
    Ward Woodward v. William B. Sloan. Ann McWilliams v. Same. Andrew Lighter v. Same.
    1. An auditor’s deed for forfeited land, sold under the act of March 14,1831,. is prima facie evidence of title, without any preliminary proof.
    2. The effect of the act is to change the burden of proof, which before rested upon the purchaser to sustain the deed, and casts it upon the-party who would contest its validity.
    3. The deed must recite enough of the proceedings to show authority to sell-the land, and authorize the officer to make the deed.
    4. Where the evidence disproves the authority recited in the deed, the title-purporting to be conveyed thereby fails.
    6. Lands can not be claimed as forfeited to the state for nonpayment of taxes, without a strict compliance with the statute authorizing the forfeiture..
    6. Where the forfeiture recited in the deed was, that the land was not sold for want of bidders at a specified date, and the evidence shows that the land is not contained in the delinquent sale list of that date, there is a. want of such compliance with the statute as will authorize a forfeiture.
    7. A reforfeiture of land for unpaid taxes, predicated on an unauthorized forfeiture of - the same, is unwarranted and invalid.
    8. Where the facts alleged, by way of defense, in an answer, are not denied. in the reply, and the case proceeds to trial upon the evidence, as if such facts were denied, without objection or exception until after the judgment of the Court of Common Pleas has been affirmed by the District Court, the judgment will not be reversed on the ground that the answer was not denied in the reply.
    Error to the District Court of Henry county.
    , William B. Sloan commenced his action against Ward Woodward, in the Court of Common Pleas of Henry county, to recover possession of eighty acres of land. Woodward denied his title, and set up, by way of defense, seven years possession of the land under a tax title.
    On the trial, Sloan gave in evidence a tax deed of the-land made in 1837, and rested. Woodward gave in evidence deeds showing title in the same land in him, derived under an auditor’s deed of forfeited lands, which recited that the land was forfeited to the state on the second Monday of January, 1848, being then offered for sale, and not sold for want of bidders. It further appeared, among other things, that “ the delinquent sale list of January, 1847, and January, 1848, did not contain a description of the lands in controversy.” , Evidence was given in regard to possession under the tax title.
    The case was submitted to the court, and judgment was rendered in favor of Sloan. W oodward filed a motion for a new trial, on the ground that the judgment was against the law and the evidence. The motion was overruled, and a bill of exceptions was taken embodying the evidence. On error to the District Court the judgment was affirmed. To reverse these judgments, a petition in error was filed in the Supreme Court.
    
      Osborn $ Swayne, with whom was J. M. Haag, for plaintiffs in error.
    This was a deed for the sale of lands forfeited to the State of Ohio, under the act of March 14,1831.
    The auditor’s deed is prima facie evidence of a good title. Turney v. Yeoman, 14 Ohio, 207; Stanberry v. Dills, 13 Ohio St. 571; Lamb v. Gillett, 6 McLean, 365; Cooley on Taxation, 355.
    We do not think it necessary that the “ delinquent-list ” should have contained a description of these lauds. In practice, it was probably done; but it was not necessary, as the-time to sell the forfeited lands was not the same as that of selling delinquent lands, and so, very properly, it ought to-be omitted from that list.
    
      a
    
    Length of time raises a presumption in favor of the regularity of the official proceedings. Reed v. Goodyear, 17 S. & R. (Pa.) 350; Ward v. Barrows, 2 Ohio St. 241; Lessee of Winder v. Starling, 7 Ohio (pt. 1), 190; Sheldon v. Coates, 10 Ohio, 278; Gwynne v. Nisewanger, 18 Ohio, 400; Cooley on Taxation, 332.
    
      As to the proof necessary to overcome the prima facie case of the auditor’s deed. Lacey v. Davis and McFarren, 4 Mich. 140; Case v. Dean, 16 Mich. 12.
    By the fourth defense contained in the .answer, it is .averred that Durbin went into possession by virtue of his tax purchase, on the first day of January, 1851, and that he continued in the open and notorious possession for a period of more than seven years, and, by reason thereof, that his title became perfect.
    It is somewhat remarkable that the record shows no reply to this defense. If there was no reply, then the fact is admitted as sot up in that defense, and it was error to have given the plaintiff judgment.
    
      F. &¡ E. T. Waite and Clayton W. Fverett, for defendant 'in error.
    The auditor’s deed is prima facie evidence only of the facts therein recited, and the burden of proving that the proceedings, under which the sale was made,-were irregular ..and the sale invalid, is upon the party contesting its validity.
    This deed, in effect, raised the presumption that the sale was regular and the title a valid one; but if the plaintiff ■could prove that any one of the facts, material to be alleged in the deed, for the purpose of showing the authority of the auditor to execute it, were not true, then this presumption would be repelled, and the bimlen of proof would be shifted from the plaintiff on to the defendants.
    The deed, then, was prima facie evidence that this land had been legally forfeited to the State of Ohio, at a sale of ■delinquent lands, held on the second Monday of January, A. d. 1848; l^ut if Sloan could rebut this, by showing that there was no legal forfeiture of this land on that day, the prima facie case made by the defendant, through his deed, was gone.
    The tax title fails if proceedings are defective in any one particular. Cooley on Taxation, 324; Kellogg v. McLaughlin, 8 Ohio, 114.
    As to there being no reply to the fourth defense.
    
      It will be observed that the record also shows that, at the trial in the Common Pleas Court, both parties introduced testimony, and tried the case precisely as if the reply had contained a specific denial of the allegations in the answer of possession.
    No objection was then made, by either party, to the introduction of this testimony, nor were any exceptions taken at any time by the defendant below; nor was there any assignment of error in the District Court affecting this omission. Now is the first time the question has been, in any manner, raised.
    To show that the reply was unnecessary, we would refer to the following decisions: Corry v. Campbell, 25 Ohio St. 134; Wintermute v. Montgomery, 11 Ohio St. 442 (dictum, p. 444). But, if necessary, the objection is now made too late. Booth v. Shepard, 8 Ohio St. 243; Randall v. Turner, 17 Ohio St. 262; Davis v. Hines, 6 Ohio St. 473.
   Day, J.

There is no dispute but that the title of Sloan was good, unless Woodward had acquired a superior title under the tax sale and possession under it.

Two questions are presented: 1. Was the deed executed in pursuance of the tax sale a valid one? 2. If not, Was the action barred by the possession under Ihe tax title ?

By virtue of the statute then in force, the auditor’s deed of lands forfeited for taxes was prima facie evidence of title, and may be given in evidence without any preliminary proof. Turney v. Yeoman, 14 Ohio, 208. The effect of the statute is to change the burden of proof, which before rested upon the purchaser, and easts it upon the party who would contest the sale, to show in what particular the proceedings on which it is founded are incorrect. Cooley on Taxation, 355.

The deed must recite enough of the proceedings to show an authority to sell the laud, and to authorize the officer to make the deed. Cooley on Taxation, 353, 362 ; Blackwell on Tax Titles, *368. To comply with this requisition, it is recited in the deed, that the land was forfeited to the state for the non-payment of taxes on the second. Monday of January, 1848, when it was offered for sale, and not sold for want of bidders ; and that in. December, 1849, it was sold to the assignor of the grantee of the deed.

The validity of the deed is assailed on the ground that there was no legal forfeiture of the land in 1848, as recited in the deed.

Lands can not be claimed as forfeited to the state for nonpayment of taxes without a strict compliance with the statute authorizing the forfeiture. Cooley on Taxation, 324.

Under the statutes then in force, no land could'be legally forfeited unless offered for sale ; none offered for sale unless advertised; none advertised unless contained in the auditor’s sale list; and none contained in the sale list unless returned in the delinquent list of the county treasurer.

It appears in evidence, that “ the delinquent sale list of January, 1848, did not contain a description of the land in controversy consequently, the land could not have been advertised and offered for sale in January, 1848, and could not, therefore, have been legally forfeited to the state.*

The prima fade case made by the auditor’s deed was, then, overcome by the evidence,- and the title purporting to be conveyed thereby failed.

Was the action barred by the possession under the tax title? To constitute the bar, there must have been seven years’ possession. The Court of Common Pleas found that the evidence did not satisfactorily show possession under the tax title that period of time. It is only necessary for us to say that, upon a careful examination of the evidence, we do not, as a reviewing court, feel authorized to disturb the finding of the court below.

The answer setting up the seven years’ possession does not appear to have been denied by the reply, and it is now, for the first time, so far as shown by the record, insisted that the answer must be taken as true, although the record shows that the case was tried and evidence admitted without objection or exception, as if issue had been taken on that answer. After judgment, in such a state of the case, it is reasonable to presume that the reply is lost, or that it was waived. It is too late, after the judgment of the Common Pleas has been affirmed by the District Court, to make the question of error for the first time after the case has come in review in the Supreme Court. Randall v. Turner, 17 Ohio St. 262; Clements v. Moore, 6 Wall. 299; Fretz v. Stover, 22 Wall. 198.

The cases of Ann McWilliams and of Andrew Lighter against Sloan were submitted with the case just considered, and present substantially the same questions, except that relating to seven years’ possession under the tax title, relied on in that case. This defense was not insisted on in these cases.

The deeds in these cases recite a forfeiture of the land in January, 1847, and a reforfeiture in January, 1849. It was admitted on the trial, that “ the delinquent sale list of January, 1847, did not contain a description of the lands in ■controversy,” and so far falls within what we have said in relation to the deed to the grantor of Woodward. As to the reforfeiture of 1849, it is only necessary to say that if -there was no legal forfeiture in 1847, there was no statutory .ground for a reforfeiture in 1849.

It follows that the judgment of the courts below in each •of these cases must be affirmed.

Scott, Chief Judge, Wright, Johnson, and Ashburn, JJ., -concurred.  