
    Jacob Turney v. Walter Yeoman and others.
    An auditor’s deed for forfeited land, sold under the act of March 14, 1831, is priina facie evidence of title, and may he given in evidence, without any preliminary proof.
    The statute throws upon the person seeking to avoid the deed, hurdon of showing that the proceedings, prior to its execution, were illegal.
    This is a bill in chancery, reserved in the county of Fayette.
    The bill avers title to. 333 acres, the undivided third part of survey No. 988, pátented to Hector McNeil and Joseph and ^Robert Watkins, by virtue of a sale and deed from the auditor of Fayette courfty, under the act of 1831, and the acts ( supplementary thereto ; that Yeoman and others claim said land; that Yeoman claims under a conveyance from Lyne Starling, and prays that their titles may bo discovered and litigated, and prays partition and general relief.
    Yeoman has answered, setting up his title under Starling; that partition has been made between the several proprietors; that he has occupied his share in severalty, and made thereon lasting and valuable improvements, and denying the legality of the forfeiture and sale for the non-payment of taxes.
    To this a replication was filed.
    
      Testimony was taken, and on the trial of the cause the complainant offered in evidence the auditor’s deed, executed in due form, and reciting the forfeiture to the state for the non-payment of taxes which had accrued thereon, the advertising and exposing to sale, the sale and purchase by the highest bidder, at the courthouse, on July 8, 1833, being the time and place advertised; the payment of the purchase money, and the production, at the date of the deed, January 26, 1837, of the auditor’s certificate of sale, etc.
    To the introduction of this deed objection was made, and the action was reserved for decision in this court.
    Thurman and Sheror, for the complainant:
    The decision of this question depends on the construction of the act of 1831, above cited. Section 6 of that act provides, “ That the county auditor shall, on the purchaser or purchasers, his or their heirs, assignee or assignees, paying to him the sum of one dollar and twenty-five cents, execute and deliver to such purchaser or purchasers, his or their heirs, assignee or assignees, a deed therefor (id est, the land sold) in due form, which deed shall be prima facie evidence of tifie, in the purchaser or purchasers,” etc.
    Section 7 provides, “ That any person or persons claiming any land, in-lot, out-lot, or part of a lot, by virtue of any sales made by the provisions of this act, as tenants in common *with any other person or persons, may apply for partition of the same, in the same manner as now is or may be provided for the partition of real estate ; and on presenting the county auditor’s deed, the court, before whom application for partition, as aforesaid, is made, shall set off to such person or persons the land claimed in said deed as his or their share, in the same manner as prescribed by law for the partition of estates in lands, tenements, or hereditaments of joint tenants, tenants in common, and coparceners.”
    These two sections would seem to be almost as plain as language can be. The former declares that the deed “ shall be prima• facie evidence of title;" and the latter enacts, that, on presentation of the deed, the court shall order partition. Nothing else is required to be presented. The statement of what the petitioner-shall produce, excludes the idea that he shall be bound to produce; anything else. And the language is direct, unambiguous, and express, that, upon his presenting the deed, the court shall order/ partition. It follows that he is not required to adduce the preliminary proof demanded by the defendant.
    But it will be said, on behalf of the defendant, that, in Car-lisle’s Lessee v. Longworth, 5 Ohio, 368, this court decided that such preliminary proof was necessary.
    We reply, that that case is not in point; that the sale to Car-lisle was made under the act of 1825, for the sale of delinquent lands; that no decision has been made by this court that a deed made under the act of 1831, aforesaid, requires to be supported by preliminary proofs; that the question in the present case is, therefore, an open one; that the two acts are widely different; and that the decision for which we contend, will not conflict with that in Carlisle v. Longworth.
    The act of 1825 provides for the making of a list of delinquent lands, advertising the same, recording the advertisement, selling the lands, giving a certificate to the purchaser, recording the sale, and executing a deed; and then provides that “ the deed made by the county auditor, as hereinbefore specified, *shall be received in all courts as prima facie evidence of a good and valid title in the purchaser.” See sec. 9 of act of 1825.
    Now, it was upon the construction that the court gave to these words, “ as hereinbefore specified,” that the decision, in Carlisle v. Longworth, was made. They were construed to relate not only to the execution of the deed, but also to the steps precedent thereto. And that decision rests on that construction of these words. See the opinion of the court, and particularly on page 374.
    But in the act of 1831, under consideration, there are no such words, or any equivalent thereto. The language is, “which deed shall beprima facie evidence of title ?” It is not said, “ which deed, made as hereinbefore specified, shall be,” etc. There are no such words as those, or their equivalent, in the section.
    The whole foundation, then, on which the decision, in Carlisle v. Longworth, is based, is wanting in the present case.
    And not only is it wanting', but there is (what is equally conclusive with the want of it) 1he positive, unequivocal provision of section 7, that) on presentation of the deed, the court shall order partition.
    And here it is worthy of remark, that the legislature might well make a distinction between delinquent and forfeited sales, and require more proof of the tax purchaser in the former than in the latter case. In the case .of mere delinquencies, the arrears of taxes are for two years only. The transactions preceding the sale are recent, and the records are at hand and easily produced by the purchaser. But with forfeited sales the case is quite different. The arrears are for a greater period; and, in the first sales made under the act of 1831, they were for a long series of years, and had accrued under various systems of taxation. The neglect of the owners of the lands to discharge them, had become most gross and inexcusable, and the efforts of the state to realize her dues had therefore been unavailing, owing to the universal want of confidence in tax titles. Under *tbese circumstances, it was apparent that there would be few purchasers at tax sales, and that the sales that might take place would not pay the taxes due the state, unless made under such provisions of law as should give the buyer some reason to hope that he had obtained something by his purchase. Hence the act of 1831, which, makes the deed of the auditor prima facie evidence of title, leaving to whoever may contest its validity the right to impeach it. This is as it should be. The owner of land has no reason to complain, if, after neglecting to pay his tax for years, suffering his land to become forfeited, imposing on the state the trouble and expense incident to the listing, delinquency, forfeiture, and sale of the land; the deed, derived under the authority of the state, from a sworn and disinterested officer, should be regarded as prima facie evidence of title, and such as to require whoever contests it to point out the defects in the title, if any exist — the records of the county being open to him for that purpose.
    John L. Green, for the defendant, Yeoman:
    The court will keep in view that this is a suit in chancery; not a proceeding for partition under the statute. The consequences are, we think, most material. In this case the title, and all the steps preliminary thereto, are put in issue. Not merely the due form and execution of complainant’s deed. These questions are raised and must be settled by the final decree which shall be rendered. A proceeding in partition settles nothing but an equal division of the land among those claiming in common. It is not a litigated suit, in which the rights of parties are finally adjudicated. The order of partition merely assigns a portion of the land to satisfy the claim of the petitioner, if he has any that he can maintain in a case proper to try the right. Indeed, had the complainant in this case resorted to the statutory proceeding for partition, the only persons 'to be made parties would have been those holding the Mother two-thirds of the survey, as tenants in common with him. The order of partition, then, made in such a case, would have been no bar to either of the other tenants in common, who might subsequently have become the owner of the third claimed bjr the petitioner. In such a state of case, the view of complainant’s counsel may be correct. But they recite so much of section 6 of the act of 1831, as relates to the making of the deed by the county auditor, and so much of section 7 of the same act as declares that, on the petitioner for partition presenting the auditor’s deed, the court shall order partition, etc.; and they argue that, from these provisions, it is apparent that it was the intention of the legislature to make the presentation of the deed, in all cases, sufficient to throw the burden of proving irregularities in the previous proceedings, on the party seeking to impeach it. Here, then, is the error into which they have fallen: In treating this as if it were a statutory proceeding, or in supposing that the same measure of proof as would be sufficient in such a case, will be sufficient in this.
    We invite the attention of the court particularly to the case made; and the averments of the bill. Complainant claims title to the land in controversy, by virtue of an auditor’s deed, and undertakes to show how, by what authority, that deed is made. He avers that the said 333 acres, the undivided one-third of the said Hector McNeil, became and was duly forfeited to the State of Ohio, for the non-payment of taxes, agreeably to the laws thereof and this is denied by the answer and the proof called for. What is the extent of this averment ? Does it amount to nothing more than (what we admit would have been sufficient) that he claims title under and by virtue of a deed, duly executed from the auditor? Surely it does. It is a distinct affirmative averment,''in effect, that the land had been regularly listed by a proper and sufficient description for taxation ; that it became regularly delinquent for the non-payment of the taxes regularly assessed; that it was regularly advertised and offered for sale, and-was returned not sold for the *want of bidders; that it thus became regularly forfeited to the state; that it was regularly reported by the auditor of state to the county auditor, and by the latter regularly advertised and sold, agreeably to the laws of the state. If he has, then, thought proper to so frame his title as to assume the affirmative of all these propositions, and issue is taken upon them all, must he not, according to all the rules of pleading and evidence, take the burden of proving them? Had he simply averred the auditor’s deed as the evidence of his title, and the defendant had set up the illegality of all or any of the preliminary proceedings to defeat it, there might be some plausibility in the argument of counsel, that the proof should dome from the party setting up these matters, to impeach the deed; provided what they claim to be the true construction of the law, as to the effect of the deed as evidence, be correct.
    But, we think, independently of the rule of evidence applicable to the case as made, on which we rely as decisive, the counsel for the complainant are wrong in the construction of the law, as they contend for it. There is nothing to take this case out of the rules of construction, as laid down and established by the court, in the ease of Carlisle’s Lessee v. Longworth, to which they have referred the court. There is no substantial difference in the language of the two statutes (that of February 1,1825, and of March 1, 1831).
    An attempt is made to distinguish the case referred to from this, on several grounds. It is said that was the ease of a sale of. delinquent lands — this of forfeited lands. There is nothing in this. Both may work a loss of a party’s land. In the one case a sale is made, and consequently the land does not become forfeited to the state; in the other case, it does become forfeited, because there was no sale. The land in this case, it is said, became forfeited for a delinquency, for the years 1823, 1824, 1825. We all know how many errors intervened in ascertaining or attempting to ascertain what lands remained forfeited. How many sales, made under the act of March, 1831, have been held void, because the proprietors had long before released *the forfeiture by paying up the taxes in arrear. If a rigid rule is to be applied to the ono class of cases more than the other, there is certainly no good reason why those under the forfeited sales should be preferred to bear the burden. There is in truth no difference in principle, and certainly none as to the consequences to the proprietor.
    But, again, it is said that the phraseology of the act of 1825, under which the case of Carlisle’s Lessee v. Longworth was decided, is essentially different from that of the act of March, 1831; and hence the reasoning of the court in that case will not apply to this. A comparison of those provisions in the two acts bearing upon this question will, we think, show clearly that there is substantially no discrepancy. Much stress is laid by the counsel, as governing the court in their opinion in that case, on the words in the act of 1825, “ the deed made by the county auditor, as herein-before specified.” It is true that these precise words are not copied literally into the act of March, 1831; but, we think, the words in section 6 of that act, “ which deed,” are equivalent. It is also true that Judge Hitchcock does quote those words, but they do not govern the case ; that is, the case is not made to rest solely upon those words. The opinion is based as well upon the general rules of law and evidence. It is said, “the court will not sustain a sale, unless the proceedings have been regular; nor can they decide in favor of a title, unless that title is sustained by competent evidence. The mere circumstance that it is derived from a tax sale, secures it no peculiar favor. It must, notwithstanding this, be subject to the. general rules of law and evidence.”
    A county auditor’s deed is of no higher dignity, and entitled to no more favor, than a sheriff’s deed, made on a sale under execution. The language of the act regulating judgments and executions, is certainly as strong as that of the act of March, 1831. Section 16 of the judgment and execution law (Swan’s Laws, 475) provides, “which deed (the sheriff’s deed) shall be prima facie evidence of the legality of such sale, and of the proceedings thereon, until the contrary *is proved, etc.” Yet this court have held,time and again, that a sheriff’s deed must be accompaned by proof, showing that the sheriff* had authority to sell; and, for this purpose, the party relying upon such deed, must show a judgment, levy, and sale, made in pursuance of the’law.
    Can any good reason be assigned why a party, claiming under a tax deed, should not be required to adduce the proof necessary to show that the auditor had power to make it, as well as in the case of judicial sales? The latter is a class more highly favored than the former. There is certainly no good reason, unless it can be found in the imperative mandate of the legislature. Whatever may be addressed to the court, on the necessity of “ collecting the revenue,” and “ the universal want of confidence in tax sales,” they will not, we presume, be disposed, for these reasons, to favor a party, unless so commanded by law, who is seeking, in the language of Judge Pease, “to get acres for cents," in a higher degree than he who claims in virtue of any of those numerous classes of judicial sales, and who has paid what the law considers a fair equivalent for what he seeks.
    R. Douglass submitted an argument for the complainant, in reply.*
   Birchard, J.

The objection to the introduction of this deed presents a new and interesting question. One that merited all the attention it has received from counsel, and all that we have been able to devote to it. It requires, at our hands, a construction of portions of the act of March 14, 1831 (Swan, 927), and of the act of January 21, 1833. 31 Stat. 20.

Section 1 of the act of 1831 provides for the sale of lands which had become forfeited to the state, for the non-payment of taxes prior to January 1, 1831, and all lands that might thereafter become forfeited; declaring that they “ shall be sold and disposed of by the State .of Ohio, agreeably to the provisions of this act.”

^Section 2 requires the auditor of state to enter all lands forfeited prior to 1831 in a book.

Section 3 requires him to transmit to each county auditor, at the time he transmitted the county duplicate for 1831, a list, under his hand and seal, of the forfeited lands lying in such county, setting forth the names of the persons to whom such lands stood charged with taxes, specifying the amount for each year, with the year 1831, and for what years.

Section 4 provides that the county auditor, on receiving such list, the tax, etc., remaining unpaid on October 15, 1834, shall forthwith advertise a sale to be holden on the second Monday of December thereafter, at the court-house, etc., and, at the day of sale, the tax still remaining unpaid, the land shall be sold in separate tracts, in consecutive order, to the highest bidder.

Section 6, so far as applicable to the question, reads thus: “ That the county auditor in each county, on a sale being made by him, of a tract of land to any person or persons, under this act, shall give to such purchaser or purchasers, a certificate of such sale.” . . . “On producing or returning to the county auditor the certificate of sale, when the said tract sold is an entire original tract, or when the said tract so sold is holden in common with any other person or persons.” . . . “ The county auditor shall, on the purchaser or purchasers, his or their heirs, assignee or assignees, paying to him the sum of $1.25, execute and deliver to such purchaser or purchasers, his or their heirs, assignee or assignees, a deed therelor, in due form; which deed shall be prima facie evidence of title in the purchaser,” etc.

Then follows the proviso, that persons under disability may redeem ; and the further proviso, that the sale shall be void, and purchase money be refunded from the state treasury, when the taxes shall be regularly paid previous to the sale.

Section 7 declares, “ that any person or persons claiming any land, etc., by virtue of any sale made by the provisions of this act, as tenant in common with any other person or ^persons, may apply for partition of the same, in the same manner as is now, or hereafter may be provided, for the partition of real estate; and, on presenting the county auditor’s‘deed, the court before whom application for partition, as aforesaid, is made, shall set off to such person or persons, the land claimed in said deed, as his or their share,” etc. The act of January 24, 1833, changed the day of sale from the second Monday in December to the second Monday in July, and is no further applicable to .the question before us. Having shown how the written law reads, we are prepared to consider the objection that is made to the introduction of the deed, which is, that it is no evidence of title by itself, without preliminary proof showing the regularity of the proceedings recited in the deed, and required by the statute. The objection would seem to be only a contest between the parties, to shift from one to the other the burden of proof. To try whether the plaintiff shall take the onuftkof showing the regularity of the sale, and all the preliminary steps preparatory thereto, or whether the person seeking to avoid the deed, shall be required to produce the proof manifesting its defects.

No one can doubt for a moment the power of the legislature to cast the burden upon either party. They could say that the one should bear it and the other be relieved from it. If they saw proper to cast it upon the respondent, it is not our province to relieve him or to gainsay the propriety of the act. The respondent’s counsel think they have not done so; and whether or not he is mistaken, is the inquiry we have to make.

Suppose we take up the act, allow it to speak for itself, and consider its force, divested of all extraneous influences. It speaks thus: “ Which deed shall be prima eacie evidence of title in the purchaser.” Would any one capable of feeling the force of the English language, hesitate as to the meaning of this sentence ? Above all, would he come to a conclusion that the deed is no evidence at all? Some things are so clear, that an attempt to make them more clear, tends only to obscurity. This, I take it, is one of them. There is no obscurity about it. *The language of the seventh section is equally certain : “ And, on presenting the county auditor's deed, the court shall set off,” etc. This language is precise, express, direct, and such as admits of no doubt. It makes the deed, while unimpoached, evidence — evidence, in and of itself, without any other proof. But it is supposed that, however else the meaning of these words of the statute may be, when tested by their ordinary acceptation; yet, in a judicial sense, they as clearly mean something more than is said. This deserves consideration. When particular words and phrases have in law acquired a fixed legal signification, and are thus incorporated into a statute, the legal presumption is, that the legislature meant'to use them in this legal sense. The rule is undoubted. But these words are not of that class. Nothing like them is to be found in any previous statute. Indeed, in looking into the former legislation upon the subject of taxes and tax titles, one would almost be led to believe that, for many years, a continual struggle bad been kept up between different branches of government. The courts, on one hand, trying to avoid them, upon the notion that they took acres for cents, and were not to be favored; and the legislature, on the other, striving to make them good, and thus prevent the public treasury from becoming bankrupt, by the use of language direct clear and mandatory, as their capacity would enable them to command. Any such conclusion would bo doubtless erroneous.. Certainly it would, so far as this court is concerned. There is no member of it that does not feel and has not felt the necessity of sustaining tax titles, whenever they were susceptible of support, as well for the interest of the state, as for the protection of landholders. As well to enable the former to compel each individual to bear his just proportion of the expenses of government, as to prevent the property of the other from being sacrificed, by sale of many acres to pay a small tax, for want of competition, and on the supposition that the title would be worthless.

The eaáe of Carlisle’s Lessee v. Longworth, 5 Ohio, 368, has been cited to sustain this objection.

*It is true, in that case, an auditor’s deed was held not to be evidence of a good and valid title, until it was first shown by the purchaser that the lands had been duly advertised and sold for taxes; and that the person in whose name the lands were sold, had the title. But the deed which was involved in that investiga,tion was made under a different statute — the act of 1825. A critical examination will show that act to have been drawn with less care than this, and consequently its meaning was more obscure. The words of sections 6, 7, and 8, of the act of 1825, declare that the deeds of the land purchased under it should convey to the purchaser a good title in law and equity. Section 9 also declared, “ the deed made by the county auditor, as hereinbefore specified, shall be received in all courts as prima facie evidence of a good and valid title.” It was upon the peculiar wording of the act that the majority of the court held the preliminary proof necessary. The deed was evidence under that statute, when made pursuant to its provisions. To enable the court to say that the provisions of the statute had been pursued, it became necessary that they should know what had been done. Such was the reasoning of the court. Indeed, a remark in the opinion shows that, to the language used in the act of 1831, a different construction would have been given. “ The legislature (says the judge in delivering the opinion) do not say that a deed, made by the county auditor, shall be received as prima facie evidence of a good and valid title, but the deed, as hereinbefore specified. In other words, the deed made by the auditor, in pursuance of the act.” Now, in the act of 1831, the legislature has said, in substance, a deed, etc., for which deed, connected as it is with the remainder of the sentence, is in effect the same thing as a deed; so far from being an authority against this construction, if the argument be carefully considered, the case in 5 Ohio will be found to support it.

Cause certified to the circuit and continued for further proceedings.  