
    Stambaugh v. Carlin.
    1. Section 27 of the act of March 23, 18á0 (1 Curwen, 630), required the treasurer to “testify to the correctness” of the list of lands which were actually delinquent for the non-payment of the taxes charged thereon; henee, a verification that “the foregoing is a correct list of lands and town lots returned delinquent for the non-payment of taxes charged thereon,” is not a compliance with the statute; and a sale of lands, made in pursuance of such list, so verified, is unauthorized and void.
    2. “Where a list of lands returned delinquent, under said act, contained no marginal or other note of the reasons assigned by the treasurer why the taxes on said lands could not be collected, such return was invalid, and' did not authorize a return of the lands as delinquent for the non-payment of the taxes charged thereon.
    3. The act of May 7, 1869, “to improve the law of evidence concerning-the titles of real estate ” (66 Ohio L. 338) has no application, unless it. appears, among other things, that the land sold for taxes was, “ from and after said sale,” placed and continued on the duplicate, in the name of the purchaser, or those claiming under him.
    Error reserved in the District Court of Wood county.
    The original action was brought by the plaintiff in error to recover the possession of the south half of the northwest quarter of section 21, town 4, north of range 10, east, situate in Wood county. A jury was waived, and the cause tried to the court. Erom a bill of exceptions taken at the trial, setting out all the testimony, it appears that the plaintiff's title was derived-from a conveyance to him by Chai’les Baker, dated May 20, 1874. Baker bought the land from the government in 1835, and received his patent therefor on the 18th day of April, 1837.
    The defendant purchased the land from Emeline A. Wadsworth, on the 8th day of August, 1871, and immediately went into possession, the land being unimproved, and wholly unoccupied up to that date.
    Mrs. Wadsworth traced her title to a delinquent tax sale of the land made to her deceased husband, Wm..W. Wads-worth, in 1842, for the taxes of that year, and the delinquent taxes, interest, and penalty of 1841. The auditor’s deed was dated November 25, 1846.
    It was admitted by both parties, that the land in question was, in the year 1842, taxed on the duplicate of Wood county, Ohio, in the name of Charles Baker, and so continued to be taxed in his name until the year 1846, when it was transferred to the name of Wm. W. Wadsworth, and taxed in his name up to the year 1871, and from said time has been taxed in the name of Squire Carlin. It was further admitted by both parties that said William W. Wads-worth and the representatives of his estate paid all taxes assessed on the land from the year 1846 to 1871, and that Squire Carlin has paid all taxes assessed on said land from and including the year 1871, to the present time, and that all the tax receipts from and including the year 1846 to 1871 were to William W. Wadsworth, and in his name.
    
      It was admitted by plaintiff', that all tbe tax proceedings whereon said tax deed to William W. Wadsworth was founded, were regular and in all respects according to law, except the return of the treasurer of Wood county, Ohio, of the delinquent taxes of the year 1841, made in January, 1842, and his verification of the same.
    And the defendant, to show the regularity of the same, introduced a copy of said treasurer’s return, which is in the words and figures following, viz: The following is a list of lands and town lots in Wood county, Ohio, returned delinquent for the non-payment of taxes charged thereon for the year 1841, by John Bates, treasurer of said county, to-wit:
    
      
    
    
      The State of Ohio, Wood county, ss.
    
    I, John Bates, treasurer of said county, do solemnly swear that the foregoing is a correct list of lands and town lots returned delinquent for the non-payment of taxes charged thereon as therein stated and set forth for the year 1841, and that good reasons exist for returning the same delinquent.
    
      {Signed) John Bates, Treasurer.
    
    Subscribed and sworn to before me, this 3d day of January, A. d. 1842.
    Addison Smith, Auditor of Wood county.
    
    Evidence was also introduced from which the court may have found, that at the time the plaintiff purchased the land from Baker, he had knowledge of the tax sale and of the payment of the taxes on the land by Wadsworth and those claiming under him, from the date of the tax deed; and also that he had knowledge that from the date of said tax sale, they had openly and notoriously claimed title to the premises. Whereupon it was claimed, by virtue of the act of May 7,1869, to improve the law of evidence concerning the titles of real estate (66 Ohio L. 338), that such facts, as against the plaintiff, constituted conclusive proof of adverse ¡sossession of said premises, in the defendant and those under whom he claimed, for a period of more than twenty-one years previous to the date of the plaintiff’s purchase from Baker.
    The act reads as follows :
    “ Section 1. Be it enacted, etc., That in all cases where unoccupied or unimproved real estate has been or shall be sold at any tax sale in this state, and the purchaser thereof has received, or shall receive a deed therefor, and said real estate has been or shall, from and after said sale, be placed upon the tax duplicate of the proper county, in the name of said purchaser or those claiming title under him, and be so continued upon said duplicate, and said purchaser or those claiming under him, shall from and after said sale, openly and notoriously claim the title and ownership of said real estate and pay the taxes thereon from and after said sale, the same shall, as against any title acquired by deed executed after such tax sale, be held and deemed in all cases, in all courts, as prima facie proof of the possession of said real estate by said purchaser or those holding under said purchaser, from and after the date of said sale, until the said sale has been or shall be set aside in a civil action or suit, in a court of competent jurisdiction, or has been redeemed according to the laws of this state; and as to all persons acquiring title by deed executed after such tax sale, having knowledge of said sale and the payment of taxes and claims of title and ownership as aforesaid, said facts aforesaid shall be taken as conclusive proof of such possession, and be so held by all courts in this state in all cases.”
    “ Sec. 2. This act shall be in force from and after its passage, and its provisions shall apply to all tax sales heretofore or hereafter made in this state.”
    It did not appear who paid the taxes for the years 1843, 1844, and 1845. Baker, however, testified that he did not. The court gave judgment for the defendant.
    it is assigned for error that the court improperly overruled a motion for a new trial, on the ground that the finding and judgment were not sustained by sufficient evidence.
    
      Clayton W. Everett, for plaintiff in error:
    I. The tax title was invalid, in that the return is invalid for, First, the treasurer does not in his verification to said return state that the taxes are unpaid, or that the land is actually delinquent for the taxes of 1841; nor is there such a statement in any part of the return. The verification is simply — “ That the foregoing is a correct list of lands . . . returned delinquent.” The only statement being, that the lands in the list are the same lands returned delinquent by the treasurer. In short, the auditor correctly copied onto the list the lands the treasurer returned delinquent on his duplicate. He should have stated the lands retui’ned were actually delinquent for the taxes charged against them. The statute governing this return is section 27 of the act of March 23,1840: Statutes of 1841 (edited by Swan), page 111. This section, so far as this point is concerned, is the same as section 30 of the act of February 8, 1820 (2 Chase, 1106.) Under this statute of 1820 arose the case of Skinner v. Brown, 17 Ohio St. 33. The verification in this particular is the same in said case as in the case at bar, and this court held the verification insufficient. Second, because the treasurer did not give any reason for returning the lands delinquent. Swan’s Statutes of 1841, p. 111. Third, this return does not state what taxes are delinquent on those lands.
    II. The statute of 1869 (66 Ohio L. 338) does not apply to this case. There is no proof that Wadsworth paid the taxes for the years 1843, 1844, and 1845, and it is expressly admitted (see page 16 of the record), that the land remained in Baker’s name until some time in the year 1846, being for four years after the tax sale. In these two particulars the evidence of defendant fails. The statute expressly requires the payment of taxes and the land to be transferred on the duplicate and continued “from and after” the tax sale. The failure of one year is fatal. Irving v. Brownell, 11 Ill. 402; 1 S. & C. 107, § 47.
    
      Hollenbacks, for defendant in error:
    1. A tax title is valid where there is a compliance with the requisites of the statute. 2 Washburn on Real Prop. 545; 10 Cal. 589; 13 Cal. 609. All the requirements of the statute were complied with in this case. The case of Skinner v. Brown, 17 Ohio St. 33, differs from this in this, the present case was required to be made under oath and was so made. In that ease the oath was also required but was not made.
    2. The defendant claims title to the premises by reason of twenty-one years continued possession previous to the commencement of this action. Act of May 7, 1869, 66 Ohio L. 338.
    
      R. P. Ranney, also for defendant in error:
   Boynton, J.

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

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

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

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

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

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

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

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

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

Judgment reversed, and cause remanded for a new trial.

Okey, J"., dissents.  