text:
    James T. Irving, plaintiff in error, vs. Benjamin F. Brownell, defendant in error.

      Error to Pike.

    An. Auditor’s deed to land, made in pursuance of a sale for taxes, under the law of 1827, will not show a complete title in a party, without proof that the prerequisites of the law hare been complied with.
    The words "claim and color of title made in good faith,” under the law of 1839, meansuch a title as, tested by itself, would appear to be good—a prima-facie title. Such a title, connected with seven years’ actual possession, and payment of taxes, becomes invincible.
    To be actual, the possession should be open, visible and exclusive, cither by an enclosure, the erection of buildings, or in such manner as to give the real owner notice that the person in possession was claiming the land as his own.

      If the occupant does not pay the taxes for seven years, but permits the land to be sold for the taxes of oneyear, and bids it in, it is not a compliance with the law.
    An Auditor's deed is a title deducible of record, under the law of 1835, and is sufficient to protect a party who can connect himself with it, and show that he has been possessed of the premises by actual residence, under such title, for seven years.
    The word “ title," as used in the act of 1835, should not be construed to mean a perfect, but only such a title as is evidenced by a deed in proper form, and duly executed by some one of the officers or persons named in the act.
    Courts sitting in a county, will officially take notice who were the justices in such county.
    A certificate of acknowledgment made by a commissioner of another state, n eed not be under seal. A certificate of acknowledgment, if in other respects sufficient, will not be vitiated for want of a date.
    This was an action in ejectment, by the plaintiff in error, to recover the north-west quarter of section twenty-eight, in township four, range six, west of the fourth principal meridian, situate in the county of Pike. The action was commenced by service of declaration and notice, on the 18th of January, 1848. The defendant in error filed his plea of not guilty, and a trial was had before Purple, Justice, and a jury, at September term, 1848, and a verdict found for the defendant. A motion for a new trial was denied. The facts of the case will sufficiently appear in the opinion of the Court.
    J. Grimshaw, for plaintiff in error:
    The plaintiff in error, in the Court below, deduced title regularly from the patentee. The defendant in error seeks to defend under acts of January 17, 1835; Real Estate Stat., 424, and act of March 2, 1839; ibid, 427. The law of 1839 was intended to u quiet possession : ” it requires, as part of the defence, actual possession. Such possession must be definite, positive, notorious, a pedis possessio. Jackson vs. Schoonmaker, 2 Johns., 233; Jackson vs. Halstead, 5 Cowen, 219; Kinsell vs. Daggett, 2 Fairfield, 314; Little vs. Libby, 2 Greenleaf, 247; Coburn vs. Hollis, 3 Metcalf, 128. The possession must be open, visible—an actual occupation, to the exclusion of the true owner. Proprietors of Kennebec vs. Call, 1 Mass., 487. Building upon, or putting a fence upon land, held to be adverse possession. They are such acts as constitute notice. Poignard vs. Smith, 6 Pickering, 177; Alden vs. Gilmore, 13 Maine, 182. Occasional cutting of timber on land, or occasional use of it as a sugar camp, do not constitute possession. Broxdall vs. Speed, 1 A. K. Marshall, 105; Smith vs. Mitchell, ibid, 207; Wilson vs. Stivers, 4 Dana, 635.

      Defendant’s actual possession did not begin until the spring of 1841. Before that time he was committing mere acts of trespass. The act of 1839 also requires such possession to be with claim and color of title. Color of title must be such as the law would, prima facie, consider a good title. Jackson vs. Frost, 5 Cowen, 351. Possession for seven years, under invalid tax deed, held to be no protection, under Tennessee limitation law of 1797. Lessee of Powell vs. Harman, 2 Peters, 241; Walker vs. Turner, 5 Cond. U. S., 673. Fencing land and pasturing cows on land, by one claiming under deed of collector of taxes, no evidence being offered of a compliance with the law, held to be mere acts of trespass, as nothing passed by collector’s deed. Pray vs. Pierce, 7 Mass., 383. The defendant has produced, as evidence of his color, Auditor’s deed, sale in 1827, for tax of 1825 and 1826. This deed was inadmissible for any purpose. Garrett vs. Wiggins, 1 Scammon, 335; Hill vs. Leonard, 4 Scammon, 141; Doe ex dem. Ewing vs. Bean, 1 Gilman, 302.
    The doctrine of presumption from long possession is too well established to be questioned at the present day. It is a doctrine founded in justice, intended to support title of bona fide holders of land, where, from accident or casualty, their title papers may be supposed to be lost. But to direct a jury to presume a fact, in direct opposition to the evidence produced and relied on by the party, has never been countenanced by any decision we have seen. Had the plaintiff entirely withdrawn this defective deed, and asked the Court to instruct the jury to presume a good deed, from acts of ownership, it would have presented a different question. Every presumption that might have arisen from want or absence of proof is here rebutted and destroyed by proof offered. Beall vs. Lynn, 6 Harris and Johns., 351. The act of 1839 further requires payment of taxes during seven successive years, during the occupancy under color of title. The defendant failed utterly to show payment of tax for seven successive years, during time of his possession before 18th January, 1848. His actual possession began in spring of 1841 : his payment of tax can only begin to date from that time. The Court below allowed him to offer in evidence a receipt for the tax of 1839, and a receipt for the tax of 1840 to Phineas Breeze. No connexion of Breeze shown with the defendant. These years are both antecedent to the possession of defendant. The purchase by defendant of land for taxes of 1844, was no payment by him, but a purchase. The taxes were paid by plaintiff when he redeemed from that sale. The last receipt produced is for 1845. Under no mode of computation, as plaintiff contends, could these papers show payment of tax for seven years, during the time of defendant’s possession. Tax paying and possession must be concurrent. The copies of deeds produced, to connect defendant in error with color of title, subsequent to Auditor’s deed, is here inadmissible. No proper foundation was -laid for introduction of copies. Mariner vs. Saunders, 5 Gilman, 125. The copies, when produced, should have shown that the •originals were properly executed. One has no county to certificate of acknowledgment; another no date to certificate. The principles governing such testimony are given in Mariner vs. Saunders, 5 Gilman, 125; Vance vs. Schuyler, 1 Gilman, 164; Pendleton vs. Britton, 3 Conn., 41-2. Defect in certificate cannot be helped by parol. Hayden vs. Westcott, 11 Conn., 129. The defendant was bound to connect himself-regularly with title offered.
    The act of 1835 requires connected title, deducible of record. The title offered was not connected. The Auditor’s deed was inadmissible, as the foundation of title deducible of record. This Auditor’s deed at the sale in 1827, for taxes of 1825 and 1826, conferred no title, unless made in conformity with law. Proof of compliance with law devolves on party offering. Garrett vs. Wiggins, 1 Scam., 335; Hill vs. Leonard, 4 Scam., 141; Doe ex dem. Ewing vs. Bean, 1 Gilman, 362. The defendant failed to connect himself even with this “paper,” so called Auditor’s deed. Pie was bound to show a claim of recorded title, legally acknowledged, executed or proved, 'and to start with title. The Auditor’s deed was evidence of nothing, until preliminary proof was made.
    Act of 1835 requires actual residence. This is plain English, and is easily understood. Enclosing and fencing land, under the Kentucky law of 1809, held not to be actual settlement. Smith vs. Nowells, 2 Littell, 161; McGee vs. Bast, 6 J. J. Marshall, 452; Myers vs. Buford, 7 J. J. Marshall, 251. Occupany will not bar, but seven years residence only. Occupancy may exist without a residence. Chiles vs. Jones et al., 4 Dana, 484; Trustees vs. Payne, 3 Monroe, 164. The testimony in this case shows, that the defendant did not actually reside on this land until spring of 1841. The suit was brought in January, 1848.
    Defendant’s title papers show his claim to extend only to an undivided interest in the premises, with such paper claim of title for undivided interest. He cannot set up dr ask a presumption that he is the owner of the whole interest, which his paper title rebuts. The statute could avail him as a bar, only so far as he was in actual possession by enclosure. Sharp vs. Brandow, 15 Wendell, 599.
    Wm. Thomas, for defendant in error r
    The questions for decision in this cause, are: I. Did the Court err in permitting to be read, as evidence of “ color of title,” the deed from the Auditor of Public Accounts to William Ross. The record shows, that the only objection to its being so read, was that no proof was- made or offered, that the Auditor had, before making the sale, complied with the requisitions of the revenue law. The deed shows, that the land was sold on the 8th January, 1827, for the taxes of 1825-6. It is in the precise form prescribed by law, and on its face shows that all the requisites of the statute authorizing the sale had been complied with. The sale was made under the act of 1823, the 4th section of which provides : “ That all sales, and other proceedings hereinafter directed, shall be good and valid, in whose name soever the said land, or claim thereto, shall be listed, entered or sold, unless he, she or they contesting the validity thereof, shall show that the tax had been actually paid thereon, or that said land was not legally subject to taxationwhich, in all cases,, shall be the first things required of any one attempting to set aside a sale under this act.” The seventh section provides, that ££ the Auditor’s deed shall vest the title in the purchaser, completely and perfectly, unless the land should be redeemed,” &c.,. under the provisions of the law. It is insisted that the Legislature intended that the deed should be evidence of the sale, and that the regularity and legality of the previous’ proceedings should be presumed. Upon any other construction, the latter clause becomes wholly inoperative. The authority of the Auditor to sell lands for taxes is not questioned. No exception is taken to the form of the deed. “ It is sufficient in form for the purpose of conveying title.”

      But it is said that these questions have been decided in the cases of Garrett vs. Wiggins, 1 Scam., 336, and Hill vs. Leonard, 4 Scam., 140. In both those cases, the deeds were offered in evidence of title; whereas, in this case, the deed is offered as evidence of “ color of title ” only. The case of Garrett vs. Wiggins was in respect to a sale made under the act of 1826-7; which declares, that the deed executed by the Auditor “ shall vest a perfect title in the purchaser, unless the land shall be redeemed according to law, or the former owner shall show that the taxes for which it was sold had been actually paid, as required by law; or that the land was not legally subject to taxation,” omitting the words in the act of 1823, to wit: “ which in all cases shall be the first things required of any one attempting to set aside a sale under this act.”
    In the case of Hill vs. Leonard, the Court refers to the case of Garrett vs. Wiggins, and say: “ In that case a sale and conveyance of land had been made by the Auditor, for the payment of taxes, under the samé laws that the sale and conveyance in this case was made.” It is, therefore, clear that the Court, in deciding this case, gave no construction to the act of 1823. But admitting that the decisions in the cases referred to settle the construction of this act, the question still remains as to the admissibility of the deed, as evidence of “ color of title.” Upon this question the decisions may be said to have been conflicting. Upon a review of many decisions on this point, Angelí, in his work on limitations, edition of 1846, page 435, says: “As to what constitutes color of title, it seems to be very well agreed, that if the title under which the party relying on possession claims, and originally entered, be ever so defective, the possession is, nevertheless, adverse.” See, also, same book, edition of 1829, 86 : “If one enters upon land, under color of title, by deed or other written document, and occupies and improves the land, he acquires in law actual possession, to the extent of the boundaries contained in the writing, and this though the title conveyed to him by the deed is good for nothing.” 2 Smith’s Leading Cases, 415, and cases cited; 23 Wendell, 320. The act of limitations of 1834—5, Revised Statutes, 349, provides for the limitation of actions of ejectment, &c., as against any person “ possessed by actual residence thereon, having a connected title in law or equity, deducible of record, from this state or the United- States, or from any public officer or other person authorized by the laws of the state to sell lands for the payment of taxes,” &c. The act of 1838-9, Revised Statutes, 104, provides that every person in the actual possession of land, under-claim and eolor of title, made in good faith, and who shall for-seven successive years continue in such possession, and shall,, also, during said time, pay all taxes legally assessed, &e., shall be held and adjudged to be the legal owner, &c., to the extent,, and according to the purport of his or her paper title. Comparing these provisions of the statutes with the principles settled by the authorities referred to, it is clear that the Auditor’s deed was properly admitted as evidence of color of title, if not as evU dence of title. If proof had been- made of the listing, advertising and selling the lands, as required by the statute, and insisted upon by the plaintiff then we should have had, not color of title, but a good title, under which we could defend or assail.
    2. Did the Court err in admitting to- be read as- evidence certified copies of the deeds from William Ross to Henry Staunton, Henry Staunton to Jacob and Isaac Ford, and Isaac Ford to the defendant? The objection to the reading of the deed from Ross was, first, that it does not appear from the certificate of acknowledgment, that the person before whom it was taken was-a justice of the peace of any county in Illinois; second, that the original deed should have been produced; and this objection applies to the other deeds. The answers to these objections are, first, that proof was made, that the person before whom the deed from Ross was acknowledged, was a justice of the peace of Pike county; second, that the absence of the originals was sufficiently accounted for. No other objections can now be urged against these deeds. Sargeant v.s. Kellogg, 5 Gilman, 281.
    The evidence in regard to the deed from Ross was sufficient j it purports to have been executed in the county of Pike. The People vs. Ammons, 5 Gilman, 106. Upon the question of admitting copies, the defendant contends that the true rule upon the point is, that wherever original deeds are shown to be out of reach of the process of the Court, and of which the party has no right to the possession, certified copies may be used. Revised Statutes, 108; Mariner vs. Saunders, 5 Gilman, 125.
    3. The third question relates to the proof of payment of taxes. No specific objection was stated in the Court below to the receipts, and none is presented by the assignment of errors. The objection that one payment was made by the purchase of the lands, when sold for taxes, is answered, that the effect and result is the same as if payment had been made.
    4. The fourth question, involving the correctness of the instructions to the jury, will be settled by the decision upon the first question.
    Upon the question of new trial, if this Court decides that the Auditor’s deed was evidence of a good title, or that it was evidence of “ color of title,” the instructions were properly given. The questions of possession and payment of taxes, were questions of fact, to be proved before the jury.
    J. Grimshaw, in reply :
    The authorities quoted for the defendant in error apply to statutes of limitations, similar to our twenty year limitation law. This class of laws, in terms, does not require color of title. The Courts in most of the states, and in England, until passage of recent English statutes, prescribed the necessity of proving color of title to characterize the adverse possession as being with claim of title to the land, and not mere acts of trespass. The Courts in Pennsylvania have uniformly decided, under a similar limitation law, that actual adverse possession is the only question to be determined; their decisions, are not, therefore, in point.
    This sale was made under law of 1823, the same as the deed in the case of Hill vs. Leonard, 4 Scam., 141. The Legislature had not then changed the inflexible rule of evidence, requiring certain facts to be proved before this deed could be used in evidence for any purpose. It is this rule of evidence that excludes this deed, either as evidence of title or color of title. Pope vs. Hinman, 1 Gilman, 131. The questions as to admissibility of deeds and tax receipts by Circuit Court, are properly now before this Court. The purchase of land at sale in 1845, for taxes of 1844, was not a payment of taxes. It was made, not to pay taxes, but to acquire a new title. The subsequent redemption by Irving from this sale, took away any benefits arising to defendant from such purchase.
   Opinion by Mr. Justice Trumbull :

Irving sued Brownell in an action of ejectment, to recover the north-west quarter of section twenty-eight, township four south, range six west of the fourth principal meridian, situate in the county of Pike.

The declaration was served January 18, 1848. The plaintiff traced title to the premises from the United States to himself, and the defendant admitted that he was in possession of the south fifty-two acres of said land, at the time the action was commenced.

The defendant then offered in evidence an Auditor’s deed of the land in question to William Ross, dated January 20, 1829, and reciting a sale of the land January 8, 1827, for the taxes of 1825 and 1826; also a deed from William Ross to Henry Staunton, for the same land, dated May 12, 1836 ; also a deed from Henry Staunton to Jacob Ford and Isaac Ford, for the same land, dated March 8, 1837; also a deed from Isaac Ford to himself, for an undivided half of said land, dated January 28, 1889. The defendant also offered in evidence receipts for the payment of taxes upon the land claimed, for the years 1839, 1840, 1841, 1842, 1843 and 1845, and gave evidence of the purchase bjr him of the south fifty-two acres of said quarter section, for the taxes of 1844.

All the foregoing evidence offered by defendant, was objected to by the plaintiff, but admitted by the Court. It was further in evidence, that the defendant cut timber, dug a well, and took shingles and boards to build a house upon the south fifty-two acres, in the fall of 1840 ; that he erected a house and removed upon said land in the spring of 1841, and has resided thereon ever since. The plaintiff gave in evidence a redemption by him from the tax sale of 1844, and a receipt for the payment of taxes for the year 1846. The Court, at the instance of the defendant, gave various instructions to the jury, all of which were excepted to by the plaintiff at the time. The jury found the defendant not guilty. A motion for a new trial was then made and overruled, and judgment entered against the plaintiff for costs. Numerous errors have been assigned upon this record.

It is assigned for error, that the Auditor’s deed was improperly admitted in evidence, without proof of the signature of the Auditor thereto, and without proof of the prerequisites of the law preliminary to the tax sale haring been complied with. It has several times been decided by this Court, that no proof of the execution of an Auditor’s deed is necessary, to entitle it to be read in evidence, and we are not disposed, at this time, to reinvestigate that question, or the reasons which led the Court originally to make such a decision. Graves vs. Bruen, 1 Gil., 167; Rhinehart vs. Schuyler, 2 Gil., 523; Thompson vs. Schuyler, 2 Gil., 280. As to the other question involved in this assignment of error, it is clear that, for the purpose of showing a complete title in Ross, the Auditor’s deed was inadmissahle, without proof that the prerequisites of the law authorizing the sale for taxes had been complied with. This very point was decided in the case of Hill vs. Leonard, 4 Scam., 141, where the Court say that, “ to render the Auditor’s deed to land, made in pursuance of a sale for taxes, under the law in force in 1827, evidence of title to the land, it is incumbent upon the party offering it to show the authority of the Auditor to make it, by showing the land liable to sale, and performance by him of all the preliminary acts required by law.” The reasons for this decision are satisfactorily given in the case itself, and in that of Garrett vs. Wiggins, 1 Scam., 335, to which it refers. But although the Auditor’s deed should be held of itself insufficient to show title in the grantee, it is insisted by the defendant, that it furnishes such color of title, as will authorize the defendant to protect himself under it, by showing that he has been in the actual possession of the land, claiming under said deed for seven years, and has paid all the taxes assessed thereon during that time.

This brings us to a consideration of the first section of the act of March 2, 1839, entitled “An act to quiet possessions and confirm titles to land ; ” which is to be found incorporated into the Revised Statutes, ch. 24, sec. 8. So much of that section as is under consideration, reads as follows : “ That hereafter, every person in the actual possession of land or tenements, under claim and color of title made in good faith, and who shall, for seven successive years after the passage of this act, continue in such possession, and shall, also, during said time, pay all taxes legally assessed on such land or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to thepurport of his or her paper title.” The object of this statute clearly was to protect those who, supposing that they had a good title to land, should take and continue the actual possession thereof, and pay taxes upon the same for the space of seven years.

Three things are necessary, and must concur, to enable a party to avail himself of this statute : 1. He must have a claim and color of title to the land made in good faith. 2. He must have and continue in the actual possession thereof, for seven successive years. 3. He must pay all taxes legally assessed upon said land, during the said seven years.

What the claim and color of title must be, that will enable a party to take advantage of this statute, is a question of some difficult}’. Under our twenty year limitation act, and under similar statutes, in other states, and in England, it has been uniformly held, that a person relying upon his possession to defeat a recovery by the party having the legal title, must show that his possession had been adverse: that is, under claim of title, although the statutes are silent as to the character of the possession necessary to bar a recovery in such a case. It would seem, therefore, that the Legislature intended to require a different sort of title to protect a party claiming under the seven year law from what had been required under the limitation act of twenty years, else why require that claim and color of title, made in good faith, should be essential to protect a party claiming under the former act. We are bound to give these words some meaning, and they will have none if the same construction is to be put upon the act as if they were not in it. It is manifest that the Legislature only intended to protect those who had been in possession of land, and paying taxes upon it, under the belief that they had a good title. When would a reasonable man suppose that he had a claim and color of title to land, or what sort of a title would such a man, in good faith, pay out his money for P For none other, we imagine, than what he supposed to be a good title. If he knew that he was not acquiring such a title, or if the circumstances should be such that a reasonable man might know that the title he was obtaining was wholly defective, then it would not be a title acquired in good faith, and, consequently, not entitled to the protection of the act of 1839. By the words claim and color of title made in good faith,” must, therefore, be understood such a title as, tested by itself, would appear to be good—not a paramount title, capable of resisting all others, but such an one as would authorize the recovery of the land when unattacked, as no better title was shown: that is, a prima fade title. Such a title, connected with seven years actual possession and payment of taxes, becomes invincible. The Auditor’s deed offered in evidence in this case, as has already been shown, was not such a title as, unaccompanied with other proof, it did not afford prima fade evidence of title, and it was not, therefore, admissible in evidence, for the purpose of showing claim and color of title under the act of 1839. But even if the Auditor’s deed were held to be such a claim and color of title as the statute intended, still it would not avail the defendant, for the reason that the evidence does not show that he had actual possession of the premises in dispute, for seven successive years, previous to the commencement of the action; nor does it show that he paid all taxes assessed upon the land during said seven years. The action was commenced January 18, 1848, and it appears from the evidence, that the defendant first took actual possession of the premises in the spring of 1841. It is true, that he cut timber, dug a well, and exercised some acts of ownership upon the land the fall previous, but those acts did not constitute that actual possession contemplated by the statute. As the Legislature, in reducing the time of possession, thought it expedient, as has already been shown, to require stricter proof of apparent title to the land than was requisite under the old limitation of twenty years, so also, and for the same reason, they have thought proper to require that the possession under the act of 1839, should be more open, marked and manifest, than under the former law. It would be unreasonable, when the Legislature have used language clearly manifesting a different intention as to the character of the possession requisite under the two acts, to give the same liberal construction to both. The Legislature, undoubtedly, meant what they have said, that the possession must be actual: that is, visible, open and exclusive, either by an enclosure, the erection of buildings, or in some other way, actually appropriating and using the land, in such an open, visible manner, as to give the real owner notice that the person in possession was occupying and claiming the land as his own.

The defendant is equally at fault, in his attempt to show payment of taxes upon the land, as required by the law. The statute requires that the person in possession should pay all taxes legally assessed upon the land, during the seven successive years that he has possession. A payment of taxes for seven years, part before and part after possession taken,, does not answer the requirement of the law. In this case, it is not pretended that possession was taken before the fall of 1840, and there was no evidence of the payment of taxes by the defendant, after the year 1845. The taxes of 1844 he did not pay, but suffered the land to go to sale, and then purchased it in ; which he insists was a payment of the taxes of that year. This is not so. The land was made to pay the taxes by the sale, not the defendant. He cannot claim that he paid the taxes, while he, also, at the same time, took the chance of getting a tax title upon the land. It is only lands upon which taxes are not paid that can be sold. In no view of the case did the defendant put himself in a situation to have the benefit of the act of March 2, 1839. There is, however, another act, passed January 17, 1835, under the second section of which (which is to be found in Revised Statutes, ch. 66, sections 8, 9 and 10,) the Auditor’s deed was admissible in evidence. The act of 1835 does not, like that of 1839, require that the person who would avail himself of its provisions, should have a claim and color of title to the land, made in good faith, but it simply requires that he should have a connected title in law or equity, deduciblc of record, from this state or the United States, or from any public officer, or other person authorized by the laws of the state to sell such land for the non-payment of taxes,” &c. The Auditor’s deed in this case is just such a title. On its face, it is perfect and complete. No objection can be taken to its form, and if the prerequisites to the sale of the land by the Auditor were shown, it would, of itself, constitute a perfect and complete title to the land ; and, without proof of these prerequisites, it is a sufficient title to protect any one 'who can connect himself with it, and show that he has be'en possessed of the premises by actual residence thereon, under such title, for seven years. If this were not so, the statute would have no meaning; for to require a party in such a case as this, to show that the prerequisites to the sale for taxes by the Auditor had been complied with previous to such sale, would be to require Him to make out a perfect title, under the tax deed; and in that event, he would have no need to resort to proof of possession to protect him in the enjoyment of the land. His title would be paramount to any other without possession, and the act passed to protect him in his possession would be perfectly nugatory. The word title,55 as used in the act of 1835, should not, therefore, be construed to mean a perfect title, nor is the word, in its ordinary acceptation, understood in such a restricted sense. There are perfect titles and apparent or imperfect titles. Even a naked possession constitutes a species of title, though it may be the lowest degree. The meaning of the word is, therefore, to be ascertained from the connection in which it is used, and there can be no question, when the whole act of 1835 is examined, that the Legislature never intended by the term connected title55 a perfect and complete title. The ■title contemplated can mean nothing more than such a title as is evidenced by a deed in proper form, and duly executed by one of the officers or persons named in the act, as the source with which the person relying upon it is required to connect himself, by a regular chain of conveyances.

It appears from the evidence, however, that the defendant had not been possessed of the premises in question by actual residence thereon for seven years, when this action was commenced; he was not, therefore, in a situation to claim the protection of the act of 1835.

As this case will have to be remanded, to afford the defendant an opportunity to supply, if he can, the necessary evidence to support his case, we will now notice the objections taken to the introduction in evidence of the chain of title from Ross to the defendant. The first objection to two of these deeds was, that certified copies were offered and admitted in evidence, without sufficiently accounting for the non-production of the originals. The statute declares, that when it shall appear to the satisfaction of the Court that the original deed is not in the power of the party wishing to use it, a transcript of the record thereof, certified by the recorder, may be read in evidence. Revised Statutes, 108, sec. 25. Under this statute, and the decisions of this Court, the defendant laid a sufficient foundation for the introduction in evidence of the copies. The objection to the certificate of acknowledgment upon the deed from Ross to Staunton, that it does not show of what county the officer taking the acknowledgment was a justice of the peace, is untenable. It appears from the record that Campbell, who made the certificate, was called as a witness, and testified that he was a justice of the peace of Pike count}1, at the time he took the acknowledgment. But without this proof, the certificate was sufficient, as the Court, when sitting in Pike county, would officially take notice who were the justices of the county, without any proof thereof. Shattuck vs. The People, 4 Scam., 481.

The objection to the certificate of acknowledgment upon the other deeds, that they were taken before a commissioner in the state of New York, who affixed no seal to his certificate, and of whose official character there was no sufficient evidence, as also that one of the acknowledgments was not dated, were all properly overruled. It has been decided, in the cases of Vance vs. Schuyler, 1 Gil., 160, and Thompson vs. Schuyler, 2 Gil., 271, that “no certificate of the official character of a commissioner in another state, before whom the acknowledgment of a deed is taken, need be produced.” The statute does not require that the certificate of acknowledgment made by a commissioner of another state, should be under seal, and if the acknowledgment was sufficient, when the deed was offered in evidence, the want of a date to the certificate would not vitiate it.

It is unnecessary to pass separately upon the numerous errors assigned, as they are all substantially disposed of, by the construction which is put upon the limitation acts of 1835 and 1839.

The judgment of the Circuit Court is reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Opinion by Treat, 0. J.r

license: Public Domain

text:
    Isaac G. Smith, plaintiff in error, vs. Benjamin Whitaker, for the use of Samuel Jonas.

      Error to Hancock.

    In an action upon an appeal bond, from tbe judgment of a justice of the peace, tbe defendant pleaded that there was no such judgment as was recited in the condition of the bond. Held that he was estopped from making such defence.
    Where the faet which concludes the defendant from making the denial appears in the declaration, the estoppel may be insisted upon by a demurrer to the plea by which the same matter is set up as defence.
    But if the matter of estoppel does not appear in the declaration, the plaintiff must, by a replication to the plea, expressly show such matter, and rely thereon.
    The direction to justices in the statute, where an appeal is prayed, to take a bond in double the amount of the judgment and costs, is not imperative; and a bond, the penalty of which was more than double the amount of the judgment, is valid. And even though the statute is imperative, a bond which varied from it in that particular would still be good as a voluntary obligation.
    This was an action in debt upon an appeal bond, given before a justice of the peace, brought by Whitaker against Smith, in the Hancock Circuit Court. The declaration recited the bond at length. The defendant pleaded: first, non est factum; second, that there is not any record of said supposed recovery upon the trial of said appeal; and third, that there is not any record of the said supposed judgment rendered by the said justice remaining on the docket of the said justice in his Court, in manner and form as recited in the condition of the said writing obligatory. On the first and second pleas issue was joined. To the third plea, plaintiff replied, that defendant, on the 28th day of January, 1841, made his said writing obligatory, sealed with his seal, &c., and made proferí thereof. To this replication defendant demurred, and demurrer overruled.
    The cause was submitted to the Court for trial, Purple, Judge, presiding, at November term, 1847. A judgment was renderdered for the plaintiff below, for the sum of $250 debt, to be satisfied by the payment of $171 17, the damages found, and costs of suit. The defendant below sued out this writ and assigned the errors.
    R. S. Blackwell, for plaintiff in error.
    Browning & Bushnell, for defendant in error.
   Opinion by Treat, 0. J.r

First. Was the demurrer properly sustained to the third plea? The plea alleges, in substance, that there was no such judgment before the justice, as is recited in the condition of the bond sued on. The defendant was estopped by the record from making such an allegation. The bond is set out in the declaration, and it distinctly states that a judgment had been rendered by the justice. The very object of the parties in executing the bond was to prevent the collection of thejudgment, and have the ease re-heard in the Circuit Court; and the bond was expressly conditioned for the payment of the judgment, in the event it should be affirmed. It was, therefore, a solemn admission by the defendant that there was such a judgment. He voluntarily entered into an engagement, under his hand and seal, for the payment of thejudgment; and he could not afterwards deny what he thus deliberately asserted to be true—the existence of the judgment. The principle of estoppel is clearly applicable. The fact which concluded the defendant from making the denial, appeared on the face of the declaration; and the estoppel was rightly insisted on by demurrer. Where the matter which operates as an estoppel appears in the declaration, the plaintiff may demur to a plea by which the defendant attempts to set up the same matter as a defence. But if the matter of estoppel does not appear on the face of the declaration, the plaintiff must, by a replication to the plea, expressly show such matter, and rely thereon. The following authorities abundantly show that the doctrine of estoppel applies in this case, and that the estoppel was properly raised by the demurrer. 1 Chitty’s Pl., 634-5; Rainsford vs. Smith, Dyer, 196, a; Kemp vs. Goodall, 2 Lord Raymond, 1154; Palmer vs. Elkins, ibid, 1554; Lainson vs. Tremere, 1 Adolphus & Ellis, 792; Bowman vs. Taylor, 2 ibid, 278; Trimble vs. The State, 4 Blackford, 435.

Second. It is insisted that the demurrer should have been carried back and sustained to the declaration. The declaration is inartificially drawn, and may not pursue the precedents, but we are inclined to the opinion that it is substantially good. It sets forth the execution and contents of the bond, and then alleges, with reasonable certainty, the trial of the case in the Circuit Court, the affirmance of the judgment, and the non-payment thereof. This shows a breach of the condition of the bond. The gisl of this action is the non-payment of the judgment rendered on the trial of the appeal. It was not incumbent on the plaintiff to aver that the justice had jurisdiction, or that the bond was filed in the office of the clerk of the Circuit Court. On the execution of the bond the appeal was perfected, and the bond became operative. The affirmance of the judgment fixed the liability of the defendant, whether the justice had jurisdiction or not, and whether the bond was ever returned by the justice to the Circuit Court or not. The rule may be different in actions on involuntary obligations, as recognizances, and the like. In such cases, it may be necessary to allege the jurisdiction, and that the obligation was returned to the proper Court, and became a record therein.

The condition of the bond is in full compliance with the requisitions of the statute. The fact that the penalty is not precisely double the amount of the judgment will not vitiate the bond. We do not understand the statute as requiring the bond, in all cases, to be in twice the amount of the judgment appealed from. In many cases such a bond would be manifestly insufficient. Suppose a judgment should be rendered in favor of a defendant for two dollars costs, could it be contended that a bond by the plaintiff, in the penalty of four dollars, would answer the object of the statute, which is, that the appellee shall be fully indemnified against any loss growing out of the appeal? The words in the form of the bond prescribed by the statute, here insert double the amount of the judgment and costs,” were not intended as a positive direction that the penalty should in all cases be exactly twice the amount of the judgment, and that a bond should be invalid'which varied from the direction. Where the judgment is for any considerable sum, a bond in double the amount will be sufficient. But where the judgment is for a nominal sum, officers are authorized, and it is their duly, to require a bond in a larger penalty than twice the amount of the judgment. The sum named in the penal part of a bond is the extent to which the obligors can be made responsible.

But if the statute was imperative, the bond would not be void. It would still be good as a voluntary obligation, based on the valuable consideration of having the case reviewed in the Circuit Court, and of delay to the appellee in the collection of his judgment. Fournier vs. Faggott, 3 Scammon, 347. There are some decisions which hold that a departure from the statute, as to the amount of the penalty, avoids the bond; but they are made in reference to involuntary obligations, such as bail bonds and recognizances, entered into by debtors and persons charged with criminal offences in order to be released from arrest.

This is not like the cases of Young vs. Mason, 3 Gilman, 55, and Sharp vs. Bedell, 5 Gilman, 88. In those cases, the conditions of the bonds were materially variant from the requisitions; of the statute. The obligors- had not covenanted as fully as the statute designed, and the Court held that their liability could not be extended beyond the fair import of their undertaking. Here the condition is as broad as the statute contemplates, and the obligors are responsible for all of the consequences resulting from the execution and breach of a statutory bond.

Let the judgment of the Circuit Court be affirmed, with costs,

Judgment affirmed.


author: Opinion by Mr. Justice Catón:

text:
    Beverly M. Curry, plaintiff in error, vs. William A. Hinman, defendant in error.

      Error to Schuyler.

    The copy of the judgment certified to a collector, on which lands are authorized to be sold for taxes, is not process, within the meaning of the seventh section of the fourth article of the constitution, and need not run in the name of “The People.”
    Where the Legislature has invested the Courts with a novel jurisdiction, and prescribed an original mode of proceeding, unknown to the common law, or not analogous thereto, such proceeding need not, unless the Legislature so directs, run in the name of “ The People.”
    A person claiming title adverse to a sheriff’s deed upon a sale for taxes, under tho seventy-third section of the revenue law, may avail himself of his rights, if the taxes due the state have been paid the state, no matter by whom they were paid. And a parly in possession, having a claim of title, is sufficient evidence that such party “had title to the land,” to enable him to maintain ejectment or to defend his title, under the provisions of the same section.
    This was an ejectment, brought by Hinman against Curry, in the Schuyler Circuit Court, for the recovery of the south-west quarter section twenty-seven, town, two north, range one, west of the fourth principal meridian, and tried before Mr. Justice Purple, and a jury, at the August term, A. D. 1847, when a verdict was found in favor of the defendant in error, and a judgment rendered thereon.

      From the hill of exceptions, it appears that the ■ plaintiff, in order to maintain the issue on his part, read in evidence, without objection, a judgment for taxes against the land in controversy, rendered at the March term, 1840, of the Schuyler Circuit Court; also a precept, issued to the sheriff of Schuyler, upon said judgment, in the usual form ; which was objected to, upon the ground that it did not run in the name of the people of the state of Illinois ; which objection was overruled by the Court, and an exception taken to the ruling of the Court. Also, a deed executed by the sheriff of Schuyler to George Little, the purchaser at the sale of said land for taxes, under the judgment and precept aforesaid, which conveyed the premises in controversy to the said George Little; to the reading of which defendant objected, but his objection was overruled, and the deed read in evidence to the jury; to which ruling of the Court defendant excepted. Plaintiff then connected himself with said tax title by mesne conveyances. It was then admitted that the defendant was in possession of the premises in controversy, on the day of the commencement of this suit, and the plaintiff rested. The defendant then read, .without objection, a patent for the land described in the declaration, from the United States to Daniel Huff, and then offered to read a deed from Huff to James Mackey, and a deed from Mackey and wife to Zadock McNew; which two last mentioned deeds were excluded from the jury by the Court, on the ground that they were defectively acknowledged. Defendant then proved the death of the said Zadock McNew, and that Elizabeth McNew, Zadock McNew, jr., and Polly, his wife, Eli McNew, and Mary Jane, his wife, and Betsy McNew, since intermarried with John McNeely, were his sole and only heirs at law, and thereupon read in evidence a deed from the said heirs to the defendant, dated November 9, 1838, conveying the premises in controversy, in fee simple, to the said defendant; which deed was properly acknowledged and recorded. To the reading of this deed plaintiff objected, but his objection was overruled. The defendant then proved that he entered into the possession of the said land under the said last mentioned deed, and had continued in possession of the same up to the time of the commencement of this suit, claiming title to said land in fee simple. The defendant then read in evidence, without objection, a receipt from the sheriff of Schuyler, for the taxes due upon the land in controversy for the year 1839, the year for the taxes of which said land was sold; also receipts for the taxes upon said land for the years 1843 and 1844, and closed the evidence on his part. This was all the evidence offered on the part of the said plaintiff or defendant. The following instruction was thereupon given to the jury, on the part of the said plaintiff: “The plaintiff in this case has shown prima facie a perfect legal title to the land in controversy. This cannot be defeated by the defendant, unless the jury believe, from the evidence, that the defendant had title to the said land at the time of the sale, and that all taxes due upon said land have been paid by the defendant, or his agent, or the person under whom he claims title. If, however, the defendant entered upon the land under the deed dated November 9, 1838, claiming title, and has continued in possession ever since, claiming title, this will constitute a title within the meaning of this instruction.”
    There were other instructions given by the Court in favor of the said plaintiff, but they are substantially the same as the one above set forth. To these instructions defendant objected and excepted. The jury found a verdict for the plaintiff, and defendant moved for a new trial; which was overruled, and exception taken. The errors assigned are: first, admitting the precept in evidence ; second, giving the plaintiff’s instructions ; third, in overruling defendant’s motion for a new trial.
    A. Williams and R. S. Blackwell, for plaintiff in error.
    Browning & Bushnell, for defendant in error.
   Opinion by Mr. Justice Catón:

It has been earnestly insisted that the copy of the judgment which was certified to the collector, and on which the lands in question were sold for taxes, was process, within the meaning-of the seventh section of the fourth article of the constitution, and should have run in the name of “ The People.” That section provides, that “ all process, writs and other proceedings,shall run in the name of The People of the state of Illinois." It Is manifest that these words cannot be taken in their broadest sense, if it is understood that they are to appear upon the face of every act and proceeding to which they are applicable, as proclaiming the authority by which the act is done, or else every order that is made, or judgment rendered by a Court, would have to show upon its face these words, for other proceeding” would embrace every act which is done in the administration of the government and the laws, depending for its validity upon power delegated by the people. No one will contend that such is the meaning of the constitution. These words, then, must be construed so as to limit their application, and in order to determine what that limitation shall be, we must seek for the object designed to be accomplished by the insertion of the clause quoted. This object is manifest. It was to provide a name or title by which the sovereign power of the state should be designated. In England, the King is supposed to be the fountain of justice and the source of power, and that sovereign power is there designated by his name and title. In Kentucky, and some of the other states, it is “ The Commonwealth;” in Missouri, and some others, it is “ The State.” Here it is “ The People,” &c. Where, by the law of England, whence we have mainly borrowed our system of jurisprudence, writs or process are issued, or other proceedings are had expressly in the name of the King, here they should run in the name of The People.” The latter is to be used instead of the former. The meaning is not that every thing shall be done expressly in the name of “ The People,” but that nothing shall be done in any other name. Whenever the name of the sovereign power is invoked or expressed, that shall be its designation.

An examination of the English practice will show that, generally, where a separate mandate goes forth, under the sanction of the sovereign power, commanding in express terms an officer or subject to do or not to do a particular thing in pais which has been ordered or restrained in Court, as auxiliary to, and for the purpose of executing such order, or commanding something to be done preparatory to some other action, as the arrest of a party, there such command usually runs in the name of the sovereign power; but where an order is made directing a thing or act to be done or forborne, either in general terms or by a particular officer or person, but for the doing or forbearing of which no separate and further command is required to be issued, but which order of itself directs its own execution, that order need not run in the name of the sovereign power, nor need the certified copy which informs the officer or person who is to see it executed, of what has been ordered. There the command is the original order, of which the copy is the evidence and not the auxiliary, although without such evidence of the original the officer might not be authorized to execute it. Analogies are to be looked to and considered. When our Legislature directs process to be issued, which was known to the English law, and was there required to run in the name of the King, or where they have provided equivalents for such process, as our summons, in place of the original process in the English Courts, and our execution, or the fee bill, which the statute directs shall have the same force and effect of an execution, in place of the final process there, then such process here must run in the name of “ The People.” Where, however, the Legislature has invested the Courts with a novel jurisdiction, and prescribed an original mode of proceeding, unknown to the laws of England, and with which no analogy can there be found, such proceedings need not run in the name of “ The People,” unless the Legislature specially so directs. Of this character is the proceeding by an administrator to subject the real estate of his intestate to sale, for the payment of debts. There neither original or final process is used. An order is made directing the specific land to be sold, like the. order of the Court of Chancery, upon the foreclosure of a mortgage, or the judgment of the Court directing specified land to he sold for taxes. In all these cases a certified copy of the order, decree or judgment, or by whatever name the adjudication may, for convenience, be called, is all the process or authority which the officer, or person who is to carry them into effect, is required to have, and till now it has never been supposed that either was of that character of proceeding which by the constitution is required to run in the name of “ The People.” Of the two first of these proceedings, probably no one will now contend that any mandatory authority, running in the name of “ The People,” must he issued - to authorize the sale, or that any thing more than simply a certified copy of the order is necessary. It may be said that even this is not required by the law. That may be true, but still the Court may make such a copy indispensable to a valid sale, and it would probably always be better that such copy should issue; and if required by the order of the Court, surely such copy-need not run in the name of “ The People,” although the Court, in the language of this statute, should, in its order, declare that such copy should “ constitute the process on which” the sale should be made. Whether the Court or the Legislature, either of which may make a copy of the order indispensable to a valid sale, chooses to designate it by the name of process, it is not thereby made process, within the meaning of the constitution. Either might, with the same propriety, have called them by any other name, but still they would be but copies of the order, decree or judgment. The meaning of this constitution does not change with a name, else, instead of being a law to the Legislature, it is a flexible instrument in their hands, imposing no restraint, and defining no rule of action. They can no more say that process means now what it did not when it was inserted in the constitution, than they can say that it does not mean now what it did then, and if they can do the latter they can abrogate that paramount law. If by calling this process, they cannot change the meaning of the word and make it so, then it is no more process than if they had not given it that name.

Having shown what, as we believe, is the true and unalterable meaning of the constitution, we have a basis upon which we can proceed to a more critical examination of this proceeding.

The revenue law imposes a tax upon the taxable property, of which the assessor in each county is to make a list, and prescribes the mode of assessment; which list and assessment has to be returned to the county clerk. A copy of this list, with the assessment, is furnished to the collector, who is required to collect the same, if necessary, by levying upon the property of the persons against whom the taxes are assessed. In case he is unable to collect the taxes due upon real estate, he is directed to apply to the Circuit Court for judgment against the lands assessed, after having given the requisite notice. The Court is required to hear any defence to the application of the collector for judgment, in a summary way, and without pleadings in writing; and if no defence is made, the Court is required to render judgment against the lands, the form of which is given in the statute, with the following conclusion, which contains the only command to be met with in the whole proceeding: “ And it is ordered by the Court that the said several tracts of land, or so much thereof as shall be sufficient of each of them, to satisfy the amount of taxes, interest and costs annexed to them severally, to be sold as the law directs.” The entry of this order is the only judgment which is rendered by the Court. The sixtieth section directs the clerk “to make out, under the seal of the Court, a copy of the collector’s report, together with the order of the Court thereon, which shall hereafter constitute the process on which all lands shall be sold for taxes, and deliver the same to the collector.” It would be difficult for any person to show how this order is, in legal contemplation, any more like a common law judgment than the order directing the lands of an intestate to be sold, or the decree ordering mortgaged premises to be sold; or how the copy of this order delivered to the collector has any more the character or attributes of a common law writ of execution, than a copy of either of the former orders, delivered to the administrator or master in chancery. The truth is, that it has not one single attribute of an execution at law, or of any other proceeding or process which used to run in the name of the King, and it would never have occurred to any lawyer that it could be process, if the Legislature had not so called it. But for this legislative christening he would almost as soon have thought of calling it an indictment. We have already attempted to show that the Legislature could, not, by calling names, change the meaning of the constitution. Let us omit this name, and look at the substance of the thing. Had the Legislature called this an order for the sale of land, of which the clerk should furnish the collector with a certified copy, who should thereupon sell the land as directed in the original order, the substance of the law would have been the same, and if such copy would not have been process then, it is not now. If the nature and substance of the proceeding is to govern, and we hold this to be process, then we must overturn all sales which have been made where the name of “The People ” does not expressly appear upon the face of the authority by which they were conducted ; and where shall we end, in our terrible reform P With equal if not more propriety might it be contended, that the assessment list with which the collector is furnished under the thirty-first section, is process, and should have this constitutional head to make it valid, for under it he is not only required to sell property but he must also levy upon and seize it. It may be answered, that in that case there is as yet no judgment on which an execution could issue; but, as specious arguments may be found to prove that the assessor—an officer appointed by law for that purpose—had adjudged that the persons named should pay the taxes assessed against them, and thus make out a judgment, and then when we had finally admitted that there was a judgment, the constitution would again be appealed to, for the purpose of proving that the citizen is protected from such ex parte judgments, and we should end in overturning every thing, and the Legislature might well despair of ever being able to collect a revenue in a constitutional way. We are not permitted, even if we were disposed, thus to pervert that instrument, and make it an oppressive yoke to the Legislature, rather than a protection to the citizen against injustice. The Legislature never designed, by the force of the statute itself, to provide that this copy of the order should run in the name of “ The People,” and we think they have not unintentionally made it necessary by the name which they have given it. We are well satisfied that the Circuit Court decided correctly in admitting this evidence.

Two questions arise in this case, under the seventy-third section of the same law. The first is, what taxes must have been paid by the party adverse to the tax title ; and secondly, what title to the premises must he show in himself, before he shall be permitted to contest the validity of the tax deed. That section provides, that the tax deed shall be prima fade evidence of seven specified facts, the second of which is, “that the taxes were not paid at any time before the sale.” It also provides, that, in order to defeat a tax deed, it must be proved “ either that the said land was not subject to taxation at the date of the sale; that the taxes had been paid; that the land had never been listed and assessed for taxation, or that the same had been redeemed.” And again, by the same section, that no person shall be permitted to question the tax title, without first showing that he or his grantor “ had title to the land at the time of the sale, or that the title was obtained from the United States or this state, after the sale, and that all taxes due upon the land have been paid by such person, or their agent, or the person under whom he claims title as aforesaid.” What taxes are referred to in the last clause ? This is capable of four different constructions, neither of which is entirely free from objection. The first is, that all taxes which have accrued upon the land since the tax sale, are meant; second, that the party must show that he has paid all taxes that have ever been due upon the land ; third, that he had paid the tax for which the land was sold 3 and, fourth, that he had paid all taxes due upon the land, or which remained unpaid upon the land.

The Circuit Court adopted the first of these constructions. To this the objections are so serious that we are not willing to adopt it. The language does not require it. The expression “ all taxes due ” is perhaps as ambiguous as any that could have been selected, if it is understood as referring to taxes which had previously accrued, and might have been paid by some one. There is no express warrant for saying that it means those taxes, and those only, which have accrued since the sale, and we cannot believe that the Legislature intended to bar all objections, and forever, to an illegal and void sale, and thus throw an impenetrable shield over a void title, not because the real owner had not paid the taxes when he should have done, but because he did not pay them at the earliest possible moment, when they could have been paid 3 or rather, because he was outstripped in a race to the collector’s office, by one who was in effect attempting to defraud him of his land, by forestalling him in the payment of his taxes ; for it would be nothing less, at least, than a moral fraud to close the door against all defence to a void title, without any fault or negligence on the part of the real owner. If he pays his taxes within the time prescribed by law, he is as blameless as if he had paid them the first instant that they became due. To say nothing of the power of the Legislature thus, in effect, to divest an innocent man of his property, and give, it to another, the monstrous injustice of such a law is too glaring to admit of that construction, if one more just and reasonable can be given to it. With such a construction, the collector would have the sole power of determining who should have the land, by receiving the taxes from one or the other, when both stood by insisting upon the right of paying them. Such cannot be the meaning of this law.

The same objections apply with even greater force to the second construction suggested.

The third, which was contended for by the counsel for the appellant, is that the real owner must show that he had paid the taxes for which the land was sold, before he shall be permitted to defend against the tax deed. This construction, although much more consonant to the principles of justice than the two former, and at least as much within the letter of the law, still we think is not the true one. By this construction, the party must first prove, in order to be permitted to defend against the deed, the same thing, and even more than he is required to establish, in order to defeat the deed itself, for in addition to the proof that he had paid the taxes for which the land was sold, which of itself would show that the sale was illegal, he would have to establish that he had title to the land.55 Now, this can hardly be supposed to have been the intention of the Legislature. Ordinarily, the party ought only to be required once to prove the same fact on the same trial. We are disposed to adopt a construction at once more literal and at the same time more liberal, and more consonant to the principles of justice and the object which we think the Legislature had in view in the enactment of the clause under consideration. That object was, not to allow the party to appear in Court and urge a defence, while he was still indebted to the state for taxes on the land in controversy, but to compel him to come into Court with clean hands—to make a continued indebtedness for those taxes a disability in the delinquent party, which he must remove by satisfying the claims of the state before he should be allowed to avail himself of the legal tribunals of the state, to enforce even a legal defence. The words of the statute are, “ and that all taxes due upon the land have been paid by such person.” If no taxes remain due,, then, of course, he is required to pay none to remove the disability contemplated by the statute. If any are due, then he must pay them before he shall be heard in Court. We should be very loth to say that the Legislature intended to create a permanent disability which the party by no possibility could remove. That would be doing indirectly what they could not do directly. To debar an innocent party altogether of the privilege to prosecute or defend a right in the Courts of justice, is equivalent to taking the right from him altogether. The latter they cannot constitutionally do. The former we will not presume they intended to do. It is of no moment to the state who pays the taxes, if she but gets them. Even though they were collected by a sale of the land, her demand is satisfied, and she has no further cause of complaint. If the lands have been offered for sale for the taxes, and for the want of bidders have been forfeited to the state, then the tax for which they were forfeited remains due to the state, and under the seventy-seventh section, in order to remove the disability created, the party must redeem the premises by paying “ all taxes due upon the land.” This we think is the most liberal, just and reasonable construction of the statute, and the one which ought to be adopted.

The only remaining question may be disposed of in few words. That arises under the portion of the seventy-third section already quoted. What title to the land must the party show in himself, before he shall be permitted to attack the tax deed ? The object of the act was to prevent a mere stranger and wrongdoer, who could lose nothing by the tax sale, from interfering with it, or defending against it. The Circuit Court decided that possession, with a claim of title, was sufficient evidence that the party “ had title to the land.” In this we have no doubt that Court was correct. That would be sufficient evidence of title as against an intruder or trespasser, even to maintain ejectment; and surely no higher evidence of title should be required to allow the party to defend his possession and claim of title, by showing that the claim set up against him was groundless. If he shows that he had any title which is known to and recognized by the law, that is sufficient to entitle him to defend that title. This is conformable to the opinion already expressed by this Court, upon the same statute, in the case of Lusk vs. Harper, 3 Gilman, 158. Whether it was a question for the Court, or the jury, we think the view of the law taken by the Circuit Court was correct. Upon the second question examined, however, we think the Court erred, and for that reason alone the judgment must be reversed, with costs, and the cause remanded.

Judgment reversed.


author: Opinion by Treat, C. J.:

text:
    Willard Graves, plaintiff in error, vs. Herman Bruen et al., devisees, &c., defendants in error.

      Error to Jldams.

    The statute of 1829, for fcho collection of revenue, dispenses with the rule of the common law which required a party claiming title under special proceedings authorized by statute, by which the estate of one man may be divested and transferred to another, to prove that all the material requisitions of the statute have been complied with, and places the burden of proof, in the first instance, on the party controverting the title claimed under the Auditor's deed.
    The listing of lands under this statute is a fundamental requisition, the basis of the right to charge the taxes, and sell the land; and if there was no listing, all sales of land under it were unauthorized and void.
    A party is not required to make plenary proof of a negative averment. It is enough that he introduces such testimony as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true; when this is done the onus probandi will be thrown on his adversary.
    It was the duty of the Auditor to keep books for the listing of the lands, and to preserve the listing of the lands, and the verification of the same by the parties; and if he omitted to do so, it does not relieve a party asserting a tax title from the necessity of proving the listing of the land, by the best evidence of which the nature of the case is susceptible.
    This was an action of ejectment, brought in the Adams Circuit Court, to recover from Graves the possession of the northeast quarter of section number thirteen, in township one south of the base line, in range seven west of the fourth principal meridian. The defendant, in his plea of the general issue, admitted the possession of the premises, and waived all proof in relation thereto. The case was submitted to the Court for trial, without the intervention of a jury. The Court, Minshall, Judge, found for the plaintiffs below, and gave judgment accordingly. Motion for a new trial was made and denied. The defendant then filed his bill of exceptions, which is substantially as follows:
    The plaintiffs, to maintain the issue on their part, produced and read in evidence to the Court, a deed executed by the Auditor of state, in due form of law, under his official seal, dated the 2d of March, A. D. 1840, conveying the land in controversy to Mathias Bruen, the original plaintiff in this action, in pursuance of a sale to him by said Auditor, on the tenth day of January, A. D. 1832, but said deed was never recorded in the county of Adams. • The plaintiffs also proved the decease of Mathias Bruen, his last will, Sic., and their right to the premises in controversy.
    The defendant, to prove the title out of the plaintiffs, and a paramount title in himself, read in evidence a patent from the United States for the said land, to Robert J. L. Austin, dated 6th October, 1817, and a deed, acknowledged, &c., from said Austin to him, dated 17th July, 1837.
    To the reading of all which the plaintiffs objected, and the Court sustained the objection. The defendant below, to defeat the title of the plaintiffs under the tax deed, proved that there was not, at the time of the trial, any copy of the Auditor’s advertisement for the sale of said lands, for the taxes of 1832, on file in the office of the clerk of the county commissioners’ court of said Adams county; and also read in evidence the deposition of Thomas H. Campbell, the Auditor of the state, as follows :

      “ I hold the office of Auditor of Public Accounts for the state of Illinois ; I have held said office since the month of March, A. D. 1846; I was employed in said office from February, A. D. 1843, till I was appointed Auditor.
    “ Question 3. Please state in what manner the north half of section twenty-four, in town, four, and range six, west of the fourth principal meridian, was listed for taxation in said office, from the year 1828 till the year 1836, inclusive?
    “ Answer. So far as I have been able to ascertain, from the books and records on file in my said office, this diagram, marked A, and made a part of my answer, will show the listing of said land, together with others.
    “ Question 4. Is or is not the said diagram an exact copy from the tax books in your said office ?

      “ Answer. It is an exact copy of said tax books, so far as relates to the tracts of land therein described, for the time aforesaid.
    “ Question 5. Does it or does it not contain every thing in said books relating to the tracts of land described in said diagram, for the years aforesaid?

      “ Answer. It does.

      “ Question 6. Will you please state whether the said lands are listed in any other manner, in any other books or files belonging to your said office, for the years aforesaid.

      “ Answer. Not to my knowledge. I have examined carefully, and I do not find any different entries or listings of said land, in any of the books or files of my said office.
    “ Question 7. The fifth column in the diagram shown by you has no heading. Will you please state whether there is or is not any heading to that column, in any part of the book from which the diagram is copied. State, also, from what part of said book the first entry in said diagram is copied ?

      “Answer. There is no heading to said fifth column.in any part of said book. The first entry in the diagram is copied from the first page of the book, and is the first entry on said page.
    “ Question by plaintiffs on cross-examination. Will you state what the said fifth column, of which you say there is no heading, contains; what is the use of it; what kind of entries are made in it?

      “ .Answer. The names of counties in which the lands were situated appear to be entered in said column.”

      Note by the Reporter.—The names of the patentees and present owners, in the third and fourth columns of the original diagram, and the two last columns, for 1835 and 1836, are omitted, because not necessary to an understanding of the questions involved in the case, and because, to give an exact copy of the diagram, it would be necessary tov give it in map form, which would be inconvenient in a law volume.

      To the reading and introduction of all which, plaintiffs below objected. Objection overruled.
    The defendant below brings this case to this Court, and assigns for error, that judgment was wrongfully entered for the plaintiffs ; that the Court erred in permitting the tax deed offered by the plaintiffs to be read in evidence, and in refusing to let the defendant read in evidence the said patent and deed, showing a paramount title in him, and also in refusing a motion for a new trial.
    Williams & Lawrence, and R. S. Blackwell, for plaintiff in error.
    Browning & Bushnell, for the defendants in error.
   Opinion by Treat, C. J.:

The deed from the Auditor recites a sale of the land in question, on the 10th of January, 1833, for the taxes due thereon for the year 1832. The 9th section of the act of the 19th of January, 1829, in force when the sale was made, declares that a deed from the Auditor of Public Accounts shall be evidence of the regularity and legality of the sale, until the contrary shall be made to appear; Provided, however, that no exceptions shall be taken to any such deed, but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intentions of the Legislature.” It has been decided by this Court that an Auditor’s deed, executed under the provisions of this act, affords prima facie evidence of the regularity and validity of the sale, and of the proceedings anterior thereto, and is sufficient, unconnected with other proof, to entitle a party claiming under it to recover. Vance vs. Schuyler, 1 Gilman, 160; Messenger vs. Germain, ibid, 631; Rhinehart vs. Schuyler, 2 Gilman, 473; Job vs. Tibbetts, 5 Gilman, 376.

According to the principles of the common law, a party claiming title under special proceedings authorized by statute, by which the estate of one man may he divested and transferred to another, is bound to prove that all of the material requisitions of the statute have been complied with, or he acquires no title. Rex n. Croke, 1 Cowper, 15; Davidson vs. Gill, 1 East, 64; Williams vs. Peyton’s lessee, 4 Wheaton, 77; Jackson vs. Shephard, 7 Cowen, 88; Thatcher vs. Powell, 6 Wheaton, 119; Atkins vs. Kinman, 20 Wendell, 241; Smith vs. Hileman, 1 Scammon, 323. And this doctrine has been applied by this Court, with much strictness, to cases of sales of land for the non-payment of taxes. Garrett vs. Wiggins, 1 Scammon, 335; Hill vs. Leonard, 4 Scammon, 140; Fitch vs. Pinckard, ibid, 69.

But the statute of 1829, as this Court has held, dispenses with this rule of the common law, and places the burden of proof, in the first instance, on the party controverting the title claimed under the Auditor’s deed. The presumption arises from the deed that all of the prerequisites, necessary to constitute a valid sale of the land, were complied with; and the party asserting the reverse must overcome this presumption by proof, or the deed will conclude him.

The plaintiffs below made out a prima facie case of title to the land, by the production of the Auditor’s deed, and the proof that they were the legal representatives of the purchaser at the sale. They are, therefore, entitled to recover, unless thatymma facie case was destroyed by the proof introduced by the-defendant. It will be proper to inquire, in the first place, what it would have been necessary for the plaintiffs to establish, had the burden of proof not been changed by statute; for if the defendant repelled the presumption raised by the statute, it was then incumbent on the plaintiffs, in order to sustain the deed, to have proved all that would be required of them, in the absence of any presumption in favor of the deed.

A reference to some of the provisions of the statutes in force when this sale was made, will become necessary. The 20th section of the 8th article of the old constitution declares “ that the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession.” The 1st section of the act of the 19th of February, 1827, provides that lands “are hereby declared subject to taxation; and for that purpose, are hereby divided into classes, valued and taxed as follows: lands of the first quality shall compose the first class, shall be valued at four dollars, and taxed at the rate of two cents per acre; lands of the second quality shall compose the second class, shall be valued at three dollars, and taxed at the rate of one and a half cents per acre; lands of the third quality shall compose the third class, shall be valued at two dollars, and taxed at the rate, of one cent per acre.” The 2d section provides that all nonresidents, owning or claiming lands in this state, shall, either byr themselves or agents, enter the same in the office of the Auditor of Public Accounts, particularly describing the land, and the class to which each tract belongs, accompanied with an affidavit of such non-resident, or his agent, stating that such list contains a true classification and description of the property therein described, to the best of the deponent’s knowledge and belief. Such non-resident shall not be required to list his lands more than once ; but the Auditor shall annually charge the lands described in such list, with the taxes, according to the description contained in the same, until it shall be listed in a different manner. Every non-resident shall pay into the state treasury, on or before the first day of August annually, the tax imposed upon his land by this act.” The 3d section makes it the duty of the Auditor, after the 1st day of August, in each year, to make out a transcript from his books of all lands owned by non-residents, on which taxes are due and unpaid, and cause the same, together with a notice of the time and place of sale, to be published in some newspaper printed in the state. The 4th section requires the Auditor to sell the lands thus advertised on the first. Monday of January, and convey the same to the purchaser. The 9th section of the act of the 19th of January, 1829, declares the legal effect of the Auditor’s deed, as before recited. The 2d section of the act of the 1st of January, 1831, repeals so much of the act of 1827 Cias authorized a class of third rate land for taxation;” and the 3d section requires the Auditor to list lands for taxation, on the failure of the owner so to do.

This Court decided, in the case of Rhinehart vs. Schuyler, 2 Gilman, 473, that these revenue laws were constitutional; but the decision was put expressly on the ground that a classification of the lands, in pursuance of their provisions, was a valuation within the true intent and meaning of the constitution. It necessarily follows that the listing, which includes a description and classification of the land, is not only an essential requirement of the statute, but one that cannot be dispensed with without invalidating the statute. In a double sense, it is an indispensable prerequisite: first, to satisfy the plain demands of the statute; and second, to give life and energy to the statute itself. To hold that listing was unnecessary would be to pronounce the revenue laws unconstitutional and void. If they are to have any operation, this fundamental requisition must be observed. On it depends the validity of all of the subsequent proceedings. It is the first and most important step in the proceedings, and the basis of the right to charge the taxes, and sell the land for the non-payment thereof. The Auditor cannot legally charge the taxes, or take any step towards their collection, until the land has been duly listed. The amount of the tax depends on the class to which the land belongs, and that is to be determined by the listing. The listing under these revenue laws, was as essential as if the constitution had in express terms prescribed it as the proper mode of valuing lands for taxation. It could no more be dispensed with than can an assessment under our present revenue system. In every point of view, listing was a necessary prerequisite to a valid sale of the land. It was demanded by the soundest principles of the common law, the plainest dictates of. justice, the positive directions of the statute, and the imperative requirements of the constitution.

But it is said that if listing was indispensable, the state, from 1821 to 1831, was at the mercy of non-residents, and had no power to collect taxes on their lands except with their consent— they alone being authorized and required to list them for taxation. Admit this position to be true, and it does not help the case. If the revenue laws were so defective as to produce such a result, it would not authorize a sale of the lands of nonresidents without a previous classification, much less justify a clear departure from the requirements of the constitution. The injunctions of the constitution are not to be disregarded because the Legislature has failed to perform its whole duty. If the question was now directly before us, we should be inclined to decide that, by a fair construction of the revenue laws, the Auditor had authority to list lands for taxation, on the failure of the owner so to do. But for the year in question, he was expressly required to list lands on the default of the owner. We have not the slightest hesitation.in holding, that if there was in fact no listing of the land in question, either by the owner or the Auditor, the sale was unauthorized and void, and no title passed to the purchaser.

The question then arises, whether the presumption raised by the deed that the land was duly listed was rebutted by the defendant. The Auditor swears that the diagram accompanying his deposition embraces all of the evidence appearing in the records and files of his office; that the land was listed for taxation for the year 1832, or the four preceding years. This diagram, at most, only shows the amount of taxes charged against the land in each of those years. It fails to show any classification of the land. The foundation of the authority to charge and collect the taxes is wanting. The act of 1831 abolished the third class, and a new listing then became necessary. It did not follow that lands previously included in the second class would, upon a new valuation, continue in the same class. We are at a loss to conceive how a negative could be more clearly-proved than was done in this case. The defendant went to the office where the listing was required to be made, and procured all of the evidence there to be found relating to the matter; and that evidence fails wholly to show that there was any listing of the land.

But put the case on the ground that a new classification was not really necessary after the passage of the law of 1831, and that the Auditor might still charge the taxes on a previous listing, and we are clearly satisfied that the presumption was overthrown. A party is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true; and when this is done, the onus probandi will be thrown on his adversary. 1 Greenieaf’s Ev., S. 78. The defendant proved that for the year in question, and the four preceding years, there had been no listing of the land ; and that nothing appeared in the records and files of the Auditor’s office, during those years, in the least indicating any prior listing. This was amply sufficient to destroy the presumption, and transfer the burden of proof to the plaintiffs, and require them to show affirmatively such a listing of the land as authorized the Auditor to charge the taxes, and enforce their collection. This is a much stronger case than that of Calder vs. Rutherford, 3 Broderip and Bingham, 302. There the defendant agreed to pay the plaintiff one hundred pounds if he would not consign, for one year, directly or indirectly, any repacked herrings to the London market, and, in particular, to the house of J. & A. Millar. In an action to recover the one hundred pounds, the plaintiff proved that he did not consign, during the year, any repacked herrings to the house of J. & A. M. For the defendant it was objected, that the plaintiff’s proof was insufficient, and that he should have called his clerk to show that no herrings were consigned to the London market generally. But the Court refused to set aside a verdict for the plaintiff on this testimony, because “some evidence was given in proof of the negative averment, and that threw it 'on the other party to go farther.”

It is insisted that the Auditor was not required to keep books, or preserve the evidence of the listings of land for taxation. The revénue laws did not in express terms require that to be done, but such was the evident intention of the Legislature. It was necessary from the nature of the office, and the character of the duties cast upon the, Auditor. Tile laws recognize the existence of books in the office, and require the performance of duties that render the keeping of them indispensable. It is made the duty of the Auditor to procure abstracts from the several land offices of all lands entered therein; to cause maps to be made of the several counties in which taxable lands are situated; to furnish each county with a book containing a description of every tract of land within the county, designating such as are reserved for school, seminary and saline purposes, and stating, as to each tract entered, the name of the patentee and present owner, and whether belonging to residents or non-residents ; to charge taxes annually on the lands owned by non-residents ; to make transcripts from his books of the lands to be advertised for sale; to allow redemptions from sales, and file the evidence of the right to redeem; and “ the books and records belonging to the office of the Auditor 'of Public Accounts shall be sufficient evidence to prove the sale of any tract of land for taxes, or the redemption of the same, or the payment of taxes thereon.” These references—and many others might be made— clearly show that boobs were necessary, and that the keeping of them was designed by the Legislature. The listing of land by the owner was required to be made in writing, and verified by affidavit, and it was the duty of the Auditor to preserve the papers as part of the files of his office. When land was classified by the Auditor, on the default of the owner, he was bound to preserve the evidence of his acts by proper entries in his hooks. If he neglected his duty in these respects, it might increase the difficulty of proving the listing, but would constitute no legal excuse for omitting to make the proof altogether. It would not relieve the plaintiffs from the necessity of proving the listing in some legitimate way. If the evidence of the listing was not preserved in the records or files of the office, they should be allowed to prove a compliance with the provisions of the statute by the best evidence of which the nature of the case is susceptible.

The presumption that the land had been duly listed for taxation was rebutted by the defendant; and the plaintiffs failing to prove affirmatively a legal listing, they were not entitled to recover. The pro forma decision of the Circuit Court was therefore erroneous, and its judgment must be reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Jonathan A. Scarritt, plaintiff in error, vs. Sarah Ann Chapman, defendant in error.

      Error to Madison.

    The precept under which the sheriff makes sale of lands for the non-payment- of fcaxe>', need not run in the name of the people.
    This was an action of debt, brought by defendant in error under the statute to recover penalties for cutting trees. The defendant below admitted the cutting and carrying away of the trees at the time and place mentioned in the declaration, and the only question contested was, whether the plaintiff below had a good title in fee simple to the land on which the timber was cut.
    It was agreed that one Robert W. Finch, under whom the defendant below claimed title, was the owner in fee simple of the land on which the trees were cut, at the time the same was sold for the non-payment of taxes. Whereupon the plaintiff below, to prove the tax title of the person under whom she claimed, offered in evidence a judgment against the land in the declaration mentioned, for taxes rendered in the Madison Circuit Court, Á. D. 1845. The plaintiff then offered to read in evidence the process upon which the land was sold, and which was issued on said judgment. The defendant objected to the reading of this, because such process did not run in the name of the people, and because it was not directed to the sheriff of Madison county. Thereupon plaintiff’s counsel moved to amend said process, by adding to the beginning of said process, the words “ The People of the state of Illinois to the sheriff of Madison county—Greeting;” which motion was allowed, and said amendment was accordingly made. The plaintiff below then offered in evidence a deed for the land in the declaration mentioned, from the sheriff of Madison county to one Chapman, under and by virtue of the sale made on said process; and also a deed from said Chapman to the said plaintiff; which being all the evidence offered, the Court, Underwood, Judge, presiding, at the March term, 1849, found for the plaintiff, and rendered judgment against the defendant below for eight dollars, and costs. Thereupon said defendant sued out this writ of error, and assigns for error, the allowing of the amendment, and that the process under which the land was sold was void, because it did not run in the name of the people.
    Levi Davis and Nelson G. Edwards, for plaintiff in error»
    Wm. Martin, for defendant in error.
   Opinion by Treat, C. J.:

The only question in this case is whether the precept, under which the sheriff makes sale of lands for the non-payment of taxes, must run in the name of the people of the state of Illinois. The precise question was before the Court in the case of Curry vs. Hinman, ante, 420; and it was there held that the precept is not process, within the meaning of the constitution, and need not, therefore, run in the name of the people. The Circuit Court having so decided, its judgment will be affirmed, with costs.

Judgment affirmed»