
    Lewisburg.
    Jesse v. Preston. Keith v. Preston.
    (Absent Brooke, J.)
    1. The deed of the collector made under the act of Congress of the 9th of January 1815, imposing direct taxes, does not furnish prima fade evidence of the regularity of the collector’s proceedings, though the recitals in the deed state specifically all the proceedings which the law requires to be had to make the sale of the land conveyed by the deed legal, and also recites that all these proceedings had been had.
    2. A party claiming title under a deed from the collector of the U. S. for land sold for the direct tax, must shew that every thing was done which the law required to be done before making the sale.
    3. The deposition of the collector in general terms, that the sale was made in exact pursuance of the act of Congress, without specifying what was done, is not proper evidence of the fact.
    
      Evidence of the various proceedings required by law before the sale was made should be adduced, to enable the Court to determine upon the facts so proved, whether the authority to sell was properly exercised in the particular case.
    
      Sarah B. Preston, who sued for the benefit of S. Gose, brought a writ of right in the Circuit Court of Russell against Archer Jesse. On the trial of the mise, the demandant, to support the issue on her part, introduced the deed of William D. Taylor to Bernard Peyton, which had been duly proved and recorded, and which purported to be the deed of the collector of the direct taxes of the United States, for the eighteenth collection district of Virginia, designated collector for the State of Virginia by the secretary of the treasury. The recitals in this deed referred to | he acts of Congress under which the collector acted, and stated specifically all the proceedings which the acts of Congress required to be done to make the sale of the land conveyed by the deed legal, and that all these proceedings had been had.
    The demandant also offered in evidence in connexion with said deed, two depositions of William D. Taylor. In them he states that he was collector of the direct taxes of the United States for the 18th collection district, and designated collector thereof for the State of Virginia; and in that character, on the 23d of October 1820, he exposed to sale, by public auction, at (he Eagle hotel in the City of Richmond, for a delinquency in the payment of the direct tax for the year 1816, amongst other lands, a tract of land in the county of Russell assessed in the name of Call MA1 Gregor, of 97,234 acres, upon which the amount due for the said taxes of IS 16, was 22 dollars 94 cents, amounting with the legal additions, to 27 dollars 53 cents, and that Bernard Peyton became the purchaser thereof. That the said sale was made in exact pursuance of the acts of Congress in relation thereto, having been first duly advertised once a week for eight weeks previous to the sale.
    
      To the introduction of the deed and the depositions, the tenant objected, but the Court overruled his objection, and he excepted.
    In the case of Keith against Preston, a similar deed and deposition were offered in evidence, and also the deposition of Thomas Ritchie, that the sale of the land had been regularly advertised in the Richmond Enquirer. To this evidence, the tenant objected, but his objection was overruled by the Court, and he excepted.
    There were other exceptions taken by the tendnt, but they were not considered in this Court, and therefore need not be stated.
    The jury found verdicts for the demandant in both cases, and there were judgments accordingly, from which each of the tenants applied to this Court for a supersedeas, which was granted.
    The causes were argued in writing by G. N. Johnson, for the appellants, and J. W. Sheffey, for the appellee.
    For the appellant:
    The principal question arises under the first bill of exceptions, from which it appears that the Court permitted the demandant to give in evidence and rely upon the recitals in the deed from William D. Taylor, and his two depositions, as competent and sufficient evidence, without other aid, of the regularity of the sale for taxes, and the validity of the conveyance under that sale.
    It has always heretofore been held that a party claiming under a tax sale and conveyance, and relying upon it as an essential link in his chain of title, was bound to prove with the utmost strictness, and at any distance of time, (except when such questions were quieted by adverse possession and the statute of limitations,) the exact performance of all the matters required by the statute in relation to the sale, and its preliminaries; especially the appointment of the sheriff or collector, or his deputy, the due assessment of the land with taxes, the amount of the tax due, the return of the land delinquent, the regular advertisement, &c.; and that as all these matters depended upon written or registered evidence, such written evidence must be preserved and produced at the trial by the party claiming under the tax sale; and that the recitals in the sheriff’s or collector’s deed do not furnish such evidence.
    These principles have been so often and uniformly adjudged as to have become a familiar part of the law of the land. Among the numerous decisions to the same effect, I refer to Rockbold v. Barnes, 3 Rand. 473; Nalle v. Fenwick, 4 Rand. 585; Allen, &c. v. Smith, 1 Leigh 231; Williams v. Peyton’s lessee, 4 Wheat. R. 77.
    These cases have laid down the above principles firmly, clearly, and without any manner of reservation or exception, with the single exception above noticed; so that they must be regarded as settled rules of evidence and canons of property.
    During the last fifty years, then, the decisions of our Courts have given notice to all parties interested, that the burden rests upon the purchaser at the tax sale, and those who claim under him, to preserve and be prepared with full and regular proof to sustain it; and these same decisions have consequently relieved all other persons from the burden of preserving and being prepared with proof to shew that it was irregular and invalid.
    The opinion of the Circuit Court of Russell is in direct conflict with these decisions and principles.
    Admitting, as the Court did, the necessity of proving the regular transmission of the title of M’Gregor the patentee, to Preston the demandant, who claimed under Peyton, the purchaser at the tax sale, yet it held, contrary to all authority, that the recitals in the deed of Taylor were evidence of the truth of the facts recited, and that the vague, general testimony of Taylor, who calls himself the collector, and says that he made the sale in pursuance of the act of Congress, is sufficient proof that every thing was done that ought to have been ¿one>
    That the recitals in the deed are not evidence of the facts recited, has been expressly decided in the cases above referred to.
    As to the testimony of William D. Taylor, the collector, who made the sale, to take his general assertion that the sale was made in pursuance of law, as proof that every thing was done, and rightly done, that ought to have been done, is to transfer the cause from the Courts to the judgment of Mr. Taylor the collector, who is interested to shew that he did his duty. His testimony, if admissible at all, shews only, that in his opinion he did his duty.
    
      Mr. Taylor, in his depositions, without telling us what he did, except that he says he advertised and sold the land, says in general terms, that the sales were made “in exact pursuance of the acts of Congress in relation thereto,” which of the several acts of Congress that relate to such sales he refers to, he does not inform us. At most he can be regarded as speaking only for himself, and in relation to his own acts, such as advertising and selling. Yet several other things were essential to the validity of the sale, in relation to which he furnishes no proof. Such as,
    1. That the land was duly assessed with taxes; which, we are told in Nalle v. Fenwick, 4 Rand. 585, can only be proved by producing the list of the assessors or commissioners.
    2. The amount of the tax due, to be proved by the commissioner’s books. Ibid.
    
    3. The return of the land delinquent by the collector for the district in which the lands lay. Act of Congress of 9th January 1815, 2 Story’s Laws U. S., p. 1464, $ 28.
    
      4. Proof that M’ Gregor was a non-resident of the 1st district, so as to give to Taylor, the collector of the 18th district, and “ designated” collector for the state, authority to sell this land lying in the 1st district, and to sell it without previously resorting to distress upon the personal property. (See <§> 26, 27, 28 and 29, of the . Same act.
    5. Evidence of the appointment of Taylor himself as collector of the 18th district, and designated collector of the state. Rockbold v. Barnes, 3 Rand. 473.
    Now the slightest examination of the acts of Congress, especially the act which principally governs this subject, (act of 9th January 1815, 2 Story’s Laws U. S., p. 1451, &c.,) shews that there was written and recorded evidence of almost all these matters, if they existed at all.
    Section 17, p. 1458, requires the tax lists to be recorded and preserved.
    Section 21, p. 1460, requires the apportionment of the tax, shewing the tax due upon each piece of land, to be recorded, and certified copies of it to be furnished to the collectors.
    Section 28, p. 1464, prescribes as to non-residents of the district, an advertisement that the tax is due. This advertisement is prior to, and independent of, the advertisement of the land for sale, and does not appear to have been ever made.
    As to the advertisement of sale itself, the law says it must be in every newspaper in the State, in which the public laws are published by authority. (Act of 3d March 1815, 2 Story’s Laws U. S., p. 1515, § 3.) The proof is, that advertisement was made in certain newspapers, without saying that they were all in which the laws were published.
    Again, we have only parol proof that any advertisement was made, while the cases tell us the advertisement itself must be produced, that we may see what advertisement was made. Nalle v. Fenwick, and Williams v. Peyton’s lessee, above cited.
    This is the more important, because, if the advertisement does not give a correct and sufficient description of the land, so that the owner and the public may know what and where it is, the advertisement and sale are void. Ronkendorff v. Taylor’s lessee, 4 Peters’ R. 349.
    But it seems to be supposed, that these old familiar rules about tax sales, have been repealed by the case of Robinett v. Preston, 4 Gratt. 141.
    That was not the case of a sale for taxes, but a sale under execution, in relation to which a different policy may well be supposed to prevail. But if it had been a sale for taxes, it would have been merely an instance of the exception above mentioned, recognized in the other cases above cited, viz. the case where long possession and the statute of limitations have protected the purchaser at the tax sale from enquiry into the regularity of the proceedings ; and the Court rests its decision on that ground chiefly, fortified by other circumstances, tending to shew that the sale was regular and lawful.
    If it be said that no one but the person in whose name the property stood on the tax books at the time it was sold, and those who claim under him, can question the validity of the sale, and call for proof of the regularity of the proceedings, it is answered, that no such exception to the general rules above laid down has ever been recognized by the decided cases, numerous as they are; and the reasons upon which the decisions are founded, as well as the decisions themselves, shew that such is not the law. In every case, and especially in every action at law, in which the question arises, no matter whether the action be between parties both claiming under the person in whose name the land was sold for taxes, or not, the question simply is, whether the title of the person who failed to pay the taxes, has been legally transmitted to the purchaser at the tax sale or not. And as the sheriff or collector is not a trustee, clothed with the title, but a mere agent, having but a narrow and limited authority, which must be strictly pursued, it is necessary, in every case, to shew that he had, under the circumstances, authority to sell, and that he has pursued that authority. The demandant, in every writ of right, must either shew a title gained by long possession under the statute of limitations, or he must regularly deduce his title from the Commonwealth, or from some one who is proved to have had title. If, in making that deduction, he relies upon the deed of some one who professes to convey as agent, the deed is worth nothing till the authority of that agent be shewn; and if the authority, when produced, appears to be only a conditional authority, to take effect upon the happening of certain events, or performance of certain acts, then it is manifestly essential for the demandant to prove that those events have happened, or those acts have been performed. The law does not require a party in possession, claiming, no matter under what title, to surrender possession to another, unless that other proves title; and if the plaintiff relies upon the title of some third person, he must of course prove that he has acquired the title of that person.
    In the cases of Christy v. Minor, 4 Munf. 431, and Rockbold v. Barnes, 3 Rand. 473, the defendants were allowed to call for strict proof of the regularity of the tax sales under which the plaintiffs claimed, although the defendants did not claim under the persons in whose names the lands were sold.
    For the appellee:
    1. The appointment of Taylor need not be shewn, he being an accredited public officer. 1 Bl. Com. 86, in note, (Chitty’s ed.;) 2 Tucker’s Com. 282.
    2. The recitals in the deed, after such a lapse of time, will be presumed to be true, and other proofs of the regularity of the proceedings dispensed with. Robinett v. Preston, 4 Gratt. 141; and the cases referred to by the attorney general, to whom I am indebted also for reference to a case not reported, of Leece and Keesee.
    
    3. If other proof than the recitals in the deed were required, the acts of the commissioner being matters in pais, may be proved by parol. After such a lapse of time, the evidence of Taylor is the only evidence that can be obtained of the regularity of his proceedings. In no case has it yet been decided that the testimony of the officer is not admissible to prove that his proceedings were regular. The cases cited, if now authority, only establish that the regularity of the proceedings by an officer clothed with a mere naked power, must be shewn, but by what sort of evidence has not been adjudged. But they are not now authority in this case. It is said that the best evidence must be produced, and that the evidence in this case is record and documentary evidence. Where is it ? Not a scrap perhaps preserved. The very best evidence which the case admits of is produced, that of the officer who made the-sale, and the deed. In his deed he recites his proceedings fully, clearly, accurately, and in his deposition proves that he proceeded in exact accordance with the acts of Congress. If this be not admissible evidence, in the absence of proof to impeach the regularity of the sale, then no purchaser at the sale can at this day protect his title. The occupants of the land under these sales are numerous. Many of them, doubtless, have purchased only the tax title, relying upon the validity of a public official act and of the deed of an accredited public functionary. Under these circumstances, and after such a lapse of time, the regularity of the proceedings ought to be presumed, if the officer was dead or had not testified ; and ought not to be questioned, where he has proved that he made the sale and the deed, and that he proceeded regularly. Surely this evidence is as reliable as the fugitive and perishable evidences of his proceedings, such as advertisements, sales, &c. The deed is prima facie evidence that all was done right till the contrary is made to appear; especially where the party, against whom the presumption operates, was not the party affected by the forfeiture. Here Jesse is not the original owner of the forfeited title, nor a claimant under Call M ’ Gregor, who was. No claimant under that title impeaches the regularity of the sale; and Jesse, and those under whom he pretends to claim, without any writing or title of any sort connected with or covering the land in controversy, were mere squatters.
    If the principle contended for be established, numerous bona fide actual settlers, under this very Call M’Gregor title, must be disturbed by infinite difficulties and endless litigation about their titles, which they had supposed were secure. I do not suppose that such a claim, or rather want of claim or colour of title to this land, as that set up by the tenant in this case, would incline the Court to let loose upon a community such a floodgate of litigation. Not only the claimants under this title, but all the claimants under all the sales for direct taxes would be startled, and must inevitably be harassed by the consequent litigation. I present this view, not that I suppose it can have any effect upon the Court in the determination of a mere legal question, but that, seeing the consequences, they may consider the case as of more importance than appears in this particular controversy.
   Allen, J.

In the case of Williams v. Peyton, 4 Wheat. R. 77, the Supreme Court of the United States decided that a deed of the marshal, made under the act of Congress of the 14th July 1798, imposing direct taxes, arid the act of March 3, 1804, did not furnish prima facie evidence that the land had been advertised, nor that the requisitions of the law had been complied with. That as the act of Congress contained no declaration that the conveyances shall be deemed prima, facie evidence of the validity of the sale, it was a naked power not coupled with an interest, and in all such cases ^g jaw reqUires that every prerequisite to the exercise of that power must precede its exercise. The authority of this decision, as expounding an act of Congress, was fully recognized and followed in the case of Allen v. Smith, 1 Leigh 231, where the validity of a deed made under the same laws came in question. It was there held that it is incumbent on a party claiming under a sale for said tax, to prove the regularity thereof; that the marshal’s deed is not even prima facie evidence of the regularity of the collector’s proceedings; nor shall the regularity thereof be presumed from twenty-two years quiet possession under the sale, or from any lime short of that from which any other link in the chain of title to real estate may be presumed. On the trial of the mise joined in the case under consideration, the demandants relied on a deed from William D. Taylor, collector of the direct taxes, for land sold for the direct tax imposed by the act of Congress of the 9th January 1815; and offered two depositions of said Taylor to prove in general terms that he had advertised the sale in the mode prescribed; that the sales were made in exact pursuance of the acts of Congress in relation thereto; and that he has no doubt he executed deeds for the same to the purchasers in regular forms.

If the recitals in the deed of the officer do not furnish even prima facie evidence of the regularity of the proceedings which led to the sale, much less would a mere vague statement by the officer, that the sales were made in exact pursuance of the acts of Congress, avail. In the case of Keith v. Preston, there was also adduced the evidence of the printer to prove that the sale was advertised, but this was only one of the preliminary steps to authorize a sale. Evidence of the various proceedings required by law before the sale was made, should be adduced to enable the Court to determine upon the facts so proved, whether the authority to sell was properly exercised in the particular case. A reference to the recitals of the deed and law, shew that many things were to be done by duly authorized officers, of whose acts and authority there must be written evidence, which should be produced. But nothing of the kind was offered. The case therefore falls within the influence of the principles decided in the cases referred to, and the Court should have rejected the deed as evidence, unless accompanied with evidence of the regularity of the proceedings preparatory to the sale.

The case of Robinett v. Preston, 4 Gratt. 141, has been relied on as authority for dispensing with such proof. That was a sale of land of a debtor by a sheriff under an execution. Actual possession had been held by the party claiming under the sale and sheriff’s deed, for a sufficient length of time to have barred a recovery by the original owner in a writ of right, if the possession could be deemed adverse to his title. There, to support the possession, the presumption of the regularity of the proceedings was properly allowed. In this case no such possession is shewn, and consequently no presumption can arise. I think the judgment should be reversed.

The other Judges concurred. Judgments reversed with costs, verdicts set aside, and new trials awarded.  