respects sales occurring before its passagé, because not sufficiently definite and uniform. It fixes no time after its passage within which the action may be brought. One who purchased the land five years before the expiration of twenty-one years from the date of the tax sale, would have five years, under the operation of the statute, within which to commence his action, while one who purchased one day before, would be required to bring his action within twenty-four hours. A statute of limitations, to be operative, must afford the party on whose rights of action it operates, a reasonable time within which to commence his action, and such time must be definite and uniform.

Judgment reversed, and cause remanded for a new trial.

Okey, J.

I concur in the first proposition of the syllabus as to the rights of the parties under the quitclaim deed, for the reason given in the opinion of Boynton, J., and for the further reason that the original certificates of entry are referred to in the quitclaim deed, so that the instrument may have effect by force of the recital.

But I dissent from so much of the opinion as holds that the delinquent sale is invalid. The statute required that the delinquent list should be published for four consecutive weeks between the first day of October and the first day of December. The notice itself is dated October 1st, which is evidence that it was not completed until that time, and the record shows that it was published for four consecutive weeks prior to December 1st. The argument is that the first publication may have been made on October 1st, and that there can be no presumption that tbe officer performed his duty by publishing it four weeks after October 1st, although there is nothing in the statute requiring the facts as to the publication to appear in the record. This is to require what is known in pleading as certainty to a certain intent in particular, according to which rule not only a statement of facts in the most precise form must be shown, but it must also appear that those facts are not to be controverted. Nothing of the sort is required at this day with respect to tax sales. In determining as to the validity of a sale of lands for taxes, the better opinion now is that where the record discloses a substantial compliance with the statute, this is all that is required, as to the mere form of the proceeding, and that to ascertain whether there was such compliance, the whole record should be examined.

Formerly, a tax purchaser was regarded as little better than a public robber. Hughey v. Horrel, 2 Ohio, 231. Strong, J., in a recent case in the Supreme Court of the United States (De Treville v. Smalls, 8 Law Reporter, 225), in disapproving that class of decisions, says: “Ve are not unmindful of the numerous decisions of state courts which have construed away the plain meaning of statutes providing for the collection of taxes, disregarding the spirit and often the letter of the enactments, until of late years the astuteness of judicial refinement had rendered almost, inoperative all legislative provisions for the sale of lands, for taxes. The consequence was that bidders at tax sales,, if obtained at all, were mere speculators. The chances were greatly against their obtaining a title. The least error in the conduct of the sale, or in the proceedings preliminary thereto, was held to vitiate it, though the tax was clearly due and unpaid.” He further shows that in the later decisions, especially in Ohio, a more reasonable rule has been adopted.

Kellogg v. McLaughlin, 8 Ohio, 114, is relied on as sustaining the strict construction applied in the case before us. The change from the technical to the reasonable rule on this subject is very apparent, when we examine in our reports the early and later views of the eminent judge who delivered the opinion in that case. Still, I would feel bound by that decision, as it has become in a sense a rule of property, if the facts were entirely analogous to those in the case before us. But I think this case is distinguishable from it. There the record showed the publication for the proper length of time between the first of October and the first Monday of December; but the law required the publication to precede the first day of December, and the first Monday of December was not the first day of the month. Hence, the record disclosed the fact that. the officers conducting that sale were ignorant of the requirements of the law, and the court felt warranted in applying to that record a very strict construction. But nothing of the sort appears in this record, and a reasonable-construction of what does appear shows that the law was. complied with.

The other objection to the validity of the delinquent sale-will be found, on careful examination, to be equally technical and fallacious, and I will not take space to go into an examination of it.

Nor in my opinion is the objection to the forfeited sale-available to Magruder, if indeed the objection was at any“time of any force. The action is brought by Magruder against Esmay to recover possession of two hundred and forty acres of land, and a necessary averment in the petition is that Esmay keeps him out of possession. Eighty .acres of the land had been sold and conveyed at a sale of forfeited lands more than twenty-one years before this suit was brought, and Esmay holds under that title. Magruder and those under whom he claims never had possession for a moment, nor did they in fact pay any taxes. The lands were wild and uncultivated, but Esmay and those under whom be claims regularly paid the taxes, openly made claim of exclusive and absolute ownership of the eighty acres of land under the deed made at the forfeited sale,, and that deed being regular on its face, afforded prima facie ■evidence of the regularity of the sale, and it had been properly recorded. Under the circumstances, the statute ■of limitations of twenty-one years was, in my opinion, a complete bar to the action as to the eighty acres. "With this view it is unnecessary that I should express any opinion upon the question whether there was any substantial 'defect in the forfeited sale.

Finally, I see no constitutional objection to the act of 1869 (66 Ohio L. 338; Revised Statutes, § 4114). The act •is as follows:

“ An act to improve the law of evidence concerning the titles of real estate.
“ Section 1. Be it enacted, etc., That in all cases where unoccupied or unimproved real estate has been or shall be ■sold at any tax sale in this state, and the purchaser thereof has received, or shall receive a deed therefor, and said real estate has been or shall, from and after said sale, be placed upon the tax duplicate of the proper county, in the name of said purchaser or those claiming title under him, and be .so continued on said duplicate, and said purchaser or those claiming under him, shall, from and after said sale, openly and notoriously claim the title and ownership of said real •estate and pay the taxes thereon from and after said sale, the same shall, as against any title acquired by deed exe■cuted after such tax sale, be held and deemed in all cases in all courts as prima facie proof of the possession of said real estate by said purchaser or those holding under said purchaser, from and after the date of said sale, until the said sale has been or shall be set aside in a civil action or suit, in a court of competent jurisdiction, or has been redeemed according to the laws of this state; and as to all persons acquiring title by deed executed after such tax sale, having knowledge of said sale and the payment of taxes and claim of title and ownership as aforesaid, said facts aforesaid shall be taken as conclusive proof of such possession, and be so held by all courts in all cases.
“ Sec. 2. This act shall be in force from and after its passage, and its provisions shall apply to all tax sales heretofore or hereafter made in this state.”

The act has no application to conveyances made before its passage. Even in England, where the power of parliament is unrestricted, the act would be so construed. Maxwell on Stats. 190. But to apply the act to tax sales already made is not to render it retroactive; nor does it in any unwarranted manner interfere with the rights of property. In my judgment the act is clearly valid, and on the facts it afforded a complete defense to Esmay. It simply prescribes a rule of evidence to apply, not to the original owner or his heir, but only to those who purchase from such owner subsequent to the passage of the act, such owner being out of possession, and the tax title outstanding; and where such purchaser takes the conveyance, with notice, under the circumstances disclosed in this record, it inures, in effect, to the benefit of the person holding the tax title. In that view, the act is simply a restraint on alienation not different in pidnciple from a statute which, in terms, provides that if one out of possession make a conveyance, it shall inure to the benefit of the party in possession; and the authorities relied on are not in opposition to the validity of such a statute. To be sure, it is said that no such purpose as I have stated appears on the face of the statute; but White, J., in The State v. Atty. Gen., 21 Ohio St. 1, 11, very properly said “ The constitutionality of an act is to be determined by its operation, and not by the mere form it may be made to-assume.”

Gilmore, C. J., concurs in the dissenting opinion.


author: McLlvaine, J.

text:
    Jackson Hanover, Administrator of Benjamin W. Pratt, deceased, v. Jared Sperry et al.
    1. Where a party to a judgment dies before the commencement of proceedings in error, one who becomes a privy to the judgment by operation of law, may file a petition in error without being first made a party by revivor.
    2. In such case, the facts, upon which the law operates in creating the privity, must be averred in .the petition in error; and the facts so pleaded are issuable and must be verified as required by section 46, chapter 7, division 2, title 1, of the Code of 1878. (75 Ohio L. 624.)
    Petition in error. Motion to strike petition in error from the files for want of verification.
    At the June term, 1879, of the District Court of Licking county, a decree was rendered in favor of defendant in error, Jared Sperry, and against Benjamin W. Pratt, intestate-of plaintiff in error, then in full life, which, among other things, directed Pratt to surrender certain promissory notes into the hands of the court to be canceled. Subsequent to the rendition of the decree, Pratt died, and the plaintiff in error was duly appointed and qualified as administrator of his estate.
    The petition in error, now pending, to reverse the decree-of the district court, was filed by the plaintiff in error, and contains among other things, averments of the death of ;Pratt since the rendition of the decree, and the appointment and qualification of the plaintiff in error as administrator, etc.
    .The petition in error is not verified by affidavit, and the defendant in error seeks by this motion to strike the petition from the files for want of verification.

      J. Buckingham, for the motion.

      Smythe § Sprague, contra.
   McLlvaine, J.

In general, a petition in error must be prosecuted by a party to the record and to the judgment •sought to be reversed; but if such party die before error is prosecuted, his administrator or executor, or heir, according to the nature of the subject-matter of the judgment, who becomes privy thereto by operation of law, may commence and prosecute a proceeding in error, without first being made a party to the judgment by revivor or otherwise. Hammond v. Hammond, 21 Ohio St. 620. 8 Cowen, 333, 346. 3 Bacon’s Ab. 330.

But where a person not a party to the judgment prosecutes a proceeding in error, he must, by proper averments in the petition in error, show the facts, under which he •claims to be privy to the judgment. Swan’s Pr. & Pre. 1141. The principal question for determination on this motion is, must such a petition in error be verified under section 46, chapter 7, division 2 of the code (75 Ohio L. 624.)

This section provides, “ every pleading and motion must be subscribed by the party or his attorney, and every pleadings of fact . . . must be verified by the affidavit of the party, his agent or attorney.” The terms here used are certainly broad enough to embrace petitions in error, when such petitions contain issuable averments of facts, as in the case before us.

It is claimed, however, that the provision above quoted .applies only to pleadings in original actions, and not to pleadings in error, notwithstanding its general terms, because section 10, chapter 1, title 4 (75 Ohio L. 805), which provides that proceedings in error shall be by petition in error, does not require a verification of the petition, and that ever since the adoption of the civil code, the practice has-been to omit the verification to petitions in error.

Where the petition in error is filed by a party to the-judgment and contains simply an assignment of errors upon a record which is exhibited and proves itself, such petition is not a pleading of fact, but tenders issues of law mérely; and we have no intention to disturb the practice-in such cases. But where the petition in error contains allegations of material facts, not appearing in the record and going to the right of the plaintiff to prosecute the proceeding, we can find no sufficent reason for holding that such petition is not a pleading of fact within the rule requiring-verification.

Motion granted.